State v. Jones

466 Md. 142

• Court: Court of Appeals of Maryland
• Decided: August 28, 2019
• Docket: 52/18
• Status: Published

Opinion

State of Maryland v. Hassan Emmanuel Jones, No. 52, September Term, 2018

CRIMINAL PROCEDURE — SUFFICIENCY OF THE EVIDENCE — ACCOMPLICE CORROBORATION RULE — The accomplice corroboration rule, as it was structured at the time of trial, required evidence independent of accomplice testimony to implicate a defendant in a crime or identify the defendant with the perpetrators of the crime at or near the time it was committed. That evidence was not presented here, and thus the Court of Appeals affirmed the judgment of the Court of Special Appeals overturning the conviction of Respondent as being legally insufficient.

CRIMINAL PROCEDURE — ACCOMPLICE CORROBORATION RULE — ABROGATION — The accomplice corroboration rule, in its most stringent form, precludes convicting a defendant based solely on the testimony of the defendant’s accomplices. Slight corroborative evidence is required to sustain a conviction. The rule applies in a minority of states and is grounded in outdated legal reasoning. Presented with an opportunity to reevaluate the rule and after thorough examination of its utility, the Court of Appeals abrogated the accomplice corroboration rule as it was structured, leaving it exclusively to the jury to assess the credibility of accomplice testimony. In place of the now-abrogated rule, a trial judge should give a cautionary jury instruction when the State introduces accomplice testimony. Circuit Court for Baltimore County Case No. 03-K-15-005488 Argued: January 31, 2019

IN THE COURT OF APPEALS OF MARYLAND

No. 52

September Term, 2018

STATE OF MARYLAND

v.

HASSAN EMMANUEL JONES

Barbera, C.J., *Greene McDonald Watts Hotten Getty Wilner, Alan M., (Senior Judge, Specially Assigned)

JJ.

Opinion by Barbera, C.J. McDonald, J., concurs and dissents. Watts, J., concurs and dissents. Hotten and Greene, JJ., concur and dissent.

Filed: August 28, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. *Greene, J., now retired, participated in the hearing and Suzanne Johnson conference of this case while an active member of this 2020-03-23 12:20-04:00 Court; after being recalled pursuant to the Maryland Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. Suzanne C. Johnson, Clerk We are presented here with an opportunity to reconsider Maryland’s common law

accomplice corroboration rule, which requires that accomplice testimony be independently

verified to sustain a conviction. For reasons that follow, we abrogate the rule and hold that

the jury, after proper instruction about the possible unreliability of accomplice testimony,

is entitled to weigh the sufficiency of such evidence without the need for independent

corroboration. First, though, we must apply the current accomplice corroboration rule to

resolve the present case. In doing so, we affirm the judgment of the Court of Special

Appeals, which overturned Respondent’s conviction based on the lack of independent

evidence that would corroborate the accomplice testimony.

I.

Facts and Procedural History

A. The Underlying Incident.

Around 4:30 a.m. on August 9, 2015, Sandeep Bhulai’s body was discovered lying

next to his vehicle, which was idling with the doors ajar. Mr. Bhulai had been shot multiple

times—once in the head, once in the neck, once in the chest, once in the left elbow, and

twice in the left arm. The police found 9-millimeter and .380 caliber cartridge casings

surrounding Mr. Bhulai. The police collected fingerprints from Mr. Bhulai’s vehicle and

a motor scooter that was found near the scene.

The investigation led police to six suspects: (1) Christian Tyson; (2) Keith Harrison;

(3) Kareem Riley; (4) Ramart Wilson; (5) Michael Jobes; and (6) Hassan Jones,

Respondent here. Fingerprints from Harrison, Riley, Wilson, and Tyson were discovered

at the crime scene. Later that summer, police arrested Harrison for marijuana possession and found a .380 caliber handgun that matched the one used in Mr. Bhulai’s murder. After

interviewing a few of the suspects who implicated Jobes, police executed a search warrant

on Jobes’s home and found Mr. Bhulai’s cell phone. Cell phone locational data placed

phones related to all the suspects, except Respondent and Tyson, near the scene of the

murder on the night in question. Respondent was implicated solely by the accounts of

Tyson, Riley, and Wilson. Wilson identified Respondent in a photograph, which was

allegedly taken on the night of the murder, by writing Respondent’s nickname, “Teefy,” in

front of Respondent’s image.1

B. Respondent’s Arrest and Trial.

On September 10, 2015, police arrested Respondent. Respondent initially denied

having a nickname, cell phone, and any knowledge of the crime or the other five suspects.

After Respondent’s cell phone number was discovered in Jobes’s phone and vice versa,

Respondent conceded that he had a cell phone and had the nickname “Teefy;” yet

Respondent continued to deny that he knew Jobes. Respondent was later charged with

first- and second-degree murder, first-degree felony murder, use of a firearm during a

violent crime, conspiracy to commit armed carjacking, and armed robbery.

At Respondent’s trial, Tyson, Riley, and Wilson testified pursuant to plea

agreements. Their testimony was consistent and demonstrated that the group, including

Respondent, attended a party in Reisterstown and then an “after party” in Woodlawn on

the night of the murder starting sometime around 9 p.m. The State entered into evidence a

1 Although Wilson identified Respondent in the photograph as “Teffy,” the State, in its briefs, and the trial transcripts refer to him as “Teefy.” This bears no significance to the issues at hand. 2 photograph that Wilson testified was taken on his cell phone sometime between 12:30 a.m.

and 1:40 a.m. and depicted Wilson, Respondent, and the rest of the group. Wilson testified

that after leaving the party, the group agreed to go to Middle River to steal something.

When they reached a residential area, the group split up. Wilson further testified that he,

Riley, and Harrison attempted to steal a motor scooter, but they were unable to trigger the

ignition. Wilson then helped Riley return to Riley’s car because he was “very intoxicated.”

Meanwhile, Harrison left to reconnect with the others.

Mr. Bhulai was killed between 3:00 and 3:15 a.m. Tyson testified about the murder.

He said that the group, including Respondent, forced Mr. Bhulai out of his car at gunpoint.

While holding Mr. Bhulai at gunpoint, Tyson took Mr. Bhulai’s cell phone. Jobes,

Harrison, and Respondent then shot Mr. Bhulai multiple times. Immediately after the

shooting, Jobes took Mr. Bhulai’s wallet, and the group fled to Riley’s car.

Riley and Wilson, who remained in Riley’s car during the murder, both testified that

they heard gunshots. Shortly thereafter, the group returned and Harrison, Jobes, and

Respondent were all carrying handguns. According to Riley’s testimony, Respondent told

him to “hurry up and get us away from here, we just shot someone.”

In addition to the accomplices’ testimony, the State presented testimony from

detectives and forensic experts and offered physical evidence. Although that evidence

“generally corroborated” the accomplices’ testimony regarding their “movements and

activities that evening,” none of the physical evidence (i.e., locational data and fingerprints)

directly implicated Respondent.

3 After the State closed its case, Respondent moved for a judgment of acquittal on all

charges, arguing that the accomplices’ testimony was not corroborated. The court denied

the motion, ruling that the photograph on Wilson’s phone served as independent

corroboration. Respondent did not put on a defense case.

Among other instructions, the court instructed the jury that the accomplice

testimony must be independently corroborated. The court read pattern instruction MPJI-

3:1—Testimony of Accomplice—set forth in the Maryland State Bar Standing Committee

on Pattern Jury Instructions, see MPJI-Cr 3:11 Testimony of Accomplice, which, with the

names added, states:

You have heard testimony from Christian Tyson, Kareem Riley and Ramart Wilson who were accomplices. An accomplice is one who knowingly and voluntarily cooperated with, aided, advised or encouraged another person in the commission of a crime. The Defendant cannot be convicted solely on the uncorroborated testimony of an accomplice. You must first decide whether the testimony of Christian Tyson, Kareem Riley and Ramart Wilson was corroborated before you consider it. Only slight corroboration is required. This means there must be some evidence which you believe in addition to the testimony of Christian Tyson, Kareem Riley and Ramart Wilson that shows either, one, that the Defendant committed the crime charged; or two, that the Defendant was with others who committed the crime at or about the time and place the crime was committed. If you find that the testimony of Christian Tyson, Kareem Riley and Ramart Wilson has been corroborated, you may consider it but you should do so with caution and give it the weight you believe it deserves. If you do not find that the testimony of Christian Tyson, Kareem Riley and Ramart Wilson has been corroborated, you must disregard it and may not consider it as evidence against the Defendant. You have heard evidence that Christian Tyson, Kareem Riley and Ramart Wilson have pleaded guilty to a crime arising out of the same events for which the Defendant is now on trial. The guilty plea of th[ese] witness[es] must not be considered as evidence against this [D]efendant. You may consider the testimony of a witness who testifies for the State as a result of a plea agreement. However, you should consider such testimony with caution because the testimony may have been influenced by a desire to gain a benefit by testifying against the Defendant.

4 Of all the charges, the jury convicted Respondent only of conspiracy to commit

armed carjacking. Respondent then moved for a new trial, again asserting that the

accomplices’ testimony lacked the requisite independent corroboration. The trial judge

again denied the motion and imposed a thirty-year sentence.

Respondent appealed, and a three-judge panel of the Court of Special Appeals, in

an unreported opinion, reversed the judgment of conviction. The court held that the

accomplices’ testimony was not independently corroborated by other evidence, leaving the

remaining evidence legally insufficient to sustain Respondent’s conviction.

The panel of the Court of Special Appeals then suggested that this Court might

reconsider the accomplice corroboration rule. Judge (now Chief Judge) Fader, writing on

behalf of the panel, expressed skepticism that the current rule strikes the “best balance

between the potential dangers of accomplice testimony and its potential value.” The Court

of Special Appeals hinted that this Court should consider adopting a modified version of

the common law rule for accomplice testimony, under which the jury would decide how

much weight to afford accomplice testimony, guided by a cautionary instruction about the

possible unreliability of such testimony.

The State filed a petition for a writ of certiorari, which we granted. State v. Jones,

461 Md. 612 (2018). The State poses two questions for our consideration:

(1) Did the Court of Special Appeals err in determining that Jones’s demonstrably false statements exhibiting a consciousness of guilt about Bhulai’s murder were not sufficient to corroborate the accomplices’ testimony and therefore the evidence was not sufficient to convict Jones of conspiracy to commit armed carjacking?

5 (2) In the alternative, should the accomplice corroboration rule that a person may not be convicted on the uncorroborated testimony of an accomplice be replaced or revised to allow the factfinder to measure the weight of the evidence and judge the credibility of accomplices, with appropriate instruction about accomplice testimony?

II.

Discussion

For reasons we shall explain, we hold that the Court of Special Appeals did not err

in its application of the extant accomplice corroboration rule. We further hold that the rule,

as currently structured, be abrogated. In place of that rule, we adopt today a new rule that

will no longer require that accomplice testimony be corroborated by independent evidence

to sustain a conviction. We do so in exercise of our constitutional authority to change the

common law. Harrison v. Montgomery Cty. Bd. of Educ., 295 Md. 442, 459 (1983).

