Sean Urbanski v. State of Maryland, No. 1318, September Term 2020.
CONSTITUTIONAL LAW > FREEDOM OF SPEECH, EXPRESSION, AND PRESS
The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. U.S. Const. Amend. 1.
CONSTITUTIONAL LAW > FREEDOM OF SPEECH, EXPRESSION, AND PRESS ABSOLUTE NATURE OF RIGHT
The right to freedom of speech is not absolute at all times and under all circumstances. U.S. Const. Amend. 1.
CIVIL RIGHTS > OFFENSES AND PENALTIES CONSTITUTIONAL AND STATUORY PROVISIONS
CONSTITUTIONAL LAW > FREEDOM OF SPEECH, EXPRESSION, AND PRESS LAW ENFORCEMENT; CRIMINAL CONDUCT BIAS OR HATE CRIMES
First Amendment does not protect bias-motivated speech, coupled with non-verbal proscribed conduct. U.S. Const. Amend. 1; Md. Code Ann., Crim. Law § 10-304.
CIVIL RIGHTS > OFFENSES AND PENALTIES CONSTITUTIONAL AND STATUORY PROVISIONS
CONSTITUTIONAL LAW > FREEDOM OF SPEECH, EXPRESSION, AND PRESS LAW ENFORCEMENT; CRIMINAL CONDUCT BIAS OR HATE CRIMES
First Amendment does not protect violent acts. U.S. Const. Amend. 1; Md. Code Ann., Crim. Law § 10-304.
CONSTITUTIONAL LAW > FREEDOM OF SPEECH, EXPRESSION, AND PRESS FIRST AMENDMENT IN GENERAL PARTICULAR ISSUES AND APPLICATIONS First Amendment does not erect per se barrier to admission of evidence concerning defendant’s beliefs and associations at sentencing, simply because those beliefs and associations are protected by First Amendment. U.S. Const. Amend. 1.
CONSTITUTIONAL LAW > FREEDOM OF SPEECH, EXPRESSION, AND PRESS JUDICIAL PROCEEDINGS CRIMINAL PROCEEDINGS ADMISSIBILITY OF EVIDENCE
CRIMINAL LAW > EVIDENCE FACTS IN ISSUE RELEVANCE MOTIVE OR ABSENCE OF MOTIVE
First Amendment does not prohibit evidentiary use of speech to establish elements of crime or to prove motive or intent. U.S. Const. Amend. 1.
CONSTITUTIONAL LAW > FREEDOM OF SPEECH, EXPRESSION, AND PRESS JUDICIAL PROCEEDINGS CRIMINAL PROCEEDINGS ADMISSIBILITY OF EVIDENCE
CRIMINAL LAW > EVIDENCE FACTS IN ISSUE RELEVANCE MOTIVE OR ABSENCE OF MOTIVE
Violent speech can be admissible evidence to show motive or intent because the First Amendment does not prohibit evidentiary use of speech to establish elements of crime or to prove motive or intent. U.S. Const. Amend. 1.
CRIMINAL LAW > REVIEW DISCRETION OF LOWER COURT RECEPTION AND ADMISSIBILTY OF EVIDENCE
Generally, an appellate court reviews a trial court’s admission of evidence for abuse of discretion.
CRIMINAL LAW > EVIDENCE FACTS IN ISSUE AND RELEVANCE RELEVANCY IN GENERAL Evidence is relevant or material when it has tendency to prove proposition at issue in case.
CRIMINAL LAW > REVIEW HARMLESS AND REVERSIBLE ERROR ADMISSION OF EVIDENCE
Appellate court is generally loath to reverse a trial court unless the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse of discretion.
CRIMINAL LAW > EVIDENCE OTHER MISCONDUCT BY ACCUSED NATURE AND CIRCUMSTANCES OF OTHER MISCONDUCT AFFECTING ADMISSIBILITY TEMPORAL RELATION OF EVENTS RELEVANCY IN GENERAL
Evidence of defendant’s prior conduct is admissible, even if not directly concurrent, when acts are committed within such time, or show such relation to main charge, as to make connection obvious.
CRIMINAL LAW > NATURE AND ELEMENTS OF CRIME CRIMINAL INTENT AND MALICE MOTIVE
CRIMINAL LAW > EVIDENCE CRIMINAL INTENT AND MALICE OTHER MISCONDUCT BY ACCUSED OTHER MISCONDUCT SHOWING MOTIVE
Motive is mental state, proof of which necessarily requires inferences to be drawn from conduct or extrinsic acts.
CRIMINAL LAW > EVIDENCE FACTS IN ISSUE AND RELEVANCE RELEVANCY IN GENERAL EVIDENCE CALCULATED TO CREATE PREJUDICE AGAINST OR SYMPATHY FOR ACCUSED
To be admissible, inflammatory or prejudicial nature of evidence must be outweighed by its probative value. CRIMINAL LAW > EVIDENCE FACTS IN ISSUE AND RELEVANCE RELEVANCY IN GENERAL EVIDENCE CALCULATED TO CREATE PREJUDICE AGAINST OR SYMPATHY FOR ACCUSED
Responsibility for balancing prejudicial nature of evidence against its probative value is entrusted to trial court.
CRIMINAL LAW > EVIDENCE FACTS IN ISSUE AND RELEVANCE RELEVANCY IN GENERAL EVIDENCE CALCULATED TO CREATE PREJUDICE AGAINST OR SYMPATHY FOR ACCUSED
Evidence tending to prove guilt is prejudicial to an accused, but the mere fact that such evidence is powerful because it accurately depicts the gravity and atrociousness of the crime or the callous nature of the defendant does not thereby render it inadmissible. Circuit Court for Prince George’s County Case No. CT171444X REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1318
September Term, 2020 ______________________________________
SEAN URBANSKI
v.
