REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1832

September Term, 2012

GARY JAMES SMITH

v.

STATE OF MARYLAND

Kehoe,

Hotten,

Nazarian,

JJ.

Opinion by Nazarian, J.

Filed: August 28, 2014
During voir dire, counsel for Gary Smith asked the Circuit Court for Montgomery

County to include a mandatory Defense-Witness question to the jury panel. The court did

not ask the question, but as the court and parties recapped the questions after the court read

them, the prosecutor told the court that it had in fact asked it, and Mr. Smith’s counsel did

not correct him. The State agrees with Mr. Smith that under Moore v. State, 412 Md. 635

(2010), the failure to ask the mandatory Defense-Witness question requires us to reverse his

convictions for involuntary manslaughter and use of a handgun in the commission of a

felony. The State argues nevertheless that defense counsel’s failure to correct the

prosecutor’s misstatement to the court “invited” the error, and thus Mr. Smith failed to

preserve it. We disagree with the State and reverse, and we address two other issues that are

likely to recur on remand.

I. BACKGROUND

This appeal represents the latest chapter in a case that started on September 26, 2006

with the shooting death of Army Ranger Michael McQueen, Mr. Smith’s then-roommate.

Mr. Smith was tried and convicted once before, but the Court of Appeals reversed Mr.

Smith’s original convictions for depraved heart second-degree murder and use of a handgun

in the commission of a felony. See Smith v. State, 423 Md. 573 (2011). This appeal arises

from his second trial.

Between 12:00 and 1:00 a.m. on September 26, 2006, police responded to a 911 call

by Mr. Smith and found him outside of the apartment he shared with Mr. McQueen. When

the police arrived at the apartment, Mr. Smith was in hysterics, sitting on the sidewalk curb
and covered in blood. Inside the apartment, the police found Mr. McQueen in the living

room, dead from a gunshot wound to the right side of his head. His body was sitting in a

chair facing a television, with a marijuana grinder in his lap and a bottle of beer, a bong, and

a remote control on the floor next to the chair. Police did not find a gun next to the chair or

anywhere else in the apartment.

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Police took Mr. Smith into custody and began questioning him at approximately 3:30

a.m. During the interrogation, Mr. Smith accounted for his contact with Mr. McQueen over

the course of the evening. The pair began the evening by smoking marijuana in their

apartment before going to several bars and consuming multiple alcoholic beverages. Mr.

Smith then gave three different versions of the events that transpired after he and Mr.

McQueen left the bars.

In the first version, Mr. Smith dropped Mr. McQueen off at the apartment before

driving to his mother’s house to pick up some clothes. Upon returning, Mr. Smith said he

found Mr. McQueen dead in the chair and dialed 911. Mr. Smith alluded to some potential

suspects and stated that he did not keep any weapons in the apartment.

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In the second version of events, Mr. Smith described how he came home from his

mother’s house to find Mr. McQueen dead with a .38 gun on the floor next to his hand. Mr.

A search of the apartment produced a bag containing multiple live rounds of

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ammunition in one of the bedrooms.

He did, however, describe a cache of firearms that he owned and kept at his mother’s

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house.

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Smith testified that he owned the gun and realized that his fingerprints would be on the gun

and ammunition. Mr. Smith said that he panicked, took the gun, and threw it away in a

nearby lake. After disposing of the weapon, he returned to the apartment and called the

police.

After the interrogating officers pressed Mr. Smith regarding inconsistencies in his

stories, Mr. Smith offered a third version. This time, Mr. Smith said that he had put the .38

inside the laundry basket at his mother’s house, then went back to his apartment. Mr.

McQueen was watching television, and Mr. Smith then took the gun out of the laundry basket

and placed it on the floor, warning him that the gun was loaded. Mr. Smith proceeded to use

the back bathroom in the rear of the apartment; as he was exiting the bathroom, he heard a

gunshot and came out to see blood coming out of Mr. McQueen’s head. Upon seeing the

body, Mr. Smith grabbed the gun and threw it away in the nearby lake, then returned to the

apartment and called the police.

