Petition for Writ of Certiorari — Raminder Kaur, Petitioner v. Maryland
Supreme Court briefJan 15, 2020
Ask Donna
What actually matters in this document.
Text
APPENDIX
REDACTED
APPENDIX A:
APPENDIX B:
APPENDIX C:
Order, Petition Docket No. 202,
Court of Appeals of Maryland,
October 18,2019.......................
la
Unreported Opinion, No. 2516,
Court of Special Appeals of
Maryland, June 7,2019...........
3a
Transcript of Judge’s Ruling,
No. 123952, Circuit Court for
Montgomery County, Maryland,
April 14,2016
101a
REDACTED
la
APPENDIX A
RAMINDER KAUR
*
IN THE
*
COURT OF APPEALS
*
OF MARYLAND
*
Petition Docket No. 202
September Term, 2019
*
v.
*
*
STATE OF MARYLAND
(No. 2516, Sept. Term,
2016 Court of Special
Appeals)
(No. 123952C, Circuit
Court for Montgomery
County)
ORDER
Upon consideration of the petition for a writ of
certiorari to the Court of Special Appeals, the conditional
cross-petition, and the answers filed thereto, in the above
entitled case, it is
ORDERED, by the Court of Appeals of
Maryland, that the petition and the conditional cross-
REDACTED
2a
petition be, and they are hereby, denied as there has
been no showing that review by certiorari is desirable
and in the public interest.
/s/Robert N. McDonald
Senior Judge
DATE: October 18,2019
* Chief Judge Barbera did not participate in the
consideration of this matter.
REDACTED
3a
APPENDIX B
Circuit Court for Montgomery County
Case No. 123592
UNREPORTED
IN THE COURT OF SPECIAL
APPEALS
OF MARYLAND
No. 2516
September Term, 2016
RAMINDER KAUR
v.
STATE OF MARYLAND
Wright,
Kehoe,
Shaw Geter,
JJ.
Opinion by Kehoe, J.
Filed: June 7,2019
* This is an unreported opinion, and it may not be cited in
any paper, brief, motion, or other document filed in this
Court or any other Maryland Court as either precedent
REDACTED
4a
within the rule of stare decisis or as persuasive authority.
Md. Rule 1-104.
REDACTED
5a
— Unreported Opinion —
After a trial by a jury in the Circuit Court for
Montgomery County in 2014, Raminder Kaur was
convicted of first-degree murder, conspiracy to commit
first-degree murder, and the use of a handgun in a crime
of violence. She filed a motion for a new trial based upon
assertions
of
ineffective
assistance
of
counsel.
Representing the State at the motions hearing were the
assistant state’s attorneys (the “Prosecution Team”) who
represented the State at trial. Through discovery, the
Prosecution Team obtained access to the file of Ms. Kaur’s
defense counsel. The file contained a considerable amount
of privileged information, including communications
between Ms. Kaur and her lawyers, communications
between her lawyers and their support staff, and her
lawyers’ investigative and strategic work-product. After
an evidentiary hearing, the circuit court granted Ms.
Kaur’s motion and ordered a new trial. Ms. Kaur then
filed a motion for a protective order to bar the Prosecution
Team from representing the State at the second trial.
Although the court declined to disqualify the Prosecution
Team, it granted other relief that the court thought was
REDACTED
6a
— Unreported Opinion
sufficient to protect Ms. Kaur’s constitutional rights. At
the second trial, Ms. Kaur was again found guilty on all
counts.
She raises two issues on appeal:
1. Did the trial court err in failing to protect Ms.
Kaur from being tried by a prosecution team with
extensive knowledge of Ms. Kaur’s privileged
communications with her defense counsel,
communications among counsel about trial
strategy, and investigative and strategic work
product?
2. Did the trial court abuse its discretion in
excluding expert testimony on the cognitive
processes that could cause an eyewitness to
mistake the gender of a perceived individual,
where a principal issue at trial was the accuracy
of eyewitnesses’ recollections that they saw a
woman at the scene of the crime?
Ms. Kaur’s first contention raises a difficult issue of
first impression in Maryland. In the absence of definitive
guidance from the Court of Appeals, we conclude that Ms.
Kaur was obligated to demonstrate that any putative
error on the trial court’s part was prejudicial. We hold
that she failed to do so. As to the second issue, we hold
REDACTED
7a
— Unreported Opinion —
that the trial court did not abuse its discretion in excluding
expert testimony about the cognitive processes of
eyewitnesses. We will affirm the convictions.1
Background
The Murder of Preeta Gabba
On October 12,2013, Preeta Gabba, the former wife of
Baldeo Taneja, was shot and killed outside of her home in
Germantown, Maryland. We adopt the facts as
summarized by Judge Sharer for this Court in Taneja v.
State, 231 Md. App. 1 (2016), cert, denied, 452 Md. 549
(2017):
Preeta Gabba was shot three times at close
1 Because of a series of events that we will presently
explain, Ms. Kaur’s attorney-client privilege is currently
in tatters. This fact is recognized by appellate counsel for
both parties. Ms. Kaur’s briefs and the State’s brief were
filed under seal, and the versions available to the public
have been heavily redacted. To the extent possible, this
opinion avoids specific discussions of privileged or other
sensitive information pertaining to Ms. Kaur’s
interactions with her counsel, as well as their work
product.
REDACTED
8a
— Unreported Opinion —
range, resulting in her death, while walking in
Germantown, Montgomery County, at about 7:45
on the morning of October 12, 2013. Her former
husband, Baldeo Taneja, and his wife, Raminder
Kaur, were charged in Gabba’s murder. They
were tried together and convicted by a jury of
first-degree premeditated murder, conspiracy to
commit first-degree premeditated murder, and
use of a handgun in the commission of a felony.
* * *
The State’s theory of prosecution was that
Taneja and Kaur conspired to kill Gabba, and
that it was Kaur who fired the fatal shots. The
State’s case was largely circumstantial and
centered on motive and opportunity. The State
produced evidence that the gun used to kill
Gabba was found in the rear seat of Taneja and
Kaur’s car 30 hours after the murder, and that
Taneja had purchased the gun five weeks earlier.
The defense argued lack of criminal agency and,
more particularly, that others had motive to kill
Gabba.
Viewing the evidence in the light most favorable
to the State, the following was adduced at
Taneja’s trial.
Gabba and Taneja were married in India in 2002, and
continued to live there for several years. In 2006, Taneja
moved to the United States; Gabba followed in 2009.
They lived in the Germantown area, but not together.
REDACTED
9a
— Unreported Opinion —
Two years later, Gabba and Taneja divorced, and
soon afterward Taneja married Kaur and moved
to Nashville, Tennessee. Gabba remained in the
Germantown area[.]
On the morning of Gabba’s murder, she was en
route to her job, walking from her home to the
bus stop, as she had done regularly for the
preceding three years. Three eyewitnesses
testified to the events at the murder scene.
[A woman] was driving her teenage son to his
school in the 19700 block of Crystal Rock Drive,
a residential area, when they heard several
gunshots. [The woman] slowed her car and saw
two women ahead of her. One of the women, later
identified as Gabba, started crossing the street in
the middle of the block, while the other woman
was close behind her. As Gabba fell into the
street in front of [the witness’s] car, the second
woman ran away. [The witness] and her son
described the woman who ran away, in part, as
wearing a bright orange scarf. They initially
described both women as African-American,
although, at trial, both were less positive about
their race. Neither saw anyone else in the
immediate area at the time.
A man living in an apartment about 100 yards from
where the shooting occurred testified that he heard
gunshots and looked out his window. He saw a woman,
later identified as Gabba, lying on the ground, and
REDACTED
10a
— Unreported Opinion —
ten feet away another woman, who exhibited a
slight limp, was running away. The witness
described the woman who was running away as
in her late 40’s or early 50’s with “brownish” skin
color and wearing a bright head scarf. Like the
[driver and her son], he initially told the police
that the woman was African-American, but, at
trial, was less positive of her race.
Suspicion quickly fell on Taneja and Kaur.
Several hours after the murder, around 3:30 p.m.,
Montgomery County Police Department
homicide detectives called Taneja’s cell phone,
but it went directly to voice mail, as did several
additional calls. Warrants were obtained for
Taneja and Kaur, who were arrested in
Tennessee around 2:00 p.m. the day following the
murder, as they were driving away from their
home. One of the detectives observed that Kaur
walked with a limp.
The police searched the car and recovered a
backpack containing a wig, black hair dye, a black
hoodie, and a plastic bag. In the plastic bag was a
.357 Ruger LCR revolver, which later testing and
examination determined to be the murder
weapon. The plastic bag also contained a holster
for the .357 Ruger, and a 100 Ruger revolver.
Inside Kaur’s purse the police found a note in her
handwriting that read: “You calm down. We are
now in Tennessee near my home.” A global
REDACTED
11a
— Unreported Opinion —
positioning system device (GPS) was recovered
from the front console of the car. Inside Taneja’s
wallet was a piece of paper on which Kaur had
written Gabba’s address.
A search of Taneja’s residence recovered
documents with a note on top in Kaur’s
handwriting that read, “Dragon story and other
court documents.” The police also recovered a
composition notebook with different handwriting
that read, in part, “No brass, no evidence.”
* * *
Two firearm and tool mark identification experts
testified that the three bullet specimens
recovered from Gabba’s body were all fired from
the .357 Ruger LCR revolver that was recovered
from Taneja’s car. Taneja’s DNA was found on
both guns seized from his car.
The State also presented evidence to support its
theory of Taneja’s and Kaur’s motive to kill
Gabba, including that, in 2009, when Gabba
moved to the United States from India, Taneja
and Gabba were experiencing marital discord.
While Gabba lived in a condominium in
Germantown with one of Taneja’s sons, Taneja
and Kaur lived nearby and held themselves out
as husband and wife.
In 2010, Gabba and Taneja began divorce
proceedings, which became “very contentious”
even though they had little property and no
REDACTED
12a
— Unreported Opinion —
children together. The State introduced evidence
that during the divorce proceedings, Taneja
asked his son and Kaur to spy on Gabba, and that
Taneja referred to Gabba as “Dragon Lady,” as
did his son and Kaur. At one point during the
divorce proceedings, Gabba, acceding to Taneja’s
demand, left the family home. She later returned,
pursuant to a court order, to find that Taneja had
erected walls so she had access only from the
entry door to her bedroom.
The State presented evidence that, although the
divorce became final in July 2011, Taneja failed
to honor their divorce agreements, and their
interactions continued to be acrimonious. Indeed,
at the time of Gabba’s murder, Taneja still had
not transferred their property in India as
required by the divorce settlement, despite
several requests by Gabba.
Additional evidence was offered by the State
relating to Taneja’s [obligation] to pay alimony in
the amount of $2,400 each month for three years.
Alimony was to terminate upon the death of
either party. By February 2013, Taneja had
fallen three months behind in his alimony
obligation, prompting Gabba to send several
demands for payment, via e-mail. Eventually, her
attorney filed a contempt petition against Taneja
who, in response, filed a counterclaim for
$100,000. The contempt hearing was scheduled
for October 10,2013, two days before the murder,
REDACTED
13a
— Unreported Opinion —
but several days before the hearing, their
attorneys negotiated an agreement whereby
Taneja agreed to pay the arrears within 90 days.
The State also presented evidence of Taneja’s
and Kaur’s opportunity to kill Gabba.
About five weeks before Gabba’s murder, Taneja
attended a day-long gun training class in
Tennessee. The class included four hours of
instruction and four hours of shooting range
experience that would allow him to obtain a
“handgun carry permit.” In his testimony, the
instructor recalled that, at the first class, Taneja
entered the classroom with a woman and sat in
the last row. When the woman was asked to leave
because she had not paid to attend the class,
Taneja moved to the first row. The instructor
particularly remembered Taneja because he took
“a ton of’ notes. Among the instructor’s
recommendations to the class participants was
that they purchase a revolver rather than a
semiautomatic, because the latter requires much
more training for accuracy than a revolver. He
further remembered telling the class that a
semiautomatic “spits out” shell casings that can
later be matched to the gun, but a revolver does
not.
On September 28, 2013, two weeks before the
murder, Taneja purchased two revolvers from a
gun store in Tennessee: a .357 Ruger LCR, which
was described as a snub-nosed revolver designed
REDACTED
14a
— Unreported Opinion —
with a “concealed hammer” so it would not get
hung up on clothing, and a 100 Ruger GP.
Additionally, Taneja purchased a holster for the
.357 and ammunition for both guns. Kaur was
present in the store when Taneja purchased
those items.
Around 7:00 p.m. on October 11, the night before
the murder, Taneja and Kaur checked into the
Red Roof Inn in Germantown, about eight miles
from where Gabba was shot. From the GPS
recovered from Taneja’s car, the police learned
that at 9:58 a.m. the next morning—October 12—
the GPS device traveled toward the District of
Columbia.
