Suppose defense counsel in a homicide trial gives an opening statement suggesting that the victim had been the aggressor and had initiated the fight that ultimately led to his death. Does that opening statement open the door to permit the prosecution, in its case-in-chief, to introduce evidence showing the victim’s character trait for peacefulness?

That was one of the issues facing the Court of Appeals in Ford v. State No. COA-REG-0011-2018 (Oct. 26, 2018).[i] In an opinion authored by Judge Shirley Watts, the Court held that defense counsel’s opening statement had not opened the door and that the trial court erred in allowing the State to introduce the character evidence in its case-in-chief. But the defense victory was pyrrhic, as the Court also held that the error was harmless and thus affirmed the conviction for second-degree murder.

On a July evening three years ago, Mohamed Bashir Eltahir and his friend Everett Kane bought alcoholic drinks, and then found a park bench where they sat and enjoyed their beverages and each other’s company and conversation. Other people came by and joined Eltahir and Kane, including David Leander Ford. Shortly after his arrival, Ford became embroiled in what was initially a verbal altercation with Eltahir and eventually grew into a physical one. After punches were thrown, the fight ended when Eltahir was stabbed in the chest and suffered a mortal wound. Ford was arrested, charged with various crimes, and ultimately tried for second-degree murder.[ii]

At trial, the prosecutor in his opening statement described what the State intended to prove, explaining that after Ford arrived at the park bench, he made disrespectful comments about Eltahir’s sister. Angry words were exchanged, and things escalated when Ford jumped off the bench, continued swearing, “and got into Eltahir’s face.” Id., Slip Op. at 4 (cleaned up). Eltahir followed suit, and despite the efforts of others “to defuse the situation,” the two men continued their heated argument “until Ford swung his fist and struck Eltahir in the chest.” Id. The prosecutor said that Eltahir then hit Ford, knocking him to the ground. Ford stood up, stabbed Eltahir in the chest, the knife blade plunged into Eltahir’s heart, “and he died shortly thereafter.” Id.

As explained in the defense’s opening statement, “Ford’s theory of the case was that he acted in self-defense.” Id. According to defense counsel, while “Ford insulted Eltahir, Eltahir was younger, bigger, faster and stronger than Ford, and Eltahir was the aggressor who initiated physical contact.” Id. Thus, according to the defense, Ford “had a choice to defend himself or he had a choice to get badly injured, perhaps even killed.” Id.

A bench conference occurred after opening statements. The State argued that the defendant’s opening statement had “opened the door” and allowed the State to introduce evidence about Ford’s temper and his “character for peacefulness or aggressiveness,” and that Eltahir’s “nature for peacefulness was fair game at that point,” and in light of the defense claim of self-defense, Ford’s “nature became fair game.” Id. at 5 (cleaned up). The trial judge disagreed, ruling that defense counsel’s statements had not opened the door “sufficiently” to allow the State to present that evidence in its case-in-chief. Id. at 5-6.

Despite that ruling at the bench, however, the State ultimately succeeded in introducing the character evidence. While the court initially sustained objections to questions aimed at eliciting such evidence, it later explained during a bench conference that it had sustained a particular objection only due to “the context of the question.” Id. at 9 (cleaned up). But during that same bench conference, the trial judge said the defendant’s opening statement, “although not evidence in the traditional sense” had “opened the door,” meaning the prosecutor could “present testimony that the victim, in this case, was of a peaceful nature.” Id. at 10. The State then elicited testimony from Everett Kane that Eltahir “was a cool person,” who “was never, you know nasty or hostile, or anything.” Id. at 11. Earlier, through Barbara McQueen, the prosecution had introduced testimony that Eltahir was a “quiet, nice person.” Id. at 6.

The jury found Ford guilty of second-degree murder and the Court of Special Appeals affirmed that conviction, holding “that the circuit court reasonably allowed McQueen and Kane to testify to Eltahir’s character for peacefulness in response to Ford’s opening statement.” Slip Op. at 20 (quoting Ford v. State, 235 Md. App. 175, 204 (2017)). The intermediate appellate court reasoned that since “Maryland Rule 5-611(a) gives trial courts the discretion to allow anticipatory rehabilitation, it could reasonably be interpreted as providing trial courts the discretion to allow anticipatory rebuttal evidence under Maryland Rule 5-404(a)(2)(C).” Id. The Court of Appeals granted Ford’s cert petition and registered disagreement with the intermediate court.