Mr. Smith was convicted at trial for depraved heart second-degree murder and use of

a handgun in the commission of a felony, but the Court of Appeals reversed the conviction

and remanded the case for a new trial. The second trial began on August 30, 2012 and lasted

through September 17, 2012. The main issue at trial was whether Mr. McQueen’s death was

a homicide or suicide, and both the State and Mr. Smith presented a large amount of

witnesses and evidence in support of their respective theories. The jury convicted Mr. Smith

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of involuntary manslaughter and use of a handgun in the commission of a felony on

September 19, 2012. Mr. Smith filed a timely appeal.

II. DISCUSSION

Mr. Smith raises six issues on appeal, but our resolution of the first limits the number

we need to address. We hold that the trial court’s failure to ask the Defense-Witness

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question during voir dire requires us to reverse Mr. Smith’s convictions. Additionally, and

The following Questions Presented, as phrased by Mr. Smith, were presented in this

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appeal:

1. Did the trial court err when it refused to ask the

mandatory Defense-witness and State-Witness questions,

during voir dire of prospective jurors?

2. After a jury note on the subject, did the trial court err or

abuse its discretion in refusing to give the requested

supplemental jury instruction defining “use” of a

handgun in the commission of a felony?

3. Was it error or an abuse of discretion to refuse to allow

the U.S. Army’s chief psychiatrist at Walter Reed

Hospital to testify regarding suicide statistics and general

suicidology, among Army veterans of the wars in Iraq

and Afghanistan?

4. Did the trial court err or abuse its discretion in increasing

Appellant’s sentence, upon retrial?

5. Was it error or an abuse of discretion to refuse to make

certain redactions to the recording of Appellant’s

interrogation?

6. Was it error to admit testimony and other evidence in

violation of Maryland Rule 5-404(b)?

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to guide the circuit court on remand, we hold that the trial court erred in admitting the

unfairly prejudicial gun ownership and ammunition bag evidence, but we find no abuse of

discretion in the court’s decision to admit testimony regarding a witness’s prior encounter

with Mr. Smith.

A. The Trial Judge Committed Reversible Error When It Refused To

Ask The Defense-Witness Voir Dire Question.

Mr. Smith begins by arguing that the trial judge committed reversible error by refusing

to ask his Defense-Witness voir dire question. The State does not dispute that the question

was mandatory, that Mr. Smith asked the court to ask it, or that omitting the question

normally requires reversal. Instead, the State argues that Mr. Smith waived any complaint

about the omission by “inviting” the court’s error when defense counsel did not catch and

correct the State’s misstatement to the court. We decline to hold defense counsel responsible

for the State’s mistake.

Under Maryland law, “if a question is‘directed to a specific cause for disqualification’

then the question must be asked and failure to do so is an ‘abuse of discretion.’” Moore v.

State, 412 Md. 635, 654 (2012) (quoting Casey v. Roman Catholic Archbishop of Balt., 217

Md. 595, 605 (1958)). An abuse of discretion in this context is reversible error. Id. at 668

(citations omitted). During voir dire, Mr. Smith asked the court to ask the following question

(the “Defense-Witness question”) designed to identify jurors who might harbor a bias against

defense witnesses:

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Is there any member of the panel who would be less likely to

believe a witness simply because they were called by the

defense?

The trial judge omitted this question from voir dire intentionally, and for two reasons:

because “the issue in the question was . . . raised by another question” and because the court

“found the question to be inappropriate for voir dire.” Following voir dire, the court asked

the parties to make any objections they had concerning omitted voir dire questions. Counsel

for Mr. Smith then identified different omitted voir dire questions with which he took issue.

In response to each question, the trial judge stated whether he had asked the question or

explained his reasoning for why he did not.

