Reed v. State

• Decision Date: 21 April 1999
• Docket Number: No. 97,97
• Citation: 353 Md. 628,728 A.2d 195
• Parties: Xavier Lewis REED v. STATE of Maryland.
• Court: Maryland Court of Appeals

728 A.2d 195

353 Md. 628

Xavier Lewis REED v. STATE of Maryland.

No. 97, September Term, 1998.

Court of Appeals of Maryland.

April 21, 1999.

Martha Weisheit, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.

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

CATHELL, Judge.

Petitioner Xavier Lewis Reed was convicted in the Circuit Court for Montgomery County of possession with intent to distribute cocaine and possession of cocaine. He received concurrent sentences totaling three years; however, all but nine months were suspended with three years of probation to be served thereafter. The judgment was affirmed by the Court of Special Appeals. We granted petitioner's Petition for Writ of Certiorari to address the question: "Did the Court of Special Appeals err in holding that Petitioner's objection to the admission of other crimes evidence was not preserved by his motion in limine? " We hold that the Court of Special Appeals did not err. We shall affirm.

Encompassed within the question presented is petitioner's attack on the continued viability of the "contemporaneous objection rule." That rule, with respect to criminal actions, is set forth in Maryland Rule 4-323(a) and provides in pertinent part:

(a) Objections to evidence. An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.

Petitioner's primary request is that this Court change its long-standing position that when trial courts deny motions in limine to exclude evidence, thereby permitting the admission of evidence, the issue of admissibility ordinarily is not preserved for appellate review unless contemporaneous objections are made at the time the evidence is later introduced at trial. By his request, petitioner asks us to revisit Prout v. State, 311 Md. 348, 535 A.2d 445 (1988), where we held, in the circumstances of that case, that a trial court's order pursuant to a motion in limine that resulted in the exclusion of evidence sufficed to preserve the evidentiary issue for appeal. Petitioner urges us to extend the holding in Prout to motions in limine rulings that permit the admission of evidence.

I. Facts

We restate the facts as summarized in petitioner's brief:

The State's case consisted of the testimony of three police officers involved in a narcotics surveillance on January 17, 1997 in the Aspen Hill area of Montgomery County. The subject of that surveillance was an individual described as a black male with hair in corn rows wearing a black leather jacket who was reportedly in possession of a quantity of CDS. One of the officers conducting the surveillance, Detective Mark Yamada, testified that he eventually spotted this individual, whom he identified as the Petitioner, in an apartment complex at the intersection of Bel Pre Road and Georgia Avenue. Yamada saw the Petitioner get into a Chrysler New Yorker with two other black males and followed them to the Leisure World Shopping Center, where he saw the Petitioner and a second male make calls at a pay phone. The men then left that shopping center and drove to the Aspen Manor Shopping Center. Yamada continued his surveillance until a time later on when the three men were arrested by other officers in the surveillance team. Pursuant to that arrest, suspected cocaine was seized.... According to Yamada's testimony, the substance recovered, which was later verified to be cocaine, was an "eight-ball" which could be broken down into smaller units. He stated that its wholesale value would be anywhere from $120 to $160.

Other officers offered testimony at trial supporting these facts. The defense produced somewhat contradictory evidence as to the occurrences at the Aspen Manor Shopping Center.

One of the detectives in the case took a statement from petitioner after he had been arrested, advised of his rights, and petitioner had waived those rights. Prior to trial, petitioner filed a motion in limine to exclude portions of that statement, which initially was granted. The motion later was reconsidered by another judge, who ultimately denied the motion to exclude.

The detective who took petitioner's statement testified at trial. In his testimony, the detective testified as to the questions and answers comprising petitioner's statement:

Okay. The first question I asked him, do you use or sell drugs? [Petitioner] responded a little of both. I smoke willies. It is a street term for marijuana laced with crack. I score for myself to smoke willies.

What is the most you have ever sold, I asked. $100. I go buy it and pinch off some for myself when I sell it.

Where did you get the crack you had tonight? He said I got it from DC. Were you going to sell it? I was going to smoke it, was his answer.