STATE OF MARYLAND ______________________________________
Berger, Arthur, Reed,
JJ. ______________________________________
Opinion by Reed, J. ______________________________________
Filed: December 7, 2022
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-12-07 11:43-05:00
Gregory Hilton, Clerk Sean Urbanski (“Appellant”) stabbed and killed Second Lieutenant Richard Collins,
III (“Lt. Collins”) at a bus stop on the University of Maryland (“UM”) campus on May 20,
2017. Appellant was charged with first- or second-degree murder (“Count One”) and a hate
crime under Maryland Criminal Law § 10-304 (“Count Two”). During trial, the State of
Maryland (“State”) introduced evidence of racially offensive memes1 stored on the
Appellant’s cell phone and Appellant’s membership in a white supremacist Facebook
group named “Alt-Reich Nation”2 (hereinafter, “contested evidence”). During trial,
Nicholas Clampitt (“Clampitt”), a friend, former high school classmate, co-worker of the
Appellant who is also a member of the Facebook group stated that the group was based on
the “Third Reich” of Nazi Germany.3 Clampitt testified that the racist memes that were
1 This Court was not able to locate if the term “meme” has been defined in a Maryland case. However, other Courts have defined a meme: “As the term is generally used in our current information age culture, a ‘meme’ is typically an image or video, that enough people find amusing or interesting, that it is spread widely through sites on the internet.” Fields v. Commonwealth, 73 Va. App. 652, 662 n.4 (2021). The United States Tenth Circuit has defined a meme as “pictures with text over them or pictures of text.” United States v. Alfred 982 F.3d 1373, 1276 (2020).
2 A crime analyst for the University of Maryland Police Department testified that the “Alt- Reich Nation” Facebook group page had been taken down approximately forty-four hours after it was discovered on Appellant’s phone.
3 Although the existence of the Alt-Reich, a white supremacist organization, was deemed “common-knowledge” by the circuit court, the Alt-Reich, as a group, has yet to be defined by the Maryland Court. “Altreich”, in its origins, is a German word for “Old Realm” and generally refers to Nazi Germany under Adolf Hitler. See generally PETER WITTE, TWO DECISIONS CONCERNING THE FINAL SOLUTION TO THE JEWISH QUESTION: DEPORTATIONS TO LODZ AND MASS MURDER IN CHELMNO, 9 Holocaust & Genocide Stud. 318 (1995); cf. Reich, MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam- webster.com/dictionary/Reich (last visited: Nov. 9, 2022); Timeline of the Holocaust: 1933-1945, MUSEUM OF TOLERANCE, https://www.museumoftolerance.com/assets/documents/timeline-of-the-holocaust.pdf admitted into evidence were consistent with materials that were posted on the Alt-Reich
Nation Facebook group.
On December 17, 2019, Appellant was acquitted by the Circuit Court of Prince
George’s County of Count Two charging the hate crime because, as the hate crime statute
was written, the crime must have been “because of”4 the victim’s race and the court stated
the State had not met this high evidentiary burden. However, the court believed that the
admitted evidence was relevant to Appellant’s motive in Count One charging Murder. The
(last visited: Nov. 9, 2022). Adolf Hitler and Nazi supporters in Germany killed six million Jews, along with five million other victims, during the Holocaust because they believed that Germans were “racially superior” to Jewish people and that Jewish people were an alien threat to the German racial community. The Holocaust, National WWII Museum, The Holocaust, National WWII Museum, https://www.nationalww2museum.org/war/articles/holocaust (last visited: Nov. 9, 2022); accord Frequently Asked Questions about the Holocaust: What was the Holocaust?, United States Holocaust Memorial Museum, https://www.ushmm.org/teach/fundamentals/holocaust-questions (last visited: Nov. 9, 2022). The Alt-Reich (also commonly referred to as “Alt-Right”) is a group of individuals whose membership believes that “‘white identity’ is under attack by multicultural forces . . . to undermine white people and ‘their’ civilization. Characterized by heavy use of social media and memes, they eschew establishment conservatism and promote the goal of a white ethnostate.” The Alt-Right On Campus, SOUTHERN POVERTY LAW CENTER (Aug. 10, 2017), https://www.splcenter.org/20170810/alt-right-campus-what-students-need-know (last visited: Nov. 9, 2022). The “Alt-Reich Nation” Facebook group was reportedly a social media group where members would post disparaging material about Black, Latino, and Jewish people. What is the ‘Alt-Reich: Nation’ Facebook Group, USA Today (May 22, 2017, 12:15pm), https://www.usatoday.com/story/news/nation-now/2017/05/22/what- alt-reich-nation-facebook-group-fbi-investigating-possible-hate-crime-university- maryland/335961001/ (last visited: Nov. 9, 2022).
4 The statute was later amended by the Maryland General Assembly in 2020 to replace “because of” with “motivated either in whole or in substantial part by” the protected characteristics. Md. Code Ann., Crim. Law § 10-304 (West 2020).
2 following day, the jury was instructed on the remaining first- and second-degree murder
charges. On December 19, 2019, a jury found Appellant guilty of first-degree murder and
Appellant was sentenced to life imprisonment with the possibility of parole.