Indeed, “we have never construed [the doctrine of stare decisis] to inhibit us from changing

or modifying a common law rule by judicial decision where we find, in light of changed

conditions or increased knowledge, that the rule has become unsound[.]” Id.

A. Sufficiency of the Evidence of Independent Corroboration?

We begin with the first question presented—whether the Court of Special Appeals

properly applied the current accomplice corroboration rule to the facts of this case.

The accomplice corroboration rule requires exactly what its name suggests—that

the State must present independent corroboration of accomplice testimony to sustain a

conviction. See Williams v. State, 364 Md. 160, 179 (2001) (“[I]n Maryland . . . a

conviction may not rest on the uncorroborated testimony of an accomplice[.]”); Collins v.

State, 318 Md. 269, 280 (1990) (“The rule in Maryland [is] that a person accused of a crime

6 may not be convicted based on the uncorroborated testimony of an accomplice[.]”); Lynn

McLain, Maryland Practice Series: Maryland Evidence State and Federal § 300:6(b)(ii), at

372-75 (3d ed. 2013). The rationale for the rule, the flaws of which we discuss below, is

to combat the possible untrustworthiness of accomplice testimony because accomplices

may lie to protect themselves. See Watson v. State, 208 Md. 210, 217 (1955) (stating that

accomplice testimony “should be regarded with great suspicion and caution” because an

accomplice may be incentivized to “shield himself from punishment” by blaming another

or seek “clemency by turning State’s evidence”).

When reviewing a lower court’s application of the rule, we evaluate whether “the

corroborative evidence was legally sufficient to warrant submission of the case to the jury.”

Wright v. State, 219 Md. 643, 652 (1959). Our review is limited to ascertaining whether

there exists any independent evidence “tending either (1) to identify the accused with the

perpetrators of the crime or (2) to show the participation of the accused in the crime itself.”

Ayers v. State, 335 Md. 602, 638 (1994) (citation omitted); see also Turner v. State, 294

Md. 640, 646 (1982) (holding that “evidence offered as corroboration must be independent

of the accomplice’s testimony”). The corroborative evidence need only be “slight,” but it

must establish “either of [those] matters” before accomplice testimony can be submitted to

the jury. Ayers, 355 Md. at 638. Our review is not to be “confuse[d] [with] the

admissibility of evidence”; we are not concerned with whether the accomplice testimony

is “admissible substantively” but rather whether that evidence, once admitted, is

sufficiently corroborated to “sustain a conviction.” Turner, 294 Md. at 646.

7 Respondent was convicted of conspiracy to commit armed carjacking, based solely

on the accomplices’ testimony. That conviction can be sustained only if there was evidence

offered at trial that either connected Respondent to the others who agreed to commit the

crime in proximity to the time and place it occurred or showed that he conspired with one

or more of them to commit that crime. The State insists that such evidence was presented.

We disagree.

When ruling upon the motion for judgment of acquittal at trial, the court relied solely

on the group photograph taken on Wilson’s cell phone at the “after party” and, according

to Wilson, showed Respondent standing with him and the other accomplices. The court

was persuaded that the photograph—State’s Exhibit 106—“place[d] the [Respondent] with

the perpetrators of the offense.”

The State argues first that the photograph taken with Wilson’s cell phone and

purporting to depict Respondent with the accomplices provided the requisite independent

corroborative evidence. According to the State, the photograph shows Respondent’s

presence with the other participants earlier on the night of the crime. We agree with the

Court of Special Appeals that the photograph “cannot constitute independent corroboration

because it depends entirely on Mr. Wilson’s testimony.” Jones v. State, No. 1988, 2016

Term, slip op. at 9 (Md. Ct. Spec. App. Aug. 8, 2018). This is so because the evidence

cannot “pull[] itself up by its own bootstraps,” meaning that the accomplice’s testimony

cannot be used to corroborate itself. See Jeandell v. State, 34 Md. App. 108, 112 (1976);

8 see also Turner, 294 Md. at 647 (“It would eviscerate the rule to allow an accomplice to

corroborate himself.”).2

The State’s argument does not rest entirely on State’s Exhibit 106, however, but

rather on two additional evidentiary items: Respondent’s cell phone, which contained the

contact information of at least two of the accomplices; and Respondent’s post-arrest

statements, in which he proffered an alibi and denied knowing the accomplices. The State

argues that, taken together, these items constitute circumstantial evidence that Respondent

knew when and where the crime had occurred; he was associated with the accomplices

when the conspiracy occurred; and he now seeks to distance himself from those facts given

his consciousness of guilt. Therefore, the State claims, the Court of Special Appeals erred

in failing to consider that Respondent’s false statements to the police sufficiently connected

him to the crime and/or the accomplices in proximity to the crime, and thereby corroborated

the accomplices’ testimony. See Nolan v. State, 213 Md. 298, 309 (1957) (“The

corroborating evidence . . . may consist of . . . untruthful statements made by [the

accused.]”).

Respondent uttered the allegedly false statements during an interrogation

immediately following his arrest. After waiving his Miranda3 rights, Respondent was

2 The State refers to a second photograph, State’s Exhibit 107, which allegedly shows Respondent with Wilson, Tyson, and Jobes at a pool party a week after the conspiracy. This photograph suffers from the same flaw as Exhibit 106—it requires accomplice testimony to verify its contents. It suffers from an additional flaw in that, even if the current rule would allow such self-corroboration, the photograph was taken a week after the alleged conspiracy occurred and, as such, does not sufficiently connect Respondent to the accomplices proximate to the time and place of the crime. 3 See Miranda v. Arizona, 384 U.S. 436 (1966). 9 questioned about his whereabouts on the night in question. In response to a question about

why he was in Essex, Respondent replied, “I wasn’t there . . . I was probably asleep or

something.” Notably, the police had not provided Respondent with any information about

the alleged crime. During a subsequent exchange, Respondent denied knowing his

accomplices; yet, police found Harrison’s and Jobes’s phone numbers saved in

Respondent’s cell phone.

The State is correct that “corroborating evidence may be circumstantial and may

consist of . . . untruthful statements made by [the defendant].” It cannot be overlooked,

however, that such evidence and reasonable inferences drawn from it must either connect

Respondent to “the commission of the crime,” Nolan, 213 Md. at 309, or place him “with

[his accomplices] at about that time,” McDowell v. State, 231 Md. 205, 214 (1963). None

of Respondent’s statements “establish either of these matters.” Brown v. State, 281 Md.

241, 244 (1977). We agree with and cannot improve upon the Court of Special Appeals’

analysis on this point and therefore include it here:

Here, Mr. Jones’s false statement that he did not know his alleged accomplices does not get the State any closer to either of these points. Setting aside for the moment the testimony of the accomplices, nothing more than pure speculation ties Mr. Jones’s denials to the carjacking conspiracy or the accomplices on the evening in question. Mr. Jones’s interview took place more than a month after the murder. At that time, he may have lied for any number of reasons: he may not have wanted to be associated with individuals who he believed were involved with criminal activity or who had already been picked up by the police; he may have known one or more of them to be bad actors; he may have engaged in other criminal activity with them; or he may have just distrusted the police. Nothing in the record, other than the accomplices’ testimony, indicates one of these reasons as being any more likely than any of the others.

The State, relying on the Georgia Supreme Court’s decision in Threatt v. State, 748 S.E.2d 400 (Ga. 2013), argues that Mr. Jones’s false statements

10 are enough because, even if they do not relate to the specifics of this crime, they show consciousness of guilt. We disagree. . . . Threatt does not stand for the proposition that consciousness of guilt evidence alone can provide the necessary corroborative testimony. . . .

Moreover, even if consciousness of guilt were enough by itself, Mr. Jones’s denials do not demonstrate consciousness of guilt of the crime at issue. Consciousness of guilt evidence requires four sequential inferences: “(1) from the defendant’s behavior to [lying]; (2) from the [lying] to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.” State v. Simms, 420 Md. 705, 729 (2011) (quoting Decker v. State, 408 Md. 631, 642 (2009)). The circumstances here do not support this inferential chain. Stripped of the testimony of the accomplices, there is nothing more than sheer speculation to tie Mr. Jones’s denial that he knew his alleged accomplices—coming more than a month after the murder—to consciousness of guilt of this crime. See Decker, 408 Md. at 642 (asserting that each inference requires evidentiary support).

Furthermore, if the accomplice corroboration rule can be defeated by a defendant’s general denial of any knowledge of his alleged accomplices— without tying that in some way to the crime itself or the time and location of the crime—it is difficult to see how the rule would not be rendered meaningless. Corroboration need only be slight, but that does not mean that it can be wholly speculative.

Jones, slip op. at 11-13 (citations omitted) (footnote omitted); see also Thomas v. State,

372 Md. 342, 355-58 (2002) (noting that, without physical evidence connecting the

defendant to the crime or the crime scene, the defendant’s statement is “too ambiguous and

equivocal” to constitute consciousness of guilt evidence).

Put simply, the inferences drawn by the State here are mere conjecture given the

record before us, and, as the Court of Special Appeals aptly stated, “[c]orroboration need

only be slight, but that does not mean that it can be wholly speculative.”4 Jones, slip op.

4 Judge Watts, in her dissent, asserts that Respondent’s false statements that he did not (continued . . . ) 11 at 13. Accordingly, we hold that the State failed to corroborate the accomplices’ testimony.

Without that testimony, it follows that the State did not provide legally sufficient evidence

to support Respondent’s conviction of conspiracy to commit armed carjacking. We

therefore affirm the judgment of the Court of Special Appeals reversing Respondent’s

conviction.

Having resolved the State’s first question, we turn next to the State’s request that

we jettison the accomplice corroboration rule in favor of the common law rule that allowed

defendants to be convicted based solely on the testimony of an accomplice. See Luery v.

State, 116 Md. 284, 292 (1911) (“It is true that at common law a verdict of the jury would

( . . . continued) know the accomplices, coupled with his apparent knowledge about the date and time of the alleged crime, “elevated” those statements “to the slight independent corroboration necessary for the accomplices’ testimony to be considered by the jury.” State v. Jones, No. 52, Sept. 2018 Term, slip op. at 5 (Watts, J., concurring in part and dissenting in part). But those statements illustrate nothing more than Respondent’s knowledge of the accomplices’ existence and apparent awareness of when the crime occurred. Neither fact places Respondent at the scene of the crime or with the perpetrators of the crime near its commission. Neither fact connects Respondent to the commission of the crime at all, unless one reads facts into the record (e.g., Respondent did not simply know the accomplices, but rather was closely associated with them) and then makes certain assumptions (e.g., because there was a close connection, Respondent must have been with the accomplices on the night in question). To do so, however, requires engaging in the “mere speculation” Judge Watts warns against, id. at 2, particularly given the lack of physical evidence connecting Respondent to the crime. Our holding is straightforward and in line with our precedent: false statements alone, absent a nexus to the commission of the crime or the perpetrators in proximity to the crime, do not constitute sufficient corroborative evidence to justify sending the case to the jury. See Wright v. State, 219 Md. 643, 651 (1959) (crediting, among other evidentiary items, “false statements [made by the defendant] with respect to [the defendant’s] association with the accomplices a few minutes before the fire was set” as sufficient corroborative evidence (emphasis added)); Nolan v. State, 213 Md. 298, 309 (1957) (“The corroborating evidence may . . . consist of . . . untruthful statements made by [the accused] in respect to matters connected with the commission of the crime” (emphasis added)). 12 not be set aside merely because [it was] founded on the evidence of an accomplice which

was not corroborated[.]”).

