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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND Nos. 00663 & 02470 September Term, 2008 ____________________________________ KEITH ALLEN WASHINGTON v. STATE OF MARYLAND ____________________________________ Eyler, Deborah S. Kehoe, Rodowsky, Lawrence F. (Retired, Specially Assigned) JJ. Opinion by Kehoe, J. ____________________________________ Filed: January 29, 2010

Following a nine day jury trial in the Circuit Court for Prince George's County, Keith Allen Washington ("appellant") was convicted of involuntary manslaughter, two counts of first degree assault, and two counts of the use of a handgun in the commission of a felony or crime of violence. Subsequently, the trial court denied appellant's motion for a new trial. Appellant appeals both his convictions and the denial of his motion for a new trial.1 Appellant presents ten issues to this Court, which we have consolidated, reworded and re-ordered as follows: I. Did the trial court err in prohibiting appellant from introducing evidence of the State's only eyewitness's prior convictions for crimes of violence to demonstrate his allegedly violent propensities?

II. Did the trial court err in preventing appellant from cross-examining the State's only eyewitness about his failure to register as a sex offender in Maryland? III. Did the trial court err in permitting the State to elicit a hearsay statement that appellant was "looking for a fight," as a present sense impression? IV. Did the trial court err in failing to declare a mistrial when a State's witness testified that appellant was "hostile" on the telephone after the witness had been specifically instructed not to make such a statement? V. Did the trial court err in failing to sustain appellant's objection to the State's allegedly improper remark made in its opening statement? VI. Did the trial court err in failing to declare a mistrial based upon the State's allegedly improper remarks made in its closing argument?
VII. Did the trial court err in denying appellant's motion for a new trial?

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Appeal No. 0663, September Term 2008, is the appeal of the convictions. Appeal No. 02470, September Term 2008, is the appeal of the trial court's denial of appellant's motion for new trial. On April 14, 2009, this Court granted appellant's motion to consolidate the two appeals.

The first issue is not preserved for appellate review. We answer the remaining questions in the negative and affirm the convictions. Background Appellant, who was, at that time, a Prince George's County police officer, and his wife, Stacey Washington ("Mrs. Washington"), purchased a bed from Marlo Furniture which was delivered to their Accokeek, Maryland residence in December, 2006. The bed rails, however, were defective and either appellant or Mrs. Washington requested replacements. Marlo agreed to do so and arrangements were made to deliver the new bed rails on January 24, 2007, between 2:30 and 5:30 pm. Appellant took off from work to be at home when the delivery arrived. When the bed rails were not delivered during the specified time frame, appellant called Marlo to inquire about the delivery. After several phone calls, appellant was notified that the rails would be arriving around 7:30 p.m. At about that time, Brandon Clark ("Clark") and Robert White ("White"), two furniture deliverymen, arrived at the Washington residence with the bed rails. Appellant met Clark at the door. Unbeknownst to Clark or White, appellant had a handgun tucked into his waistband. White and Clark, accompanied by appellant, carried the bed rails to the master bedroom on the second floor. They were alone; Mrs. Washington and the Washington's six year old daughter were having dinner in the first floor kitchen. A few minutes later, appellant shot both Clark and White. White was severely injured and Clark died nine days later from complications related to his wounds.

After an investigation by the Prince George's County Police Department, a grand jury 2

sitting in the Circuit Court for Prince George's County indicted appellant on twelve counts: Count I Count II Count III Count IV Count V Count VI Count VII Count VIII Count IX Count X Count XI Count XII second degree felony murder (Brandon Clark); second degree specific intent to kill murder (Brandon Clark); second degree specific intent to do serious bodily harm murder (Brandon Clark); second degree depraved heart murder (Brandon Clark) voluntary manslaughter (Brandon Clark); involuntary manslaughter - grossly negligent act (Brandon Clark); involuntary manslaughter - unlawful act (Brandon Clark); first degree assault (Brandon Clark); use of a handgun in the commission of a felony or crime of violence (Brandon Clark); attempted second degree murder (Robert White); first degree assault (Robert White); use of a handgun in the commission of a felony or crime of violence (Robert White).