In bringing his appeal, Appellant presents two questions for appellate review,
rephrased for clarity:5
I. Did the circuit court err in admitting the racially offensive evidence in violation of the First Amendment? II. Did the circuit court err in denying Appellant’s motion for a mistrial?
For the following reasons, we answer both questions in the negative and affirm the
circuit court’s holdings.
FACTUAL & PROCEDURAL BACKGROUND
On May 20, 2017, Appellant stabbed and killed Lt. Collins, a Bowie State
University student and Reserve Officers’ Training Corps candidate, at a bus stop on the
UM campus. During the stabbing, Blake Bender (“Bender”) and Amanda Lee (“Lee”)
(collectively, “eyewitnesses”)6 were at the bus stop with Lt. Collins. Both Bender and Lee
5 In his brief, Appellant presented the two following questions:
I. Whether the trial court erred in admitting racially offensive material found on Appellant’s phone in violation of the First Amendment, the Constitutional guarantee of due process and contrary to the Maryland Rules of Evidence, absent any nexus between the racially offensive material on the phone and the crime. II. Whether the trial court erred in failing to declare a mistrial after granting a judgment of acquittal on Count Two.
6 Since race is considered as a factor to this case, it is notable that at the time of the incident, Bender presented outwardly as a white male and Lee presented outwardly as an Asian woman. 3 testified to witnessing Appellant murdering Lt. Collins.
Prior to the incident, Bender was out with Lt. Collins at the local bars near UM and
ended up at a bus stop where Lee was also waiting for the bus but, because of the late hour,
proceeded to call a taxi-car rideshare. At some point, Bender recalled hearing angry
screaming coming from “in the woods, further up the walk” from the bus stop. Shortly after
hearing the screaming, Appellant approached the group at the bus stop and ordered each
person to “step left, if you know what’s best for you,” “step left, step left if you know
what’s good for you.” Lt. Collins said “what?” asking Appellant what he was talking about
and Appellant repeated himself. Bender and Lee stepped out of Appellant’s way.
Appellant moved forward with the blade of the knife drawn in his hand. Appellant
approached Lt. Collins. Bender testified that Lt. Collins was not threatening, nor did he act
aggressively in any manner to Appellant. Lt. Collins responded, “no,” to Appellant’s
orders. Appellant stabbed Lt. Collins in the chest.
The first officer on the scene, Michael Thomas (“Ofc. Thomas”), found Lt. Collins
lying on his back suffering from a stab wound to the chest and unresponsive to questioning
at approximately 3:04 a.m. Ofc. Thomas identified individuals depicted on the surveillance
footage, including Appellant, Lt. Collins, and the two eyewitnesses. Ofc. Thomas noticed
Appellant sitting at the bus stop while Lt. Collins was loaded into an ambulance. Appellant
was arrested at the bus stop where the stabbing occurred.
Appellant was taken into custody. Appellant agreed to a blood test for alcohol and
drugs. Appellant surrendered his cell phone and consented to its search. The folding knife
that was used to stab Lt. Collins was found in Appellant’s pocket after being taken into
4 custody.
At trial, the eyewitnesses to the stabbing testified and identified the Appellant as the
perpetrator. Next, a stipulation was read into the record that a deoxyribonucleic acid (DNA)
analysis and comparison showed that the DNA from the blade of the knife found in the
Appellant’s pocket matched Lt. Collins’s DNA. The medical examiner testified that the
stab wound was approximately three-and-a-half inches deep and the location indicated that
the knife cut through Lt. Collins’s pulmonary artery and caused severe internal bleeding.
During the trial, the State argued that Appellant stabbed Lt. Collins as a result of his
bigoted views. In support of that theory regarding Appellant’s motive, the State introduced,
inter alia, memes into evidence that the Appellant saved on his cell phone and evidence of
Appellant’s membership to a racist Facebook group title “Alt-Reich Nation,” based on
Adolf Hitler’s Third Reich. The circuit court admitted thirteen racially offensive memes
from the Appellant’s cellphone into evidence. The memes used racially offensive language
with accompanying pictures, such as: 1) a trading card that was altered to say, “Hines Heist:
The card allows the player to nab 200 life points from the other player when the n…a ain’t
looking,” 2) a black and white photograph of children playing under a sign that says “Hit
the N…r Baby” with an accompanying caption reading, “Remember back when games
used to have a great plot,” 3) a picture of television personality and scientist, Bill Nye
stating, “Consider the Following” with pictures of a noose, a handgun, and poison, and 4)
a picture uses the literary character, Harry Potter’s, logo and says, “Harry Potter and the
5 Final Solution: You’re a Grand Wizard, Harry.”7
Michael Waski (“Waski”), a Federal Bureau of Investigation (FBI) computer
forensic examiner’s expert, testified that 4,000 out of 17,000 pictures on the Appellant’s
phone were stored in the digital camera image folder (DCIM). Waski stated images stored
in the DCIM must be manually saved in the DCIM folder and cannot be saved in the folder
by mistake. Waski explained that the user must “interact with the image somehow,” either
by “taking pictures with your camera or saving them from a text message, or e-mail, or
web browser.” The memes were all saved within five months of the murder.