Among these objections, Mr. Smith expressly challenged the omission of the DefenseWitness voir dire question:

[COUNSEL FOR MR. SMITH]: And then [the DefenseWitness voir dire question].

[COUNSEL FOR THE STATE]: You’ve already asked that

question. If you’ll believe the credibility equally on both sides.

THE COURT: That issue has been covered, just different

words[.]

After Mr. Smith went through all of the questions whose omission he challenged, the Court

proceeded to swear the prospective jurors into the jury. The trial judge asked the defense

three times whether it was satisfied with the jury; each time, counsel for Mr. Smith expressed

satisfaction qualified by the exceptions he had made at the bench.

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Maryland Rule 4-323(c) governs the “manner of objections during jury selection,”

including objections made during voir dire. Marquardt v. State 164 Md. App. 95, 142 (2005)

(citing Baker v. State, 157 Md. App. 600, 609, 610 (2004); Newman v. State, 156 Md. App.

20, 50-51 (2003), rev’d on other grounds, 384 Md. 285 (2004)). In order to object to a trial

court ruling made during voir dire,

it is sufficient that a party, at the time the ruling or order is made

or sought, makes known to the court the action that the party

desires the court to take or the objection to the action of the

court.

Md. Rule 4-323(c); see also Marquardt, 164 Md. App. at 143. This objection does not need

to be a formal exception to the ruling, Md. Rule 4-323(d); rather, the objector simply needs

to make “known to the circuit court ‘what [is] wanted done.’” Marquardt, 164 Md. App. at

143 (quoting Baker, 157 Md. App. at 610).

In past cases involving excluded voir dire questions, we have interpreted Rule 4-323

to require objectors only to notify the trial court of their objections, not to explain or pursue

their objections. The Court in Newman did not require such an “objection to be stated with

particularity or specific language” to meet the requirements of Rule 4-323. 156 Md. App.

at 51. An appellant preserves the issue of omitted voir dire questions under Rule 4-323 by

telling the trial court that he or she objects to his or her proposed questions not being asked.

Marquardt, 164 Md. App. at 143.

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The Court of Appeals recognized in State v. Stringfellow, 425 Md. 461 (2012), that

4

(continued...)

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There can be no serious dispute that Mr. Smith objected to the omission of the

Defense-Witness question. During the time that the trial court set aside for objections to

omitted voir dire questions, Mr. Smith listed several omitted questions, and the trial court

ruled on each. With regard to the Defense-Witness question, the trial court agreed with the

State’s contention that the thrust of question was covered by a question already asked by Mr.

Smith. Under both the plain language of Rule 4-323(c) & (d) and the case law applying the

Rule, raising the omitted question preserved Mr. Smith’s objection to the omission, and Mr.

Smith was not obligated to further pursue his objection regarding the exclusion of the

question to preserve the issue for appeal.

1. Invited error

Nevertheless, the State contends that Mr. Smith “invited” the court’s error when he

did not correct “a factual misstatement by the prosecutor.” Under the “invited error”

doctrine,“‘a defendant who himself invites or creates error cannot obtain a benefit—mistrial

or reversal—from that error.’” State v. Rich, 415 Md. 567, 575 (2010) (quoting Klauenberg

v. State, 355 Md. 528, 544 (1999)). According to the State, the court was misled into

thinking that the Defense-Witness question had been asked, and Mr. Smith’s failure to

identify the error to the court waived any objection to the omission.

(...continued)

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“an objection to a judge refusing to ask a proposed voir dire question” is “not waived by the

objecting party’s unqualified acceptance thereafter of the jury.” Id. at 470-71.

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The State’s “invited error” argument would, were we to adopt it, extend a reasonable

anti-sandbagging principle to an absurd and unfair extreme. The invited error doctrine makes

sense where an affirmative act of the appellant produced the error he raises on appeal. For

example, our courts have applied the invited error doctrine correctly where the alleged error

arose from jury instructions the appellant requested, see id. at 581; Olson v. State, 208 Md.