B. Abrogation of the Accomplice Corroboration Rule.

We begin with a bit of history found in VII John H. Wigmore, Wigmore on

Evidence: Evidence in Trials at Common Law, § 2056 (Chadbourn rev. 1978). According

to that treatise, concerns regarding accomplice testimony have existed since at least the

1600s. Id. § 2056, at 405. By the end of the 1700s, English courts had developed “a general

practice . . . to discourage a conviction founded solely upon the testimony of an

[uncorroborated accomplice].” Id. This practice was not a rule of law that bound the jury,

but instead, “a mere exercise of [the judge’s] common-law function of advising the jury

upon the weight of the evidence.” Id. The actual rule of law regarding accomplice

testimony was uncontroverted—convictions based solely on accomplice testimony were

legally sufficient. Id. § 2056, at 407 (“the judges are unanimously of the opinion that an

accomplice alone is a competent witness, and that if the jury, weighing the probability of

his testimony, think him worthy of belief, a conviction supported by such testimony alone

is perfectly legal.” (quoting R. v. Atwood and Robbins (1788), 1 Leach Cr. L. 464, 465 (4th

ed. 1815))).

Courts in the United States followed suit and counseled juries to exercise caution

when evaluating the reliability of accomplice testimony. Id. § 2056, at 407-08. Then, as

described in Wigmore, “in a misguided moment[,] the orthodox function of the judge to

assist the jury on matters of fact was (except in a few jurisdictions) eradicated from our

system.” Id. § 2056, at 416. Because judges could no longer assist the jury, “[t]he makers

13 of this innovation upon established trial methods were thus obliged to turn into a rule of

law the old practice as to accomplices, if they wished to retain its benefit at all. This they

therefore did.” Id. § 2056, at 416-17.

In other words, because newly-established rules prevented judges from influencing

how juries perceived the facts presented, jurisdictions assumed that a stringent or

categorical approach was the only way to protect against the unreliability of accomplice

testimony. As a consequence, “nearly half of the jurisdictions of the United States”

adopted an accomplice corroboration rule, requiring, in varying degrees, that the testimony

of an alleged accomplice be corroborated by independent evidence, that is, evidence not

dependent on an accomplice. Id. § 2056, at 414-17.

Maryland was one such jurisdiction.5 This Court adopted its version of the rule in

1911; before then, there was no common law corroboration requirement. Luery, 116 Md.

at 293-94. We stated earlier in this opinion that our current accomplice corroboration rule

prevents a defendant from being convicted solely on the testimony of his or her

accomplices without independent, albeit slight, corroboration. In re Anthony W., 388 Md.

251, 264 (2005). We have said that the accomplice corroboration rule was necessary for

two reasons: “(1) the witness offering the testimony is admittedly contaminated with guilt

5 It is unclear if this Court adopted the accomplice corroboration rule because the Court sought to retain the ability to instruct juries about the unreliability of accomplice testimony or because a majority of other jurisdictions had also adopted the rule, but both reasons are problematic. The law in Maryland, at the time the Court adopted the rule in 1911, was that “trial judges did not have to give instructions unless they wanted to and they rarely did.” Criminal Procedure Reform Achieved in Maryland, 11 Md. L. Rev. 319, 320 (1950). Therefore, it seems unlikely that the Court was concerned about retaining an ability it rarely exercised. 14 and (2) the possibility of an ulterior motive on the part of the accomplice who seeks to

curry favor with both the prosecutor and the police in the hope of obtaining a lesser

sentence or a reduced charge.” Turner, 294 Md. at 642 (citations omitted). Although never

expressed by this Court, the Court of Special Appeals aptly explained in its unreported

opinion in the case now before us that an underlying presumption of the accomplice

corroboration rule is that jurors are “incapable of determining reliably the veracity of the

accomplice testimony.” Jones, slip op. at 6. It can be said, then, that the current accomplice

corroboration rule represents an attempt to balance credibility concerns with the potential

benefits of accomplice testimony.

Today, we seek to strike a better balance. Although, as structured, the accomplice

corroboration rule addresses the credibility concerns discussed above, the manner in which

the rule addresses those concerns is far from perfect. One of the main criticisms of the rule

is that it operates indiscriminately regardless of the apparent credibility of the accomplices.

We agree with the Court of Special Appeals that

[o]n [the] one hand, the rule can act as a complete bar to a factfinder’s consideration of potentially overwhelming evidence of guilt for want of a specific type of evidence. On the other hand, the restriction—and any protective value it might offer—evaporates entirely if the State is able to offer any slight piece of evidence of that type, even if that evidence is itself of minimal persuasive value. Stated differently, under this rule, a factfinder’s consideration of evidence she or he might conclude is highly reliable can be forbidden in one case, while in a different case the same factfinder may be permitted to weigh a much lesser quantum of much more suspect evidence.

Jones, slip op. at 16; see also Audett v. United States, 265 F.2d 837, 847 (9th Cir. 1959)

(“credibility is a matter of elusive variety, and it is impossible and anachronistic to

15 determine in advance that, with or without promise, a given man’s story must be

distrusted.” (quoting Wigmore, § 2057, at 417)).

The arbitrariness of the accomplice corroboration rule is amplified when one

considers that there is no similar rule for other interested witnesses. Testimony from

jailhouse informants, for instance, is sufficient to sustain a conviction without

corroboration even though such testimony is (arguably) less reliable than that of an

accomplice. See, e.g., Correll v. State, 215 Md. App. 483, 496-502 (2013) (allowing the

jury to assess the credibility of jailhouse informant testimony); Russell D. Covey,

Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375, 1403 (2014)

(“accomplice testimony retains at least some indicia of reliability because ‘the accomplice

inculpates herself in the process.’” (citation omitted)). Testimony of accessories after-the-

fact, which also should be considered with caution because it might have been induced by

the prosecution, similarly does not require corroboration. See Rivenbark v. State, 58 Md.

App. 626, 634 n.1 (1984) (“If a witness qualifies merely as an accessory after the fact, he

is not usually regarded as an accomplice and hence his testimony need not be

corroborated.”). The testimony of a witness who is paid by a party to do so (e.g., an expert

witness) can, in a given case, raise similar reliability concerns; yet, once again, no

corroboration requirement exists. See Scott v. State, 310 Md. 277, 294 (1987). It has also

been said that “the greatest source of injustice in the form of conviction of innocent men is

the erroneous identification by eye-witnesses,” “[y]et the testimony of a customer in a bank

who gets a fleeting glimpse of the robber and who identifies defendant as the man he saw

is enough to convict the defendant, but the testimony of three or four of defendant’s

16 partners, if uncorroborated, is insufficient under our law.” Roy A. Gustafson, Have We

Created a Paradise for Criminals?, 30 S. Cal. L. Rev. 1, 12 (1956). And, insofar as it

limits the jury’s ability to assess witness credibility, the accomplice corroboration rule runs

afoul of the “fundamental principle of Maryland law that, in a criminal case tried before a

jury, assessing a witness’s credibility is a matter solely for the jury.” Devincentz v. State,

460 Md. 518, 529 (2018).

Considering these and other concerns with the accomplice corroboration rule, it

should come as no surprise that most jurisdictions (thirty-two states, the District of

Columbia, the federal courts, Puerto Rico, Guam, and the Virgin Islands) either have not

adopted the accomplice corroboration rule or have since repealed it.6 Currently, Maryland

6 See Davis v. People, 490 P.2d 948, 950 (Colo. 1971); State v. Johnson, 179 A.3d 780, 786 (Conn. App. 2017); Brooks v. State, 40 A.3d 346, 350 (Del. 2012); Ali v. United States, 581 A.2d 368, 377 n.17 (D.C. 1990); Smith v. State, 507 So. 2d 788, 790 (Fla. Dist. Ct. App. 1987); State v. Carvelo, 361 P.2d 45, 59 (Haw. 1961); People v. Nitti, 133 N.E.2d 12, 13 (Ill. 1956); Lowery v. State, 547 N.E.2d 1046, 1053 (Ind. 1989); State v. Bey, 535 P.2d 881, 888 (Kan. 1975); State v. Kyles, 233 So. 3d 150, 157-58 (La. Ct. App. 2016); Commonwealth v. DeBrosky, 297 N.E.2d 496, 504 (Mass. 1973); State v. Reardon, 486 A.2d 112, 119 (Me. 1984); People v. Lemmon, 576 N.W.2d 129, 137 n.22 (Mich. 1998); Jones v. State, 203 So. 3d 600, 607 (Miss. 2016); State v. Sistrunk, 414 S.W.3d 592, 598 (Mo. Ct. App. 2013); State v. Huffman, 385 N.W.2d 85, 90 (Neb. 1986); State v. Thresher, 442 A.2d 578, 582 (N.H. 1982); State v. Spruill, 106 A.2d 278, 280-82 (N.J. 1954); State v. Montoya, 384 P.3d 1114, 1120 (N.M. Ct. App. 2016); State v. Keller, 256 S.E.2d 710, 714 (N.C. 1979); State v. O’Dell, 543 N.E.2d 1220, 1225 (Ohio 1989); Commonwealth v. Brown, 52 A.3d 1139, 1165 (Pa. 2012); State v. Pona, 66 A.3d 454, 471 (R.I. 2013); State v. Hicks, 185 S.E.2d 746, 749 (S.C. 1971); State v. Dana, 10 A. 727, 729 (Vt. 1887); Johnson v. Commonwealth, 298 S.E.2d 99, 101 (Va. 1982); State v. Harris, 685 P.2d 584, 586-87 (Wash. 1984), overruled in part on other grounds by State v. McKinsey, 810 P.2d 907 (Wash. 1991); State v. Vance, 262 S.E.2d 423, 426 (W. Va. 1980); Linse v. State, 286 N.W.2d 554, 558 (Wis. 1980); Adams v. State, 79 P.3d 526, 530 (Wyo. 2003); Caminetti v. United States, 242 U.S. 470, 495 (1917); Pueblo v. Baez Figueroa, No. DOP2009G0092, 2012 WL 6931128, at *10 (P.R. Cir.); 8 Guam Code Ann. § 95.10 (Guam); 5 V.I. Code Ann. tit. 5, § 740 (Virgin Islands). See also Derek J. T. Adler, Ex post facto limitations on (continued . . . ) 17 and Tennessee are the only jurisdictions with a judicially-created accomplice corroboration

rule. See State v. Collier, 411 S.W.3d 886, 894 (Tenn. 2013).7 And though this Court has

consistently relied upon the accomplice corroboration rule since 1911,8 we have also

