holding that “when a motion in limine to exclude evidence is denied, the issue of admissibility of the evidence that was the subject of the motion is not preserved for appellate review unless a contemporaneous objection is made at the time the evidence is later introduced at trial”
How later courts described this case
- holding that “when a motion in limine to exclude evidence is denied, the issue of admissibility of the evidence that was the subject of the motion is not preserved for appellate review unless a contemporaneous objection is made at the time the evidence is later introduced at trial”
- holding that a defendant waives the right to argue on appeal that testimony was inadmissible bad acts evidence when the only objection at trial was on grounds of relevancy
- explaining that we may decline to consider the merits of a question presented but not supported by substantial argument
- holding that there was no error where appellant’s objections were sustained, testimony stricken and finding relevant the fact the court instructed the jury to disregard stricken evidence
Written by the judges who cited it.
The opinion
RAKER, Judge,
dissenting:
The trial court erroneously admitted “bad acts” evidence and other irrelevant and prejudicial evidence. Because the error was not harmless beyond a reasonable doubt, I would reverse the judgment of conviction.
In order to understand the prejudicial nature of the evidence, it is necessary to recount the context in which it was offered. At the beginning of the trial, defense counsel indicated to the trial court that the defendant had entered two pleas—not guilty and not criminally responsible at the time the alleged acts were committed. Klauenberg requested a bifurcated trial on the issue of criminal responsibility, and sought to exclude evidence of his mental condition from the guilt/innocence phase. Defense counsel emphasized to the *560 court that the responsibility issue was essentially a formality, in that the State had agreed to stipulate that Klauenberg was not criminally responsible. The State opposed bifurcation, maintaining that the jury needed to know that “we are dealing with a not criminally responsible defendant committing a criminal act ... in order to render a verdict in this case.” 1 The trial court rejected the State’s argument, and bifurcated the issue of responsibility from the determination of guilt or innocence.
It seems to me that notwithstanding the decision of the trial court to bifurcate the issue of criminal responsibility, the State nonetheless set out to put before the jury the evidence of Klauenberg’s bizarre conduct. Unless the trial court found special relevance and the remaining Faulkner test was satisfied, the evidence was irrelevant and inadmissible.
I glean from the opening statements that the defense in this case was that Klauenberg did not in fact intend to have Judge Murphy killed. 2 Both the State and the defense talked to the jury about whether Klauenberg had the means to commit the offense. Under these circumstances, Klauenberg’s possession of guns and ammunition might well have been highly relevant *561 to the proceedings. Unfortunately, the Faulkner /Streamer requirements for admissibility were never satisfied.
The majority holds that any Faulkner analysis was unnecessary because the evidence at issue did not constitute “bad acts.” The majority sets out a workable test for determining whether particular conduct constitutes misconduct, bad acts or other crimes evidence under Md. Rule 5-404(b):
a bad act is an activity or conduct, not necessarily criminal, that tends to impugn or reflect adversely upon one’s character, taking into consideration the facts of the underlying lawsuit.
Maj. op. at 549. Purporting to apply this test, the majority holds that the testimony regarding the guns was not “bad act” evidence because (1) there was no indication that the guns were obtained or possessed illegally and (2) no evidence was offered at trial that the guns were to be used to shoot Judge Murphy. Maj. op. at 551. I disagree.
Clearly the trial court never engaged in the requisite Faulkner analysis for the admission of this evidence. We focus here not on special relevancy, standards of proof, or balancing interests, but consider only the threshold question of whether the conduct in question was misconduct or bad acts which trigger a Faulkner analysis. Although Klauenberg’s possession of the guns was not necessarily criminal, the majority fails to consider whether his conduct tended to reflect adversely upon his character, taking into consideration the fact of the pending charge, solicitation to murder. Considering the circumstances of the instant case, evidence that Klauenberg secreted guns and ammunition in the ceiling of his basement suggests illegal or illicit conduct, thereby impugning his character. 3 It seems to me that persons possessing guns legitimately do not ordinarily hide them in the basement ceiling; a reasonable inference is that this is a bad guy or a person acting in a bizarre manner.
*562 The court held a pre-trial hearing on Klauenberg’s motion in limine to exclude evidence relating to the Francis v. Klauenberg estate proceeding on the grounds that such evidence constituted “bad acts” evidence. The State’s position was that evidence of acts relating to this previous proceeding should be admissible:
The State’s position, Your Honor, is, this evidence is not of prior bad acts, but is actually an essential part of the crime that the defendant is charged with.