App. 309, 363-66 (2012), cert. denied, 430 Md. 646 (2013); Wimbish v. State, 201 Md. App.

239, 264-65 (2011), cert. denied, 424 Md. 293 (2012), from the appellant’s own jury

tampering, see Ruth v. State, 133 Md. App. 358, 370-74 (2000); Allen v. State, 89 Md. App.

25, 43-45 (1991), or testimony the appellant had elicited on cross-examination. See Murdock

v. State, 175 Md. App. 267, 294 n.8 (2007).

In contrast, the State argues here that Mr. Smith “invited the court’s error” by

remaining “silent in the face of a factual misstatement by the prosecutor.” (Emphasis added).

The State made the misstatement, not the defendant, and yet the State asks us to find that Mr.

Smith waived an objection his counsel made repeatedly (and that the circuit court had ample

responsibility to address) because his counsel did not catch and correct the State’s error. We

decline to make that leap. The broader principle underlying our preservation decisions

focuses on whether the party objecting on appeal gave the circuit court a proper opportunity

to avoid or resolve errors during the trial, not on hyper-technicalities. In this case, Mr.

Smith’s counsel asked the court to ask potential jurors the Defense-Witness question, and the

court decided (for reasons we evaluate next) not to ask it. The prosecutor’s mistake appeared

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to be an honest one, and we do not mean to suggest any impropriety in the prosecutor’s

statement that the question had already been asked—there was a lot going on at that point in

the process, and to us the transcript reveals a straightforward misunderstanding. It is neither

fair nor consistent with our preservation cases, though, to bootstrap the State’s mistake into

a waiver of Mr. Smith’s otherwise well-preserved objections, particularly since, as we

address next, the question at issue is a mandatory question.

2. Defense-Witness voir dire question

A Defense-Witness question is aimed specifically at revealing bias among the

prospective jurors against witnesses for the defense. Moore, 412 Md. at 642. Both the State

and Mr. Smith agree that under Moore, Mr. Smith was entitled to have the trial court ask the

Defense-Witness question during voir dire. Both parties also agree that failure of a trial court

to ask a requested Defense-Witness question “is not, by definition, harmless” error and that

such an omission necessarily requires a new trial, id. at 668, and we agree as well.

A Defense-Witness question “falls within the very core of the purpose of voir dire,

[because] it is designed to uncover venireperson bias.” Id. at 663. Mr. Smith’s DefenseWitness question specifically addressed juror preconceptions of defense witnesses as

presumptively less credible, a perception that would directly infringe upon Mr. Smith’s right

to an impartial and fair trial. Id. “[A] trial court must question the venire and consider

whether any of the answers reveal such a bias” in a prospective juror. Id. at 664. For these

reasons, failing to ask the Defense-Witness question—which was not covered by other

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questions the court did ask—constitutes an abuse of discretion by the trial court. Id. at 667-

68. Accordingly, we reverse the judgment of the circuit court and remand for further

proceedings consistent with this opinion.

B. The Trial Court Erred In Admitting Evidence Of Mr. Smith’s Gun

Ownership And A Bag Of Ammunition Found In The Apartment

Shared By Mr. Smith And The Victim.

Although we could stop here, we addresstwo of Mr. Smith’s other appellate questions

that are likely to recur if he is tried again on remand. Among his remaining issues, Mr. Smith

argues that the court erred in admitting evidence relating to eight firearms that he owned and

to ammunition found in Mr. Smith’s apartment. Mr. Smith argued at trial that this evidence

was irrelevant and unfairly prejudicial because the weapons and ammunition were unrelated

to the shooting in question. The court admitted the evidence over Mr. Smith’s objections,

emphasizing how “[i]t’s not illegal to have other guns and other ammo.”