Another crime analyst testified that a screenshot of the Appellant’s Facebook page
from the date of the stabbing listed him as a member of the group “Alt-Reich Nation.” As
previously mentioned, Clampitt, testified that the group was based on the “Third Reich” of
Nazi Germany. Clampitt also testified that he was a member of the “Alt-Reich Nation”
Facebook group and that the memes submitted in evidence are consistent with the material
posted on the Facebook group’s member page. A crime analyst for the UM Police
Department testified that the “Alt-Reich Nation” Facebook group had been taken down
approximately forty-four hours after it was discovered on Appellant’s phone. At the end of
7 This meme alludes to both the Nazi’s Final Solution, a euphemism used by Nazi Germany’s leaders of mass murdering Europe’s Jews, and the Ku Klux Klan’s Grand Wizard, a head leader of the Ku Klux Klan. “Final Solution”: Overview, UNITED STATES HOLOCAUST MEMORIAL MUSEUM, https://encyclopedia.ushmm.org/content/en/article/final-solution-overview (last visited: Nov. 9, 2022); cf. Grand Wizard, GOOGLE ARTS AND CULTURE, https://artsandculture.google.com/entity/grand-wizard/m05hzpm?hl=en (last visited: Nov. 9, 2022).
6 the State’s case, Appellant made a motion for judgment of acquittal and the circuit court
denied the motion for both Count One and Count Two. The court stated,
[I]n this case there is evidence that the defendant had on his phone manually, took manual action to save these memes. I think it would be fair to call these memes racist. The memes in question are of (sic) particularly addressed to [B]lack people. Clearly the defendant is white. We have the death of Lieutenant Collins. The question is are these two related.
At this juncture the State has rested and the court takes the evidence in the light most favorable to the State. So with that regard I will deny the defense motion with regard to the hate crime. I will also deny it with regard to the murder.
However, the circuit court later granted the Appellant’s motion for a judgment of
acquittal for Count Two, citing the construction of the statute as written. Maryland’s hate
crime statute under § 10-304 at the time of Appellant’s trial stated:
Because of another’s race, color. . ., a person may not:
(1)(i) commit a crime or attempt to commit a crime against that person. . . . or
(2) commit a violation of item (1) of this section that:
(i) except as provided in item (ii) of this item, involves a separate crime that is a felony; or (ii) results in the death of the victim.
Md. Code Ann., Criminal Law, § 10-304 (West 2019) (emphasis added).
In granting the motion in this case the court stated the following:
I analyze the evidence in the case and I find out whether the State has met their burden, and whether a trier of fact, the jury in the case, could find the defendant guilty in these cases.
With regard to the murder cases, it is very clear that certainly the State has met their burden.
7 The focus on the court would be with the hate crime charges. [sic] Now, I also think it is important to read the statute. 10-304 says because of another person’s race, it is race in this case, because of another person’s race a person may not commit or attempt to commit a crime against that person. It says because of that person, meaning because of that person’s race, meaning that was the sole cause of what happened.
In this case we have some evidence of the defendant’s ideology or belief as it pertains to [B]lack people. No need to go over that again. He is a member of that group. In fact he didn’t just look over this group, he actually thought enough, for whatever reason, to save it, actually save it to his phone. Taking an action in his phone to save it in his phone.
In this case he is — at least in this case he is outside of another bar. His friend, Mr. Akshay, sees him punching a sign or something. Then he walks him up to the bus stop. He leaves him.
The State’s witnesses hear loud yelling of some nature. Essentially this defendant comes up to them, the three of them, and at some point posed the question “step left, step left.” The other two don’t respond. I guess they respond by their body because they step away. Lieutenant Collins does not, he said “what,” or “no,” and then the defendant strikes him in the chest with the knife. The issue is did he strike him in the chest because he was [B]lack, or I should say did he strike him in the chest only because he was [B]lack? So he could have had — him being [B]lack could have made him I’ll say from his perspective more likely that he would inflict harm upon him in that the memes would indicate that he viewed [B]lack people as something less than I will say white people in this case, but the State has to link up on that day, at that time that question that a racist, a homophobe, antisemitic could commit a crime against that other particular group without it being hate based in this case.
In this case the court doesn’t believe that the State has met their burden with regard to the hate crime charge and, therefore, I will grant the defense motion for a judgment of acquittal for that charge only.
Appellant moved for a mistrial based on the court’s ruling for Count Two. Appellant
argued that the race evidence in the case would have been inadmissible had Count Two not
been charged, and since Count Two no longer remained the evidence was inadmissible and
was prejudicial. However, the circuit court declined stating,
8 The court made its ruling yesterday based on the statute, as I indicated. I believe I indicated that I believe race still could’ve been a factor in it based upon those memes, both the Alt-[R]eich website, that it could’ve been a factor [in] the actions he took. So I believe that it’s still relevant to a murder charge as far as a possible motive.
I guess I want to be clear, if I wasn’t yesterday, that I was not saying that his memes or the [Alt-Reich] Facebook[ group] [did not] at all play[ ] a role in what happened on May 20, 2017 and in light of the specific intent of the statute. I do believe it’s probative.
I do believe it’s fair for the State to argue that those views affected the actions he took that day and I don’t believe the prejudice outweighs the probative value in this case and as well as to I don’t believe it fits within the other crimes. I mean, again, it goes to intent in this matter.
On December 18, 2019, the jury was instructed on the remaining charges of first-
and second-degree murder. The court explained to the jury that voluntary intoxication is a
defense to specific intent murder, but not a defense to second-degree depraved heart
murder. On December 19, 2019, the jury found Appellant guilty of first-degree murder.
On January 14, 2021, Appellant was sentenced to life imprisonment with the possibility of
parole. Additional facts will be discussed below as relevant.
I. ADMISSIBILITY OF CONTESTED EVIDENCE
A. Standard of Review
Appellant erroneously stated in his brief and during oral argument that the proper
standard of review is de novo, citing Ayers v. State, 335 Md. 602 (1994). We disagree. In
Ayers, the defendant challenged the constitutionality of a portion of Maryland’s hate crime
statute as it stood at the time of the case, which would require a de novo standard of review.