The evidence disclosed that both Taneja and
Kaur were involved in Amway distribution and
sales, Taneja since the early 1990’s. On the
weekend of October 11-13, 2013, Amway held a
“Free Enterprise” weekend conference at the
Washington Hilton, involving thousands of
Amway members. The event started Friday
night at 6:00 p.m. and lasted until Sunday at 3:45
p.m. Taneja’s Amway sponsor testified that
Taneja was aware of the importance of attending
the conference.
At 10:44 a.m. on the morning of the murder,
Taneja purchased two tickets for the conference.
About 30 minutes later, the GPS revealed a stop
near the Washington Hilton, a distance of about
19 miles from the Red Roof Inn. At 11:37 a.m.,
REDACTED
15a
— Unreported Opinion —
Taneja and Kaur entered the conference, where
they were seen by Taneja’s Amway sponsor and
his wife shortly after they arrived. A short time
later the sponsor texted Taneja, inviting him and
Kaur to join their group for lunch. Taneja texted
back that he could not make it because Kaur was
not feeling well. The sponsor’s wife testified that
Kaur had not appeared unwell when she had seen
her earlier. From the GPS device, the police
determined that Taneja and Kaur attended the
three-day event for less than an hour, leaving the
D.C. area shortly after noon. Their car continued
westward, stopping in Farragut, Tennessee
around midnight. Their travel resumed the
following morning around 9:30 and concluded at
their home about noon.
The First Trial
The State charged Ms. Kaur and Taneja with firstdegree murder, conspiracy to commit first-degree
murder, and the use of a handgun in a crime of violence.
They were tried jointly. The Prosecution Team consisted
of Marybeth Ayres, Esq. and Jessica Hall, Esq., two
experienced attorneys in the Montgomery County Office
of the State’s Attorney. Ms. Kaur was represented by
Alan Drew, Esq., an attorney in the Office of the Public
Defender for Montgomery County, who was assisted by
REDACTED
16a
— Unreported Opinion —
Stephen B. Mercer, Esq., Chief Attorney of the OPD’s
Forensic Division and director of its litigation support
group.
Three eyewitnesses testified as to the shooting of Ms.
Gabba. None of them were able to identify the shooter but
their descriptions of that person’s height and weight more
closely resembled Taneja, rather than Ms. Kaur.
However, all three eyewitnesses also described the
shooter as a woman. (We will discuss the eyewitness
testimony in more detail later in this opinion.) In its
closing argument, the State asserted that an eyewitness
account, even under stressful circumstances, was reliable
as to a person’s gender and race. The jury found Ms. Kaur
and Taneja guilty on all counts. This court affirmed
Taneja’s convictions in Taneja, 231 Md. App. at 3-9 (2016).
Ms. Kaur’s Motion for a New Trial
After the trial, on behalf of Ms. Kaur, Mr. Mercer filed a
motion for a new trial pursuant to Md. Rule 4-331 (a) on
the basis of ineffective assistance of counsel. The motion
alleged that Mr. Drew failed to prepare for trial and had
REDACTED
17a
— Unreported Opinion —
incorrectly advised Ms. Kaur that the trial court would not
permit her to testify in her own defense. Attached to the
motion was an affidavit, prepared by Mr. Mercer, and
signed by Ms. Kaur and by Mr. Drew. Mr. Mercer did not
file an accompanying motion to limit public inspection of
the affidavit. See Md. Rule 16-912.2 The affidavit claimed
Mr. Drew was deficient in the following ways:
That Mr. Drew was unprepared for trial and
failed to meet with Ms. Kaur at crucial times
leading up to trial.
That Mr. Drew did not raise the issue of Ms.
Kaur’s competency to the trial court.
That Mr. Drew failed to issue out-of-state
subpoenas for documents relating to possible
defenses.
That Mr. Drew misinformed Ms. Kaur as to who
would testify at her trial, and that he did not give
timely notice of two expert witnesses to the State,
who were thereafter barred from testifying.
2 At the time Ms. Kaur’s motion for a new trial was filed,
Rule 16-1009 permitted a party to file a motion to seal or
otherwise limit inspection of a court record. As of July 1,
2016, Rule 16-1009 has been replaced by Rule 16-912.
REDACTED
18a
— Unreported Opinion —
That Mr. Drew failed to disclose and/or call
character witnesses to testify as to Ms. Kaur’s
character traits, religious and cultural beliefs,
and her relationship with her husband.
The State responded by filing five motions to
subpoena the entire investigative and trial files of Mr.
Drew and Mr. Mercer, as well as their investigators,
experts, and law clerks. At a hearing on the State’s
motions, Ms. Kaur’s counsel requested that limitations be
placed on what materials the State could receive because
the State was seeking “the entirety of the files of two
lawyers and an investigator of the Office of the Public
Defender without regard to the specific ineffective
assistance claims [Ms. Kaur] made here.”
The court granted the State’s motions for subpoenas
and ordered the defense to turn over Ms. Kaur’s entire
defense file. The court reasoned that the language in Ms.
Kaur’s ineffective assistance of counsel claim was so broad
that it opened the door to “everything that [her] attorney
did and didn’t do in preparing her defense in this case[,]”
and so the State should have access to the entire defense
file. The court found it difficult to conceive of “what would
REDACTED
19a
— Unreported Opinion
be in the file that wouldn’t be relevant,” noting the
possible exception of evidence of other crimes. If any
documents were irrelevant to the issues raised by Ms.
Kaur’s motion for a new trial, the court suggested to Ms.
Kaur that she could file a motion for a protective order for
those specific documents.3
After a multi-day evidentiary hearing followed by oral
argument, the court ultimately concluded that the
interests of justice required granting Ms. Kaur a new
trial.4
Ms. Kaur’s Motion for a
Protective Order
After the court’s ruling on her motion for a new trial,
Ms. Kaur filed a motion for a protective order “prohibiting
3 In fact, Ms. Kaur did so, filing a motion to seal a
transcript from the last day of the post-conviction hearing.
Later, Ms. Kaur requested, and the court granted, her
motion to seal the court’s ruling on her motion for a
protective order.
4 Both Mr. Drew and Mr. Mercer testified at the hearing
on the motion for a new trial. Therefore, Ms. Kaur was
represented by other counsel in that proceeding.
REDACTED
20a
— Unreported Opinion —
the State of Maryland from using at the retrial the
privileged information disclosed during the motion for
new trial proceedings.” In the motion, Ms. Kaur made
three requests: (1) that the court should enter a protective
order barring the evidentiary use of Ms. Kaur’s privileged
disclosures; (2) that the State be required to retry Ms.
Kaur using a new prosecution team untainted by the
privileged disclosures; and (3) that an evidentiary hearing
be held to assess the extent of the taint stemming from
the disclosure of Ms. Kaur’s communications with her
prior counsel and their work product. According to Ms.
Kaur, her right to a fair trial demanded the appointment
of a new prosecution team. She contended that once the
State has been exposed to a defendant’s privileged
information, the State has an obligation to show that there
has been no derivative use of the privileged materials. Ms.
Kaur was particularly concerned that the Prosecution
Team was now aware of any and all trial strategies the
defense could pursue at the second trial. Given the extent
of the exposure, the Prosecution Team would use the
privileged information to its advantage
REDACTED
21a
— Unreported Opinion —
thereby violating her Sixth Amendment rights.
The State opposed the motion. First, the State noted
that the Prosecution Team did not intend to use any of the
privileged information contained in the case file at Ms.
Kaur’s retrial. Second, the State noted that, if Ms. Kaur
testified at the second trial, her testimony from the post
conviction hearing could be used for impeachment
purposes, as could her affidavit and the testimony of any
other witnesses at that hearing. Finally, the State argued
that Ms. Kaur’s request to bar the Prosecution Team
should be denied as unreasonable and unnecessary.
After a hearing, the court granted Ms. Kaur’s motion
in part and denied it in part. The court found that (1) Ms.
Kaur expressly waived her attorney-client privilege;
(2) Ms. Kaur’s concerns about disclosure of the defense’s
trial strategy were unfounded because the trial strategy
would be different for the second trial due to the change
in circumstances; and (3) in any event, any strategy
involving expert testimony would be known by the State
by virtue of the defense having to disclose its expert
REDACTED
22a
— Unreported Opinion —
witnesses. Specifically as to its finding of waiver, the court
concluded that pursuant to Bittaker v. Woodford, 331 F.
3d 715 (9th Cir. 2003)—a case that we will presently
discuss in detail—Ms. Kaur expressly waived the
attorney-client privilege by filing her motion for a new
trial based upon ineffective assistance of counsel and so
was not entitled to any of the relief she sought.
According to the court, Ms. Kaur waived the attorneyclient privilege when she:
published her affidavit in a public forum which
was quickly picked up by the Washington Post,
the newspaper of wide circulation, and placed all
of this information in the public domain. And that
is the classic definition of an express waiver
under Bittaker, in which all of her
communications then are exposed and available
to the State.
Based on these findings, the court concluded that
“there is little to no evidence that the defendant is
suffering or has suffered from the disclosure of a two and
half year old strategy that was crafted for a very different
procedural circumstance out of a joint trial.”
REDACTED
23a
— Unreported Opinion —
Nevertheless, the court “fearing another round of
post-trial proceedings” crafted a remedy as though Ms.
Kaur had implicitly waived the attorney-client privilege
under Bittaker.5 The court noted that pursuant to United
States v. Morrison, 449 U.S. 361, 364 (1981), its remedy
must “be tailored to the injury suffered from the
constitutional violation and should not unnecessarily
infringe on competing interests.” In order to protect Ms.
Kaur’s Sixth Amendment rights, the court prohibited the
State from making use of any of the privileged
information it acquired, as well as making use of any
information contained in Ms. Kaur’s affidavit. The
privileged information included “any testimony relating
5 The court’s remedy was designed to avoid a secondround of post-conviction proceedings. It explained:
[Rjeally only the defendant can waive the
privilege, the attorney can’t waive the privilege.
So, if by the attorney making this decision and
waiving her privilege, he’s denied her, you know,
the protection she otherwise would have had,
we’ll be right back here four or five years from
now, is my concern.
REDACTED
24a
— Unreported Opinion —
to the attorney-client communication that [Ms. Kaur] or
her attorney produced at a hearing ... on this matter.”
Then, the court reserved on ruling whether the State
could use any non-privileged testimony of Ms. Kaur or
another witnesses’ testimony as impeachment evidence at
the second trial.
Finally, and critically to Ms. Kaur’s first appellate
contention, the court refused to bar the Prosecution Team
from retrying the case, finding that such a step was:
unnecessary to protect [Ms. Kaur] against any
prejudice suffered by result of her pursuing her
ineffective assistance claim. Any advantage that
the prosecutor might have had has been
substantially, if not entirely, eliminated by the
Court’s order on this motion.
In reaching this result, the court gave significant weight
to the State’s competing interest in using its experienced
*
attorneys, who have been working on the case for the
previous two and a half years, to prosecute the case at
retrial. In conclusion, the court explained its justification:
To afford [Ms. Kaur] the protection she seeks
because of disclosures that were made in this
REDACTED
25a
— Unreported Opinion —
case where no protective order was ever sought
at any time until now just when counsel asked
that this record be sealed in part and where this
information was so widely disseminated because
of the nature of the case ... that the Court
reasonably concludes it would be extremely
difficult to find, certainly, anybody in the State’s
Attorney’s Office currently who hadn’t been
exposed to that information, and quite probably,
anybody in the criminal bar in Montgomery
County who hadn’t been exposed to that
information because it was so widely covered,
which means that if I were to require the State to
find somebody who had not been exposed to the
information, they would almost certainly have to
go out of county or find somebody who was a
junior or inexperienced [attorney who was not]
around when this case was tried two and a half
years ago. And I think that is an unreasonable
and unnecessary remedy in this case and that the
remedy instead that I have tailored, I think,
addresses any prejudice that the defendant has
suffered.
The Second Trial
At Ms. Kaur’s second trial, the defense theorized that
Taneja, acting alone and disguised as a woman, shot Ms.
Gabba. Supporting the defense’s theory was the evidence
REDACTED
26a
— Unreported Opinion
of the eyewitnesses6 who, just as in the first trial, provided
descriptions of the unidentified shooter’s height and
weight which more closely matched Taneja’s, rather than
Ms. Kaur’s appearance. (Additionally, as we will explain
later, Ms. Kaur also pointed to evidence that Taneja had
purchased a disguise just prior to Ms. Gabba’s murder.)
However, all three eyewitnesses also described the
shooter as a woman. (We will discuss the eyewitness
testimony in more detail later in this opinion.)
Anticipating that the prosecution would again argue
that an eyewitness’s identification of race and gender
were particularly reliable, the defense sought to call
Margaret Kovera, Ph. D., a social psychologist, as an
expert witness on the perception, encoding, storage, and
retrieval of witnessed events. In her brief, Ms. Kaur
asserts that she was “entitled to have an expert who
[could] explain how memory works to the jury.” The
6 Two of the eyewitnesses testified at the second trial. The
third did not, but a police officer read his notes of his
interview to the jury.