( . . . continued) changes in evidentiary law: Repeal of Accomplice Corroboration Requirements, 55 Fordham L. Rev. 1191, 1205 n.81 (1987) (“Between 1973 and 1980, six United States jurisdictions withdrew their accomplice corroboration requirements.”) (citing Ariz. Rev. Stat. Ann. § 13-136 (repealed 1976); Ky. R. Crim. Proc. 9.62 (abolished 1980); N.H. Rev. Stat. Ann. § 579:4 (repealed 1973); Utah Code Ann. § 77-31-18 (superseded 1979); V.I. Code Ann. tit. 14 § 17 (repealed 1978); Wyo. Stat. § 7-6-262 (repealed 1975)); George Fisher, The Jury’s Rise as Lie Detector, 107 Yale L.J. 575, 702 n.595 (1997) (summarizing the history and trends of the accomplice corroboration rule). 7 The remaining sixteen states have statutorily adopted their own varying forms of the rule. McGowan v. State, 990 So. 2d 931, 987 (Ala. Crim. App. 2003) (citing Ala. Code § 12-21- 222 (1975)); M.H. v. State, 382 P.3d 1201, 1205 (Alaska Ct. App. 2016) (citing Alaska Stat. § 12.45.020); MacKool v. State, 231 S.W.3d 676, 688 (Ark. 2006) (citing Ark. Code Ann. § 16-89-111(e)(1)(A)); People v. Whalen, 294 P.3d 915, 959 (Cal. 2013) (citing Cal. Penal Code § 1111), disapproved of on other grounds by People v. Romero, 354 P.3d 983, 1014 n.17 (Cal. 2015); Robinson v. State, 812 S.E.2d 232, 235 (Ga. 2018) (citing Ga. Code Ann. § 24-14-8); State v. Lankford, 399 P.3d 804, 834 (Idaho 2017) (citing Idaho Code § 19-2117); State v. Barnes, 791 N.W.2d 817, 823 (Iowa 2010) (citing Iowa R. Crim. P. 2.21(3)); State v. Horst, 880 N.W.2d 24, 37 (Minn. 2016) (citing Minn. Stat. § 634.04); State v. Kills on Top, 793 P.2d 1273, 1294 (Mont. 1990) (citing Mont. Code Ann. § 46-16- 213); Evans v. State, 944 P.2d 253, 257 (Nev. 1997) (citing Nev. Rev. Stat. § 175.291 (1967)); People v. Davis, 66 N.E.3d 1076, 1082 (N.Y. 2016) (citing N.Y. Crim. Proc. Law § 60.22); State v. Reddig, 876 N.W.2d 34, 36 (N.D. 2016) (citing N.D. Cent. Code § 29- 21-14); Postelle v. State, 267 P.3d 114, 126 (Okla. Crim. App. 2011) (citing Okla. Stat. tit. 22, § 742); State v. Washington, 330 P.3d 596, 604 (Or. 2014) (citing Or. Rev. Stat. § 136.440); State v. Dunkelberger, 909 N.W.2d 398, 400 (S.D. 2018) (citing S.D. Codified Laws § 23A-22-8); Smith v. State, 436 S.W.3d 353, 369 (Tex. Crim. App. 2014) (citing Tex. Code Crim. Proc. Ann. art. 38.14). 8 In re Anthony W., 388 Md. 251, 264 (2005); Williams v. State, 364 Md. 160, 179 (2001); Ayers v. State, 335 Md. 602, 637 (1994); Collins v. State, 318 Md. 269, 280 (1990); Turner v. State, 294 Md. 640, 641-42 (1982); Brown v. State, 281 Md. 241, 244 (1977); State v. Foster, 263 Md. 388, 394 (1971); Strong v. State, 261 Md. 371, 377 (1971); Veney v. State, 251 Md. 159, 168-69 (1968); McDowell v. State, 231 Md. 205, 213-14 (1963); Boggs v. State, 228 Md. 168, 170 (1962); (continued . . . ) 18 recognized the rule’s “limited utility.” Brown, 281 Md. at 246. It long ago was said, and

it holds true today, that “[t]he degree of credit to be given to a witness, whatever may be

his character or position in a cause, should not be arbitrarily determined in advance of his

testimony and in ignorance of the circumstances affecting its credibility.” State v.

Litchfield, 58 Me. 267, 270 (1870). We now recognize, as have the Supreme Court, federal

courts, and the majority of state courts, that a blanket rule requiring corroboration for

accomplices intrudes too far into the jury’s constitutional role as factfinder and

unnecessarily and arbitrarily deprives the jury of the opportunity to assess and decide the

credibility of potentially highly relevant evidence.

Forty years ago, Professor Wigmore, widely considered the “foremost authority in

the field of evidence,” Reed v. State, 283 Md. 374, 403 (1978), recognized the limited

utility of the accomplice corroboration rule. He observed: “We have passed beyond the

stage of thought in which [an accomplice’s] commission of crime, self-confessed, is

deemed to render him radically a liar.” VII Wigmore, Evidence, § 2057, at 417. “The

extreme case of the wretch who fabricates merely for the malicious desire to drag others

down in his own ruin can be no foundation for a general rule.” Id. Professor Wigmore,

quoting Chief Baron Joy, Evidence of Accomplices 4 (1844), promoted an alternative

approach to the fixed, unvarying general rule: “Why not leave the credit of the accomplice

to be dealt with by the jury, subject to such observations upon it from the judge as each

particular case may suggest?” Id. § 2057, at 418. The Supreme Court has similarly

( . . . continued) Mulcahy v. State, 221 Md. 413, 426-28 (1960); Wright v. State, 219 Md. at 646-47; Nolan v. State, 213 Md. 298, 309 (1957); Watson v. State, 208 Md. 210, 217 (1955). 19 suggested that the “better practice” when addressing accomplice testimony is to caution

the jury “against too much reliance” upon such testimony. Holmgren v. United States, 217

U.S. 509, 524 (1910). This alternative approach—allowing the jury to determine the

credibility of accomplice testimony following a cautionary instruction—is the rule we

adopt today. Henceforth, when accomplices testify to uncorroborated facts, the issue will

be the weight of the evidence, not its legal sufficiency and trial courts need only give a

cautionary instruction.9 See United States v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999).

We are mindful that in abrogating the accomplice corroboration rule, which we do

not do lightly, we are overturning precedent established over a century ago and maintained

ever since. See Luery, 116 Md. at 293-94. Yet, the mere longevity of a common law rule

should not necessarily dictate its preservation, particularly when reasoned analysis

demonstrates the wisdom of eliminating the rule. This Court is free to, and we are

convinced we should, modify the common law when “experience demonstrates that it is

unrealistic or unwise to enforce a rule in the form [previously] expressed.” Houghton v.

Forrest, 412 Md. 578, 587 (2010) (emphasis added). We do so here. We hold that, in

criminal jury trials, the courts should disturb as little as possible the jury’s role of factfinder,

as established under the Maryland Constitution. This deference to the jury restores the

balance between the concerns underlying accomplice testimony and its potential benefits.

9 Procedurally, the trial court no longer needs to determine on the front end, typically by way of a defense motion for judgment of acquittal, whether, as a matter of law, the State has provided corroborative evidence to send the case to the jury. Instead, after accomplice testimony is presented, the court only needs to issue a cautionary jury instruction. Once that instruction is issued, the weight and credibility of the accomplice testimony is left entirely to the jury to decide. 20 C. Application of the New Rule in the Present Case?

Having abrogated the extant accomplice corroboration rule and replaced it with the

modified common law rule, we are now left to decide whether the new rule should apply

to Respondent. For the reasons discussed below, it should not.

Generally, judicially-initiated changes to the common law apply prospectively, that

is, they apply in the case before us and all similar cases moving forward. Remes v.

Montgomery County, 387 Md. 52, 77 (2005); see also Boblitz v. Boblitz, 296 Md. 242, 275

(1983). We have long recognized, however, that this general rule applies primarily in civil

cases and not criminal cases, as its application in criminal cases “may . . . impinge upon

basic fairness.”10 Lewis v. State, 285 Md. 705, 713 (1979); see also Williams v. State, 292

Md. 201, 217 (1981) (stating that “particularly in criminal cases, changes in the common

law ordinarily should have only prospective effect when considerations of fairness are

present” (emphasis added)). Accordingly, in several criminal cases, we have applied a

common law change solely prospectively—i.e., we applied the new rule exclusively in

similar future cases but not in the case before us.11 See, e.g., State v. Hawkins, 326 Md.

270, 295 (1992); Jones v. State, 302 Md. 153, 161 (1985), abrogated on other grounds

10 Even in civil cases, there are instances in which the “interest[s] of justice” dictate that a common law change should be given “only prospective effect.” Julian v. Christopher, 320 Md. 1, 10 (1990) (“Contracts are drafted based on what the law is; to upset such transactions even for the purpose of improving the law could be grossly unfair. Overruling prospectively is particularly appropriate when we are dealing with decisions involving contract law.”). 11 This is not to say that common law changes can never apply in the criminal case that triggers the rule change. There may well be criminal cases in which applying such changes would be appropriate. We merely state here that before doing so, this Court will carefully consider whether applying the new rule would be fair given the facts before us. 21 by Surland v. State, 392 Md. 17, 32-36 (2006); Williams, 292 Md. at 220; Lewis, 285 Md.

at 713.

Principles of fairness dictate that we apply the rule adopted herein not to the case

before us, but rather solely prospectively. Our decision is guided by Carmell v. Texas, 529

U.S. 513 (2000). There, the Supreme Court addressed whether the retroactive application

of a Texas statute repealing a corroboration requirement in certain sexual assault cases

violated the Ex Post Facto Clause. Id. at 516. Under the amended statute, a “victim’s

testimony alone,” id., could support a conviction if the victim was under 18 (the prior rule

required corroboration of the victim’s testimony if the victim was over 14), id. at 519. The

Court refused to apply the new rule to the case before it, explaining that doing so was

“grossly unfair” because it lowered “the quantum of evidence required to [secure a]

convict[ion][.]” Id. at 532, 544-47.

While the Court’s analysis was grounded in the Ex Post Facto Clause, which does

not apply to judicially-initiated changes to the common law, see Rogers v. Tennessee, 532

U.S. 451, 460 (2001), the general principles enunciated there apply here. Under the new

rule we adopt in this opinion, the State in future cases can attempt to secure a conviction

with uncorroborated accomplice testimony. Were we to apply the new rule to the case at

bar, we would in effect be holding that a conviction can be sustained based on what was at

the time of trial legally insufficient evidence. Doing so would be to Respondent’s

detriment, and ultimately unfair, because it would allow the State in this case to satisfy an

evidentiary hurdle on appeal that it could not at trial. See Carmell, 529 U.S. at 530

(“Requiring only the victim’s testimony to convict, rather than the victim’s testimony plus

22 other corroborating evidence is surely ‘less testimony required to convict’ in any

straightforward sense of those words.”).

Applying the new rule here would also be unfair to Respondent for another reason.