Id. at 626. In the case before us, Appellant instead challenges the admissibility of the
contested evidence at trial.
9 Our review of the circuit court’s decision to admit evidence involves a two-step
analysis. First, without deference to a trial court’s conclusion, an appellate court reviews
whether the evidence is legally relevant. Ford v. State, 462 Md. 3, 46 (2018). Pursuant to
Maryland Rule 5-402, “[e]xcept as otherwise provided by constitutions, statutes, or the
[Maryland R]ules, or by decisional law not inconsistent with the [Maryland R]ules, all
relevant evidence is admissible. Evidence that is not relevant is not admissible.” See Sifrit
v. State, 383 Md. 116, 129 (2004); Dorsey v. State, 276 Md. 638, 643 (1976). Although
relevant, evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice. MD Rule 5-403.
Once the evidence is deemed relevant, the circuit court’s decision to admit or
exclude evidence is reviewed by this Court under an abuse of discretion standard.
Merzbacher v. State, 346 Md. 391, 404 (1997) (citing Md. Rule § 5-402); Taneja v. State,
231 Md. App. 1, 11 (2016), cert denied, 452 Md. 549 (2017). “Abuse of discretion [exists]
where no reasonable person would take the view adopted by the [circuit] court, or when
the court acts without reference to [ ] guiding rules or principles.” State v. Robertson, 463
Md. 342, 364 (2019) (quoting Alexis v. State, 437 Md. 457, 478 (2014)). “If the trial court’s
ruling is reasonable . . . we will not disturb the ruling on appeal.” Taneja, 231 Md. App. at
12 (citing Peterson v. State, 196 Md. App. 563, 585 (2010)).
B. Parties’ Contentions
i. Appellant’s Contentions
Appellant contends that the racially offensive memes and evidence of Appellant’s
membership to the “Alt-Reich” Facebook group presented in trial should have been
10 excluded from consideration by the jury after Count Two regarding the hate crime was
dismissed. Citing the Court of Appeals’ decision in Ayers, Appellant argues that only if the
State can prove a “tight nexus” to the murder, should the evidence in question be
admissible. Next, Appellant asserts the contested evidence is speech protected by the First
Amendment.
Appellant argues that the circuit court failed to conduct a proper analysis and erred
in its determination the contested evidence was admissible under Maryland Rules of
Evidence 5-403 and 5-404(b) because the jury was empaneled after voir dire questioning
concentrating heavily on the impact of racial motivation and impartiality. Finally,
Appellant argues that because he was intoxicated and could not have formed the specific
intent necessary to be sentenced to first-degree murder.
ii. State’s Contentions
The State contends the contested evidence was relevant and did not violate the First
Amendment. The State asserts that the evidence was not “other crimes” evidence because
it was intrinsic to the charged crimes. Alternatively, if it was “other crimes” evidence, the
State argues it was admissible for purposes other than showing criminal propensity.
The State cites the Supreme Court case, Wisconsin v. Mitchell, 508 U.S. 476 (1993),
explaining
[i]n Mitchell, the defendant’s sentence for aggravated battery was enhanced under a penalty enhancement provision because he “intentionally selected his victim on account of the victim’s race.” Mitchell argued the statute violated the First Amendment because it not only punished criminal conduct, but enhanced the punishment for a crime because of his bigoted beliefs. The Supreme Court observed that a defendant’s motive for committing an offense has long been relevant to determining an appropriate sentence. In addition,
11 the Court had long upheld federal and state antidiscrimination laws, which look to actions taken “because of” (i.e., motivated by) factors such as “race, color, religion, sex, or national origin.”
See Mitchell, 508 U.S. at 479-487. The State’s argues that in light of Mitchell and following
Supreme Court cases that upheld the constitutionality of various hate crime statutes from
around the country, see, e.g., People v. Rokicki, 718 N.E. 2d 333, 335, 339 (Ill. App. 1999)
(upholding conviction of man who directed gay epithets at a restaurant server while
committing disorderly conduct); State v. Wyant, 624 N.E.2d 722 (Ohio 1994) (reversing
earlier decision in light of Mitchell and upholding constitutionality of ethnic intimidation
statute),8
the First Amendment offers protection for the expression of offensive views, [but] it does not shield [Appellant] from the legislatively proscribed consequences of engaging in criminal conduct based on animus toward statutorily enumerated cases of protected persons. The Court of Appeals in Ayers v. State, 335 Md. 602, 627 (1994), acknowledged that this legislative response to crimes motivated by specific bias complies with Supreme Court
8 The State also noted,
The fact that Mitchell involved a penalty-enhancement statute and many states, including Maryland, have created separate hate crime offenses has not altered the analysis used by other state courts. Under Mitchell’s reasoning, a penalty enhancement statute is not analytically different from a separate hate crime offense. See State v. McKnight, 511 N.W.2d 389, 395-96 (Iowa 1994), cert denied, 511 U.S. 1113 (1994). In McKnight, the Supreme Court of Iowa upheld its hate crime law under Mitchell, observing that a defendant lost First Amendment protection “when his racial bias toward [B]lacks drove him to couple [his] words with assaultive conduct towards [the victim], who is [B]lack.” Id. at 395. The Court rejected the notion that the state’s law was distinguishable from Mitchell because it defined a new offense rather than adding a penalty enhancement to an existing offense, noting that neither a separate statute nor a penalty enhancement statute “proscribes speech or thought alone[.]” Id. at 395-96.