REDACTED
27a
— Unreported Opinion —
defense proffered that Dr. Kovera would testify that the
State’s position “is scientifically not true.” Specifically,
Dr. Kovera would opine that “[t]here are counterintuitive
nature aspects to how [] memories are stored in the first
place and in how they’re retrieved,” and that, as a result,
the eyewitnesses could have mistaken a man for a woman.
For reasons we explain later, the trial court excluded Dr.
Kovera’s testimony.
At the conclusion of the second trial, the jury again
found Ms. Kaur guilty on all charges. She was sentenced
to life imprisonment for first-degree murder and
conspiracy to commit first-degree murder, and to five
years’ imprisonment for the use of a handgun in the
commission of a crime of violence, all to run concurrently.
Ms. Kaur filed a timely appeal.
Analysis
Our analysis is divided into two parts.
In Part 1, we discuss Ms. Kaur’s arguments that she is
entitled, at the very least, to a new trial because the trial
court permitted the Prosecution Team to participate in
REDACTED
28a
— Unreported Opinion —
the second trial. Going to the heart of Ms. Kaur’s appellate
contentions, there are no reported Maryland decisions
that squarely address whether the trial court commits
reversible error by refusing to disqualify prosecutors
when they lawfully obtain knowledge of a defendant’s
privileged communications. In the two reported cases in
which the prosecutors (at least allegedly) obtained such
knowledge through improper means, both this Court and
the Court of Appeals held that a defendant must
demonstrate prejudice before obtaining a new trial. Ms.
Kaur asserts that she is entitled to a presumption of
prejudice because the Prosecution Team had access to her
prior counsels’ unredacted files. Because Maryland
requires a defendant to demonstrate prejudice when
prosecutors obtain access to confidential information
through unlawful means, it is difficult for us to conclude
that there should be a presumption of prejudice when the
prosecutors have acted lawfully, and, in any event, Ms.
Kaur has failed to persuade us to the contrary. As an
alternative, Ms. Kaur argues that she was, in fact,
prejudiced by the trial court’s ruling. These arguments
REDACTED
29a
— Unreported Opinion —
are unpersuasive.
Then, in Part 2, we conclude that the trial court did not
abuse its' discretion when it excluded Dr. Kovera’s
testimony.
1. The Participation of the Prosecution Team in the
Second Trial
Ms. Kaur and the State approach the primary issue
in this case very differently.
Ms. Kaur argues that the acquisition of her privileged
information by the State was wrongful. Based on that
premise, Ms. Kaur suggests that we hold that any
wrongful
acquisition
of a
defendant’s
privileged
information by the State is presumptively prejudicial to
her. Conceding that there is no Maryland case directly on
point, Ms. Kaur urges us to adopt the reasoning of cases
such as the Supreme Court of Nebraska’s decision in State
v. Bain, 292 Neb. 398,872 N.W. 2d 777 (2016). If we do not
adopt the approach taken in Bain, she argues that she was
prejudiced because the Prosecution Team used her
privileged information to its advantage at the second trial.
REDACTED
30a
— Unreported Opinion —
Ms. Kaur points to several instances at her second trial in
which, according to her, the Prosecution Team made clear
use of her privileged information. Finally, Ms. Kaur
asserts that the prejudice done to her is so overwhelming
that the charges against her be dismissed entirely, or, at
the very least, she be granted a new trial.
The State begins with a different premise. According
to the State, its acquisition of Ms. Kaur’s privileged
information was not wrongful. Rather, the State contends
that Ms. Kaur waived the attorney-client privilege by
filing her post-conviction motion for a new trial based on
ineffective assistance of counsel, and her accompanying
affidavit. These documents, according to the State, placed
Ms. Kaur’s privileged information in the public sphere.
For this reason, asserts the State, Bain is factually
distinguishable. The State suggests that Bittaker v.
Woodford, 331 F. 3d 715 (9th Cir. 2003), provides a more
useful analytical approach to this case than does Bain.
Acknowledging that the Prosecution Team had been
exposed to Ms. Kaur’s privileged information as a result
of the post-conviction proceeding, the State denies that
REDACTED
31a
— Unreported Opinion —
the Prosecution Team used any privileged information to
its advantage at Ms. Kaur’s second trial. In any event, the
State asserts that Ms. Kaur has not preserved these
issues for appellate review because her trial counsel failed
to make a timely objection to the circuit court’s rulings at
her second trial.7
7 We can dispose of the latter contention quickly. Just
prior to the second trial, a hearing was held on a motion,
filed by Ms. Kaur, to limit the use of her prior testimony
from the post-conviction hearing. In ruling on that motion,
the court reiterated its prior ruling that Ms. Kaur:
generated this issue by filing the motion for new
trial and, therefore... waived the privilege when
she pursued as part of the motion for a new trial
that her first attorney was ... ineffective^] [We
have] sort of been down that road already, [and
I] made my bed so to speak.
As the issue was raised to, and decided by, the trial court,
there was no reason for defense counsel to object later in
the trial. “The purpose of Maryland's preservation rule,
Maryland Rule 8-131(a), is ‘(a) to require counsel to bring
the position of their client to the attention of the lower
court at the trial so that the trial court can pass upon, and
possibly correct any errors in the proceedings, and (b) to
prevent the trial of cases in a piecemeal fashion.’” Blanks
v. State, 406 Md. 526, 538 (2008) (quoting Robinson v.
REDACTED
32a
— Unreported Opinion —
Both parties view the analysis in Bittaker as
instructive but urge us to draw different conclusions from
it. In that case, the Ninth Circuit explained that a waiver
of the attorney-client privilege may come in two forms:
express or implied. 331 F.3d at 719. Based on the
distinction drawn in Bittaker, the State contends that the
trial court was correct in finding that Ms. Kaur expressly
waived the attorney-client privilege. The State also
asserts that, by failing to file her affidavit under seal, Ms.
Kaur placed the affidavit and its contents in the “public
forum.” The affidavit then entered the “public domain”
when the Washington Post circulated its contents.
Therefore, reasons the State, Ms. Kaur waived her
privilege.
Ms. Kaur counters that she did not waive her attorneyclient privilege for purposes of her second trial. Ms. Kaur
interprets Bittaker to suggest that the prosecution’s
proper use of a defendant’s privileged materials was
limited to litigating the defendant’s ineffective assistance
State, 404 Md. 208,216-17 (2008)).
REDACTED
33a
— Unreported Opinion —
of counsel claim, and that the information could not be
used by the prosecution for any other purpose. Further,
she argues that the trial court’s finding of express waiver
with respect to both the defense team’s case files and the
affidavit was erroneous. According to Ms. Kaur, handing
over her defense file to the State did not constitute an
express waiver because the file was disclosed pursuant to
a court order in preparation of a proceeding that placed at
issue the nature of the privileged material. She asserts
that any waiver that resulted from the filing of her
affidavit filed in connection with her motion for a new trial
was limited to adjudication of that motion.
We agree with the State that Ms. Kaur waived the
attorney-client privilege when she filed her motion for a
new trial with its supporting affidavit. Delineating the
scope of her waiver is a different and more difficult issue.
A.
The attorney-client privilege “is a rule of evidence
which prohibits the disclosure of the substance of a
communication made in confidence by a client to his
REDACTED
34a
— Unreported Opinion —
attorney for the purpose of obtaining legal advice.” Blair
v. State, 130 Md. App. 571,605 (2000) (quoting Levitsky v.
Prince George’s County, 60 Md. App. 484,491 (1982)). The
privilege is “the oldest of the privileges for confidential
communications known to the common law.” Newman v.
State, 384 Md. 285,300-01, (2004); (quoting Upjohn Co. v.
United States, 449 U.S. 383, 389 (1991)). Although “never
given an explicit constitutional underpinning,” the
existence of the privilege is reflected in the Maryland
Attorney’s Rules of Professional Conduct,8 as well as the
Maryland Code, specifically, Md. Code (1974, 2013 Repl.
Vol.) Courts & Judicial Proceedings Article (“CJP”) § 9108.9 Related to, but distinct from, the attorney-client
Md. Rule 19-301.6(a) states:
An attorney shall not reveal information relating
to representation of a client unless the client
gives informed consent, the disclosure is
impliedly authorized in order to carry out the
representation, or the disclosure is permitted by
section (b) of this Rule.
9 Section 9-108 states:
REDACTED
35a
— Unreported Opinion —
privilege is the work product doctrine. “The work-product
doctrine, meanwhile, belongs to the lawyer rather than
the client, and serves to protect materials from discovery
that are not subject to another privilege.” Pratt v. State,
39 Md. App. 442, 446 n. 2 (1978), ajfd, 284 Md. 516 (1979)
(internal quotation marks omitted).
Generally, the State’s intrusion into the attorneyclient privilege will violate a criminal defendant’s Sixth
Amendment right to counsel. See, e.g., Haley v. State, 398
Md. 106, 130-31 (2007). However, the attorney-client
privilege is not absolute. Newman v. State, 384 Md. 285,
302 (2004). Because the client holds the privilege, only the
client may waive the privilege, and may do so either
intentionally or unintentionally. Greenberg v. State, 421
Md. 396, 404 (2011). Regardless of whether the client
waives the privilege intentionally or unintentionally, the
privilege is deemed waived if the client’s “conduct touches
a certain point of disclosure when fairness requires the
“A person may not be compelled to testify in
violation of the attorney-client privilege.”
REDACTED
36a
— Unreported Opinion —
privilege to cease.” Greenberg, 421 Md. at 404 (internal
quotation marks and citation omitted). Further, the client
“may waive his right to confidentiality [] either expressly
or implicitly[.]” City of College Park v. Cotter, 309 Md. 573,
591 (1987).
Several Maryland cases have addressed the principle
of implied waiver. In State v. Thomas, 325 Md. 160 (1992),
the defendant asserted he received ineffective assistance
of counsel when his attorney allowed him to be
interviewed by a psychiatrist for a competency evaluation,
post-verdict but pre-sentence, without the presence of
counsel. 325 Md. at 169. On the issue of whether the
defendant waived the attorney-client privilege by filing a
post-conviction motion, the Court of Appeals stated:
We adopt the universally accepted rule that the
[attorney-client] privilege is waived by the client
in any proceeding where he or she asserts a claim
against counsel of ineffective assistance and
those communications, and the opinions based
upon them are relevant to the determination of
the quality of counsel.
Id. at 174; see also CR-RSC Tower I, LLC v. RSC Tower
REDACTED
37a
— Unreported Opinion —
I, LLC, 429 Md. 387, 433 (2012) (A party implicitly waives
the attorney-client privilege when the defendant attempts
to use the privilege as both a “sword and shield.”); and
Parler & Wobber v. Miles & Stockbridge, 359 Md. 671
(2000) (“[A] privileged party cannot fairly be permitted to
disclose as much as he pleases and then to withhold the
remainder to the detriment of the [other party].” (internal
quotation marks and citations omitted)).
The Court’s analysis in Bittaker is particularly
instructive. After being convicted in California state court
and exhausting his state post-conviction remedies,
Bittaker filed a federal habeas corpus petition. 331 F.3d
at 716. In his petition, Bittaker raised a variety of
ineffective assistance of counsel claims, resulting in a
necessary disclosure of information falling within the
attorney-client privilege. Id. The District Court entered a
protective order that: (1) prohibited use of Bittaker’s
privileged material for any purpose other than litigating
the habeas proceeding; (2) prohibited use of any of the
privileged information for any purpose other than
Bittaker’s habeas corpus petition; and (3) prohibited
REDACTED
38a
— Unreported Opinion
dissemination of the privileged information to other
persons or offices, particularly to law enforcement
agencies. Id. at 717 n.l.
The State of California appealed, contending that
Bittaker waived the attorney-client privilege in its
entirety, and asserting that the state could not be
prohibited from using or disseminating the privileged
information. Id. at 717. The Court of Appeals for the Ninth
Circuit framed the issue before it as whether the waiver
extends “only to litigation of the federal habeas petition,
or is the attorney-client privilege waived for all time and
all purposes—including the possible retrial of the
petitioner, should he succeed in setting aside his original
conviction or sentence?” Id.
In answering that question, the Bittaker Court
rejected a broad interpretation of the waiver rule because
it would “no doubt inhibit the kind of frank attorney-client
communications and vigorous investigation of all possible
defenses that the attorney-client and work product
privileges are designed to promote,” and could potentially
REDACTED
39a
— Unreported Opinion —
compel a defendant to choose between asserting an
ineffective assistance of counsel claim, thereby taking a
risk that the prosecution will use the defendant’s
statements against him, or “retaining the privilege but
giving up his ineffective assistance claim.” Id. at 722-23.