We safely can assume that counsel prepared Respondent’s defense in reliance on the then-

applicable accomplice corroboration rule. At trial, the defense focused exclusively on the

lack of independent evidence corroborating the accomplices’ testimony. Had defense

counsel known then that the rule might change post hoc, a different course, including the

possibility of a plea bargain, likely would have been charted. In short, to apply the new

rule here would impose upon Respondent a twofold blow by (1) easing, after the fact, the

quantum of evidence the State was required to present to secure a conviction while

simultaneously (2) stripping Respondent of his only defense. Such action would “impinge

upon [the] basic [principles of] fairness” that we are tasked with protecting. Lewis, 285

Md. at 713; see also Carmell, 529 U.S. at 546 (stating that “elements of unfairness and

injustice” are “directly implicated by [retrospective application of] rules lowering the

quantum of evidence required to convict . . . because they always make it easier to convict

the accused”). We therefore apply the extant accomplice corroboration rule to

Respondent’s case, and, as discussed above, affirm the judgment of the Court of Special

Appeals overturning his conviction.

Judge McDonald, in his dissent, argues that we should apply the rule adopted today

to Respondent’s case. State v. Jones, No. 52, Sept. 2018 Term, slip op. at 1 (McDonald,

J., concurring in part and dissenting in part). He proffers two primary arguments to support

his position, both of which we reject.

23 Judge McDonald first posits that the accomplice corroboration requirement is

“essentially a rule of evidence.” Id. at 2. As he sees it, the rule “excludes certain evidence

– i.e., accomplice-derived evidence – from consideration. It is similar to a rule that

excludes evidence from consideration if a foundation is not laid or if a constitutional or

statutory right is violated.” Id. at 4; see also Carmell, 529 U.S. at 556 (Ginsburg, J.,

dissenting) (stating that a corroboration requirement is a “rule of evidence” that seeks “to

rein in the admissibility of testimony [that] has [been] deemed insufficiently credible

standing alone”). To Judge McDonald, applying a modified rule of evidence in this case

is not unfair. See Jones, slip op. at 4-6 (McDonald, J., concurring in part and dissenting in

part).

Judge McDonald’s stance overlooks our explicit rejection of the notion that the

accomplice corroboration rule is merely a rule of evidence that ultimately has no bearing

on the sufficiency of evidence to sustain a conviction. See Turner, 294 Md. at 646 (“The

problem with the State’s analysis is that it confuses the admissibility of evidence with its

sufficiency to serve as corroboration. Irrespective of whether [evidence] . . . is . . .

admissible substantively . . . there must be corroboration of an accomplice’s testimony in

order to constitute sufficient evidence to sustain a conviction.” (emphasis added)). To

classify our holding as a mere change to a rule of evidence is to ignore the holding’s true

effects. We have not simply modified how accomplice testimony is to be admitted or under

what circumstances it is to be deemed competent. See Carmell, 529 U.S. at 546-47

(contrasting rules of evidence with sufficiency of the evidence rules, stating, “[p]rosecutors

may satisfy all the requirements of any number of witness competency rules, but this says

24 absolutely nothing about whether they have introduced a quantum of evidence sufficient

to convict the offender”).

By no longer requiring independent corroboration of accomplice testimony, we

today have changed the equation regarding “whether properly admitted evidence is

sufficient to convict the defendant.” Id. at 546. Borrowing the words of the Carmell Court,

we have articulated a new rule that “inform[s] us whether the evidence introduced is

sufficient to convict as a matter of law (which is not to say the jury must convict, but only

that, as a matter of law, the case may be submitted to the jury and the jury may convict).”

Id. at 547 (emphasis in original). When Respondent was tried, the prevailing law required

an additional step before accomplice testimony could be submitted to the jury—judicial

confirmation that independent evidence corroborating the accomplice testimony existed.

By removing that step, we have lowered the quantum of evidence required to convict. Id.

at 530 (“Under the law in effect at the time . . . the prosecution’s case was legally

insufficient . . . The amended law, however, changed the quantum of evidence necessary

to sustain a conviction; under the new law, petitioner could be . . . convicted on the victim’s

testimony alone, without any corroborating evidence.”). Applying that lower “quantum of

evidence” to Respondent’s case now would be “grossly unfair.” Id. at 532 (“A law

reducing the quantum of evidence required to convict an offender is as grossly unfair as,

say, retrospectively eliminating an element of the offense, increasing the punishment for

an existing offense, or lowering the burden of proof[.]”).

Despite acknowledging that considerations of fairness are “an appropriate concern”

when, as here, a new common law rule is adopted on appeal in a criminal case, Jones, slip

25 op. at 4 (McDonald, J., concurring in part and dissenting in part), Judge McDonald next

suggests that the proper remedy for any unfairness to Respondent should be a new trial,

not an acquittal, id. at 6.12 The problem with this proposition is that it would still result in

the unfairness we have highlighted. Whether we apply the new rule now or a trial court

applies it during a new trial, Respondent would still be prejudiced by (1) the State’s

diminished burden of not having to present independent corroborative evidence of the

accomplices’ testimony and (2) the absence of his sole defense to the conspiracy charge.

Changing the actor who imposes the unfairness, as Judge McDonald suggests, does not

convert an unfair result into one that is fair. In sum, we see no good reason to depart from

our long-standing precedent of applying common law changes in criminal cases solely

prospectively when those changes benefit the State. See Jupiter v. State, 328 Md. 635, 652

(1992) (Eldridge, J., dissenting) (“In the past[,] where this Court has changed the common

law applicable to criminal cases so as to benefit the prosecution, we have made the changes

entirely prospective, and not even applicable to the case before the Court” (citations

omitted)); see also Owens-Illinois, Inc., v. Zenobia, 325 Md. 420, 470 (1992) (“Where . .

12 Judge McDonald also questions whether Respondent would actually suffer prejudice were we to apply the new rule here because he received a fair trial and the jury was adequately warned about the “potential unreliability of accomplice testimony.” Jones, No. 52, Sept. 2018 Term, slip op. at 4-5 (McDonald, J., concurring in part and dissenting in part). But general considerations of fairness, as pronounced in Lewis and Williams, do not pertain exclusively to what occurred at trial. Such considerations attend the entire judicial process, including appeal. Thus, while Respondent’s trial may have been fair and the jury instructions adequate, applying a lower and outcome determinative sufficiency of the evidence rule at this juncture would “impinge upon basic fairness.” Lewis, 285 Md. at 713.

26 . a change in common law . . . relates to requirements at trial, we have held that the change

applies” only in cases commencing “after the date of our opinion in the present case.”).

As for the future application of the new rule, we hold that the rule will apply entirely

prospectively to all trials “commencing with the date of our mandate in the instant case[.]”

Lewis, 285 Md. at 716.

D. Cautionary Instruction.

Currently, the Maryland State Bar Association’s Criminal Pattern Jury Instruction

3:11A covers the accomplice corroboration rule and provides:

You have heard testimony from (name), who was an accomplice. An accomplice is one who knowingly and voluntarily cooperated with, aided, advised, or encouraged another person in the commission of a crime. The defendant cannot be convicted solely on the uncorroborated testimony of an accomplice. You must first decide whether the testimony of (name) was corroborated before you may consider it. Only slight corroboration is required. This means there must be some evidence, which you believe, in addition to the testimony of (name), that shows either (1) that the defendant committed the crime charged, or (2) that the defendant was with others who committed the crime, at or about the time and place the crime was committed. If you find that the testimony of (name) has been corroborated, you may consider it, but you should do so with caution and give it the weight you believe it deserves. If you do not find that the testimony of (name) has been corroborated, you must disregard it and may not consider it as evidence against the defendant.

This pattern instruction, of course, will need to be modified. The Court of Special Appeals

provided a few helpful examples of cautionary instructions from our sister states, which

we have appended to this opinion. See Jones, slip op. at 23-25 n.17.13

13 Lastly, we commend and thank the Court of Special Appeals for the extensive research displayed in its unreported opinion, upon which we heavily relied. 27 III.

Conclusion

For the reasons stated earlier in this opinion, we hold that the testimony of

Respondent’s alleged accomplices was not corroborated by independent evidence and

therefore did not suffice to sustain Respondent’s conviction of conspiracy to commit armed

carjacking. Accordingly, we affirm the judgment of the Court of Special Appeals

overturning that conviction.

In addition, we abrogate the current form of the accomplice corroboration rule and

join the majority of courts across the country, including the federal courts, that require a

cautionary instruction when the State introduces accomplice testimony, allowing the jury

to assess the credibility of accomplices for itself. This new rule is to be applied to all trials

commencing with the date of our mandate.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.

28 APPENDIX Colorado:

The prosecution has presented a witness who claims to have been a participant with the defendant in the crime charged. There is no evidence other than the testimony of this witness which tends to establish the participation of the defendant in the crime.

While you may convict upon this testimony alone, you should act upon it with great caution. Give it careful examination in the light of other evidence in the case. You are not to convict upon this testimony alone, unless you are convinced beyond a reasonable doubt that it is true.

Model Criminal Jury Instructions Committee of the Colorado Supreme Court, Colorado

Jury Instructions—Criminal, D:05 (2017) (excerpt).

Connecticut:

In weighing the testimony of an accomplice, who is a self-confessed criminal, you must consider that fact. All else being equal, it may be that you would not believe a person who has committed a crime such as this, involving moral wrong, as readily as you would believe a person of good character. The amount of moral wrong involved in the participation of the witness in the crime should be weighed. Also, in weighing the testimony of an accomplice who has not yet been sentenced or whose case has not yet been disposed of, or who has not been charged with offenses of which the state has evidence, you should keep in mind that he may, in his own mind, be looking for or hoping for some favorable treatment in the sentence or disposition of his own case, and that, therefore, he may have such an interest in the outcome of this case that his testimony may have been colored by that fact. Therefore, the jury must look with particular care at the testimony of an accomplice and scrutinize it very carefully before you accept it.

On the other hand, there are many offenses that are of such a character that the only persons capable of giving useful testimony are those who are themselves implicated in the crime. Each accomplice’s testimony is an admission by him against his own natural interest in not incriminating himself; and, therefore, it may itself be evidence of his testimony’s reliability.

It is for you, the jury, to decide what credibility you will give to a witness who has admitted his involvement in criminal wrongdoing—whether you will believe or disbelieve the testimony of a person who, by his own

29 admission, has committed the crime(s) charged by the state here. Like all other questions of credibility, this is a question you must decide based on all the evidence presented to you.

Connecticut Judicial Branch, Criminal Jury Instructions, § 3.10 (4th ed. 2017).

Michigan:

(l) You should examine an accomplice’s testimony closely and be very careful about accepting it.

(2) You may think about whether the accomplice’s testimony is supported by other evidence, because then it may be more reliable. However, there is nothing wrong with the prosecutor’s using an accomplice as a witness. You may convict the defendant based only on an accomplice’s testimony if you believe the testimony and it proves the defendant’s guilt beyond a reasonable doubt.

(3) When you decide whether you believe an accomplice, consider the following:

(a) Was the accomplice’s testimony falsely slanted to make the defendant seem guilty because of the accomplice’s own interests, biases, or for some other reason?