12 doctrine.
The State concludes that the First Amendment does not protect violence, citing NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 916 (1982), and the contested evidence provides
relevant context of the Appellant’s speech to establish the existence of motive in murdering
Lt. Collins.
C. Analysis
First, this Court must weigh whether the evidence at issue is relevant. Relevant
evidence is defined as “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” MD Rule 5-401. “Evidence which is thus not
probative of the proposition at which it is directed is deemed irrelevant.” Sifrit, 383 Md. at
129 (quoting Dorsey, 276 Md. at 643).
In the case before this Court, the contested evidence is highly probative of Count
One because it showed possible motive and intent and Count Two because it goes to the
crux of the alleged hate crime. Appellant was charged for a hate crime under Maryland
Code, Criminal Law (“CL”) § 10-304(1)(i) (West 2019), which stated,
Because of another person’s or group’s race, color, religious beliefs, sexual orientation, gender, disability, or national origin, or because another person or group is homeless, a person may not:
(1)(i) commit a crime or attempt to commit a crime against that person or group . . .
13 Id. (emphasis added).9 The crime required proof that the act was committed because of
someone’s race. Lipp v. State, 246 Md. App. 105, 121 (2020). In this case, the State used
the contested evidence to argue Appellant murdered Lt. Collins based on his race.
This Court finds that the facts are clear: Appellant was a member of a group that
had bigoted beliefs against inter alia, Black people. The other two eyewitnesses were of
white and Asian descent. He ordered each person to “step left.” Lt. Collins, a Black man,
was stabbed by a person that had bigoted beliefs against Black people. Those bigoted
beliefs aligned with and were encouraged by the membership to the “Alt-Reich” Facebook
group, as testified to by Clampitt — a friend, former high school classmate, and co-worker
of Appellant who is also a member of the group. Clampitt also stated that the group was
based on the “Third Reich” of Nazi Germany. The memes that were admitted into evidence
were testified as consistent with materials that were posted on the Alt-Reich Nation
Facebook group page.
Appellant argues that since Count Two was dismissed, the evidence presented was
prejudicial to his case. Under Maryland Rule 5-403, the circuit court is entrusted with the
discretion to exclude evidence “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
9 In 2020, named Lt. Collins’s Law, the statute was changed by the Maryland General Assembly to state “Motivated either in whole or in substantial part by another person’s or group’s race . . . a person may not commit a crime or attempt or threaten to commit a crime against that person.” Md. Code Ann., Crim. Law § 10-304(1)(i) (West 2020) (emphasis added). 14 evidence.” However, even if evidence is prejudicial, “that does not mean that it was
‘unfairly’ prejudicial such that the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice. Ford, 462 Md. at 58. In balancing probative
value against prejudice, the Court of Appeals explains
“the fact that evidence prejudices one party or the other, in the sense that it hurts his or her case, is not the undesirable prejudice referred to in [Maryland] Rule 5-403.” Rather, “[e]vidence may be unfairly prejudicial if it might influence the jury to disregard the evidence or lack of evidence regarding the particular crime with which he [or she] is being charged.”
Id. at 58-59 (quoting Odum, 412 Md. at 615 (cleaned up)). “The responsibility for
conducting this balancing is entrusted in the first instance to the trial court.” Johnson, 332
Md. 456, 473 (1993).
Summarily, the nature of the evidence must be such that it generates such a strong
emotional response from the jury such that the inflammatory nature of the evidence makes
it unlikely for the jury to make a rational evaluation of the evidentiary weight. The
inflammatory nature of the evidence must be such that the “shock value” on a layperson
serving as a juror would prevent the proper evaluation or weight in context of the other
evidence. However, the contested evidence presented in this case did not contain content
that would inherently prevent jurors from rationally considering and weighing the
contested evidence with all other evidence presented during trial, such as, inter alia, the
surveillance footage, the murder weapon found on the Appellant’s person with the victim’s
blood, and the testimony of the eyewitnesses. Thus, this Court finds no abuse of discretion
in the circuit court’s decision to admit the contested evidence.
15 Notably, Appellant relies heavily on Ayers v. State, 335 Md. 602 (1994). In Ayers,
the defendant challenged the constitutionality of the hate crimes statute which
make it a crime to “harass or commit a crime upon a person . . . because of that person’s race, color, religious belief or national origin.” Ayers argued that a state cannot constitutionally enact a content-based law which prohibits free speech. He maintained that content-based regulations are presumptively invalid and that bias-motivated speech, no matter how reprehensible, “does not justify selectively silencing speech on the basis of content.”
Id. at 609. Ultimately, the constitutionality of the statute was upheld. Unlike in Ayers, the
constitutionality of the statute is not in question in the case at bar.
In his brief, Appellant states that in Ayers, “the Court of Appeals made clear that the
hate crime statute survives an as-applied challenge under the First Amendment only when
there is a tight nexus between the otherwise protected speech and the crime.” We disagree
with Appellant’s interpretation of the Ayers case. Appellant’s proposed standard under
Ayers reaches further from the actual standard set forth in the case and this Court declines
to expand the reach of Ayers. The Ayers Court held:
only speech actually connected with the offense should be used as evidence of motivation. Because there was such a “tight nexus” between [previous] incidents, we hold that admitting the evidence regarding the 7-Eleven incident did not violate the First Amendment, nor did it violate the rule which generally prohibits the introduction of other crimes evidence.