Prior to appellant's trial, White filed a civil action against appellant and Prince George's County seeking $400,000,000 in damages arising out of the shooting. Appellant's trial was preceded by in limine motions filed by both the State and appellant pertaining to evidentiary matters. Several of the trial court's rulings on these motions are pertinent to the issues raised on appeal and we will discuss them below. While a detailed description of the evidence presented at trial is not necessary for this opinion, we will summarize the testimony of White, on the one hand, and appellant and Mrs. Washington, on the other, to illustrate the contrast in their versions of events. According to the State, the shootings were unprovoked and unjustified. The State introduced evidence from an employee of Marlo who had spoken to appellant earlier in the day to the effect that appellant was angry and hostile over the telephone. White testified that,

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upon arriving at appellant's resident, Clark went up to the front door and talked to appellant, while White stayed in the delivery truck. White recounted that, when Clark came back to the truck to get the bed rails, he told White that appellant was "looking for a fight." White then testified as to his version of what then occurred:

[THE WITNESS]: When we went inside, he direct [sic] us to a bedroom upstairs. I was walking first, in front of Brandon. Brandon was walking behind me. He was behind Brandon, and he directed us to a bedroom upstairs. We went in, we set the rails down, and then Mr. Washington started arguing with Brandon. [THE STATE]: And what was Mr. Washington arguing with Brandon about? [THE WITNESS]: Because, I guess, we got to his house late, and he was upset because he was waiting to his house all day. [THE STATE]: Go ahead and tell us what happened. [THE WITNESS]: So Brandon kneeled down - - I'm standing on the other side, close to the railing, Brandon at the bed, and he ask Mr. Washington why you disassemble your bed, and he said - - this was his words - "Motherfucker, are you telling me what to do in my house?" I said, "Brandon, do you know Mr. Washington?" Brandon said no. So it was a few seconds later he pushed Brandon and told Brandon to get the fuck out of his house. I said, "Brandon, I think we should go." Brandon said, "No, just let me do my job. It's only going to take ten minutes." Brandon kneeling again - - he's still kneeling. Mr. Washington pushed him again, "Get the fuck out of my house," and the third time he pushed him, he pushed him until he was actually laying on his side. Brandon jump up. I told Brandon, "That's it; we out of here." I stepped between both of them, Mr. Washington and Brandon, Brandon going back out the door with his hands up. I got my back to Mr. Washington, and all I heard was shots after we got out of the room. He said, "I know how to get you the fuck out my house." [THE STATE]: After you heard the shots, what did you do; what did you see?
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[THE WITNESS]: Brandon was going back towards the stairs, and I grabbed Brandon to keep him from falling down the stairs.
**** I had to lay him down, and as I ask him where the cell phone at, when I turn around, I hear more shots. Then I realized I was hit. . . . [i]n the chest and in the stomach. **** I didn't want to go down the stairs because he already shot me. So I moved up, to move away from Brandon, . . . and I laid down here [pointing to a diagram], down on this side. Mr. Washington went back in his room. I got back up because I knew I needed help. When I got back up, he comes out of his room and he said, "Motherfucker, didn't I told you to stay down," and he starts shooting again. That's when I realized I was hit in the knee. I went down. [THE STATE]: You went down. Then what happened? [THE WITNESS]: We laid there screaming, asking him to help us, to call somebody, and he said he wasn't calling nobody. In contrast, appellant and Mrs. Washington testified that appellant had acted in selfdefense. Appellant testified that when Clark and White arrived at appellant's home he instructed them to put the bed rails in the foyer, but they carried them to the master bedroom instead. Appellant led Clark and White to the master bedroom, but when he got there, he noticed that White was no longer following. When appellant asked Clark about White's whereabouts, Clark "backslapped" appellant twice in the chest and told him "I got him, Shorty."2 Appellant then saw White coming out of appellant's daughter's bedroom. When