While Rule 5-404(a) generally prohibits the use of character or character trait evidence “to prove that the person acted in accordance with the character or trait on a particular occasion,” subsection (a)(2) allows some specific uses of character evidence in criminal cases. Paragraph (C) of that subsection provides: “In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.” Md. Rule 5-404(a)(2)(C) (emphasis added). Ford argued that Rule 5-404(a)’s policy is to exclude character evidence and that the exception contained in 5-404(a)(2)(C) “should be narrowly construed” and thus not be triggered by comments made in opening statement, because those comments are not “evidence.” Slip Op. at 22-23. The State countered “that the circuit court properly permitted it to introduce evidence in its case-in-chief of Eltahir’s trait of peacefulness because Ford’s counsel stated during his opening statement that Eltahir was the aggressor and signaled that evidence would be introduced to prove as much.” Id. at 23. The State urged that Rule 5-611 authorized the court “to control the order of the presentation of evidence to, among other things, avoid the needless consumption of time,” and that the court thus had the discretion to vary the order of proof established by Rule 5-404(a)(2)(C). The State further argued “that case law also recognizes that an opening statement may open the door to certain evidence that would otherwise be inadmissible at trial.” Id. at 23.

The Court of Appeals sided with Ford, holding “that Maryland Rule 5-404(a)(2)(C) does not permit a prosecutor to offer evidence of an alleged victim’s trait of peacefulness to rebut statements made by defense counsel in opening statement because opening statements are not evidence,” noting that the Rule specifically requires the introduction of evidence that the victim initiated the aggression before the prosecution may rebut that evidence with evidence regarding the victim’s character trait peacefulness. While Rule 5-404(a) does not define the word “evidence,” the Court explained that the natural, ordinary, and accepted meaning of the word refers to “testimony, documents, objects, or exhibits that are offered during a judicial proceeding to prove or disprove the existence of an alleged fact; i.e., evidence is something that is submitted to a tribunal, in one of various forms, that tends to establish the truth or falsity of an alleged fact.” Id. at 27. Hence an opening statement is not evidence. Similarly, the word “rebut” and the term “rebuttal evidence” connote evidence used to contradict evidence presented by an opposing party in litigation. Id. at 29.

Thus, the plain language of Maryland Rule 5-404(a)(2)(C) makes clear that a prosecutor is not permitted to offer evidence of an alleged victim’s trait of peacefulness to rebut statements that defense counsel makes during an opening statement. Rather, under the plain language of Maryland Rule 5-404(a)(2)(C), there must first be evidence presented by the defense that the victim was the aggressor before a prosecutor may offer rebuttal evidence of the alleged victim’s trait of peacefulness.

Id. at 30. In addition, the Court examined “the history and purpose of the Rule, which confirms that, under Maryland Rule 5-404(a), a defendant must first offer evidence of the victim’s pertinent character trait – not make assertions during an opening statement – to open the door for the State to rebut that evidence.” Id. After discussing the initial version of the Rule, the 2010 amendments that restructured the Rule, and comments made by Professor Lynn McLain at a 2010 meeting of the Standing Committee on Rules of Practice and Procedure, the Court summarized: “Stated otherwise, the defendant controls the introduction of character evidence by offering such evidence in the first instance; i.e., it is character evidence being offered by the defendant – not an assertion made during opening statement – that triggers or opens the door for the State to rebut that evidence under Maryland Rule 5-404(a).” Id. at 31. That simply did not happen, as Ford did not offer any evidence suggesting that Eltahir was the aggressor.

Although recognizing that opening statements are not evidence, the State relied on various cases to support its contention “that Ford’s counsel’s remarks during opening statement nevertheless opened the door to the State being entitled to rebut those claims in its case-in-chief.” Id. at 32. The Court disagreed, however, as none of those cases involved Rule 5-404(a)(2)(C), which is expressly triggered only by the introduction of evidence and thus cannot be triggered by remarks made during opening statement. For example, the Court discussed the State’s reliance on Hopkins v. State, 137 Md. App. 200 (2001) and Fulbright v. State, 168 Md. App. 168 (2006) and distinguished those cases. Each of those cases “involved admission of anticipatory rehabilitation evidence of a State’s witness under Maryland Rule 5-616(c), during direct-examination of the witness, in response to remarks made by the defendants’ counsel during opening statements.” Slip Op. at 34. As the Court explained, Rule 5-616(c) provides for the rehabilitation of a “witness whose credibility has been attacked.” Id. (quoting Rule 5-616(c)) (emphasis added). The Court noted that the word “attacked” in Rule 5-616(c) is broader than the phrase “rebut evidence” in Rule 5-404(a)(2)(C), “and arguably could encompass remarks that counsel makes during an opening statement that ‘attack’ a witness’s credibility.” Id. In short, neither case “addressed Maryland Rule 5-404(a)(2)(C), or whether opening statements may open the door for the State to present rebuttal evidence of an alleged victim’s trait of peacefulness in its case-in-chief.” Id.