Our review of the trial court’s decision to admit the evidence involves two steps of

analysis. “‘First, we consider whether the evidence is legally relevant, a conclusion of law

which we review de novo.’” Brethren Mut. Ins. Co. v. Suchoza, 212 Md. App. 43, 52 (2013)

(quoting Wash. Metro. Area Transit Auth. v. Washington, 210 Md. App. 439, 451 (2013)).

To qualify as relevant, evidence must tend “to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would

be without the evidence.” Md. Rule 5-401. Evidence that is relevant is admissible, but the

trial court does have not discretion to admit evidence that is not relevant. Md. Rule 5-402;

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Simms, 420 Md. at 724. After determining whether the evidence in question is relevant, we

look to whether the court “‘abused its discretion by admitting relevant evidence which should

have been excluded’” as unfairly prejudicial. Brethren Mut. Ins. Co., 212 Md. App. at 52

(quoting Wash. Metro. Area Transit Auth., 210 Md. App. at 451).

Two characteristics of relevant evidence are “‘materiality and probative value.’”

Williams v. State, 342 Md. 724, 737 (1996) (quoting State v. Joynes, 314 Md. 113, 119

(1988)). Evidence is material if it bears on a fact of consequence to an issue in the case. Id.

at 736-37 (quoting Joynes, 314 Md. at 119). Probative value relates to the strength of the

connection between the evidence and the issue, to the tendency of the evidence “‘to establish

the proposition that it is offered to prove.’” Id. at 737 (quoting Joynes, 314 Md. at 119).

It is not enough, though, for evidence to be relevant. Under Maryland Rule 5-403, the

trial court should exclude relevant evidence if the probative value of the evidence “‘is

substantially outweighed by the danger of unfair prejudice.’” See Carter v. State, 374 Md.

693, 705 (2003) (quoting Andrews v. State, 372 Md. 1, 19 (2002)). “‘Evidence is prejudicial

when it tends to have some adverse effect . . . beyond tending to prove the fact or issue that

justified its admission.’” Hannah v. State, 420 Md. 339, 347 (2011) (quoting King v. State,

407 Md. 682, 704 (2009)). We determine whether a particular piece of evidence is unfairly

prejudicial by balancing the inflammatory character of the evidence against the utility the

evidence will provide to the jurors’ evaluation of the issues in the case. In order to admit

evidence of a “highly incendiary nature,” the evidence must greatly aid the “jury’s

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understanding of why the defendant was the person who committed the particular crime

charged.” Gutierrez v. State, 423 Md. 476, 495, 499 (2011) (declining to admit evidence

describing the defendant’s gang as more violent than other gangs). A court should not,

however, admit evidence possessing weak probative value if the evidence might produce a

jury inference that the defendant “had a propensity to commit crimes” or “was a person of

general criminal character.” Williams, 342 Md. at 738 (excluding defendant’s crow bar and

mace from evidence when the investigation of the scene of the burglary revealed no

indication of a break in, forced entry, or any other link to the crimes with which the

defendant was charged). We exclude prejudicial evidence to avoid the possibility “that a jury

will convict the defendant ‘because of something other than what he did in that case . . .

because of his criminal propensity.’” Snyder v. State, 210 Md. App. 370, 395 (2013)

(quoting Odum v. State, 412 Md. 593, 611 (2010), cert. denied, 432 Md. 470 (2013)).

Although there was nothing illegal about Mr. Smith owning guns and ammunition,

the evidence the court admitted regarding Mr. Smith’s ownership of unrelated firearms and

ammunition was minimally relevant, at best, and highly prejudicial, and should have been

excluded from the trial of these charges. Neither the State nor the trial judge articulated how

this evidence was relevant to whether Mr. Smith committed the alleged crimes. The fact that

Mr. Smith legally possessed guns and ammunition does not make the weapons relevant to

the victim’s death, and we cannot see from this record how the inclusion of this evidence

would help prove the offense charged. Without a more direct or tangible connection to the

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events surrounding this shooting, the evidence of the other weapons and ammunition owned

by Mr. Smith failed the probativity/prejudice balancing test, and the trial court erred by

admitting it.