Instead, the Court held that a narrower waiver rule
would better serve the interest of the courts, the interest
of the state “in safeguarding the attorney-client privilege
in criminal cases [while] ensuring that the state’s criminal
lawyers continue to represent their clients zealously,” and
finally, the interest of the defendant “in obtaining a fair
adjudication of his petition and securing a retrial
untainted by constitutional errors.” Id. at 722. The court
further observed that although Bittaker “created this
dilemma for himself’ by bringing an ineffective assistance
of counsel claim, the “scope of the required disclosure
should not be so broad as to effectively eliminate any
incentive to vindicate [one’s] constitutional right[]s.” Id. at
724 (quoting Greater Newburyport Clamshell Alliance v.
Public Service Co. ofNew Hampshire, 838 F. 2d 13,21-22
(1st Cir. 1988)).
REDACTED
40a
— Unreported Opinion —
In its analysis, the Court distinguished between
express and implied waivers. As to the former, the Court
explained (emphasis added):
An express waiver occurs when a party discloses
privileged information to a third party who is not
bound by the privilege, or otherwise shows
disregard for the privilege by making the
information public. Disclosures that effect an
express waive are typically within the full control
of the party privilege; courts have no role in
encouraging or forcing the disclosure—they
merely recognize the waiver after it has
occurred.... [0]nce documents have been
turned over to another party voluntarily, the
privilege is gone, and the litigant may not
thereafter reassert it to block discovery of the
information and related communications by his
adversaries....
Id. at 719-20 (citations and footnotes omitted).
In contrast to an express waiver, an implied waiver
“allocates control of the privilege between the judicial
system and the party holding the privilege.” Id. at 720
(internal citations omitted). The Bittaker Court went on
to describe the doctrine of implied waiver (emphasis in
original):
REDACTED
41a
— Unreported Opinion —
The court imposing the waiver does not order
disclosure of the materials categorically; rather,
the court directs the party holding the privilege
to produce the privileged materials if it wishes to
go forward with its claims implicating them. The
court thus gives the holder of the privilege a
choice: If you want to litigate this claim, then you
must waive your privilege to the extent necessary
to give your opponent a fair opportunity to
defend against it. Essentially, the court is
striking a bargain with the holder of the privilege
by letting him know how much of the privilege he
must waive in order to proceed with his claim.
Id. at 720.
When imposing the waiver under an implied
circumstance, three considerations require a trial court’s
attention. First, a court “must impose a waiver no broader
than needed to ensure the fairness of the proceedings
before it.” Id. at 721. Thus, when tailoring the scope of the
waiver, a court should keep in mind the fairness of the
litigant and the needs of the opposing party. Id. Second,
the holder of the privilege may abandon the claim giving
rise to the waiver at any time, thereby preserving the
confidentiality of the privileged communications. Id. And
finally, the holder of the privilege “is entitled to rely on
REDACTED
42a
— Unreported Opinion —
the contours of the waiver the court imposes, so that it will
not be unfairly surprised in the future by learning that it
actually waived more than it bargained for in pressing its
claims.” Id. As a litigant bound by the terms of the court’s
order, the party receiving and using the privileged
information “implicitly agrees to the conditions of the
waiver”; the party may reject the materials if it does not
wish to be bound by the conditions, but it must do so
“before any disclosure is made.” Id.
When it ruled on the State’s subpoenas for the
investigative and trial files of Messrs. Drew and Mercer,
the trial court did not place express limitations upon the
State’s possible use of the information contained in those
files for purposes other than litigating the motion for a
new trial. (We don’t fault the trial court in this regard
because the court was not asked by either party to do so.)
Nonetheless, the Court’s analysis in Bittaker is
instructive. It is clear to us that the waiver in the present
case does not fall neatly into an express/implied waiver
dichotomy.
REDACTED
43a
— Unreported Opinion —
We first address the waiver, if any, resulting from Ms.
Kaur’s motion for a new trial. For the reasons expressed
in Bittaker, we conclude that Ms. Kaur did not expressly
waive the attorney-client privilege by doing so; rather, we
conclude that Ms. Kaur implicitly waived her attorneyclient privilege for purposes of the post-conviction
hearing. It is unreasonable to treat Ms. Kaur’s claim of
ineffective assistance of counsel as constituting a
comprehensive waiver of attorney-client privilege and
work product for all purposes. Such a result would present
Ms. Kaur with a choice between asserting an ineffective
assistance of counsel claim or “retaining the privilege but
giving up his ineffective assistance claim.” Bittaker, 331
F.3d at 722-23. We agree with the Bittaker Court that
placing a defendant in such a dilemma is fundamentally
unfair.
Throughout the post-conviction proceedings, Ms.
Kaur and her defense team made it clear that they
intended to waive the attorney-client privilege only for the
purposes of those proceedings. At a hearing on the State’s
subpoena for the entire defense file, an attorney
REDACTED
44a
— Unreported Opinion —
intervening on behalf of the Public Defender’s Office told
the court there was “some waiver of privilege and
protection and confidential treatment to which a client is
entitled under Rule 1.6 of the Rules of Professional
Conduct, but that waiver is limited and it’s limited to the
claims with respect to ineffective assistance of counsel
that are at issue.” (emphasis added). The scope of the
waiver arose again during the hearing on the motion for a
new trial. Just before Mr. Drew testified, Ms. Kaur’s new
counsel told the court that Ms. Kaur understood that she
“waivefd] any privilege that she would otherwise enjoy
with respect to her communications with Mr. Drew and/or
any work product privilege that he might have as well.”
Counsel added that Ms. Kaur had “no objection to Mr.
Drew testifying regarding that their relationship—as it
applies to this motion” (emphasis added). These
statements made by her counsel at the hearing on the
motion for a new trial align with the implied waiver
doctrine in Bittaker: that if a party wishes to litigate an
ineffective assistance of counsel claim, then that party
must waive its privilege “to the extent necessary to give
REDACTED
45a
— Unreported Opinion —
your opponent a fair opportunity to defend against it.”
Bittaker, at 720. It is clear that Ms. Kaur, by filing an
ineffective assistance claim, intended to waive the
attorney-client privilege only to the extent necessary to
litigate those claims—that is, within the confines of the
post-conviction proceedings.
There remains the issue of Ms. Kaur’s affidavit. The
circuit court found that the affidavit constituted an
express waiver (emphasis added):
by virtue of the fact that defendant, through her
attorneys, published the affidavit in a public
forum which was quickly picked up by the
Washington Post, the newspaper of wide
circulation, and placed all of this information in
the public domain. And that is the classic
definition of express waiver under Bittaker, in
which case, all of her communications then are
exposed and available to the State/or any and all
purpose.
Ms. Kaur’s affidavit in support of her motion for a new
trial contained substantive information about privileged
conversations between Ms. Kaur and Mr. Drew regarding
her case, as well as references to trial strategy decisions
REDACTED
46a
— Unreported Opinion —
and other attorney work-product. The affidavit was not
filed under seal, nor did Ms. Kaur—or, to be precise, nor
did Mr. Mercer, her attorney who prepared the affidavit
and filed the motion—seek a court order to limit access to
the affidavit. Whatever the professional considerations
might have been for this approach, the affidavit and its
contents were available for public inspection and were, in
fact, made public by a subsequent article in the
Washington Post. From this, the State asks that we
conclude, as did the trial court, that Ms. Kaur therefore
expressly waived the attorney-client privilege for all
purposes.
Although there is some merit in the State’s position,
there are countervailing considerations. The one that is
dispositive in our view is that the terms of the trial court’s
protective order was consistent with an implied, and not
an express, waiver. We conclude that the better approach
REDACTED
47a
— Unreported Opinion —
is to treat Ms. Kaur’s waiver as an implied one.10
B.
We turn to Ms. Kaur’s request that we adopt the
principles articulated in State v. Bain, 292 Neb. 398, 872
N.W. 2d 777 (2016), and conclude that she was
presumptively prejudiced because the Prosecution Team
10 At the hearing on Ms. Kaur’s protective order, the State
conjectured that Mr. Mercer filed the affidavit without a
protective order in order to disperse the information to
the public and create sympathy for Ms. Kaur for any
future trial. This has not been proven. In any event, both
fairness and practicality suggest that we limit the scope of
the waiver arising out of the filing of the affidavit. The
circuit court correctly noted that “only the defendant can
waive the privilege.” See Maryland Rule 19-301.6(a) (“[a]
lawyer shall not reveal information relating to
representation of a client unless the client consents after
consultation, except for disclosures that are impliedly
authorized in order to carry out the representation....”).
The court was concerned that treating the filing of the
affidavit constituted as a comprehensive waiver of Ms.
Kaur’s privilege for all purposes might well result in
another round of post-conviction proceedings. We share
that concern.
REDACTED
48a
— Unreported Opinion —
had access to her privileged information. In Bain, the
Nebraska Supreme Court espoused the view that a
prosecutor’s possession of a defendant’s confidential
defense strategy is “presumptively prejudicial.” 292 Neb.
at 418. Ms. Kaur asks that this Court now adopt the
“presumptively prejudicial” standard here. Her argument
is unpersuasive because Bain is factually distinguishable.
Bain was charged with various felonies arising out of
his assaults on his former wife. Id. at 401-02. In some
fashion—the Court’s opinion does not explain how this
occurred—prosecutors obtained copies of privileged
communications between Bain and one of his attorneys.
Id. at 400. The prosecutors retained this material for a
period of 10 months, and, although the prosecutors
involved eventually withdrew from the case, it was not
clear from the record whether they had communicated
their theories of the case to the special prosecutor
eventually appointed to prosecute the case against Bain.
Id. at 422. Bain was convicted on several charges. Id. at
402. On appeal, he asserted that the prosecutor’s access to
his communications with his attorney constituted a
REDACTED
49a
— Unreported Opinion —
presumptive violation of his Sixth Amendment right to
counsel. Id. at 403-04. The Nebraska Supreme Court
agreed:
[A] presumption of prejudice arises when the
State becomes privy to a defendant’s confidential
trial strategy. Federal courts are consistent on
two points: (1) any use of the confidential
information to the defendant’s detriment is a
Sixth Amendment violation that taints the trial
and requires a reversal of the conviction; and (2)
a defendant cannot know how the prosecution
could have used confidential information in its
possession. We believe these holdings cannot be
reconciled except through a presumption of
prejudice.
But we hold that the presumption is rebuttable—
at least when the State did not deliberately
intrude into the attorney-client relationship. As
other courts have suggested, some disclosures of
confidential information to the State might be
insignificant. Or the State could prove that it did
not use the confidential information in any way to
the defendant’s detriment. For example, the
State could prove that it did not derive its
evidence and trial strategy from the disclosure of
a defendant’s trial strategy by showing that it
had legitimate, independent sources for them.
REDACTED
50a
— Unreported Opinion —
Id. at 418 (footnotes omitted; emphasis in original).
What distinguishes Bain from the case before us is the
way that the prosecutors obtained access to the privileged
communications. Although the Court’s opinion is not
entirely clear as to how the disclosure in Bain occurred,
there is nothing in the opinion that suggests that Bain
either expressly or impliedly waived his attorney client
privilege. Neither Bain nor the cases it cited in the
relevant parts of its analysis addressed a scenario in which
the
prosecutor
obtained
access
to
privileged
communications by means of an unsealed court paper and
resort to legal process in order to prepare for a hearing on
the issue whether defense counsel had been inadequate.11
11 As to the parts of its analysis that are relevant to the
issues before us, the Bain Court relied on Weatherford v.
Bursey, 429 U.S. 545, 547-48 (1977) (An undercover agent
participated in a meeting between the defendant and his
counsel.); United States v. Morrison, 449 U.S. 361, 362
(1981) (Federal agents covertly met with the defendant to
undermine her relationship with her lawyer.); Bishop v.
Rose, 701 F.2d 1150, 1151-52 (6th Cir. 1983) (Jail
employees discovered a letter from the defendant to his
lawyer, turned it over to the prosecutor who read it and
REDACTED
51a
— Unreported Opinion —
We agree with the State that, under these circumstances,
“[a]ny discussion of prejudice resulting from
a
governmental ‘intrusion’ or a violation of a defendant’s
constitutional right to counsel... is inapplicable under
used its contents to cross-examine defendant at trial.);
Shillingerv. Haworth, 70 F.3d 1132,1142 (10th Cir. 1995)
(“[T]he prosecutor intentionally learned about a
defendant’s trial preparations and used the information at
trial.”); United States v. Levy, 577 F.2d 200, 204 (3rd Cir.
1978) (“[The] DEA, which at all times was aware that its
informer was represented by the attorney for a co
defendant, attempted to obtain information about the
present matter and, at the very least, did learn [critical
details of] the defense strategy[.]”); United States v.