Ayers, 335 Md. at 637 (emphasis added). By the plain language of the holding in Ayers,
the issues implicated were possible violations of the First Amendment and, separately, the
evidence rule that generally prohibits the introduction of other crimes evidence. To be sure,
the Court stated that there was a “tight nexus” between the incidents but did not create a
16 standard requiring a tight nexus between the speech and the hate crime to be used as
evidence of motivation for the hate crime.
First, regarding the issue of speech and the hate crime as charged, this Court has
previously stated that the Ayers Court held “that circumstantial proof of racial motivation
was of ‘vital importance’ to proving the defendant committed a hate crime.” Sewell v. State,
239 Md. App. 571, 612 (2018) (emphasis added). Inherently, racially motivated evidence
must be connected in some way to the hate crime charged as stated in Ayers. Indeed, the
Ayers Court quoted the ACLU of Maryland and ACLU of National Capital Area’s Brief of
Amicus Curiae stating that:
“At a minimum, any speech or association that is not contemporaneous with the crime must be part of the chain of events that led to the crime. Generalized evidence concerning the defendant’s racial views is not sufficient to meet this test.”
Ayers, 335 Md. at 636 (quoting Brief of Amicus Curiae ACLU of Maryland and ACLU of
National Capital Area at 13 n. 9). However, this Court does not read the holding of the
Ayers case to require a “tight nexus” between the incidents (as Appellant repeatedly
iterates), but rather that the racially motivated speech, when weighed in context and for
motivation of a charged hate-crime under Md. Code Ann., CL § 10-304, has to be
connected in some way with the hate crime offense to be used as evidence of motivation
of the hate crime. See Sewell v. State, 239 Md. App. 571, 612 (2018). This Court reads this
standard to only apply to the theory of motivation of charged hate crimes and not the
charged first-degree murder charge.
17 Appellant was acquitted of the hate crime because the circuit court could not find
that the Appellant murdered Lt. Collins solely “because of” his race. Despite holding that
the State had not passed the high evidentiary bar set to convict Appellant of a hate crime,
the circuit court still found the contested evidence relevant to motivation for first-degree
murder. This Court holds that the circuit court did not err in doing so and is not inconsistent
with Ayers. The Ayers Court reiterated the Supreme Court’s standard set forth in Mitchell.
The prospect of a citizen suppressing his bigoted beliefs for fear that evidence of those beliefs will be introduced against him at trial if he commits a serious offense against person or property . . . is simply too speculative a hypothesis ... The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish elements of a crime or to prove motive or intent. Evidence of a defendant’s previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like.
Mitchell, 508 U.S. at 489. This Court in Lipp, further explained Mitchell, stating that bias-
motivated speech, coupled with non-verbal, proscribed conduct, is not protected by the
First Amendment. Lipp, 246 Md. App. at 121.
Notably, the memes were not just racially offensive. In addition to being racist, the
memes encouraged and promoted violence against Black people by “nab[bing] . . . life
points . . . when the n…a ain’t looking[,]” “Hit[ting] the N…r Baby[,]” and images stating
to “consider” nooses, which has a historical significance in the killing of Black people in
American history. Because Appellant was charged with first-degree murder, the State had
to prove that the killing had been a willful, deliberate, and premeditated intent to kill the
victim, and that he committed some overt act towards that end. Martin v. State, 218 Md.
App. 1, 40-41 (2014) (citations omitted). “An intent to kill often must be proved by
18 circumstantial evidence and found by inference. Absent an admission by the accused, it
rarely can be proved directly.” Burch v. State, 346 Md. 253, 273 (1997) (citing State v.
Earp, 319 Md. 156, 167 (1990)). Memes depicting violence against Black people
constituted relevant evidence that was probative of Appellant’s intent to violently harm Lt.
Collins. Thus, this Court holds that the contested evidence was admissible to prove motive
for first-degree murder and does not violate the Appellant’s First Amendment rights.
i. Evidence of “Other Crimes”
In Ayers, the defendant maintained that evidence of a prior criminal altercation was
improperly admitted because it constituted evidence of “other crimes.” Id. at 629-30. This
Court does not perceive being part of a white supremacist group or having racist memes
on your cell phone as a per se crime. However, this Court must weigh, under Maryland
Rule 5-404(b), whether the evidence is admissible under the “other crimes” legal
framework for its admissibility as motive or intent evidence. Under Maryland Rule 5-
404(b):
Evidence of other crimes, wrongs, or other acts . . . is not admissible to prove the character of a person in order to show action in the conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident, or in conformity with Rule 5-413.
Id. (emphasis added); see also Nelson v. State, 5 Md. App. 109, 121 (1968) (generally
citing Dobbs v. State, 148 Md. 34 (1925)) (emphasis added). In addition to the rules of
evidence regarding relevancy and prejudice, as previously addressed, to be admissible
evidence of motive or intent, the evidence must have some special relevance to the
19 contested issue and the defendant must have been found to actually have committed the
crimes. Cf. Odum v. State, 412 Md. 593, 610 (2010); Streater v. State, 352 Md. 800, 806
(1999).
The contested evidence was relevant to prove Appellant’s motive or intent to harm
Lt. Collins. Motive or intent evidence can show special relevance to the case and can be
proven by prior conduct. Cf. Odum, 412 Md. at 610; Johnson v. State, 332 Md. 456, 470
(1993). Such evidence is admissible, even if not directly concurrent, when the subject acts
are obviously connected to the charge. Id. As previously stated, Appellant was charged
with first-degree murder and the State had to prove the willful, deliberate, and premeditated
nature of Appellant’s actions. The memes depicted violence against Black people like Lt.
