Elmer v. State

• Decision Date: 18 February 1999
• Docket Number: No. 31,31
• Citation: 353 Md. 1,724 A.2d 625
• Parties: David Allen ELMER v. STATE of Maryland.
• Court: Maryland Court of Appeals

724 A.2d 625

353 Md. 1

David Allen ELMER v. STATE of Maryland.

No. 31, Sept. Term, 1998.

Court of Appeals of Maryland.

February 18, 1999.

Julia Doyle Bernhardt, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Rachel Marblestone Kamins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER, and CATHELL, JJ.

RAKER, Judge.

Petitioner was convicted by a jury in the Circuit Court for Cecil County of the offenses of unlawful shooting with intent to disable, in violation of Maryland Code (1957, 1992 Repl.Vol.), Article 27, § 386; malicious injury to eye, in violation of Art. 27, § 385; common law assault; reckless endangerment, in violation of Art. 27, § 120; and common law conspiracy to shoot with intent to disable.¹ The Court of Special Appeals affirmed. Elmer v. State, 119 Md.App. 205, 704 A.2d 511 (1998). This Court granted certiorari to answer the question of whether the Court of Special Appeals erred in affirming the judgments despite the error of the trial court in permitting the State to cross-examine the co-defendant Robert Brown with statements made by Brown's counsel during plea negotiations which directly incriminated Petitioner.

I.

On February 1, 1996, Petitioner David Allen Elmer was a passenger in a car driven by Robert Brown. The car entered the neighborhood of Winding Brook and swerved toward four pedestrians standing close to a bridge near the side of the road. The four people then walked to a nearby basketball court and told others of the swerving incident. The Brown car drove to the basketball court, which is when several of the people started throwing large rocks at the car, causing damage to the windshield, windows, and body of the car. The car again swerved toward some of the participants and then quickly departed, returning a third time, to find several of the pedestrians brandishing more rocks.

Rocks began bouncing off the car again, and Petitioner put a shotgun outside the passenger window. A shot was fired, and the shot struck Robert Earl, a bystander uninvolved in the rock throwing incident. Three pellets struck him in his head, two more in his nose, and one in his left eye. The victim suffered irreparable damage to his eye and now wears a replacement prosthesis.

In a joint trial, Brown and Elmer proceeded to trial before a jury. A significant issue developed at trial as to which person in the car actually fired the shotgun—Brown or Elmer. Elmer did not testify. Several witnesses testified that they saw the shotgun through the passenger's side and that Elmer fired the shot that struck Mr. Earl. Brown testified that he reached over and pulled the trigger as one of the bystanders was aiming a large chunk of granite at the car window and that Elmer was trying to avoid being hit with it. Brown's testimony that he pulled the trigger, and not Elmer, led the prosecutor to inquire of Brown on cross-examination THE STATE: Mr. Brown, did you ever make the statement that when you came down around the curve ... your attention was drawn to the people that were running from your left, and that at that point in time Allen Elmer put that gun out the window, pulled the trigger, the gun boomed, and the first thing you said to him is what the F did you do? Did you ever make that statement?

[COUNSEL FOR BROWN]: Objection. May we approach the bench?

THE STATE: Did you ever make that statement, Mr. Brown?

[COUNSEL FOR BROWN]: Your Honor—

THE COURT: It's cross-examination.

THE STATE: Did you ever make that statement?

[COUNSEL FOR BROWN]: Your Honor—

THE COURT: Just a minute. Come on up.

The following discussion took place at the bench.

THE COURT: What is your objection?

[COUNSEL FOR BROWN]: I am trying to make sure that [the prosecutor] is not trying to get into attorney/client privilege. The attorney who he was making the statement to—clarify that, please.

THE COURT: Well, if he made it to you, how would he know about it? If he made it to you, how would [the prosecutor] know about it?

[COUNSEL FOR ELMER]: I object. Objection.

[COUNSEL FOR BROWN]: My objection is I want him to clarify who he made the statement to.

THE STATE: All I have to ask him is if he ever made that statement.

THE COURT: You're overruled.

The bench conference concluded and the prosecutor continued before the jury:

THE STATE: Mr. Brown, I think you heard the question, but I will ask you again. Did you ever make the statement, Mr. Brown, that—when you came down around this curve that your attention was drawn to the people who were coming from your left, and you're looking out there, out the driver's side toward those people on the left as you heard—don't look at [counsel for Brown].

[COUNSEL FOR BROWN]: I am making the objections. He is looking at me.