Mastroianni, 749 F.2d 900, 903 (1st Cir. 1984) (An
informant attended meetings between defendant and his
defense counsel and was later “partially debriefed” by
government agents.); and U.S. v. Danielson, 325 F.3d
1054,1068,1071 (9th Cir. 2003); (The prosecution obtained
privileged information about the defendant’s trial
strategy through the means of an informant.); State v.
Lenarz, 301 Conn. 417, 420-21 (2011) (In violation of a
court order, police searched defendant’s computer for
privileged attorney-client communications and turned the
information over to prosecutors.); State v. Fuentes, 179
Wash. 2d 808, 816 (2014) (Police detective surreptitiously
listened to defendant’s conversations with his attorney.).
REDACTED
52a
— Unreported Opinion
the facts of this case.”
Moreover, the approach articulated in Bain is not
consistent with the reasoning of Maryland cases involving
cases in which the State, or its agents, did intrude into the
attorney-client relationship. In Wiener v. State, 290 Md.
425 (1981), an undercover agent went to work as a law
clerk for a local public defender as part of an investigation
of possible improprieties in that office. Id. at 428-29.
Although instructed to minimize any intrusion into
privileged matters, the agent was briefed by an OPD
investigator as to a statement made by Wiener to the
investigator. Id. at 430. In reversing Wiener’s convictions,
the Court first held that the State had intruded into the
attorney-client relationship. Id. at 431. The Court stated
(emphasis added):
[AJbsent at least a realistic 'possibility of injury
to the accused or benefit to the State, there can be
no sixth amendment violation. It is also clear
that the ultimate risk of non-persuasion as to
presence of prejudice is on the accused, as the
moving party on the motion to dismiss.... Once
an agent of the State has surreptitiously invaded
the relationship between an accused and
REDACTED
53a
— Unreported Opinion —
his attorney, the accused is not limited to proving
a sixth amendment violation by extracting from
the undercover agent, his law enforcement
principals or the prosecutors, admissions that
communications between the accused and his
attorney have been passed on by the informant.
Depending upon the facts directly established by
the evidence, prejudice may properly be inferred.
Id. at 434. The Court remanded the case without
affirmance or reversal for the trial court to hold an
evidentiary hearing on Wiener’s claim of prejudice.12 Id.
12 The Court commented:
If the trial court concludes on the restricted
remand that there has been no prejudice in fact
resulting to Wiener from the intrusion, then the
motion to dismiss should be denied. If the trial
court concludes that prejudice has resulted, then
the approach should be to neutralize the taint by
tailoring suitable relief appropriate in the
circumstances to assure the defendant the
effective assistance of counsel and a fair trial....
Full recognition of Wiener's right to counsel and
to a fair trial could be afforded, in that event, by
a new trial for which the trial court shall appoint
a special prosecutor [who] is to be an attorney
from private practice who had and has no
exposure to any of Wiener’s communications to
REDACTED
54a
Unreported Opinion —
at 438.
In Carter v. State, 149 Md. App. 509 (2003), the State
acquired confidential documents in a search of the
defendant’s jail cell, and later, over the defendant’s
objection, used the documents on direct examination of an
investigative officer for the case over the defendant’s
objection. 149 Md. App. at 513. On appeal, this Court held
that the circuit court erred by receiving the documents
into evidence. Id. at 520. We reasoned that “in addition to
the protections afforded by the attorney-client privilege
and the attorney-work product privilege, a defendant
awaiting trial on criminal charges has a Sixth Amendment
right to counsel. That constitutional right is violated when
the attorney-client privilege of a person confined pending
trial on criminal charges is ‘undermined by state agents.’”
Id. at 520-21 (quoting State v. Warner, 150 Ariz. 123
(1986)). Although we vacated the defendant’s convictions,
we did so only because “a Sixth Amendment violation
his counsel.
290 Md. 238-39.
REDACTED
55a
— Unreported Opinion —
occurs when the prosecution makes beneficial use of’
privileged information. Id. at 522 (quoting Bishop v. Rose,
701 F. 2d 1150,1157 (6th Cir. 1983)).
In summary, Bain, and the cases it relied upon,
involved improper intrusions by prosecutors or their
agents into a defendant’s privileged communications, and
the courts in those cases concluded that a defendant was
presumptively prejudiced by such conduct. In contrast,
the Maryland decisions have not adopted a presumption
of prejudice even when the State obtained the confidential
information through improper means. Indeed, Wiener
holds that even when the State acquires information by
improper means, the burden is on the defendant to
demonstrate “at least a realistic possibility of injury to the
accused or benefit to the State” before a court will find a
violation of the Sixth Amendment. 290 Md. at 434. Against
this backdrop, it is difficult to conceive how Maryland law,
as it now stands, presumes prejudice on behalf of a
defendant when the privileged information is acquired by
the State through an express or implicit waiver by the
defendant. Based upon the Court’s analysis in Wiener, we
REDACTED
56a
— Unreported Opinion —
conclude that Ms. Kaur must demonstrate to this Court
that there was “at least a realistic possibility” that she was
harmed in the second trial by the State’s access to her
privileged information, or that the State used such
information to its advantage in the second trial. We will
now address that issue.13
13 Although there is not a basis for us to reverse Ms. Kaur’s
convictions under the current state of Maryland law, we
nonetheless believe that the better course might have
been for the trial court to have barred the Prosecution
Team from directly or indirectly participating in the
second trial. To be sure, this would have resulted in
additional expense to the State, but such a remedy is
hardly unprecedented in Maryland. See, e.g., Wiener, 290
Md. at 438-39; Lykins v. State, 288 Md. 71, 85-86 (1980)
(“The appointment of a special prosecutor may be
accomplished in one of three ways. (1) The trial court may
invoke the powers vested in it under [Courts and Judicial
Proceedings Article] § 2-102(a) ... and designate some
attorney as assistant counsel for the State. (2) As was done
in State v. Ensor and Compton, 277 Md. 529 (1976), the
Attorney General may be requested to designate one of
his assistants to be appointed by the trial court as
assistant counsel for the State. (3) The State’s attorney
may request the Governor to require the Attorney
General under Constitution Article V, § 3 to aid the State’s
attorney in prosecuting the action.”
REDACTED
57a
— Unreported Opinion —
C.
According to Ms. Kaur, allowing the same Prosecution
Team to retry her case prejudiced her in several ways.
First, she asserts that the Prosecution Team
benefitted in the second trial because they became aware
of various possible defense strategies and attorney-client
communications as a result of their access to her lawyer’s
files. These matters included cultural norms, the inter
personal
dynamics
of Taneja’s
and
Ms.
Kaur’s
relationship, Ms. Kaur’s ability to testify at the second
trial, and the importance placed on the wig found in
Taneja and Ms. Kaur’s vehicle.
Ms. Kaur argues that because the Prosecution Team
learned what these defense strategies were, the defense
was hindered in its representation of Ms. Kaur at the
second trial. As an example, she asserts that the
Prosecution Team had access to “emails from Mr. Mercer,
an integral member of both the first trial and retrial
defense teams, [that] revealed his strong belief that the
REDACTED
58a
— Unreported Opinion —
most viable defense was to identify Mr. Taneja as the
shooter (the strategy the defense pursued in the retrial),
rather than a third-party woman (the strategy pursued by
Ms. Kaur’s counsel in the first trial).”14 (App. Brief atl516}
Second, Ms. Kaur asserts that the Prosecution Team
used what it learned from the privileged information in
the second trial. Specifically, Ms. Kaur indicates that the
Prosecution Team changed its own strategy regarding the
DNA evidence found on the murder weapon between the
first and second trials, and that the change could only have
been caused by the Prosecution Team’s access to a letter
Ms. Kaur wrote to her attorney on the issue.
The State argues that the trial court’s remedy was
appropriate. It asserts that in light of “the uniqueness of
14 As we will explain later in greater detail, we read the
record differently. The trial transcripts demonstrate that
the defense at the first trial did not assert that there was
a third-party shooter. Rather, the defense maintained that
Taneja murdered Ms. Gabba. This was Ms. Kaur’s
strategy in the second trial as well.
REDACTED
59a
— Unreported Opinion —
Ms. Kaur’s motion, its procedural context, Ms. Kaur’s []
waiver, and the State’s ability to prosecute Ms. Kaur with
a different team,” the trial court correctly balanced the
State’s interests and Ms. Kaur’s rights by allowing the
Prosecution Team in Ms. Kaur’s first trial and her post
conviction proceeding to participate in her second trial. As
to the Prosecution Team’s knowledge of the defense’s trial
strategy, the State contends that the only trial strategy
exposed was the one used in the first trial, and, in any
event, there is no way of knowing what the defense’s
strategy would be in the second trial given the drastic
change in circumstances. Although the State does not
contest that the Prosecution Team was exposed to all of
Ms. Kaur’s privileged information, it denies using the
information to its advantage at the second trial.
Although we review a trial court’s decision to grant or
deny a protective order under the abuse of discretion
standard, see Tanis v. Crocker, 110 Md. App. 559, 573
(1996), we review whether the trial court violated Ms.
Kaur’s Sixth Amendment rights de novo. See Khalifa v.
State, 382 Md. 400, 417 (2004). The Court of Appeals has
REDACTED
60a
Unreported Opinion —
stated that:
When a claim is based upon a violation of a
constitutional right it is our obligation to make an
independent constitutional appraisal from the
entire record. But this Court is not a finder of
facts; we do not judge the credibility of the
witnesses nor do we initially weigh the evidence
to determine the facts underlying the
constitutional claim. It is the function of the trial
court to ascertain the circumstances on which the
constitutional claim is based. So, in making our
independent appraisal, we accept the findings of
the trial judge as to what are the underlying facts
unless he is clearly in error. We then re-weigh
the facts as accepted in order to determine the
ultimate mixed question of law and fact, namely,
was there a violation of a constitutional right as
claimed.
Harris v. State, 303 Md. 685, 697-98 (1985).
We have reviewed the transcripts from both trials and
conclude that Ms. Kaur’s claims of prejudice are not
persuasive.
We begin with Ms. Kaur’s assertions that the she was
prejudiced because the State was exposed to various
defense strategies.
REDACTED
61a
— Unreported Opinion —
Cultural Norms and Ms. Kaur’s Relationship with
Taneja
Ms. Kaur argues that the Prosecution Team obtained
insight into a possible defense that could have been raised
by Ms. Kaur in the second trial, namely, that Ms. Kaur’s
alleged participation in the murder of Ms. Gabba could be
explained—or at least placed in proper context—by
reference to cultural norms and relationship issues
between Ms. Kaur and Taneja. However, this issue was
introduced at Ms. Kaur’s first trial by defense counsel in
his opening statement. Speaking to the jury, Mr. Drew
stated:
I want you to listen to the Indian culture which is
a little bit different than what we have here in the
U.S. There, all of the women in India... who are
Ms. Kaur’s age ... serve their husband. If you
want to use words to describe an Indian woman
in a relationship to a man, I would suggest you
use the word subservient, submissive, and selfsacrificing. You know, not to the point where they
commit a crime, but that was what their role was.
And I would suggest to you that this was
ingrained in Raminder Kaur from a very early
childhood on. That’s the way she treated her
REDACTED
62a
— Unreported Opinion —
[first] husband before he died.... That’s the way
she was expected. And I use the word expected
to treat Mr. Taneja. And she did this. Sometimes
begrudgingly. Because like any other person, she
wants to be treated nicely. And not to be
mistreated or abused.
And what you will find out in this case that Mr.
Taneja, there are some words that describe him
and his relationship with Raminder Kaur. One of
those words would be domineering. And one
would be overbearing. And I want you to look at
the relationship that existed in the marriage.
Raminder Kaur was at the beck and call of Mr.
Taneja.
* * *
And when she got here, she was expected to do
things. But it was—this was not meant to be a
loving relationship. This was to have a woman
who would essentially attend to every whim that
Mr. Taneja had.
Thus, it was defense counsel’s statements at the first
trial, and not access to the privileged information, that put
the Prosecution Team on notice as to a potential “cultural
norms” strategy.
REDACTED
63a
— Unreported Opinion —
Was Ms. Kaur Effectively Precluded from Testifying at
the Second Trial?
Ms. Kaur asserts that she was prejudiced because the
Prosecution Team’s exposure to her privileged files made
it impossible as a practical matter for her to testify at the
second trial because the prosecution would have had an
unfair advantage in cross-examining her. She points out
that Ms. Ayres informed the trial court during closing
argument on the motion for a new trial that the
Prosecution Team had “been able to look and scour
[Messrs. Drew’s and Mercer’s file] for a year,” and that
she had “made a list... of all the negatives that [would]
befall [sic] the defendant from testifying.”
Defense counsel revisited this issue immediately prior
to the second trial, when Ms. Kaur filed a motion in limine
to limit the scope of the State’s cross-examination in the
event that Ms. Kaur chose to testify. Her counsel
presented the court with a copy of the transcript of Ms.