What we are showing is, the defendant, because of the rulings of Judge Murphy, because of the contentious proceeding in Francis vs. Klauenberg, was originally such high emotion or whatever, driven to, in 1992, solicit Mr. Palmer to murder Judge Murphy. For the jury just to know that Mr. Palmer was solicited on a couple of occasions, and not be aware as to why in the world this defendant would want to injure a Circuit Court Judge would be a preposterous situation for this jury. They would be sitting here saying, well, what in the heck does this defendant want to kill a judge for. 4
The State proffered that the testimony relating to the Francis v. Klauenberg proceeding would be limited to “witnesses, like Mr. Twomey, to say that he represented Ms. Francis, the reason why the suit was filed, the outcome of the suit, and any action or reaction this defendant may have had towards Judge Murphy during the time of the trial.” The State described the testimony it wished to offer as having “a very narrow scope,” and insisted that it was “not trying to relitigate Francis v. Klauenberg.” According to the State, “we want the jury to know what the case was in the beginning, why this law suit, this civil action was litigated, what the results were, and how it affected this defendant, and its effect caused this defendant to *563 solicit an individual to kill Judge Murphy; that’s what it’s all about.”
The court denied the defense motion to restrict the evidence relating to the estate matter, ruling that “if we do not allow the State to present some background as to this alleged crime, that the jury will not be able to ferret out what the case is all about.” The court continued:
Now, the State, of course under Maryland law is not required to prove a motive. But that doesn’t mean the State can’t insert proof of a motive. Particularly, if that proof lends to some information to make the jury know where the case started and how far it comes.
The State presented evidence of the condition of Klauenberg’s home, 5 that Klauenberg was confrontational when per *564 sons visited his home, 6 that he assaulted a lawyer, 7 and weapons concealed in his home. 8 The State’s picture of *565 Klauenberg continued in closing argument, when the State argued:
... you heard from the witnesses about an ongoing estate problem. There is no doubt in anyone’s mind sitting in this courtroom that there was a problem in Francis v. Klauenberg, that was the problem. He was not a happy camper
There was testimony from Mr. Twomey about how unhappy he was, how when he came out to the house in Kingsville, how he had to have the police with him. How the defendant had a cache of weapons there.
In my opinion, such evidence went beyond anger that Klauenberg experienced toward Judge Murphy, and instead evidences the State’s intention to paint Klauenberg as a violent, eccentric, mentally disturbed person who was prone to committing mentally unstable acts. The inference that the jury may have drawn from this evidence, that because Klauenberg was a particular type of person, he solicited murder, is precisely the type of inference Md. Rule 5-404(b) prohibits.
Klauenberg also argues that Twomey’s testimony about how he became verbally confrontational and poked Twomey in the chest were improperly admitted evidence of bad acts. The majority concludes, in an ipse dixit fashion, that “[rjaising ones voice and poking someone in the chest alone is not conduct that tends to impugn someone’s character.” Maj. op. at 551. An unpermitted touching may obviously constitute an assault in violation of Maryland Code (1957, 1996 Repl.Vol., *566 1998 Supp.) Article 27, § 12,12A. Because the evidence constituted “bad acts” evidence under the circumstances of this case, and was objected to by Klauenberg, the trial court should have engaged in an on-the-record Faulkner analysis to determine whether the evidence had special relevance, whether there was clear and convincing evidence that the acts occurred, and whether the probative value of the evidence outweighed the unfair prejudice. See Streater v. State, 352 Md. 800 , 724 A.2d 111 (1999).
The real inquiry, I suggest, is not whether the trial court committed error. In my view, error clearly occurred. The question is whether the error was harmless beyond a reasonable doubt. See Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976). The error was not harmless, the judgment of the circuit court should be reversed and the case remanded for a new trial.
Chief Judge BELL and Judge ELDRIDGE have authorized me to state that they join in the views expressed herein.
. The State also argued:
So it would be deceiving the jury, because there is no issue. If the jury didn’t know that this defendant, who is on trial for this crime, is an individual that all sides agree is not criminally responsible for his conduct. Because when they hear this conduct, they are going to say, boy, this is a bizarre guy. What is going on here. And we would be deceiving the jury, and they wouldn't be able to understand the context in which this defendant committed this criminal act, if they weren’t realizing they are dealing with a person who is not criminally responsible.
. In opening statement, defense counsel told the jury:
Maybe he stopped at the car wash simply to, if he was there at all, simply to gain some companionship, start a conversation, whatever. Be sure that you believe before you find any kind of guilty verdict, that he said these things to be consistent, and that is most important, he really meant, did he really mean to have this particular judge killed. As strange as it sounds being, meant to have, this is solicitation only for this judge, be sure that you believe that he really meant to have that particular person killed.
. As pointed out by the majority, ”[n]o evidence was offered at trial that appellant’s guns were to be used in the murder.” Maj. op. at 551.