(b) Has the accomplice been offered a reward or been promised anything that might lead [him/her] to give false testimony? [State what the evidence has shown. Enumerate or define reward.]

(c) Has the accomplice been promised that [he/she] will not be prosecuted, or promised a lighter sentence or allowed to plead guilty to a less serious charge? If so, could this have influenced [his/her] testimony?

[(d) Does the accomplice have a criminal record?]

(4) In general, you should consider an accomplice’s testimony more cautiously than you would that of an ordinary witness. You should be sure you have examined it closely before you base a conviction on it.

The Michigan Supreme Court Committee on Model Criminal Jury Instructions,

Michigan Model Criminal Jury Instructions, 5.6 (1991) (excerpt).

30 Circuit Court for Baltimore County Case No. 03-K-15-005488 Argued: January 31, 2019

Barbera, C.J., *Greene McDonald Watts Hotten Getty Wilner, Alan M., (Senior Judge, Specially Assigned)

Concurring and Dissenting Opinion by McDonald, J.

Filed: August 28, 2019

*Greene, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the MD. Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. The Majority Opinion is well-written and well-reasoned. I agree that the common

law accomplice corroboration requirement is outmoded and arbitrary in its effect and

should be discarded. My disagreement concerns the Majority Opinion’s reluctance to

apply its conclusions to the case before us. As the Majority Opinion explains, when this

Court effects a change to the common law, it generally does so prospectively in a way that

includes application to the case that raised the issue. We should do so in this case.

Accomplice Corroboration in this Case

Before it tackles the history and merits of the common law accomplice

corroboration requirement, the Majority Opinion analyzes the evidence at trial in light of

the existing accomplice corroboration requirement. Majority slip op. at 6-13. It concludes,

as the Court of Special Appeals did, that the required “slight corroboration” was lacking.

That analysis is compelling.1 But the analysis by Judge Watts that comes to a contrary

conclusion is equally compelling. This is a very close question.

For me, it demonstrates the arbitrary nature of the accomplice corroboration rule, as

the Majority Opinion explains so well. Majority slip op. at 13-20. A “slight” bit of

independent evidence, depending on how one weighs it, means that testimony and other

evidence derived from an accomplice (or, as in this case, multiple accomplices) is available

for the factfinder to rely upon – or wholly excluded from the factfinder’s consideration,

1 This is a tough climb for an appellate court. In essence, an appellate court is concluding, not that the trial court got the law wrong, but that the jury got the facts wrong when, presumably following the trial court’s correct instructions, it found that there was at least “slight corroboration” of the accomplice testimony before it considered that testimony. without any consideration of how detailed, specific, and credible the accomplice-derived

evidence is or how much (as in the instant case) it is corroborated by other participants in

the crime.

Luckily, I need not choose between the two competing analyses of the alleged

corroborative evidence in this case. In my view, the holding of the Majority Opinion

concerning the merits of the accomplice corroboration requirement should be applied to

the case before us, which eliminates any need to decide whether to reject the jury’s

assessment of the corroboration at Mr. Jones’ trial.

The Nature of the Accomplice Corroboration Requirement

The accomplice corroboration requirement is essentially a rule of evidence. Cf.

Carmell v. Texas, 529 U.S. 513, 556-57 (2000) (Ginsburg, J., dissenting) (statutory

corroboration requirement for testimony of alleged victim of sexual assault is essentially a

“rule of evidence” like an accomplice corroboration requirement). It is not a statute, but a

common law doctrine that does not relate to the definition of any particular offense or the

burden of proof. Changing it through adjudication does not implicate the Ex Post Facto

Clause of the Federal Constitution or its State Constitution analog.2 See Rogers v.

Tennessee, 532 U.S. 451 (2001) (judicial abrogation of common law rule relating to

criminal offense not limited by Ex Post Facto Clause).

2 See United States Constitution, Article I, §9 (“No … ex post facto Law shall be passed”); Maryland Declaration of Rights, Article 17 (prohibiting “retrospective laws, punishing acts before the existence of such Laws”). 2 The Majority Opinion argues against treating the accomplice corroboration

requirement as an evidentiary rule. It twice quotes Turner v. State, 294 Md. 640, 646

(1982) to suggest that to do so “confuses the admissibility of evidence with its sufficiency.”

Majority slip op. at 7, 24. However, in making that statement in Turner, the Court was

contrasting the issue of the admissibility of the alleged independent corroborative evidence

with its sufficiency as slight corroboration, not the admissibility of the accomplice-derived

evidence. The Court concluded the quoted passage with the observation that “[t]he

question is not the reliability of the [hearsay] statement [for purposes of admissibility] but

its sufficiency as corroboration and for this reason the State’s argument cannot stand.” 294

Md. at 646. The Court determined that the corroborative evidence proffered by the State

did not satisfy the standard of slight corroboration and, as a result, reversed the defendant’s

conviction. The Court was not dealing with the question of whether a decision to dispense

with a corroboration requirement should apply in the case in which that decision is made.

The Majority Opinion also argues that elimination of the accomplice corroboration

requirement “lower[s] the quantum of evidence” needed for a conviction. I realize that the

phrase “quantum of evidence” derives from a Supreme Court case,3 but it is hard to get a

handle on what this “quantum” is. It sounds like something that pertains to the weight of

evidence necessary to convict, but clearly it does not. The accomplice corroboration

requirement does not affect the elements that must be proven for any particular offense or

3 Carmell v. Texas, 529 U.S. 513 (2000). 3 the burden of proof – beyond a reasonable doubt – in a criminal case. Nor does it affect

the weight to be given to accomplice-derived evidence.

Rather, the accomplice corroboration requirement is essentially a rule that excludes

certain evidence – i.e., accomplice-derived evidence – from consideration. It is similar to

a rule that excludes evidence from consideration if a foundation is not laid or if a

constitutional or statutory right is violated. But unlike the familiar exclusionary rule

applied by courts to discipline violations of the Fourth Amendment by law enforcement,

the accomplice corroboration rule was never intended to vindicate an important

constitutional right. As the Majority Opinion explains, it apparently grew out of a judicial

distrust of the ability of jurors to assess the credibility of witnesses.

The Majority Opinion explains, more eloquently than this opinion, why this

common law requirement should be abandoned. Changes effected in the common law

through adjudication are typically applied in the case being adjudicated. However, the

Majority Opinion declines to apply its analysis in this case out of general considerations of

fairness. That is an appropriate concern in an appeal of a criminal conviction. Even taking

those considerations into account, I would reach a different result.

The Fairness of Mr. Jones’ Trial

There is no contention before us that Mr. Jones did not receive a fair trial before an

impartial tribunal, in compliance with a defendant’s rights under the federal Constitution,

the State Constitution, applicable statutes, and the Maryland Rules. Moreover, not only

was the jury in this case told by both the court and counsel to look for independent

corroboration before it considered the testimony of the accomplice witnesses, the trial court

4 warned the jury about the potential unreliability of accomplice testimony with the sort of

language that the Majority Opinion endorses for the future. The trial court instructed the

jury in the following words:

You are the sole judge of whether a witness should be believed. … In deciding whether a witness should be believed … you should consider such factors as … whether the witness had a motive not to tell the truth; … whether the witness had an interest in the outcome of the case; … whether the witness’s testimony was consistent; … and whether the witness has a bias or a prejudice.

You have heard the testimony of Christian Tyson, Kareem Riley, and Ramart Wilson who were accomplices….[If you find that the testimony of Christian Tyson, Kareem Riley and Ramart Wilson has been corroborated,] you may consider it but you should do so with caution and give it the weight it deserves….

* * *

You have heard evidence that Christian Tyson, Kareem Riley and Ramart Wilson have pleaded guilty to a crime arising out of the same events for which the defendant is now on trial. …

You may consider the testimony of a witness who testifies for the State as a result of a plea agreement. However, you should consider such testimony with caution because the testimony may have been influenced by a desire to gain a benefit by testifying against the Defendant.

You have heard evidence that Christian Tyson, Kareem Riley and Ramart Wilson have been convicted of a crime. You may consider this evidence in deciding whether the witness is telling the truth but cannot consider this evidence for any other purpose.

Record Extract at 669-74 (emphasis added). The instructions that the jury received in this

case incorporated the same warnings that courts in jurisdictions that do not require

5 corroboration of accomplice testimony also give with greater or lesser elaboration.

Defense counsel emphasized the court’s cautionary instructions in his closing argument.

Id. at 706-30.

The only real possibility of unfairness that the Majority Opinion suggests is that Mr.

Jones’ defense counsel might have presented a different defense or that Mr. Jones might

have pled guilty if he was aware that the accomplice corroboration requirement would be

abrogated on appeal. Majority slip op. at 23. That, of course, is speculation.4 However,

to the extent that it is a real concern, the remedy should be to grant the relief that Mr. Jones

himself requested for the alleged deficiency in corroborative evidence – a new trial5 – rather

than the windfall of an acquittal in the face of a jury verdict beyond a reasonable doubt that

he was involved in this offense.

In sum, I agree with the Majority Opinion that the common law accomplice

corroboration requirement should be eliminated. In my view, the Majority Opinion’s

holding concerning that evidentiary rule should be applied to the case before us, as we

usually do for changes in the common law. To the extent that there is a concern that Mr.

4 The Majority Opinion characterizes the accomplice corroboration requirement as Mr. Jones’ “sole defense” at trial. Majority slip op. at 26. This is not quite accurate. A major (if not the major) theme of the defense was to attack the credibility of the other participants in the crime who testified that Jones also was a participant – which would have been a major theme of the defense even in the absence of an accomplice corroboration requirement. 5 Following the trial, Mr. Jones filed a motion for a new trial on the ground that there was insufficient evidence of corroboration of the accomplice testimony at the trial. That motion was denied at his sentencing. 6 Jones might have presented a different defense at trial, that can be addressed by granting

his post-trial motion for a new trial.

7 Circuit Court for Baltimore County Case No. 03-K-15-005488 Argued: January 31, 2019 IN THE COURT OF APPEALS

OF MARYLAND

September Term, 2018 ______________________________________

HASSAN EMMANUEL JONES ______________________________________

Barbera, C.J., *Greene McDonald Watts Hotten Getty Wilner, Alan M. (Senior Judge, Specially Assigned),

JJ. ______________________________________

Concurring and Dissenting Opinion by Watts, J. ______________________________________

*Greene, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Md. Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. I fully agree with the Majority’s abrogation of the existing accomplice corroboration

rule. See Maj. Slip Op. at 1, 20-21. The existing rule is antiquated and does not permit the

trier of fact, whether jury or judge, to consider the credibility of accomplice testimony

absent independent corroboration. From my perspective, adherence to the existing rule

would lead to unwarranted results, such as the one reached by the Majority in this case—

the reversal of a conviction for insufficient evidence of corroboration of accomplice

testimony.