Kaur’s direct examination during the hearing on the
motion for a new trial, redacted to delete “the portions
that related to attorney-client privilege.” He also asserted
REDACTED
64a
— Unreported Opinion —
that Ms. Ayres’s cross-examination of Ms. Kaur at the
same hearing was “essentially intertwined with attorneyclient privilege because it’s clear from the examination
that Ms. Ayres [had] reviewed all of the work product and
attorney-client privilege files” that were disclosed to the
State in discovery. Id. Defense counsel requested that the
trial court permit Ms. Kaur:
to be heard after [her direct] testimony on the
question of whether any of [the privileged
material] can be used for impeachment. But as a
practical matter, as Ms. Ayres prepares for her
cross-examination, we think it would be a
violation of the Court’s [protective] order for her
to review anything other than the non-attorney
client privilege portion of the direct....
[Reviewing the other things[15]...
would
necessarily get her into [Ms. Kaur’s] attorneyclient privilege communications.
After a three-way discussion between counsel and the
trial court, Ms. Ayres stated that, for purposes of cross-
15 From the context, it is clear that defense counsel was
referring to those parts of Ms. Kaur’s testimony that
related to privileged communications with her previous
counsel.
REDACTED
65a
— Unreported Opinion —
examination regarding inconsistences between Ms.
Kaur’s testimony at trial and her direct examination from
the new trial hearing, she was willing to rely solely upon
her recollection of Ms. Kaur’s prior testimony. However,
she expressed a concern about having “the exact wording
and phrasing to use when the defendant testifies.” The
trial court thereupon directed her to delegate the task of
reviewing the transcript for exact wording to an
assistant.16 Finally, the court stated that it would address
further concerns about the scope of the State’s crossexamination after the conclusion of Ms. Kaur’s direct
testimony and before the State’s cross-examination.
— Unreported Opinion —
16 Specifically, the court stated:
So then it is so ordered that [Ms. Ayres] will not
review the transcript in its entirety, that she will
delegate to another member of their office who
will not be conducting the ... cross-examination,
to review the transcript and find the portions
she’s specifically looking for ... in the cross.
Shortly thereafter, the court amended its order to require
the staff member to maintain a written log of “what pages
were identified for you that you actually reviewed.”
REDACTED
66a
From this colloquy, it is quite clear that the trial court
was concerned about the possibility of unfair advantage to
the State if Ms. Kaur testified. It is also clear that the
court reserved any ruling on the scope of possible crossexamination until Ms. Kaur completed her direct
testimony. Of course, the issue became moot because Ms.
Kaur eventually elected not to testify. In light of this, and
absent a proffer of what Ms. Kaur’s direct testimony
would have been, her bald assertion that she was
prejudiced is nothing more than an invitation for us to
presume that she was prejudiced by the trial court’s
denial of her request to disqualify the Prosecution Team.
The current state of Maryland law does not permit us to
take such a step.
The Wig(s)
Ms. Kaur asserts that the Prosecution Team’s access
to emails between Messrs. Drew and Mercer “provided
ideas about the overarching theory of the defense,
including whether to argue that the shooter was a third
party or Mr. Taneja wearing a wig[.]”As a result, Ms.
Kaur contends that the Prosecution Team exploited this
REDACTED
67a
— Unreported Opinion —
knowledge to its benefit at the second trial with the
introduction of a witness not used at the first trial.
Some additional information will place this contention
in context. None of the eyewitnesses at either trial
testified that the shooter wore a wig. However, when the
police searched Taneja and Ms. Kaur’s vehicle, they found
packaging that contained a black wig with streaks of grey.
The packaging was from Performance Studios, a costume
store in Nashville, It turned out, however, that the wig in
the package had not been sold by Performance Studios—
the Performance Studios packaging originally contained
another wig that was not recovered by police. This
discrepancy was not addressed by the State during the
first trial, and, in its closing, the State noted to the jury
that “a black and grey wig” was found in the defendants’
vehicle. Neither Mr. Drew nor Mr. Jezic, Taneja’s
attorney, addressed the possibility that there might have
been a second wig in their closing arguments.
The materials disclosed to the State prior to the
hearing on the motion for a new trial included an email
REDACTED
68a
— Unreported Opinion —
from Mr. Mercer to Mr. Drew that pointed out that there
was a receipt from Performance Studio that suggested
that Taneja was in possession of a second wig at the time
of the shooting.
At the second trial the State called Charles Tubbs, an
employee of Performance Studios, who testified about
wigs. Additionally, in both its opening statement and
closing argument, the State addressed the discrepancy
between the black and grey wig and the Performance
Studios packaging.
Ms. Kaur attributes the differences in the approach
that the Prosecution Team took to the wig issue in each
trial to its access to her privileged information. Because it
is not clear from the record whether the State had an
independent source for the information about a possible
second wig, we will assume for purposes of analysis that
Ms. Kaur is correct. This brings us to the question of
prejudice.
Ms. Kaur has provided no explanation for how she was
prejudiced. The State’s theory of the case did not change
REDACTED
69a
— Unreported Opinion —
between trials. In each, the State theorized that Ms.
Gabba’s murderer could have been either Taneja or Ms.
Kaur, but that it was more likely Ms. Kaur. And, in the
second trial, the jury was instructed that Ms. Kaur could
be found guilty as an accomplice to murder.17 None of the
17 After instructing the jury as to first-degree murder,
second-degree murder, and conspiracy, the court
instructed the jury as to accomplice liability. The court
explained:
The defendant may be guilty of murder as an
accomplice, even though the defendant did not
personally commit the acts that constitute that
crime. In order to convict the defendant of
murder as an accomplice, the State must prove
that the murder occurred, and that the
defendant, with the intent to make the crime
knowingly
happen,
aided,
counseled,
commanded, or encouraged the commission of
the crime, or communicated to a participant in
the crime that she was ready, willing, and able to
lend support if needed. A person need not
physically be present at the time and place of the
commission of the crime in order to act as an
accomplice.
The State also made the possibility of accomplice liability
abundantly clear at the close of the first trial. In its closing
REDACTED
70a
— Unreported Opinion —
eyewitnesses to the shooting testified that the shooter was
wearing a black and grey streaked wig, or, for that matter,
any wig at all. Rather, the eyewitnesses all agreed that the
shooter had dark hair, and possibly dreadlocks or
cornrows.
Certainly, Ms. Kaur is correct that the State called Mr.
Tubbs, the Performance Studio employee, in the second
trial but not in the first. When he was on the stand, a
prosecutor showed Mr. Tubbs the black and grey wig and
the packaging. He testified that Performance Studios
carried the wig depicted on the packaging in the fall of
2013, and that the packaging came from his store. But that
is all the testimony the Prosecution Team elicited from
Mr. Tubbs on direct examination.
argument, the State asked the jury rhetorically: “Did they
act together in this case? Is there accomplice liability?
Baldeo did not act alone.” And in its rebuttal closing, the
State argued: “[T]here can be no doubt ladies and
gentlemen, that Ms. Kaur committed this murder, that
Mr. Taneja committed this murder, that they did it
together, and that he was an accomplice, that she was the
shooter.”
REDACTED
71a
Unreported Opinion —
On cross-examination, defense counsel elicited from
Mr. Tubbs that: (1) on September 28,2013 (the date of the
receipt), his store sold only one wig of the kind pictured
on the packaging, and that the receipt reflected that fact;
(2) Taneja visited Performance Studios on September 28
and purchased a wig; (3) although many wigs in the store
are unisex, the particular wig contained in the packaging
“was intended for a man to be used”; and (4) the
September 28 receipt indicated that other items were
purchased at the same time by the same person, including
a prosthesis designed to make one’s face look older and
olive-beige makeup used to change one’s apparent skin
color. All of this evidence supported Ms. Kaur’s theory
that Taneja disguised himself before fatally shooting Ms.
Gabba. In short, Mr. Tubbs’s testimony provided no
support to the State’s case but significant support to Ms.
Kaur’s. We fail to see how Ms. Kaur was prejudiced when
the State called Mr. Tubbs.
A Change In Trial Strategy?
We turn to Ms. Kaur’s contention that the Prosecution
had unfair insight into possible defense strategies.
REDACTED
72a
— Unreported Opinion —
According to Ms. Kaur, her lawyers argued in the first
trial that Ms. Gabba was shot by a third party even though
one of her lawyers thought that a more viable strategy
would be to identify Taneja as the shooter. She posits that
the State had an advantage in the second trial and was
better able to address her contention in that Taneja was
the shooter. In reality, Ms. Kaur’s strategy in both trials
was the same—Taneja, and not Ms. Kaur, was responsible
for Ms. Gabba’s death. For example, in his opening
statement in the first trial, Mr. Drew stated:
Well I suspect the State is going to put into
evidence a receipt concerning the purchase of
this weapon and is probably going to call at least
one clerk from the gun store to testify. And when
you see this receipt in this case I want you to look
whose name is filled in on the receipt. It is not
that of Raminder Kaur, it is of Baldeo Taneja.
The receipt is not in Ms. Kaur’s name.
* * *
Everyone who purchases a gun in the United
States has to fill out an application to purchase
the gun so that a background check can be run to
see whether or not they’re suitable for the gun
purchase. And when you see this application you
are not going to see the name of Raminder Kaur.
REDACTED
73a
— Unreported Opinion —
The name you are going to see on that application
for the gun purchase is that of Baldeo Taneja.
* * *
And I want you to look at who was enrolled in [the
gun training] course and listen to [the course
instructor] about that because what I suspect
you’re going to hear in this case is Baldeo Taneja
took the course. And [the instructor] will also
testify that Raminder Kaur never enrolled in
that class. The reason that’s important obviously
is whether Raminder Kaur is capable of shooting
this weapon and killed Preeta Gabba.
* * *
Raminder Kaur had no motive in this case to kill
Preeta Gabba, none whatsoever.
* * *
Now, since [Ms. Kaur] didn’t drive, the only way
that she could get around was to go with
[Taneja].... In so many instances, you will see
Ms. Kaur with Mr. Taneja not because of
anything other than if she’s going to her own
errands. And she’s going to go shopping at
Kroger’s. Or she’s going to go shopping at KMart or any other store. The only way she’s going
to get there so she can fulfill her job as a dutiful
wife, was to travel with him.
* * *
And I suggest to you when you look at the video
REDACTED
74a
— Unreported Opinion —
from the gun store, you will see ... Ms. Kaur
standing in the background with her arms folded.
Not engaging any other part of the transaction. I
want you to also listen to the finances of the
family. Mr. Taneja was in charge of the finances.
* * *
[Ms. Kaur’s] job was to clean, cook, and shop.
And then I will suggest to you that there will be
no evidence in this case that Raminder Kaur was
capable of shooting Ms. Gabba. That she didn’t
conspire with Mr. Taneja to kill Ms. Gabba. That
she never ever used a handgun. It would be an
impossibility. She doesn’t know how to use a gun.
And in his closing statement, Mr. Drew focused on Ms.
Kaur’s lack of a motive, stating:
But [Taneja] was angry. And [the State’s] theory
is that he was motivated to do this. Where is the
evidence that he, in some way, got his former
living companion, his new wife, on the wagon to
become involved in a shooting? Where is the
evidence? Where from the 31 witnesses is there
any facts upon which you can infer that Ms. Kaur
joined in this endeavor? There isn’t any.
* * *
And I suggest to you that there is absolutely no
evidence that she had any ill will towards Ms.
Gabba. In fact, I don’t think that there is any
evidence that they knew one another.
REDACTED
75a
— Unreported Opinion
* * *
And when Ms. Hall was addressing me in court
today a word she frequently used was “they.”
The pronoun they. Respectfully, whether there
was a “they” is up to you to decide in this case or
not. But she constantly attempted to influence
you in saying “they.”
* * *
We heard from Ms. Lobosco, Emily Lobosco, our
DNA expert. She told you there was only one
person’s DNA on [the murder weapon] and it
wasn’t Ms. Kaur’s DNA. So there’s no way Ms.
Kaur had a gun based on DNA evidence in this
case. None.
At no time did the defense argue or provide evidence
that a third party shot and killed Ms. Gabba. The
defense’s strategy at the first trial was the same at the
second trial: that Taneja alone was responsible for the
murder of Ms. Gabba, and that Ms. Kaur was his unwilling
companion.
The DNA Evidence
Ms. Kaur also asserts that the Prosecution Team used
her privileged information to its advantage at the second
trial. She asserts that the Prosecution Team’s strategy
REDACTED
76a
— Unreported Opinion —
regarding DNA evidence in the first trial was different
from its approach in the second trial and that this change
was attributable to its access to a letter Ms. Kaur wrote to
her attorney that was disclosed in discovery. See Carter,
149 Md. App. at 522 (quoting Bishop v. Rose, 701 F. 2d
1150, 1157 (6th Cir. 1983) (holding that “a Sixth
Amendment violation occurs when the prosecution makes
beneficial use of’ privileged information.). Again, further
information is necessary to place the contention in
context.
