Heath v. State, 062118 MDSCA, 2736

Docket Nº:2736
Opinion Judge:REED, J.
Judge Panel:Arthur, Reed, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.
Case Date:June 21, 2018
Court:Court of Special Appeals of Maryland




No. 2736

Court of Special Appeals of Maryland

June 21, 2018

Circuit Court for Baltimore City Case Nos. 114296017 & 114296018.

Arthur, Reed, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.



After a jury trial in the Circuit Court for Baltimore City, Nicholas Heath, Appellant, was found guilty of involuntary manslaughter and second degree assault. He was sentenced to ten years' imprisonment for involuntary manslaughter and a consecutive term of ten years for second degree assault. Appellant filed this timely appeal and presents two questions for our review which we have divided and rephrased:1

I. Did the trial court err in admitting evidence of other bad acts in violation of Maryland Rules 5-404(b) and 5-403 regarding why Appellant was at Ottobar?

II. Did the trial court err in admitting evidence of other bad acts in violation of Maryland Rules 5-404(b) and 5-403 regarding Appellant's education?

III. Did the trial court err in instructing the jury on first and second degree assault?

For the reasons that follow, we shall answer and reverse on the first question.


On the night of September 25, 2014, Dustin Cunningham met Appellant at Ottobar, a bar and music venue in Baltimore City. Appellant was an acquaintance whom Cunningham met about six months earlier. While at the bar, Cunningham exchanged harsh words with another bar patron, Erica Davis. Ms. Davis demanded that Cunningham apologize and threatened to have him removed from the bar. After a second altercation, Cunningham was removed by at least four Ottobar staff, including bouncers Tom Malenski and Martin Clay.[2]

Appellant and a large crowd of bar patrons followed behind as Cunningham was removed. Once outside, a physical altercation erupted, which resulted in Clay and Malenski chasing after Cunningham. After chasing him for some time, the two bouncers began to walk back toward Ottobar. Appellant and Clay have different accounts of what transpired next. Clay testified that he and Malenski were merely walking back to the bar when Appellant, unprovoked, attacked them. Appellant, on the other hand, maintains that he was acting in self-defense.3 It is undisputed, however, that the incident resulted in Appellant cutting Clay's face and Malenski's throat. Malenski succumbed to his injuries.

Appellant was charged with first degree murder of Malenski and first degree attempted murder of Clay. He was acquitted of those charges, but found guilty of involuntary manslaughter and second degree assault. Appellant was also charged with openly wearing and carrying a knife with the intent to injure, but was also acquitted of those charges. This appeal followed.

Additional facts are included in our discussion.


1. Prior Bad Acts

A. Additional Facts

On September 27, 2014, Appellant gave a recorded statement to the police. The statement, which was ultimately played for the jury, 4 included comments about Appellant's reason for going to Ottobar on the night in question. Appellant admits in his statement that he went to Ottobar intending to sell cocaine. Appellant stated: Nobody went in there starting trouble. I went in there to sit down to sell a got damn bit of white that they, [sic] I'm just trying to make a fucking living. And everybody around me is gotta act like an asshole. That's all I wanted to do.

In a motion in limine, Appellant sought to have the statement redacted. Initially, the prosecutor agreed to redact the reference to selling cocaine, but she changed her position after defense counsel's opening statement, in which counsel suggested that Appellant's "goal" and "purpose" in going to the Ottobar was to get customers for his tattoo business. In opening, defense counsel stated: Ladies and gentlemen, the young man that sits here to Ms. Webb's and my left is Nicholas Heath. And just as the State described to you in regard to the decedent in this matter and Mr. Martin Clay, he too loved music, liked to hang out, had friends, was busy doing tattoos, that's one of his primary sources of income in order to pay a lawyer to get his wife from England to the United States. That was his goal and that was his purpose to stop by the Ottobar that night. His friend, Dustin Cunningham says lots of people there have tattoos or had tattoos, this is a good source.

The trial court agreed that the challenged portion of Appellant's statement could be played for the jury, stating: The difficulty, had I been asked whether or not there is greater probative value than prejudicial value, to the testimony, whether or not there are multiple reasons that Mr. Heath may have given for his being present there that evening, in fact one of them was illegal, certainly would be probative on potentially a number of issues, one of which is also the manner in which he is alleged to have conducted himself that evening. And I would not have stricken that testimony, although some of the things which have been read, not everything would appear to be fully admissible even under the probative greater than prejudicial value of standard.

But I will permit the State to unredact the testimony with regard to his statement as to why he was there that night with regard to certain business operations.

B. Parties' Contentions

Appellant argues that his statement that he went to Ottobar to sell cocaine, constituted "other bad acts" evidence that did not fit any of the exceptions under Maryland Rule 5-404(b), 5 and, therefore, was inadmissible under that Rule. Appellant also contends that the evidence was "far more prejudicial than probative, " and inadmissible under Maryland Rule 5-403.[6] According to Appellant, admitting evidence of "other bad acts" could lead the jury to infer Appellant had a history of criminal behavior, and as such, could not be deemed "harmless" in a case where Appellant alleges he acted in self-defense. Therefore, Appellant claims the trial judge erred in admitting "other bad acts" evidence.

The State responds that the statement does not constitute "bad acts." The State argues that the attorney for Appellant "opened the door" to this evidence by stating that Appellant was there to solicit customers for his tattoo business.7 The State further contends that admitting this statement was more probative than prejudicial, and the result of "harmless error."

For the reasons that follow, we find that the statement that Appellant was at Ottobar to sell cocaine constitutes "other bad acts" evidence that should have been stricken from the record.

C. Standard of Review

The purpose of Maryland Rule 5-404(b) is to prevent...

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