I disagree with the Majority’s conclusion that, under the existing accomplice

corroboration rule, the evidence was insufficient to permit the testimony of three

accomplices—Ramart Wilson, Christian Tyson, and Kareem Riley—concerning the

involvement of Hassan Emmanuel Jones, Respondent, in the armed carjacking and murder

to go to the jury. The Majority and the Court of Special Appeals were wrong to determine

that Jones’s false statements to law enforcement officers were insufficient independent

corroboration of the accomplice testimony. Without repeating the details of all of the facts

of the case, the accomplice evidence boiled down to three people, i.e., accomplices—

Wilson, Tyson, and Riley—testifying that Jones participated in ordering Sandeep Bhulai

out of his car at gunpoint and then, along with the others, shooting Bhulai to death. In

other words, the evidence demonstrated that Jones took part at least in conspiracy to

commit armed carjacking. During an interview, Jones told law enforcement officers that

he did not know the others and that he must have been sleeping at the time of the crime.

Law enforcement officers determined that Jones’s cell phone contained contact

information for the accomplices, proving that he lied about not knowing the others; and Jones had received no information from law enforcement officers about the late-night

timing or date of the crime when he advised that he had been sleeping, proving that he had

knowledge of the time and date that the crime was committed.

A valid inference to be drawn from Jones’s statements to law enforcement officers

is that he lied about knowing Wilson, Tyson, and Riley because he was with them

participating in the crime, and that he attempted to create a false alibi by alleging that he

was asleep at the time. Admittedly, as determined by the Majority, there are also inferences

that are consistent with innocence that may be gathered from Jones’s false statements. See

Maj. Slip Op. at 10-11.1 But, our case law is clear—where there are multiple inferences to

be drawn from circumstantial evidence, such evidence is sufficient to go to the jury for its

determination on the matter, as long as the jury would not be called upon to engage in mere

speculation. In Brown v. State, 281 Md. 241, 246, 244, 378 A.2d 1104, 1108, 1107 (1977),

a case in which this Court upheld the accomplice corroboration rule and declined to

1 In assessing the sufficiency of the evidence, the Majority does not provide independent analysis, but rather relies upon the Court of Special Appeals’s assessment of the evidence. See Maj. Slip Op. at 10-11. According to the Court of Special Appeals, one reason that Jones’s false statements to law enforcement officers provided insufficient corroboration of the accomplice testimony was that the statements did not satisfy the requirements for demonstrating consciousness of guilt. The Court of Special Appeals meticulously reviewed the sequential inferences necessary under case law to establish consciousness of guilt, and concluded that Jones’s false statements did not meet the standard. It is well settled that corroboration of accomplice testimony requires only “slight corroboration[.]” Turner v. State, 294 Md. 640, 642, 452 A.2d 416, 417 (1982); see also Ayers v. State, 335 Md. 602, 638, 645 A.2d 22, 39 (1994) (“Notwithstanding the important reasons behind the [accomplice corroboration] rule, we have explained that only slight corroboration is required.” (Citations omitted)). Reference to the consciousness of guilt standard is a red herring. Adherence to that standard is not required under the existing accomplice corroboration rule.

-2- abrogate it, we explained:

Not much in the way of evidence corroborative of the accomplice’s testimony has been required by our cases. We have, however, consistently held the view that while the corroborative evidence need not be sufficient in itself to convict, it must relate to material facts tending either (1) to identify the accused with the perpetrators of the crime or (2) to show the participation of the accused in the crime itself. If with some degree of cogency the corroborative evidence tends to establish either of these matters, the trier of fact may credit the accomplice’s testimony even with respect to matters as to which no corroboration was adduced. That corroboration need not extend to every detail and indeed may even be circumstantial is also settled by our cases.

(Citations omitted).

In In re Anthony W., 388 Md. 251, 255, 278, 879 A.2d 717, 719, 732-33 (2005), in

which this Court held that the accomplice corroboration rule applies in juvenile cases,

addressing evidence that is subject to differing inferences, we concluded:

Where the trial [court] has ruled that the witness is an accomplice as a matter of law, for the appellate court to reverse that decision, the proof must be so clear and decisive that reasonable minds could not differ in coming to the same conclusion.

The State argues, and we agree, that the evidence respecting whether [two individuals] were accomplices is capable of being determined either way. While we may agree with the Court of Special Appeals that there was sufficient evidence to determine that [the two individuals] were, in fact, accomplices to the delinquent act charged, the evidence does not demand or require that an appellate court make such a finding. In addition, we have held repeatedly that when evidence relating to whether a witness is an accomplice is capable of being determined either way and justifies different inferences in respect thereto, the question is for the determination of the trier of fact[.] Therefore, the clearly erroneous standard of review is appropriate for this question.

(Cleaned up). Applying the clearly erroneous standard in that case, we held that the

juvenile court “was not clearly erroneous in finding that [the two individuals] were not

-3- accomplices and in relying on their uncorroborated testimony to determine Anthony W.’s

involvement[,]” explaining:

Analyzing the evidence and testimony in the record, a rational trier of fact could have found that [the two individuals] were not accomplices. In the absence of a statement relating to why the judgment of the juvenile court was clearly erroneous, the Court of Special Appeals erred by not deferring to the juvenile court[]’s factual findings.

Id. at 280, 879 A.2d at 734.

More recently, in Silva v. State, 422 Md. 17, 29, 28 A.3d 1226, 1233-34 (2011),

another case involving the accomplice corroboration rule, we stated:

We have recognized that, for a [trial court] to take the question of complicity from the jury and make a finding as a matter of law, “the proof must be so clear and decisive that reasonable minds could not differ in coming to the same conclusion.” See In re Anthony W., 388 Md. 251, 278, 879 A.2d 717, 732 (2005) (citing Bishop v. State, 39 Md. App. 384, 390, 385 A.2d 1206, 1210 (1978) (stating that “the court must find, in effect, that the testimony was so conclusive that, were a directed verdict of guilty available in a criminal trial, and had the witness been the party charged with the crime, it would have been the witness’s fate to have such entered against him [or her]”)). When, however, “‘evidence relating to whether a witness is an accomplice is capable of being determined either way and justifies different inferences in respect thereto, the question is for the determination of the trier of fact and in a jury case should be submitted to the jury with proper instructions.’” [State v.] Foster, 263 Md. [388,] 394, 283 A.2d [411,] 413-14 [(1971)] (citations omitted).

In this case, the jury was properly permitted to determine whether Jones lied to law

enforcement officers because he was with the others participating in the crime or whether

he lied, as the Court of Special Appeals suggests, for innocent reasons, such as the

possibility that he knew the others were in trouble and that he did not want to be associated

-4- with them.2 That Jones lied about knowing Wilson, Tyson, and Riley when he clearly did,

and that he offered that he must have been asleep at the time of the crime without having

been told the date or time of the crime, elevated Jones’s statements to the slight independent

corroboration necessary for the accomplices’ testimony to be considered by the jury.

Simply put, that there were different inferences that could have been drawn from Jones’s

statement did not render the statement insufficient corroboration of accomplice testimony.

Submission of Jones’s testimony to the jury for evaluation of the evidence was fully

supported by our case law.

2 Making the inference that Jones lied because he was participating in the crime was not mere speculation given all of the other evidence in the case and the type of lies Jones told. Consistent with the accomplice testimony about the circumstances of the crime, a .22 caliber bullet was removed from Bhulai’s head during an autopsy, a scooter was found abandoned by law enforcement officers near Bhulai’s car, and Bhulai’s cell phone was recovered from the residence of another person who the accomplices identified as having participated in the crime. Jones’s false statements were not inconsequential. He lied about knowing the very people who testified that they were responsible for the crime and implicated him. And, Jones suggested a false alibi. Given the nature of the evidence and Jones’s lies, it would not have been speculation for the jury to determine that Jones lied because he was, indeed, involved in the crime. Despite acknowledging that circumstantial evidence is sufficient to establish the corroboration necessary for accomplice testimony to go to the jury, in this case, the Majority seems to require direct evidence placing the defendant at the scene of the crime or in close association with the accomplices. For example, the Majority states: “Neither fact places Respondent at the scene of the crime or with the perpetrators of the crime near its commission. Neither fact connects Respondent to the commission of the crime at all, unless one reads facts into the record (e.g., Respondent did not simply know the accomplices, but rather was closely associated with them)[.]” Maj. Slip Op. at 12 n.4. The Majority seeks to forbid the jury from making reasonable inferences suggested by Jones’s lies and all of the other evidence in the case. Mere speculation would be that Jones lied simply because he did not want to be linked to the accomplices. Jones’s false statements as to his knowledge of the accomplices and the time and date the crime occurred connect Jones to the crime.

-5- I would reverse the Court of Special Appeals’s judgment and remand to that Court

with instruction to affirm Jones’s conviction for conspiracy to commit armed carjacking.

I agree with abrogation of the existing accomplice corroboration rule because the Majority

is correct that “the mere longevity of a common law rule should not necessarily dictate its

preservation,” Maj. Slip Op. at 20, and adoption of the new rule will eliminate issues such

as those posed by the evidence in this case.3

For the above reasons, respectfully, I concur and dissent.

3 I also agree with Judge McDonald’s determination that the holding of the majority opinion concerning abrogating the accomplice corroboration rule should apply in this case. See Concurring and Dissenting Slip Op. at 2 (McDonald, J., concurring and dissenting). In other words, I am convinced that application of the new rule to Jones’s case is not precluded and that reversal of the Court of Special Appeals’s judgment on that ground is warranted.

-6- Circuit Court for Baltimore County Case No. 03-K-15-005488 Argued: January 31, 2019 IN THE COURT OF APPEALS

__________________________________

STATE OF MARYLAND v. HASSAN EMMANUEL JONES __________________________________

Barbera, C.J., *Greene, McDonald, Watts, Hotten, Getty, Wilner, Alan M. (Senior Judge, Specially Assigned)

JJ. __________________________________

Concurring and Dissenting Opinion by Hotten, J., which Greene, J., joins. __________________________________

*Greene, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the MD. Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. Respectfully, we dissent with the Majority on the second question, but concur

regarding the Majority’s conclusion as to the first question. As such, our focus will be

limited.

The second issue invites this Court to consider whether the accomplice

corroboration rule (“Rule”) should be abrogated. In sum, the Majority states the following

with respect to the Rule: (i) the possible unreliability of accomplices may be rectified by

abrogating the Rule and placing a mandatory jury instruction in its place; (ii) the Rule is

“arbitrary;” and (iii) the Rule intrudes upon the jury’s role as fact-finder. We respectfully

disagree with these contentions and address each of them in turn. We first provide a review

of the principle of stare decisis and a brief history of the Rule.

(i) Stare Decisis

Absent unusual circumstances, stare decisis is a key feature of this Court’s

jurisprudence that ensures the reliability of our judicial system, and it therefore must be

employed. See Conover v. Conover, 450 Md. 51, 64, 146 A.3d 433, 440 (2016) (noting

that “[stare decisis] is the bedrock of our legal system because it . . . fosters reliance on

judicial decisions, and contributes to the actual and perceived integrity of the judicial

process.”) (internal citations and quotations omitted). The importance of stare decisis

mandates that we only ignore past precedent in “extremely narrow circumstances[.]”