When Taneja and Ms. Kaur were stopped by the police
after returning to Tennessee, two firearms were
recovered from their vehicle. The police tested the
firearms and determined that one was used to kill Ms.
Gabba. The police also tested DNA samples from the
firearm. Forensics found only Taneja’s DNA on the
murder weapon. Analysts also found trace amounts of
DNA from two other contributors on the weapon, but
were unable to match the DNA with Ms. Kaur or any
other person. At the second trial, the Prosecution Team
argued that Taneja had cleaned the guns using polish and
REDACTED
77a
— Unreported Opinion —
a silicon cloth when they returned to their home in
Nashville. Ms. Kaur asserts that the Prosecution Team
only made this argument because it knew the contents of
a letter Ms. Kaur had written to Mr. Drew, about what she
and Taneja did with the firearms after Ms. Gabba’s
murder. This assertion is not supported by the record.
Throughout both trials, the Prosecution Team alleged
that Taneja had cleaned the murder weapon after
murdering Ms. Gabba.
At the first trial, the Prosecution Team told the jury:
[Yjou’re going to find during the course of this
trial that when these weapons were sold, they
were also sold a cleaning cloth, a silicon cleaning
cloth. And what happens when they get back to
Tennessee with the murder weapons is they want
to clean the guns in order to eliminate any traces
of [Ms. Kaur’s] DNA because she’s the shooter,
she’s the one who actually fired the shots that
killed Preeta Gabba. And so, [Taneja] takes the
guns out, takes the cleaning cloth out, wipes the
guns clean, eliminates all of [Ms. Kaur’s] DNA,
but in doing so leaves behind his own DNA. And
so, when these guns are ultimately tested you’re
going to hear that [Taneja’s] DNA is all over the
guns because he wiped [Ms. Kaur’s] off. And
REDACTED
78a
— Unreported Opinion —
ultimately you’re going to find that there are two
other possible sources of DNA on the guns, and
the State’s going to argue too that that’s [Ms.
Kaur] and it’s the salesperson who handled these
guns before giving them to [Ms. Kaur].”
This point was reiterated by the Taneja’s trial counsel
in his own opening statement: “This is the DNA report
that you’ve heard about from both Mr. Drew and Ms. Hall,
okay? Swabbed from the [murder weapon] are mixed
DNA provides of three individuals. One was Baldeo
Taneja, as he cleaned the gun.”
The Prosecution Team made this argument again at
Ms. Kaur’s second trial, noting that the police found:
“an opened silicone cloth for cleaning guns, that
... is specific for cleaning guns, and the cloth was
thrown out. The guns were cleaned .... And in
cleaning the guns, you’ll hear Baldeo Taneja left
his DNA on the guns.”
Then, Ms. Kaur’s attorney responded:
The forensic DNA evidence links Baldeo Taneja
to the murder weapon and to that second gun.
There is no DNA evidence linking Ms. Kaur to
either the murder weapon or the second gun.
* * *
REDACTED
79a
— Unreported Opinion —
That DNA, it is Baldeo Taneja, his DNA matches
the DNA found on the [murder weapon]. There
is no DNA evidence linking Ms. Kaur to the
[murder weapon].
* * *
The State told you about cleaning cloths that they
found in the trash at [Taneja and Ms. Kaur’s]
home[.]... Hear from [the State] about those
cleaning cloths, and see whether there’s any
evidence, any evidence at all, that Raminder
Kaur ever used those cleaning cloths or had
anything to do with them.”
At both trials, the Prosecution Team buttressed these
arguments with the testimony of three individuals. First,
Naomi Lobosco, a forensic scientist at the Montgomery
County Police Department Crime Laboratory, testified at
both trials that she could identify only Taneja’s DNA on
the murder weapon with any reasonable certainty, but
that trace amounts of DNA from two unidentified persons
was found on the weapon. In both trials, Ms. Lobosco
testified that DNA can be removed from a firearm by
wiping it with a cloth. At both trials, pictures taken of the
silicon packaging and cloth, found Taneja and Ms. Kaur’s
home, were admitted into evidence.
REDACTED
80a
Unreported Opinion
Shawn Cole, who works at Specialty Firearms II, a
gun store in Nashville, also testified in both trials. He
testified that on September 28,2013, Taneja and Ms. Kaur
came into the store and purchased two firearms—the ones
discovered by the police in their car-—as well as
ammunition, a cleaning rod, a bottle of oil, a cleaning cloth,
and a pocket holster. Mr. Cole specifically identified a
silicon cleaning cloth on the receipt showing a list of items
Taneja purchased that day. That same testimony was
elicited on cross-examination by Ms. Kaur’s attorney.
Finally, in both trials, Lynette Mace, an officer in
Metro Nashville Police Department, Forensic Services
Division, testified that, during the search of Taneja’s and
Ms. Kaur’s home in Nashville, she discovered a silicon
cleaning cloth and its packaging in a trash bag.
Additionally, she testified that the silicon cloth’s primary
purpose is to cleanfirearms.
The transcript extracts quoted or summarized in the
preceding paragraphs undercut Ms. Kaur’s assertion that
the State changed its approach to the DNA evidence from
REDACTED
81a
— Unreported Opinion —
one trial to the next as a result of its exposure to privileged
information. Indeed, the State’s approach to the DNA
evidence in both trials was consistent and, to the extent
that it varied (and it didn’t in any material manner), the
State’s approach in the second trial reflects the
defendants’ opening statements from the first trial.
In summary, although the Prosecution Team admitted
that it had knowledge of the privileged communications,
see 100 Harborview Drive Condo. Council of Unit Owners
v. Clark, 224 Md. App. 13, 61 n.16 (2015) (“[Attorneys
cannot unlearn what has been disclosed to them in
discovery.”), Ms. Kaur has not demonstrated that she was
prejudiced in the second trial as a result. And, as we have
previously noted, “absent at least a realistic possibility of
injury to the accused or benefit to the State, there can be
no sixth amendment violation.” Wiener, 290 Md. at 443.
There is no basis for us to disturb Ms. Kaur’s convictions
based upon her first appellate contention.
2. Dr. Kovera’s Testimony
We now turn to Ms. Kaur’s second contention on
REDACTED
82a
Unreported Opinion —
appeal: whether the trial court abused its discretion in
excluding the testimony of Margaret Kovera, Ph.D., a
psychologist who would have testified as to how an
eyewitness’s memory functions, particularly under stress.
Three eyewitnesses who witnessed the murder of Ms.
Gabba testified. First, a driver testified that she was
driving down Crystal Rock Drive when she heard
“popping sounds.” The driver slowed her car when she
saw “two ladies standing on the left side of the road” in
front of her. The driver testified that she saw the first
woman (Ms. Gabba) fall into the road as the second woman
(the shooter) ran away. She described the second woman
as wearing a bright orange scarf, which was wrapped
around her head, not her neck; a loose, brown coat; that
her skin tone was “dark,” and that she was possibly
African-American; and that the second person’s body type
was similar to Ms. Gabba’s. After the second woman fled,
the driver got out of her vehicle to check on Ms. Gabba.
She realized that there had been a shooting only when she
saw that Ms. Gabba was bleeding profusely.
REDACTED
83a
— Unreported Opinion —
The second witness was the driver’s son, who was also
in the car. He testified that he saw a person who “seemed
like a woman” standing next to Ms. Gabba, and described
the person as overweight, slightly taller than Ms. Gabba,
and wearing a scarf around her head. He described the
second person’s skin tone as “light-brownish.”
Finally, a police officer read to the jury his notes of his
interview with the third witness.18 Another witness
testified at the first trial about what he witnessed from his
bedroom window 100 yards away from the scene of the
murder. He also noted the presence of a bright scarf on
the second woman. When asked about the speed at which
this woman was leaving the scene, the witness testified
that: “It wasn’t fast paced. I’m not going to say running.
It seemed like she was limping in a way. Not necessarily
handicapped limping, but like some kind of cakey [sic]
movement.”
As to appearance, he testified that the
woman had “dark hair color, black I guess .... Skin was
18 The witness testified at the first trial but not the
second.
REDACTED
84a
— Unreported Opinion —
dark ... like dark brownish looking.” He also told police
that she may have had dreads, but “wasn’t clear if what I
saw were dreads.”
It was the State’s theory that the second person was
Ms. Kaur, and that she was the shooter.
Ms. Kaur sought to call Dr. Kovera as an expert
witness to testify: first, that witnesses process and store
visual information using “gender schemes”;19 second, how
the use of disguises can reduce the accuracy of a witness’s
ability to accurately identify the gender of an individual;
and third, how an eyewitness’s memory might function,
particularly under stress.
The State filed a motion in limine to exclude Dr.
19 In this context, the term “schema” refers to “a collection
of basic knowledge about a concept or entity that serves
as a guide to perception, interpretation, imagination, or
problem solving.” https://dictionary.apa.org/schema (last
visited May 18,2019). In her brief, Ms. Kaur indicates that
Dr. Kovera would have explained to the jury that the term
refers to “organized set[s] of gender-related beliefs that
subconsciously influence their perceptions about whether
an individual is a man or a woman”
REDACTED
85a
— Unreported Opinion —
Kovera’s testimony. The State asserted that an expert in
the field of eyewitness identification was unnecessary.
First, the State argued that the testimony of the
eyewitnesses is not beyond the ken of the average juror to
understand. Second, the State contended that an expert
in identification and the effects of stress on memory was
not needed because no identification was made in this
case. None of the eyewitnesses testified that they saw the
shooter’s face.
Additionally, none of the eyewitnesses actually saw
the shooting occur. Therefore, according to the State, the
witnesses could not have been under stress because they
had not realized that Ms. Gabba had just been shot. For
this reason, the State likened this case to Bomas v. State,
181 Md. App. 204 (2008) (discussed infra), in which the
court excluded expert testimony to rebut the testimony of
non-victim witnesses who, at first, did not realize that they
had witnessed a shooting.
The defense countered that Dr. Kovera’s testimony
was necessary given that the State was relying on the
REDACTED
86a
— Unreported Opinion —
equivocal statements of the three eyewitnesses for its
case. The defense argued that the Bomas court
recognized that “there are many aspects of eyewitness
testimony and memory that are not intuitive to the
average layperson, average juror,” and so Dr. Kovera’s
testimony was appropriate given the eyewitnesses’
statements that Ms. Gabba’s shooter was a woman. By
way of example, the defense reasoned that the science
surrounding eyewitness testimony is helpful to the jury
“to explain that if [the witnesses] see a scarf, for example,
they could then assume it’s a woman. That would be an
assumption that a person would make through the use of
the schema.” According to the defense, Bomas recognized
that those kind of assumptions are not “a matter of
common sense,” and that “[t]here are counterintuitive
nature aspects to how your memories are stored in the
first place and in how they’re retrieved.”
The trial court agreed with the State, finding:
There is really no eyewitness identification. The
best that can be said for the State’s evidence in
this case is the witnesses, the two that have
REDACTED
87a
— Unreported Opinion —
testified so far, have indicated that [the shooter]
was a female. They have described her, although
at one point apparently described her to the
police, the person, that is the shooter, as an
African-American, but later clarified that they
were saying it was the same color as the person
who was deceased. There has been some
testimony with respect to just relative height as
it relates to the deceased, and some testimony
generally with respect to body type. And that’s
the extent, well, and some descriptions of
clothing.
* * *
So it was proffered that the psychologist would
testify as to the effects of stress. First off, there’s
no evidence really in this case that at the time
that perception was made by the witnesses, at the
time they observed the shooter, that they were
under the effects of any stress.
The testimony was that they heard some noise.
The driver of the car described it as firecrackers.
The passenger, her son, described it as gunshots,
but later explained that he only figured they were
gunshots after he later figured out or learned or
discovered that the victim had been shot.
And the driver of the vehicle testified that she
didn’t really realize it was gunshots until after
the woman collapsed in front of her car. She got
out of the car, she went to the woman, and its only
REDACTED
88a
— Unreported Opinion —
when she saw the blood oozing out underneath
the woman that she at that point realized that
what she had heard were gunshots. So there’s no
real evidence that at the time they made the
observation, they were under any stress.
Certainly I don’t dispute that they were both
under stress having after the fact realized that
they’d just witnessed a shooting, and the police
arriving, et cetera. But Bomas specifically
speaks to that issue, and says that the effects of
stress are not beyond the ken of the average
juror, so you would not need an expert to testify
about the effects of stress on any identification.
The court granted the State’s motion in limine,
excluding Dr. Kovera from testifying.
A.
Ms. Kaur argues that the trial court abused its
discretion in barring Dr. Kovera’s testimony because Ms.
Kaur was thus precluded “from presenting scientific
evidence critical to her defense” as to the mechanics of
perception and memory, which thereby permitted the
State to provide uncontroverted testimony about the
gender of Ms. Gabba’s shooter.