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Appellant is 5'9". White is 6'2", and, at the time of the shooting, weighed 280 pounds; Clark was 6'7" and weighed 300 pounds. 5

appellant told White to get out of his daughter's bedroom, Clark again responded with "I told you, Shorty, I got him." Appellant told Clark and White to leave his house. After appellant told Clark and White for the third time to leave his house, Clark responded that appellant needed to watch how he talked to people. Appellant again demanded that Clark and White leave. He testified: [APPELLANT]: Mr. White punched me on the side of the face. [DEFENSE COUNSEL]: What did Mr. Clark do? [APPELLANT]: When he punched me, Mr. Clark punched me in the back of the head. [DEFENSE COUNSEL]: What did you do after Mr. White punched you and Mr. Clark punched you in the back of the head? [APPELLANT]: When he punched me, I swung around with my hand, and I just covered up because I couldn't stop them. They were on me. [DEFENSE COUNSEL]: What position was your body in when you said you tried to cover up? [APPELLANT]: I was like this, covering up my head and my face and I was [DEFENSE COUNSEL]: At this time, Your Honor, I'd ask Mr. Washington to step down. [THE COURT]: Okay. (Witness steps down from witness stand.) [DEFENSE COUNSEL]: You can stand in front of the jury. Now, Mr. Washington, you said you attempted to cover up, and you described the position of your body. Can you let the ladies and the gentlemen of the jury know, after Mr. Clark and Mr. White hit you, what you did physically?

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[APPELLANT]: Yeah. I swung around, with my hand like that, and they were on me and they was - - I was covering up, like this, trying to protect my head and my face. [DEFENSE COUNSEL]: And at that point, where is Mr. Clark and Mr. White? [APPELLANT]: Mr. Clark is right here to my left, and Mr. White is right here to my right. [DEFENSE COUNSEL]: And what are they doing at that point? [APPELLANT]: They were hitting me and kicking me. Appellant went on to testify that he shot Clark and White in self-defense. Mrs. Washington testified that she heard appellant, White and Clark going upstairs with the bed rails. She continued: I didn't hear anything for a little while, and then I heard my husband say, "Get out of my house; leave my house; get out now," and that's the next thing I heard. [DEFENSE COUNSEL]: And once you heard your husband say those words, what did you do? [MRS. WASHINGTON]: I got up. I told [K.] [appellant's and Mrs. Washington's six year old daughter] - - I told [K.] to stay put, to don't move, and that's when I got up. And I got up to go see what was wrong, because I could tell something was wrong. **** [DEFENSE COUNSEL]: Okay Ms. Washington. You stated that you were walking from the kitchen as you were peering up the stairs. What did you see when you looked upstairs? [MRS. WASHINGTON]: That's when I saw Keith bent over, and these two men were on either side of him and they were beating him.

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[DEFENSE COUNSEL]: And when you looked up and saw that, what did you do? And you can take your time, Mrs. Washington. [MRS. WASHINGTON]: I was walking into the hallway and, as I was coming around through the hallway, I looked up and then I could see them, him in the middle, and he was kind of bent over, and then there was one man on either side of him, and they were beating him. And I thought oh, my god; oh, my god; they're just going to beat him to death, because he was just kind of bent over and he couldn't do anything. And I thought, okay, I need to help him; I need to help him. And so I was going to start up the steps. And as I was getting ready to start up the steps, I was thinking what if something happens to me, what is [K.] going to do? I didn't want her to come in here - - (crying). **** [DEFENSE COUNSEL]: Ms. Washington, I think where we were, you were about to describe - - I'll just ask you the question. As you looked upstairs, as you're leaving the kitchen, where were the deliverymen positioned with respect to where your husband, Keith Washington, was? [MRS. WASHINGTON]: He was bent over, and there was one man on either side of him. [DEFENSE COUNSEL]: I believe you said that you were at the bottom of the stairs. At that point, when you looked upstairs and you were at the bottom of the stairs, what did you say or do? [MRS. WASHINGTON]: The first thing I thought was, my god; oh, my god, I need to help him. **** [MRS. WASHINGTON]: As I started to go up the steps, that's when I knew I couldn't help him. And then I was going to call 911. (Crying.) After the shootings, Mrs. Washington called 911. Appellant joined in the call. The State played a recording of the call to the jury. The State introduced forensic evidence