Wallace v. State, 452 Md. 558, 582, 158 A.3d 521, 535 (2017). Ordinarily this Court may strike down a decision that is, “clearly wrong and contrary

to established principles [ ]”1, Thompson v. UBS Fin. Servs., Inc., 443 Md. 47, 58, 115 A.3d

125, 131, n.5 (2015) (internal citations omitted), or break from precedent when there is a

showing that such precedent “has been superseded by significant changes in the law or

facts.” DRD Pool Serv, Inc. v. Freed, 416 Md. 46, 64, 5 A.3d 45, 56 (2010). Such changes

may occur, when, for example, “we find, in light of changed conditions or increased

knowledge, that [a] rule has become unsound in the circumstances of modern life, a vestige

of the past, [or is] no longer suitable to our people.” Coleman v. Soccer Ass’n of Columbia,

432 Md. 679, 704, 69 A.3d 1149, 1163 (2013) (internal citations omitted). Turning to the

present case, neither of the enumerated bases for breaking from precedent apply to the facts

or law before us. The history of the accomplice corroboration rule, provided infra,

persuades us that the Rule remains just as relevant today.

(ii) History

The accomplice corroboration rule is a minority approach established by this Court

in 1911. Luery v. State, 116 Md. 284, 81 A. 681 (1911). Even prior to 1911, however,

courts across this country recognized fundamental problems with accomplice testimony,

and looked upon such testimony with great suspicion and caution. “[C]oncerns regarding

accomplice testimony have existed since at least the 1600s.” Slip op. at 13 (citing VII John

H. Wigmore, Wigmore on Evidence: Evidence in Trials at Common Law, § 2056 at 405

1 Neither prior to nor following the establishment of this doctrine has this Court affirmatively identified any basis to conclude that the imposition of the Rule is improper. Not once—until now—have we acquiesced to a disposal of this important rule. Yet today, that is precisely what the Majority has done. 2 (Chadbourn rev. 1978)). Case law from the 1800s reveals that courts sought to inform

jurors of the inherent unreliability of accomplice testimony through instructions. For

example, an 1878 case from the Massachusetts Supreme Court documented the history

behind accomplice testimony and noted several jurists’ perspectives on the matter:

[I]t is proper for the judge in such a case to advise the jury that it is safer to require confirmation of the testimony of the accomplice. . . and not to act upon his evidence alone. . . . [Another jurist] said: “My practice has always been to direct the jury not to convict unless the evidence of the accomplice be confirmed, not only as to the circumstances of the crime, but also as to the identity of the prisoner.”

Commonwealth v. Holmes, 127 Mass. 424, 432-33 (1878). Another case, from the

Supreme Court of Illinois in 1892, elaborated upon the inherent problems with accomplice

testimony, providing that:

It has often been questioned in England and in this country, be courts of the highest respectability, whether convictions on such [accomplice] testimony alone should be allowed to stand. . . . [T]he authorities agree, and common sense teaches, that such evidence is liable to grave suspicion, and should be acted upon with the utmost caution; for otherwise the life or liberty of the best citizen might be taken away on the accusation of the real criminal, made either to shield himself from punishment or to gratify his malice. And thus it is said . . . [a]ccomplices, upon their own confession, stand contaminated with guilt. They admit a participation in the very crime which they endeavor by there evidence to fix upon other persons. They are sometimes entitled to earn a reward upon obtaining a conviction, and always expect to earn a pardon. Accomplices are therefore of a tainted character, giving their testimony under the strongest motives to deceive. And it is said . . . [though accomplices] are clearly competent witnesses, their single testimony alone is seldom of sufficient weight with the jury to convict the offenders; it being so strong a temptation to a man to commit perjury if by accusing another he can escape himself.

3 Hoyt v. People, 140 Ill. 588, 595-96, 30 N.E. 315 (1892) (internal quotations and citations

omitted). Therefore, though early cases enabled conviction from uncorroborated

accomplice testimony, the testimony was consistently considered unreliable, and this Court

sought to combat that unreliability by establishing the accomplice corroboration rule in

1911. This Court determined that instructing jurors of the testimony’s untrustworthiness

was wholly insufficient and departed from the general rule of simply cautioning jurors

about the unreliability of accomplice testimony.

The 1911 Luery Court, which established the accomplice corroboration rule in this

State, noted the following:

[I]t is unsafe, at least in the great majority of cases, to rest a conviction upon the uncorroborated evidence of an accomplice. . . . [An accomplice] . . . has as a motive the prospect of freedom, a milder sentence, or the favor of the officers who have him in charge, an innocent one may undoubtedly be made to suffer, if great caution is not used. Hence it would seem to be safer to require some corroboration. . . . [O]ne effective way of affording relief is for the trial court not to permit a conviction to stand if based exclusively on such [accomplice] testimony[.]

116 Md. 684, 81 A. at 681. The Luery Court recognized the unreliability of accomplice

testimony and imposed the Rule as a way to safeguard defendants’ rights. Since Luery,

Maryland courts “have steadfastly adhered to [the] [R]ule” that “a conviction may not rest

on the uncorroborated testimony of an accomplice.” Woods v. State, 315 Md. 591, 616,

556 A.2d 236, 248 (1989) (internal citation omitted).

The rationale for the Rule was reasserted in the 1955 Watson decision, which

clarified the corroboration requirement as follows:

4 The reason for the rule requiring the testimony of an accomplice to be corroborated is that it is the testimony of a person admittedly contaminated with guilt, who admits his participation in the crime for which he particularly blames the defendant, and it should be regarded with great suspicion and caution, because otherwise the life or liberty of an innocent person might be taken away by a witness who makes the accusation either to gratify his malice or to shield himself from punishment, or in the hope of receiving clemency by turning State’s evidence.

Watson v. State, 208 Md. 210, 217, 117 A.2d 549, 552 (1955).

In 1977, this Court considered “whether the long-standing [Rule] . . . should be

abandoned.” Brown, 281 Md. 241, 242, 378 A.2d 1104, 1105 (1977). We affirmed the

Rule—noting “the need to retain the accomplice corroboration requirement due to the

escalating prosecutorial trend to freely utilize accomplices as State witnesses[,]” In re

Anthony W., 388 Md. 251, 265, 879 A.2d 717, 725 (2005)—and again rejected the general

approach favoring the uncorroborated testimony of an accomplice. We restated our

conclusion in Luery: “that it is ‘safer to require some corroboration’ of accomplice

testimony[ ]” than no corroboration at all. 281 Md. at 246, 378 A.2d at 1108 (quoting

Luery, 116 Md. at 293, 81 A. 681).

In 2005, this Court was tasked, as a matter of first impression, with determining if

the Rule applied to juvenile proceedings. We concluded that “the same concerns regarding

the potentially untrustworthy nature of an accomplice’s testimony in adult criminal

proceedings . . . are also present in juvenile cases . . . [and] the interest of trustworthy

evidence applies with equal force regardless of the age of the person accused.” In re

Anthony W., 388 Md. at 272, 879 A.2d at 729 (2005). Our holding expanded the Rule to

5 juvenile proceedings based on our longstanding recognition that accomplice testimony is

inherently unreliable.

The history of the accomplice corroboration rule demonstrates that we have

maintained “a bright-line protection of the accused from being convicted solely on the word

of individuals with a powerful motive for tailoring their testimony[.]” Surely, maintaining

the Rule is consistent with our case law and the principle of stare decisis. But retaining

the Rule is also an effective mechanism for safeguarding defendants’ rights.

(iii) Mandatory Jury Instructions

The Majority seeks to abrogate the Rule. However, case law, discussed supra,

reveals that courts have consistently viewed accomplice testimony with skepticism, and

that this State—since 1911—has not found that mandatory jury instructions, providing that

accomplice testimony may be unreliable, is sufficient for combatting the biases and harms

that arise from such testimony. The Rule provides more than a cautionary instruction and

serves to safeguard defendants from accomplice testimony that may be motivated by an

accomplice’s self-gain. We find a mandatory instruction, in lieu of the Rule, untenable for

preserving defendants’ rights against accomplices who may be guilty counterparts in an

offense, yet are motivated by self-interest to hide or minimize the extent of that guilt. The

Majority’s proposed solution for a jury instruction—which already exists in the Maryland

State Bar Association’s Criminal Pattern Jury Instruction 3:11A—does not combat the

untrustworthiness of accomplice testimony. We further caution against the potential trend

of accepting the testimony of accomplices in cases where additional investigation, or slight

evidence of corroboration, is critical for establishing guilt. We must retain the Rule, as we

6 have since the 1911 Luery decision, in order to safeguard against the inherent problems

that arise from accomplice testimony.

(iv) Arbitrariness

The Majority provides several examples to illustrate that “[t]he arbitrariness of the

accomplice corroboration rule is amplified when one considers that there is no similar rule

for other interested witnesses.” Slip op. at 16. The Majority provides that testimony from

jailhouse informants, expert witnesses, and eye-witnesses does not require independent

corroboration. However, none of these examples are before us. Such examples are red

herrings that distract us from the pertinent matter, and do not directly address the

unreliability and untrustworthiness of accomplice testimony.

(v) The Jury’s Role as Fact-Finder

We do not propose departing from the province of the jury as fact-finder. However,

we do express well-warranted skepticism regarding accomplice testimony. We do not

believe that accomplice testimony is sufficient to convict a defendant and deprive that

defendant of his or her liberty. As such, we would maintain the Rule: defendants cannot

be convicted solely on the testimony of an accomplice and there must be corroboration of

the corpus delicti of the crime—i.e., evidence that identifies a defendant with the

perpetrators of the crime at or near the time the crime was committed—however slight, to

convict. Contrary to the Majority, we believe that “slight corroboration” strikes the proper

balance for an evidentiary determination. The requirement of providing slightly more

evidence to convict does not translate into usurping a jury’s fact-finding role. We have not

held, nor does this dissent suggest, that it is necessary to proffer extensive corroboratory

7 evidence. However, the risk of wrongfully convicting defendants based on the testimony

of incentivized accomplices warrants that we maintain the important protection of slight

corroboration. By contrast, the Majority seeks to strip away this protection.2 We conclude

that the Court should not abrogate the accomplice corroboration rule because of the

inherent untrustworthiness of accomplice testimony. We respectfully disagree with the

Majority’s assertion that a mandatory instruction will adequately rectify the unreliability

of such testimony. Accordingly, we dissent with the Majority on this issue.

Judge Greene has authorized me to state that he joins in this opinion.

2 The Rule requires judicial confirmation that independent evidence corroborating accomplice testimony exists. By maintaining the Rule, we retain the essential role of trial judges as “gatekeepers” without stripping away the jury’s role as fact finders. Jackson v. State, 460 Md. 107, 120, 188 A.3d 975, 983 (2018) (providing that “the essential role of the trial judge [is] as [a] ‘gatekeeper.’”) (internal citations omitted). It is our duty, as judges, to ensure that only evidence that is properly before the jury falls within its deliberations. Id. at 119, 188 A.3d at 982. Here, the uncorroborated testimony of Mr. Jones’s accomplices raises significant concerns as to their reliability.