C. The Trial Court Did Not Abuse Its Discretion In Admitting

Testimony About A Prior Incident In Which Mr. Smith

Mishandled A Gun And Was Reprimanded.

Finally, we address Mr. Smith’s argument that the court erred in admitting testimony

from Mr. Sutherland regarding Mr. Smith’s handling of a gun at a barbecue in 2005. Mr.

Smith asserts that the testimony suggested that he had a propensity to handle loaded weapons

in an irresponsible manner, conduct that reflected negatively on his character. The State

responds that Mr. Sutherland’s testimony helped to demonstrate Mr. Smith’s awareness of

the consequences of mishandling a weapon. The testimony in question occurred during the

trial on September 5, 2012:

[COUNSEL FOR THE STATE]: Okay. Getting back to the

states and socializing with Gary Smith, was there a time when

you or Gary Smith, socially, where he displayed a handgun?

[MR. SUTHERLAND]: Yes.

[COUNSEL FOR THE STATE]: All right. Tell us about that.

Mr. Smith objected to questioning about thistopic, but the trial judge overruled his objection.

Mr. Sutherland proceeded to describe an incident where he witnessed Mr. Smith mishandling

a handgun at a cookout:

[MR. SUTHERLAND]: Okay. A grilling out. It was on, on

post housing. It was a, like a town home, a townhouse type

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setup. And we were in the, the livingroom in the back of the

house watching TV. And I was sitting on, it was kind of like a

couch, like a futon type thing, if I recall. And he was sitting to

my right and he had what appeared to be, to me, it was like a,

like a collapsible stock type pistol with a clip. I don’t know

what kind of gun it was. I’m not really into guns. I just

remember that it was like, I think it was like a semi-automatic.

Anyways—

[COUNSEL FOR THE STATE]: A handgun?

[MR. SUTHERLAND]: A handgun. It was a handgun, yes.

[COUNSEL FOR THE STATE]: All right.

[MR. SUTHERLAND]: Like .9, .9 mm.

[COUNSEL FOR THE STATE]: All right.

[MR. SUTHERLAND]: And you know, he, I don’t know, he

liked to pull it out. He was showing it, showing it off to us.

And, and kind of, you know, fondling it and loading it. And—

[COUNSEL FOR THE STATE]: Loading it?

[MR. SUTHERLAND]: Yes. Oh, yeah, he was putting, putting

. . . the bullets, actually, in the, in the clip.

[COUNSEL FOR THE STATE]: Okay.

[MR. SUTHERLAND]: And I, I didn’t, yeah, there was that

time.

[COUNSEL FOR THE STATE]: All right. So tell us what

happened when he was loading the weapon.

[MR. SUTHERLAND]: I didn’t think he was being real safe

with it. He had it kind of pointed kind of towards my leg while

he was messing with it. I gave him a look. It wasn’t really like

any words exchanged, more of like gesturing. And—

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[COUNSEL FOR THE STATE]: Explain your gesture.

[MR. SUTHERLAND]: Well, it was like, kind of like, “What

are you doing, man?[”] And, and, and his reaction was, like, you

know, like he’s got a, he’s got a handle on it, like it’s no big

deal, so.

On cross-examination, Mr. Sutherland clarified aspects of his testimony:

[COUNSEL FOR MR. SMITH]: Okay. And you said he was

already loading a weapon?

[MR. SUTHERLAND]: No. No. No. He, when he first sat

down, he brought it out, you know, we saw it. And, you know,

he had it in his hand. But no, it wasn’t immediate. It was not

immediate that he was loading it.

[COUNSEL FOR MR. SMITH]: Okay. So at some point, he

brings it out—

[MR. SUTHERLAND]: Yes.

[COUNSEL FOR MR. SMITH]: —and it’s not loaded?

* * *

[MR. SUTHERLAND]: As far as I know, yes.