THE COURT: I am overruling you. You are looking at the attorney.

[COUNSEL FOR BROWN]: Your Honor, we need to approach the bench again.

THE COURT: No, no, you are not approaching the bench. He is asking questions. I've already ruled on this. Go ahead.

[COUNSEL FOR BROWN]: Your Honor, it's on a separate matter. I need to approach the bench for the record, please.

THE COURT: Come on up.

The following discussion took place at the bench.

[COUNSEL FOR BROWN]: Your Honor, [the prosecutor] asked in settlement negotiations what would my client testify to, and during settlement negotiations I told him what my client would testify to. I never told him my client said that. That was part of the settlement negotiations for—

[COUNSEL FOR ELMER]: In all fairness, good conscience, fairness, he can't use something like that now when negotiations—

THE COURT: Is that what you are using now?

THE STATE: Yes, I am. Let me tell you how this went though. This is—[counsel for Brown] came to me, and said his client was willing to plead guilty to reckless endangerment, and his client wanted to testify in my prosecution of this defendant; and his client would testify just exactly the same that I am asking right now.

[COUNSEL FOR BROWN]: No. When I said—he asked, what do you expect your client to say. I said, I would expect my client to testify—

THE STATE: And he continually said that's what the witness had said. [COUNSEL FOR BROWN]: I never intentionally asked my client what he did or not what he did until ten minutes before yesterday.

THE COURT: What you—

[COUNSEL FOR BROWN]: He asked what I expect him to testify to. I never—

THE COURT: You are overruled. You have your objection.

[COUNSEL FOR BROWN]: Thank you. Before the jury, the prosecutor again inquired:

THE STATE: Mr. Brown, you made the statement, didn't you, that when you came around this curve on Willow Drive that your attention was drawn to the people over on your left hand side, and that you were driving, and you are watching them when you heard the boom of a shotgun; and you looked over at Mr. Elmer and said, what the F did you do that for; and Mr. Elmer said to you, I shot the car. Didn't you make that statement?

BROWN: No, I did not make that statement. That was how it was stated in newspapers and stuff; and at that time no one had given me a chance to tell my side of the story, what happened down there that day. I was never given a chance to explain what happened or anything like that. And in my charging documents that was what had been said. So that is what I had went along with to try to get those charges filed against the attackers who admitted to attacking, which you have let go; and that's so they can get away with attacking people. That's—I mean, I know it is a terrible shame that somebody got hurt in this incident. That could have easily been me and Allen on that stretcher flying to Shock Trauma. Does that give them the right to attack us?

THE STATE: Mr. Brown, didn't you say that you would testify to just that in the prosecution of Mr. Elmer?

BROWN: No, I did not. That was never said, no. I never said I was going to testify. I am saying that now here. I am right now sitting here finally—finally after a year and six months in jail, free of all this terror and nervousness and pain and everything that me and my family has had to suffer. I'm here now finally getting to tell the truth, and what really happened in this case.

THE STATE: Did you ever communicate to me that you were going to testify, or you'd be willing to testify in the prosecution of Mr. Elmer?

[COUNSEL FOR ELMER]: Objection.

[COUNSEL FOR BROWN]: Objection.

THE COURT: Sustained. It's already been asked and answered.

Counsel again approached the bench and the following colloquy occurred:

[COUNSEL FOR ELMER]: I want to formally object for the record that Your Honor permitted the state's attorney to ask questions about plea negotiations, or questions after it was plea negotiations, preliminary.

THE COURT: This was already objected to.

[COUNSEL FOR ELMER]: But you permitted him to continue. That's totally wrong for a state's attorney—

THE COURT: You've already got your objection. What are you bringing it up again for?

[COUNSEL FOR ELMER]: Because we—for the record.

THE COURT: You got it for the record the first time. You have it on the record, gentlemen.

Elmer filed a timely appeal to the Court of Special Appeals. The intermediate court affirmed, noting that Elmer based his entire appeal on a violation of Maryland Rule 5-410. Elmer, 119 Md.App. at 219,704 A.2d at 517.² The court held that Rule 5-410 "bars the introduction of evidence and no evidence was introduced in the instant case regarding any plea bargaining statement." Id. at 214, 704 A.2d at 515. The court further held that Rule 5-410 applies only to one who is a party to the plea negotiations. Id. at 216, 704 A.2d at 516. Because Brown or his counsel, and not Elmer, participated in plea discussions, Elmer could not complain that the rule was violated and that any statements made by Brown were inadmissible as to him. Id. at...