Were you going to sell it to the girl? And I put in parentheses Brigdon. No, she didn't know anything about it. I have seen her around, but I didn't really know her.

At that point, I put a line across the end of the conversation we had and both [petitioner] and I signed it.

This testimony was given without objection. It was only later when the State offered the written statement in its entirety that the defense counsel, in response to a query by the court as to whether he had any objections to the admissibility of the document itself, responded: "Your Honor, the objection has been litigated. We would ask to preserve that."

Holding that the issue had not been properly preserved, the Court of Special Appeals, in an unreported opinion, held:

The Court of Appeals has stated that it will not find reversible error on appeal when objectionable testimony is admitted if the essential contents of that objectionable testimony have already been established and presented to the jury without objection through the prior testimony of other witnesses. Grandison v. State, 341 Md. 175, 218-19, 670 A.2d 398 (1995), cert. denied, 519 U.S. 1027, 117 S.Ct. 581, 136 L.Ed.2d 512 (1996). In the present case, [petitioner] objected to the admission of the written evidence. However, he did not object to Detective D'Ovidio's testimony describing [petitioner's] statement. Although [petitioner] had made a pretrial motion in limine, an objection was necessary at the time the evidence was introduced in order to preserve his objection to the admission of that evidence. Prout v. State, 311 Md. 348, 356, 535 A.2d 445 (1988); MD. RULE 4-323(a). The evidence, of which [petitioner] now complains, was presented to the jury without objection. Therefore, the trial court's error was harmless.

Petitioner's sole argument before this Court is that the Court of Special Appeals erred because "the judge's denial of his motion in limine was alone sufficient to preserve his objection to the detectives's recitation of the entire statement." As is evident, petitioner focuses on the verbal recitation of the statement by the detective, to which petitioner did not object at trial.

II. Prout v. State

Prout, 311 Md. at 351-53,535 A.2d at 446-47, involved a motion in limine by the defendant to obtain permission to cross-examine a State's witness about whether she had certain previous criminal convictions in order to impeach that witness' testimony. The State argued in response that the defense should not be permitted to inquire about the witness' convictions. The trial court in Prout, in essence, ruled that certain evidence was to be excluded, even though the issue originally was presented as a motion in limine to admit the evidence. Accordingly, the issue in Prout was the exclusion, not the admission of evidence, which is the converse of the issue here: the denial of a motion to exclude evidence that resulted in the evidence's admission.¹

In Prout, we first summarized the arguments advanced by the parties:

On appeal, the State argues that Prout failed to preserve his objection to the trial court's ruling on his motion in limine, which excluded the witness's prostitution and solicitation convictions. The State contends that Maryland Rule 4-322(a),[²] which requires a party to object to the admission of evidence at the time it is offered, applies to the facts sub judice and, thus, that Prout needed to make a subsequent proffer of the convictions at the point at which he would have offered them at trial. Prout, on the other hand, argues that the trial court's ruling on his motion in limine was alone sufficient to preserve the issue of the admissibility of the complainant's convictions for appeal. Prout contends that subsection (c) of Maryland Rule 4-322, rather than subsection (a), is the applicable rule for determining when an objection to a trial court's ruling excluding evidence has been preserved for appeal. Prout further contends that he has satisfied the provisions of subsection (c). Prout, 311 Md. at 353-54, 535 A.2d at 447-48 (footnotes omitted). We went on to explain motions in limine:

Whether a trial judge's ruling granting a motion in limine may be reviewed on appeal when there is no subsequent proffer of the evidence at trial presents a question of first impression in this Court. Typically, a motion in limine is a motion made before or during a jury trial outside of the hearing of the jury, the purpose of which is to prevent the jury from hearing certain questions and statements that are allegedly prejudicial to the movant. Specifically, the motion usually seeks an order restricting opposing counsel from offering questionable evidence before the judge has had an opportunity to rule on its admissibility. Evidence is most often sought to be excluded because it is incompetent, irrelevant, immaterial, privileged, or otherwise inadmissible. See generally McCormick on Evidence § 52, at 128 (E. Cleary 3d ed.1984).

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