[COUNSEL FOR MR. SMITH]: Okay. And so he reaches over

and he takes some bullets and he’s starting to put them in a clip.

[MR. SUTHERLAND]: Yes.

[COUNSEL FOR MR. SMITH]: Is that right?

[MR. SUTHERLAND]: Yes.

[COUNSEL FOR MR. SMITH]: And did he put the clip back

into the gun or just still—

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[MR. SUTHERLAND]: I don’t recall.

[COUNSEL FOR MR. SMITH]: Okay. So that,—

[MR. SUTHERLAND]: Uh-huh.

[COUNSEL FOR MR. SMITH]: —if you don’t recall, then

what happens is, is that he may be—There’s one of two

scenarios, right? Either he put the clip back into the gun or the

gun did not even have the clip in it. That’s what you’re really

telling us, right?

[MR. SUTHERLAND]: Yes.

[COUNSEL FOR MR. SMITH]: One or the other?

[MR. SUTHERLAND]: Right.

[COUNSEL FOR MR. SMITH]: But whatever it is, whether the

gun was empty—

[MR. SUTHERLAND]: Uh-huh.

[COUNSEL FOR MR. SMITH]: —or the gun had a clip in it,—

[MR. SUTHERLAND]: Yes.

[COUNSEL FOR MR. SMITH]: —it was, as he’s sitting there,

this is all casual stuff, right?

[MR. SUTHERLAND]: Right.

[COUNSEL FOR MR. SMITH]: And it’s, it was, the gun, in

some fashion, was pointed towards your knee?

[MR. SUTHERLAND]: Yes.

[COUNSEL FOR MR. SMITH]: Right?

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[MR. SUTHERLAND]: Yes.

[COUNSEL FOR MR. SMITH]: Okay. And so you had a look

because you saw a barrel pointed, it didn’t matter where, the

knee or whatever, towards you?

[MR. SUTHERLAND]: Yes.

[COUNSEL FOR MR. SMITH]: You sort of looked at him, and

it was like, and that was the gesture or whatever following, and

that was the end of it?

[MR. SUTHERLAND]: Yes.

[COUNSEL FOR MR. SMITH]: And that’s the end of the

whole incident, right?

[MR. SUTHERLAND]: Yes.

Maryland Rule 5-404(b) limits evidence of a defendant’s prior “bad act[s],” and

specifically precludes bad acts evidence offered for the purpose of proving that the

defendant’s character “in order to show action in conformity therewith.” Md. Rule 5-404(b);

Klauenberg v. State, 355 Md. 528, 546 (1999). A “bad act” is an act or conduct “that tends

to impugn or reflect adversely upon one’s character, taking into consideration the facts of the

underlying lawsuit.” Klauenberg, 355 Md. at 549. This rule plays a role similar to the

prohibition against unfairly prejudicial evidence, i.e., to prevent the jury from “‘developing

a predisposition of guilt’” based on unrelated conduct of the defendant. Sinclair v. State, 214

Md. App. 309, 334 (2013) (quoting State v. Faulkner, 314 Md. 630, 633 (1989)).

Although “bad act” evidence isinadmissible to prove a defendant’s criminal character,

Rule 5-404(b) does allow “bad act” evidence that has “special relevance—that it ‘is

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substantially relevant to some contested issue.’” Wynn v. State, 351 Md. 307, 316 (1998)

(quoting State v. Taylor, 347 Md. 363, 368 (1997)). “Bad act” evidence has a “special

relevance if it shows notice, intent, preparation, common scheme or plan, knowledge,

identity, or absence of mistake or accident.” Id.; Md. Rule 5-404(b). Whether “bad act”

evidence demonstrates one of these alternate purposes is a “‘legal determination and does not

involve any exercise of discretion’” by the trial court; we review this determination de novo.

Wynn, 351 Md. at 317 (quoting Faulkner, 314 Md. at 634).