Collins. It was uncontested that the memes were saved to the Appellant’s phone and
Appellant joined the white supremacist Facebook group in the months leading up to Lt.
Collins’ murder. Thus, although the State could not prove the act was solely because of10
Lt. Collins’s race and Count Two was ultimately dismissed by the circuit court, this Court
holds that the contested evidence to show motive or intent to harm Lt. Collins was highly
probative and has special relevance to Count One charging murder.
ii. Harmless Error
Though, arguendo, if the evidence was not properly admitted, on review, we would
apply the longstanding principle that improperly admitted evidence must be prejudicial to
10 Notably, supra fn. 4, 9, in 2020, the General Assembly changed the statute to replace “because of” with “motivated either in whole or in substantial part by” the protected characteristics. Md. Code Ann., Crim. Law § 10-304 (West 2020). 20 warrant reversible error. See Maryland Rule 5-103(a) (stating generally that “[e]rror may
not be predicated upon a ruling that admits or excludes evidence unless the party is
prejudiced by the ruling”). “[P]rejudice is not presumed ‘when the jury considers evidence
admitted by the trial court which is later determined to have been erroneously admitted.’”
Merritt v. State, 367 Md. 17, 33 (2001) (citing State Deposit v. Billman, 321 Md. 3, 16
(1990)). Rather, it is well settled in Maryland that we will review prejudice through the
lens of harmless error:
when an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed ‘harmless’ and a reversal is mandated.
Dorsey v. State, 276 Md. 638, 659 (1976). Furthermore,
In a criminal jury trial, the jury is the trier of fact. For this reason, it is responsible for weighing the evidence and rendering the final verdict. Therefore, any factor that relates to the jury’s perspective of the case necessarily is a significant factor in the harmless error analysis. Thus, harmless error factors must be considered with a focus on the effect of erroneously admitted, or excluded, evidence on the jury.
Dionas v. State, 436 Md. 97, 109 (2013) (emphasis added); Beckwitt v. State, 249 Md. App.
333, 400–01, cert. granted, 474 Md. 720 (2021), and aff’d, 477 Md. 398 (2022),
reconsideration denied (Mar. 25, 2022).
Appellant was charged with first degree murder and acquitted of Count Two.
Appellant contends that:
When the Appellant was acquitted of the hate crime, a mistrial was required as the entire trial had been about the memes. There was a likely possibility that the jury would convict Appellant of the murder because they had been told [Appellant] was a racist – a bad person.
21 However, there was an overwhelming amount of non-racially charged evidence before the
jury that Appellant intended to kill or seriously injure Lt. Collins, such as: 1) the two
eyewitnesses at the scene that: a) witnessed the Appellant approach the group, wield his
knife, and stab Lt. Collins and b) identified the Appellant as the perpetrator of Lt. Collins’
murder; 2) the knife with Lt. Collins’s blood on the weapon found on the Appellant’s
person when he was arrested; 3) the surveillance evidence of the Appellant stabbing Lt.
Collins; and 4) the nature of the assault and location of the stab wound in the chest cavity.
See generally Wood v. State, 209 Md. App. 246, 325 (2012). Thus, this Court does not find
the Appellant’s argument about the “likely possibility that the jury would convict Appellant
of the murder” because of the contested evidence convincing. Most certainly, this Court
does not find the contested evidence prejudicial enough to warrant reversible error.
II. MOTION FOR MISTRIAL
Appellant argues that the circuit court erred in refusing to declare a mistrial after
granting the renewed motion for judgment of acquittal for Count Two. Appellant presented
evidence during trial that Appellant may have been intoxicated when he stabbed Lt.
Collins. The circuit court explained to the jury that voluntary intoxication is a defense to
specific intent murder, but not a defense to second-degree depraved heart murder. On
December 19, 2019, the jury found Appellant guilty of first-degree murder. Appellant
suggests that absent the contested evidence, the “jury would have been left a genuine debate
of whether Appellant’s intoxication left him unable to act willfully or deliberately.”
The State, in response, contends that Appellant is wrong because the circuit court
declared that the judgment of acquittal “was not a repudiation of its evidentiary ruling (and
22 that evidence was still relevant to the jury’s consideration of the murder charge), but rather
on the specific statutory language of the hate crime statute . . . ” Moreover, the State cites
this Court’s previous holding in McIntyre v. State, 168 Md. App. 504, 524 (2006)
explaining that a “mistrial is an extreme sanction” that is necessary only “when such
overwhelming prejudice has occurred that no other remedy will suffice to cure the
prejudice.”
We agree with the State. In Barrios v. State, 118 Md. App. 384, 396-97 (1997)
(internal citations and quotations omitted), this Court stated:
[T]he declaration of a mistrial is an extraordinary act which should only be granted if necessary to serve the ends of justice. The granting of a motion for a mistrial is committed to the sound discretion of the trial court. We will not reverse a trial court’s denial of a motion for mistrial unless the defendant was so clearly prejudiced that the denial constituted an abuse of discretion. The reviewing court should not determine whether less stringent security measures were available to the trial court, but rather whether the measures applied were reasonable and whether they posed an unacceptable risk of prejudice to the defendant.
For the reasons previously stated, this Court holds that the Appellant was not so
clearly prejudiced by the circuit court’s decision to deny the motion for a mistrial, thus the
circuit court did not abuse its discretion in doing so. Thus, this Court declines to reverse
the circuit court’s denial of a motion for a mistrial.
Accordingly, we affirm the circuit court judgment.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.