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regarding the gunshots. The evidence could support the conclusion that at least one of the gunshots was fired from a distance of four feet or more, while the other gunshots were at closer range. A DNA analysis of appellant's handgun indicated that both appellant's and White's DNA was present on it. The State also presented the testimony of an emergency room physician who treated appellant on the night of the shooting. She did not observe any trauma to appellant's neck or face. She also testified that the X-rays taken of appellant were negative, indicating no fractures. The emergency room nurse who examined appellant that night gave similar testimony. To further corroborate the physician's testimony, the State also introduced a photograph of appellant taken before he was transported to the hospital, which did not reveal any indication of significant injury. Appellant called other witnesses who had been present at the Washington residence after the shootings. They testified that appellant's face appeared puffy or swollen on the night of the shooting and that appellant was holding an ice pack to his face before being transported to the hospital. The appellant called a forensic pathologist who testified that, in his opinion, White's testimony was not consistent with evidence regarding his injuries and Clark's autopsy. On February 13, 2008, the jury convicted appellant of involuntary manslaughter unlawful act (Brandon Clark), two counts of first degree assault (Brandon Clark and Robert White), two counts of use of a handgun in commission of a felony or crime of violence (Brandon Clark and Robert White), and attempted second degree murder (Robert White), and acquitted him of all remaining counts. Appellant was sentenced on May 27, 2008, to a total 9

of 45 years incarceration.3 Appellant filed a timely notice of appeal from those convictions on May 30, 2008. On August 25, 2008, appellant filed a motion for a new trial, which was denied on November 21, 2008. Appellant filed a timely notice appealing that judgment on December 2, 2008. Additional facts will be discussed as necessary in this opinion. I. Did the Trial Court Err in Prohibiting Appellant from Introducing Evidence of White's Prior Convictions to Demonstrate His Allegedly Violent Propensities?

Before this Court, appellant contends:

Prior to trial, counsel for [appellant] discovered that White, the State's

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Appellant was sentenced as follows: Involuntary manslaughter - unlawful act (Brandon Clark): 10 years incarceration (Count VII); First degree assault (Brandon Clark): 25 years incarceration with all but 10 years suspended to run concurrent with Count VII; Use of a handgun in the commission of a felony or crime of violence (Brandon Clark): 20 years incarceration consecutive to Counts VII & VIII; First degree assault (Robert White): 25 years incarceration with all but 10 years suspended to run consecutive to Counts VII, VIII & IX; and Use of a handgun in the commission of a felony or crime of violence (Robert White): 20 years incarceration with all but 5 years suspended to run consecutive to Counts VII, VIII, IX, & XI. 10

only eyewitness, had 11 prior convictions and received at least one significant period of incarceration (a fact that helped explain why the witness had no convictions between 1995 and 2005). In support of his self-defense theory at trial, Mr. Washington sought to introduce White's prior convictions to attack White's credibility and to show bias, and because the probative value of his convictions far outweighed any prejudicial effect. **** In response, Mr. Washington argued that, given the nature of Mr. White's prior convictions, the convictions were highly relevant to White's credibility. The defense asserted multiple theories of admissibility, specifically claiming that the convictions were admissible under (1) the United States Constitution, (2) Md. Decl. of Rights art. 21, and (3) Md. Rule 5-609. Moreover, White's convictions were evidence of bias. . . . The trial court committed reversible error. Because White's convictions for aiming a firearm, assault and battery, assault with intent to commit a sexual offense, and domestic violence are relevant to the issue of first aggressor status, their exclusion was improper. . . . Asserting that White's status as the initial aggressor was an "essential element" to his claim of self-defense, and relying on Hemingway v. State, 76 Md. App. 127 (1998)4, and Md.

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In Hemingway, this Court held that a defense witness testifying to a victim's violent character could refer to specific instances as the basis for his opinion and that, if the State challenged the accuracy of the witnesses' recollection of the events in question, evidence of the convictions could be introduced to corroborate the testimony. This is a proposition fundamentally different from permitting the introduction evidence of prior convictions as the sole proof of character, as appellant now contends the trial court should have done.

In any event, Hemingway was decided before the adoption of Maryland's current Rules of Evidence in 1994. It is at best questionable whether Hemingway is consistent with current Maryland Rule 5-405, pertaining to proof of character. See 5 L. McLain MARYLAND EVIDENCE,

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