This leads to a two-step analysis. If we determine that the “bad act” evidence in

question has special relevance, then we balance the probative value of and need for the

evidence against the likelihood of undue prejudice. “‘This segment of the analysis

5

implicates the exercise of the trial court’s discretion,’” and we will only reverse the court’s

balancing determination if the court abused its discretion. Id. (quoting Faulkner, 314 Md.

at 634-35).

In this case, Mr. Sutherland’s testimony included “bad act” evidence that reflected

adversely upon Mr. Smith’s character. Mr. Sutherland depicted Mr. Smith as irresponsible

and unsafe in handling loaded weapons, which could encourage the jury to infer that Mr.

Actually, there is an intervening step: after determining that a piece of “bad act”

5

evidence has special relevance, the court must decide whether the State proved the

defendant’s involvement in the “bad act” by “‘clear and convincing evidence.’” Wynn, 351

Md. at 317 (quoting Faulkner, 314 Md. at 634-35). Mr. Smith has not challenged this

finding in this case, and in any event the testimony offered by Mr. Sutherland regarding his

encounter with Mr. Smith was sufficient to support a finding that Mr. Smith acted in the

manner he described.

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Smith acted in conformance with this character on the night in question. Unless the

testimony has an additional quality of special relevance to an issue in the case, then, it should

have been excluded under Rule 5-404(b).

The State argues here that this “bad act” has special relevance because it put Mr.

Smith on notice of the injurious consequences of mishandling a weapon. As part of its

burden of proving involuntary manslaughter, the State needed to demonstrate that Mr. Smith

was aware of the risks to Mr. McQueen from mishandling a firearm. The State asserts that

Mr. Sutherland’s testimony was highly probative of Mr. Smith’s knowledge of these risks.

Although it is a close call, we ultimately find no abuse of discretion in the circuit court’s

decision to admit Mr. Sutherland’s testimony.

In Duckworth v. State, 323 Md. 532 (1991), a battery case in which the defendant

allegedly shot a child after his gun accidentally discharged, the trial court admitted testimony

that, in a separate incident one week prior, the defendant had accidentally shot the child with

a BB gun. Id. at 544. The Court of Appeals held that the testimony of the prior BB gun

shooting was “clearly relevant” to show the defendant’s recklessness in later pointing a gun

at the child. Id. (“[T]he jury could conclude that the accidental discharge of the BB gun in

the earlier incident was a warning to [the defendant] that should have reinforced the need for

substantial caution when handling firearms.”). And the defendant’s failure to heed the

warning generated from the earlier BB gun shooting “exacerbated the recklessness involved

in the crime charged.” Id.

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The court in Duckworth held that the first shooting event put the defendant on notice

as to the need for caution when handling guns. The same concept applies here, but the two

cases are not perfect parallels. In Duckworth, the two incidents both resulted in the victim

being shot and took place within one week of each other. Id. By contrast, the SmithSutherland encounter occurred a year later and involved a totally different victim. Moreover,

the prior act in Duckworth was an actual shooting, whereas the prior act here took the form

of a silent gesture or look by Mr. Sutherland and a silent response by Mr. Smith. Id.

Nevertheless, Mr. Smith’s encounter with Mr. Sutherland could well have imparted to Mr.

Smith a warning about the need for caution when handling a weapon and demonstrated his

awareness of the risks of mishandling a weapon, even if the relevance to the charges is less

obvious than Mr. Duckworth’s “bad act.”

For our purposes, though, the parallel need not be perfect. The trial court is charged

with weighing the probative value of Mr. Sutherland’s testimony against the likelihood of

unfair prejudice. We find the question a close one, but find no abuse of discretion in the

court’s decision to allow Mr. Sutherland to testify about the prior incident.

JUDGMENT OF THE CIRCUIT COURT

F O R M O N T G O M E R Y C O U N T Y

REVERSED AND REMANDED FOR

PROCEEDINGS CONSISTENT WITH THIS

OPINION. COSTS TO BE PAID BY

MONTGOMERY COUNTY.

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