. Consistent with this position, the State argued in opening statement that "we will present some evidence concerning the estate to show the ruling of Judge Murphy, and how he so infuriated this defendant, that he wanted to have-the judge killed.”
. The majority holds that this issue of the condition of Klauenberg’s home was not preserved. Maj. op. at 542. I disagree. The majority states that appellant objected only "to the irrelevance of Twomey’s depiction of appellant being confrontational.” Id. This is not the only possible understanding of appellant’s objection. Appellant’s objection may also be read as an objection to a broader scope of testimony relating to visits to Klauenberg’s home, visits during which Judge Murphy was not present.
The relevant portion of Twomey’s testimony was as follows:
THE STATE: How was [Klauenberg’s] conduct toward Judge Murphy during this trial from 1985 to 1992?
DEFENSE ATT’Y: Objection. It's too broad, Your Honor.
THE COURT: Overruled.
Twomey then proceeded to describe the two "steps” of Francis v. Klauenberg, the first dealing with the determination of legal issues, and the second dealing with actually tracking the assets of the estate. Twomey’s testimony with regard to this second phase was as follows:
TWOMEY: ... we then moved into that phase of having to go to the house that he was living in which was his father’s home, and go in there and literally find pieces of paper to try to trace assets.
During that time, his demeanor was equal to his demeanor in the courtroom, and at certain times during going to the house, collecting financial records, it became more confrontational.
DEFENSE ATT’Y: Your Honor, I’m going to object, unless Judge Murphy was there, I don’t see any relevance.
THE COURT: Overruled. What do you mean by confrontational, sir? TWOMEY: Specifically there was one event and to paint the scene, we were in the living room. The room was, you couldn’t get to the floor, stand on the floor. We were walking on top of where it had been packed down where much like in your mind's eye, where if you *564 are in a yard that’s overgrown and animals run through their pathways with people walking. We are in a room where paper had been piled as high as approximately my waist, but where the occupants had walked. There were beaten down paths that I would say that the paper at points was compressed down to no less than six to eight inches and then around it was kind of piled up.
. The majority holds that the issue of Klauenberg’s confrontational behavior was not preserved. Maj. op. at 541. I disagree. The majority writes that "the Court of Special Appeals in Jeffries v. State, 113 Md.App. 322, 341 , 688 A.2d 16, 25 , cert. denied, 345 Md. 457 , 693 A.2d 355 (1997), held specifically that a party who objected to testimony at trial only as to general relevance could not argue for the first time on appeal that the testimony was inadmissible evidence of other bad acts." Maj. op. at 542. In my opinion, an objection on the grounds of relevance should be sufficient to preserve the issue of "bad acts” evidence. The Faulkner test is used to exclude evidence of “bad acts” evidence that is not specially relevant to the issues at trial. See State v. Faulkner, 314 Md. 630 , 552 A.2d 896 (1989). I believe that appellant’s objection on grounds of relevance was sufficient.
. The relevant portion of Twomey's testimony was as follows:
TWOMEY: Mr. Klauenberg stepped in front of me and started— DEFENSE ATT’Y: Objection.
THE COURT: Overruled.
TWOMEY: Started a verbal, you know, attempted, I don't remember his exact words, but it was attempting to get me to back down and not do what I was there to do, and then ultimately ended up with his starting some, you know, in very close to my face, pounding on my chest, pounding as too strong, poking on my chest with his index finger, and there was a police officer back on the other side of the room who had to interject and tell John to back off and to stop. It was very confrontational, very angry, and my mind was whether I had justification to physically stop him for what he was doing or not. And was there a need to physically stop him, was it going to escalate to that next level where something more aggressive would be done by him, and I drew that from his physical presence where he was leaning forward, the anger in his face, just parading terrific anger, comparable to other things I have experienced in my life, and nothing—it was a very serious and intense moment.
. Twomey testified:
THE STATE: What, if any, weapons did the defendant keep at his house?
DEFENSE ATT’Y: Objection.
THE COURT: Overruled.
TWOMEY: We found in his home, two pistols. If memory serves correctly, one was a .38 revolver, and I forget what the other one *565 was, and they were in a trank as we went through. Then we, there was one place that Mr. Klauenberg would stand downstairs in the basement. Upstairs he would wander around with us. There was one place he stood without moving while people went into other rooms in the basement, and fortunately the police were literally right next to him, surrounding him as he went through this exercise.
... the next time we went in, we discovered right above that spot a loose ceiling tile, it was based on a low hanging ceiling, and when that ceiling tile was slightly ajar was moved standing on the ground reaching in, we found a .22 automatic pistol, fully loaded clip in, seated in the pistol and 600 rounds of ammunition next to it.