Elmer v. State

724 A.2d 625, 353 Md. 1, 1999 Md. LEXIS 53
CourtCourt of Appeals of Maryland
DecidedFebruary 18, 1999
Docket31, Sept. Term, 1998
StatusPublished
Cited by26 cases

This text of 724 A.2d 625 (Elmer v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elmer v. State, 724 A.2d 625, 353 Md. 1, 1999 Md. LEXIS 53 (Md. 1999).

Opinions

RAKER, Judge.

Petitioner was convicted by a jury in the Circuit Court for Cecil County of the offenses of unlawful shooting with intent to disable, in violation of Maryland Code (1957, 1992 Repl. Vol.), Article 27, § 386; malicious injury to eye, in violation of Art. 27, § 385; common law assault; reckless endangerment, in violation of Art. 27, § 120; and common law conspiracy to [4]*4shoot with intent to disable.1 The Court of Special Appeals affirmed. Elmer v. State, 119 Md.App. 205, 704 A.2d 511 (1998). This Court granted certiorari to answer the question of whether the Court of Special Appeals erred in affirming the judgments despite the error of the trial court in permitting the State to cross-examine the co-defendant Robert Brown with statements made by Brown’s counsel during plea negotiations which directly incriminated Petitioner.

I.

On February 1, 1996, Petitioner David Allen Elmer was a passenger in a car driven by Robert Brown. The car entered the neighborhood of Winding Brook and swerved toward four pedestrians standing close to a bridge near the side of the road. The four people then walked to a nearby basketball court and told others of the swerving incident. The Brown car drove to the basketball court, which is when several of the people started throwing large rocks at the car, causing damage to the windshield, windows, and body of the car. The car again swerved toward some of the participants and then quickly departed, returning a third time, to find several of the pedestrians brandishing more rocks.

Rocks began bouncing off the car again, and Petitioner put a shotgun outside the passenger window. A shot was fired, and the shot struck Robert Earl, a bystander uninvolved in the rock throwing incident. Three pellets struck him in his head, two more in his nose, and one in his left' eye. The victim suffered irreparable damage to his eye and now wears a replacement prosthesis.

In a joint trial, Brown and Elmer proceeded to trial before a jury. A significant issue developed at trial as to which person [5]*5in the car actually fired the shotgun—Brown or Elmer. Elmer did not testify. Several witnesses testified that they saw the shotgun through the passenger’s side and that Elmer fired the shot that struck Mr. Earl. Brown testified that he reached over and pulled the trigger as one of the bystanders was aiming a large chunk of granite at the car window and that Elmer was trying to avoid being hit with it. Brown’s testimony that he pulled the trigger, and not Elmer, led the prosecutor to inquire of Brown on cross-examination:

THE STATE: Mr. Brown, did you ever make the statement that when you came down around the curve ... your attention was drawn to the people that were running from your left, and that at that point in time Allen Elmer put that gun out the window, pulled the trigger, the gun boomed, and the first thing you said to him is what the F did you do? Did you ever make that statement?
[COUNSEL FOR BROWN]: Objection. May we approach the bench?
THE STATE: Did you ever make that statement, Mr. Brown?
[COUNSEL FOR BROWN]: Your Honor—
THE COURT: It’s cross-examination.
THE STATE: Did you ever make that statement? [COUNSEL FOR BROWN]: Your Honor—
THE COURT: Just a minute. Come on up.

The following discussion took place at the bench.

THE COURT: What is your objection?
[COUNSEL FOR BROWN]: I am trying to make sure that [the prosecutor] is not trying to get into attorney/client privilege. The attorney who he was making the statement to—clarify that, please.
THE COURT: Well, if he made it to you, how would he know about it? If he made it to you, how would [the prosecutor] know about it?
[COUNSEL FOR ELMER]: I object. Objection.
[6]*6[COUNSEL FOR BROWN]: My objection is I want him to clarify who he made the statement to.
THE STATE: All I have to ask him is if he ever made that statement.
THE COURT: You’re overruled.

The bench conference concluded and the prosecutor continued before the jury:

THE STATE: Mr. Brown, I think you heard the question, but I will ask you again. Did you ever make the statement, Mr. Brown, that—when you came down around this curve that your attention was drawn to the people who were coming from your left, and you’re looking out there, out the driver’s side toward those people on the left as you heard— don’t look at [counsel for Brown].
[COUNSEL FOR BROWN]: I am making the objections. He is looking at me.
THE COURT: I am overruling you. You are looking at the attorney.
[COUNSEL FOR BROWN]: Your Honor, we need to approach the bench again.
THE COURT: No, no, you are not approaching the bench. He is asking questions. I’ve already ruled on this. Go ahead.
[COUNSEL FOR BROWN]: Your Honor, it’s on a separate matter. I need to approach the bench for the record, please.
THE COURT: Come on up.
[COUNSEL FOR BROWN]: Your Honor, [the prosecutor] asked in settlement negotiations what would my client testify to, and during settlement negotiations I told him what my client would testify to. I never told him my client said that. That was part of the settlement negotiations for—
[COUNSEL FOR ELMER]: In all fairness, good conscience, fairness, he can’t use something like that now when negotiations—
[7]*7THE COURT: Is that what you are using now?
THE STATE: Yes, I am. Let me tell you how this went though. This is—[counsel for Brown] came to me, and said his client was willing to plead guilty to reckless endangerment, and his client wanted to testify in my prosecution of this defendant; and his client would testify just exactly the same that I am asking right now.
[COUNSEL FOR BROWN]: No. When I said—he asked, what do you expect your client to say. I said, I would expect my client to testify—
THE STATE: And he continually said that’s what the witness had said.
[COUNSEL FOR BROWN]: I never intentionally asked my client what he did or not what he did until ten minutes before yesterday.
THE COURT: What you—
[COUNSEL FOR BROWN]: He asked what I expect him to testify to. I never—
THE COURT: You are overruled. You have your objection.
[COUNSEL FOR BROWN]: Thank you.
Before the jury, the prosecutor again inquired:
THE STATE: Mr.

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Bluebook (online)
724 A.2d 625, 353 Md. 1, 1999 Md. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elmer-v-state-md-1999.