The State also relied on Snyder v. State, 361 Md. 580 (2000), which contained dicta discussing motive evidence under Rule 5-404(b), the admissibility of which “does not depend on the defendant first offering evidence to trigger the State’s ability to introduce” that evidence “and does not concern rebuttal evidence.” Id. The State relied on Terry v. State, 332 Md. 329 (1993), Martin v. State, 364 Md. 692 (2001), and Johnson v. State, 408 Md. 204 (2009) as well. Each case involved the doctrine of curative admissibility, but none concluded that the doctrine “applied generally to character evidence under Maryland Rule 5-404(a) or specifically to rebuttal character evidence of a victim’s trait of peacefulness under Maryland Rule 5-404(a)(2)(C).” Slip Op. at 37. Finally, the State also relied on Anderson v. State, 420 Md. 554 (2011) and Thomas v. State , 429 Md. 85 (2012), each of which addressed whether opening statements could open the door for the admission of prior consistent statements under Rule 5-616(c) and 5-802.1(b). But, as the Court noted, “neither Maryland Rule 5-616(c) nor Maryland Rule 5-802.1(b) ties the triggering of admission of evidence to ‘evidence’ having already been admitted, as Maryland Rule 5-404(a)(2)(C) does.” Id. at 35 n.2. Thus, the Court was “unpersuaded” by the State’s reliance on those decisions. Id. at 34, 35.

Finally, the Court was equally unimpressed by the State’s claim that “Maryland Rule 5-611(a) somehow changes the result or otherwise authorizes a trial court to permit the State to introduce evidence of the alleged victim’s trait of peacefulness, pursuant to Maryland Rule 5-404(a)(2)(C), in its case-in-chief in response to remarks by defense counsel in opening statement.” Id. at 37. While that Rule “generally authorizes a trial court to vary the order of proof, and, specifically, the order of interrogating witnesses and presenting evidence,” the Court concluded that the Rule does not support the argument raised by the State. Id. at 37-38. “Nothing in Maryland Rule 5-611(a), however, indicates that the provision overrides the specific dictates of Maryland Rule 5-404(a)(2)(C), which creates a narrow exception to the general rule of inadmissibility of character evidence to prove that an individual acted in accordance with that character on a particular occasion.” Id. at 38.

Thus, the Court held that the trial court “erred in concluding that Ford’s counsel had ‘opened the door’ for the State to present evidence of Eltahir’s peacefulness under Maryland Rule 5-404(a)(2)(C), and in permitting the State, over Ford’s objection, to elicit testimony in its case-in-chief from McQueen and Kane concerning Eltahir’s trait of peacefulness.” Id. at 38. Ford’s joy at that ruling, however, proved short-lived, as the Court “next explored whether the error was harmless.” Id. (cleaned up). The Court cited “a plethora of evidence adduced at trial demonstrating that Ford did not act in self-defense in fatally stabbing Eltahir, such that we are satisfied beyond a reasonable doubt that the circuit court’s error was of no consequence with respect to the jury’s verdict.” Id. at 39. After recounting that evidence in detail, the Court summarized:

Given the eyewitness accounts of the circumstances under which Ford stabbed Eltahir showing that Ford did not act in self-defense in stabbing Eltahir, and Ford’s description of the events to detectives, we conclude that any error on the circuit court’s part in admitting testimony from McQueen and Kane as to Eltahir’s trait of peacefulness during the State’s case-in-chief was harmless beyond a reasonable doubt.

Id. at 42 (footnote omitted).

[i] The Court also considered “the admissibility of evidence of the defendant’s post-crime conduct as consciousness of guilt.” Slip Op. at 1. The Court concluded that the defendant’s post-crime conduct was relevant to show his “guilty state of mind,” i.e. “that he was staying at his ex-girlfriend’s home to hide from law enforcement and did not want to leave because he wanted to continue hiding out and elude capture.” Id. at 3. The Court also concluded “that the trial court did not abuse its discretion in concluding that the danger of unfair prejudice or considerations of cumulative evidence did not substantially outweigh the probative value of the evidence.” Id. This post does not discuss that aspect of the Court’s decision.

[ii] When trial started, the State nol prossed a first-degree murder charge, and at the conclusion of the State’s case, the trial court granted the defense motion for judgment of acquittal as to a charge of carrying a weapon openly with the intent to injure.

This article originally appeared in the Maryland Appellate Blog.