Ms. Kaur contends the substance of Dr. Kovera’s
REDACTED
89a
— Unreported Opinion —
testimony was not within the ken of the ordinary juror as
the trial judge reasoned, and that, pursuant to Bomas v.
State, 412 Md. 392, 416 (2010), the judge should have
considered “scientific advances [that] have revealed (and
may continue to reveal) a novel or greater understanding
of the mechanics of memory that may not be intuitive to a
layperson.” 412 Md. 392, 416. Moreover, she asserts that
the trial court abused its discretion by refusing to
“consider the scientific studies underlying Dr. Kovera’s
testimony, or even allow voir dire on why schematic
processing, disguise, and their effects on perception and
memory formation and recall are not intuitive.”
The State counters that the court did not abuse its
discretion because the court’s reasoning “reflects a
thoughtful consideration of the facts, the case law, and an
understanding of the benefits of expert testimonyf.]”
B.
A court may admit expert testimony if it:
determines that the testimony will assist the trier
of fact to understand the evidence or to
determine a fact in issue. In making that
REDACTED
90a
— Unreported Opinion —
determination, the court shall determine
(1) whether the witness is qualified as an expert
by knowledge, skill, experience, training, or
education, (2) the appropriateness of the expert
testimony on the particular subject, and
(3) whether a sufficient factual basis exists to
support the expert testimony.
Md. Rule 5-702.
Generally, trial courts have “wide latitude in deciding
whether to qualify a witness as an expert or to admit or
exclude particular expert testimony,” and it is admissible
only if relevant to the case. Alford v. State, 236 Md. App.
57, 71 (2018) (internal quotations omitted). Although
“abuse of discretion” is a protean concept:
It is nevertheless clear that a ruling reviewed
under an abuse of discretion standard will not be
reversed simply because the appellate court
would not have made the same ruling. Abuse
occurs when a trial judge exercises discretion in
an arbitrary or capricious manner or when he or
she acts beyond the letter or reason of the law.
* * *
When the trial court exhibits a clear failure to
consider the proper legal standard in reaching a
decision, such an action constitutes an abuse of
REDACTED
91a
Unreported Opinion —
discretion. Abuse of discretion is not limited
solely to those occurrences when a trial court
misapplies a legal standard. A trial court also
abuses its discretion when no reasonable person
would take the view adopted by the trial court or
when the court acts without reference to any
guiding rules or principles. An abuse of
discretion may also be found where the ruling
under consideration is clearly against the logic
and effect of facts and inferences before the court
or when the ruling is violative of fact and logic.
Kusi v. State, 438 Md. 362, 385-86 (2014) (citations and
quotation marks omitted).
We conclude that the trial court did not abuse its
discretion when it granted the prosecution’s motion to
exclude Dr. Kovera’s testimony.
In Johnson v. State, 457 Md. 513 (2018), the Court of
Appeals indicated that “[ejxpert testimony is required
‘only when the subject of the inference ... is so
particularly related to some science or profession that is
beyond the ken of the average layman[; it] is not required
on matters of which the jurors would be aware by virtue
of common knowledge.’” 457 Md. at 530 (quoting Bean v.
Department of Health and Mental Hygiene, 406 Md. 419,
REDACTED
92a
— Unreported Opinion —
432 (2008)). Concerning the reliability of eyewitness
testimony, expert testimony “is admissible where it will
assist the trier of fact to understand the evidence or to
determine a fact in issue[.]” Bomas v. State, 181 Md. App.
204, 211 (2008), affd 412 Md. 392 (2010) (internal
quotations omitted). In this context, the Court of Appeals’
analysis in Bomas is particularly instructive.
In Bomas, an off-duty police officer, Detective
Kenneth Bailey, heard gunshots while stopped in traffic.
412 Md. 392,395 (2010). Detective Bailey observed a male,
later identified as defendant Bomas, shoot and kill
another male and flee the scene. Id. Detective Bailey
unsuccessfully pursued Bomas, and later could only
describe the shooter as “a black male.” Id.
Sometime later, Bomas was identified as the shooter
by an eyewitness to the murder, Jimmy Dower. Id. at 396.
Dower identified Bomas from a photo array, and the
police also showed the array to Detective Bailey. Id. From
the array, Detective Bailey also identified Bomas as the
shooter. Id. Prior to being brought to trial, Bomas moved
REDACTED
93a
Unreported Opinion —
to suppress the eyewitness identifications. Id. Although
Dower repudiated his identification of Bomas, the court
denied Bomas’ motion, finding that the photo array and
Detective Bailey’s identification were not impermissibly
suggestive. Id. at 397.
At a pretrial hearing, Bomas proffered the testimony
of David Schretlen, Ph.D., a licensed psychologist and an
expert in the field of neuropsychology. Id. Dr. Schretlen
was to testify that:
(1) a “trained observer,” such as a police officer,
has no better ability to remember faces than a lay
person, (2) a witness’s confidence in his
testimony is not correlated with the accuracy of
his identification, (3) stress and the passage of
time adversely affect one’s ability to recall events
or people, (4) a police photo array can influence a
witness’s identification of a suspect, and (5) juries
tend to believe eyewitness testimonies in spite of
“effective cross examination.”
Id. Bomas also proffered that Dr. Schretlen would testify
as to the effects of stress on the memory, particularly
when a person observes a crime being committed. Id.
The motions judge excluded Dr. Schretlen’s
REDACTED
94a
— Unreported Opinion —
testimony, finding that “it would be unhelpful to a jury
and that a jury was capable of appropriately evaluating
and weighing the eyewitness identifications.” Id. at 401.
Bomas was subsequently convicted by a jury. Id. at 403.
Bomas appealed to this Court, which affirmed the circuit
court’s ruling. Id. The Court of Appeals then granted
Bomas’s petition for writ of certiorari.
The Court affirmed. It held that the motions court:
carefully considered the proffered testimony’s
foundation, relevance to the facts of the case, and
helpfulness to the jury. The Circuit Court was
entitled to conclude, as it did, that the topics
covered by the proffered testimony were
inadmissible for at least one of the following
reasons: the testimony (1) lacked adequate
citation to studies or data, (2) insufficiently
related to the identifications at issue, and/or
(3) addressed concepts that were not beyond the
ken of laypersons.
Id. at 423.
The Court began its analysis with a discussion of
Bloodsworth v. State, 307 Md. 164 (1986), in which the trial
court also excluded expert testimony for issues arising
with eyewitness testimony. Id. at 404. On appeal of that
REDACTED
95a
Unreported Opinion —
issue, the Court upheld the decision, holding that “the
proper standard for the admissibility of expert testimony
on eyewitness reliability is ‘whether [the expert’s]
testimony will be of real appreciable help to the trier of
fact in deciding the issue presented[,]’” and that ‘“[t]he
admissibility of expert testimony is a matter largely
within the discretion of the trial court, and its action in
admitting or excluding such testimony will seldom
constitute a ground for reversal.’” Id.
(quoting
Bloodsworth, 307 Md. at 184-85).
Then, the Court looked to other jurisdictions for
guidance on how to handle expert testimony on
eyewitness identification. Id. at 407. The Court found that:
Other jurisdictions embrace a discretionary
approach generally, but either require or favor
the admission of expert testimony on eyewitness
identification when the prosecution’s case relies
solely on eyewitness testimony. Some
jurisdictions appear to generally disfavor expert
testimony on eyewitness identification, but favor
it when the State has no substantial
corroborating evidence. Finally, there is a
prohibitory approach which excludes all expert
testimony on eyewitness identification. To our
REDACTED
96a
Unreported Opinion —
knowledge, only three jurisdictions have retained
this per se exclusion.
Id. at 407-08.
Based on the guidance of other jurisdictions, the Court
considered Bomas’s arguments and reviewed the facts of
the case and came to several conclusions. First, that the
factors of eyewitness identification are not beyond the ken
of the average juror. Id. at 416. The Court found that “the
effects of stress or time are generally known to
exacerbate memory loss and, barring a specific set of
facts, do not require expert testimony for the layperson to
understand them in the context of eyewitness testimony.”
Id. Second, the Court concluded that the test for
admissibility of expert testimony, previously stated in
Bloodsworth, still applied. Id. That test is “whether [the
expert’s] testimony will be of real appreciable help to the
trier of fact in deciding the issue presented.” Id. Third,
Md. Rule 5-702 sufficiently circumscribes the trial court’s
discretion when deciding to admit or exclude expert
testimony. Id. at 417. The Court found that Rule 5-702
“entrusts the trial court with the task of determining
REDACTED
97a
— Unreported Opinion —
whether an expert is qualified to give testimony about an
issue, whether there is a foundation for the expert’s
proffered testimony, and the relevance of the proffered
testimony.” Id. at 418. The Court feared that, if it adopted
a standard that expert testimony on eyewitness testimony
is presumptively helpful to a jury as Bomas suggested it
do, a case could become unnecessarily complicated and
encourage a “battle of the experts.” Id. at 419. According
to the Court, “[djueling experts could interject differing
interpretations of statistics and scientific studies on
identification, leaving the jury more confused than aided
by the expert opinions.” Id.
The Court applied the “appreciable help to the trier of
fact” test to the circuit court’s decision to exclude the
testimony of Dr. Schretlen, and held that the court did not
abuse its discretion. Id. at 419-20. The Court found that
the testimony of Dr. Schretlen was “extremely vague,
general, and inconclusive,” and that Dr. Schretlen had
nothing to support his statements. Id. at 420. Thus, the
motions court was within its right to exclude Dr.
Schretlen’s testimony under Rule 5-702 which calls for a
REDACTED
98a
— Unreported Opinion —
“sufficient factual basis” to support the expert’s
testimony. Id. The Court also found that portions of Dr.
Schretlen’s testimony would be unhelpful to the jury, and
that other portions were within the grasp of a layperson.
Id. at 421-22. Finally, the Court found that Dr. Schretlen’s
testimony as to the effects of stress on the memory would
be confusing to the jury. Id. at 422. Specifically, the Court
reasoned that:
Dr. Schretlen’s testimony insufficiently related
to the facts of the case because the lone study he
cited involved individuals who had directly
experienced the high stress event, whereas
Bailey and Dower witnessed the shooting at a
distance. The testimony also shed little light on
how to quantify the stress levels of the
eyewitnesses who are not the subjects of the
stress-inducing event. Indeed, according to Dr.
Schretlen, individuals experience stress
differently. Dr. Schretlen also conceded that low
to moderate levels of stress might actually be
beneficial to memory. Other than the prisoners of
war study, Dr. Schretlen acknowledged that very
few studies of stress during violent events have
been performed because such studies would not
gain academic approval to proceed.
Id.
REDACTED
99a
— Unreported Opinion —
When applying the “appreciable help to the trier of
fact” test from Bomas and Bloodsworth to the court’s
decision to exclude Dr. Kovera’s testimony, we conclude
that the court did not abuse its discretion. Ms. Kaur
argues that Dr. Kovera’s testimony is key to this case
because she would have testified as to the effects of stress
on eyewitness testimony. But as the Court of Appeals in
Bomas indicated, the effects of stress on memory are not
beyond the ken of the average juror. The trial court
reiterated this conclusion in its own ruling on the State’s
motion in limine. Further, the trial court observed that
any stress on the part of the eyewitnesses arose after the
witnesses had all made their observations of Ms. Gabba
and the shooter. All three witnesses testified that they
saw two women standing in the road before they realized
that the woman lying in the street, Ms. Gabba, had been
shot by the second woman. Thus, Dr. Kovera’s testimony
as to stress would have been inapplicable to the
observations made by the witnesses in this case.
Ms. Kaur’s argument is unpersuasive for another
reason as well. According to Ms. Kaur, Dr. Kovera’s
REDACTED
100a
— Unreported Opinion —
testimony was particularly important in light of the fact
that no identification was made by any of the
eyewitnesses. But, as the trial court noted, there was no
eyewitness identification as none of the eyewitnesses
identified either Taneja or Ms. Kaur as the shooter.
Rather, the witnesses gave very simple descriptions of the
shooter. All testified that the shooter wore a bright orange
scarf around her head, that she was similar in height and
body type to Ms. Gabba and that she had light-brown skin
coloration. One testified that the second woman walked
with a slight limp. It was within the purview of the jury,
as the fact-finder, to weigh the statements and credibility
of the three eyewitnesses.
The trial court did not abuse its discretion when it
concluded that Dr. Kovera proffered testimony would not
have been helpful to the jury.
THE JUDGMENTS OF THE
CIRCUIT COURT FOR
MONTGOMERY COUNTY
ARE
AFFIRMED.
APPELLANT TO PAY
COSTS.
REDACTED
101a
APPENDIX C
IN THE CIRCUIT COURT FOR MONTGOMERY
COUNTY, MARYLAND
•X
STATE OF MARYLAND
Criminal No. 123952
v.
RAMINDER KAUR,
Defendant.
X
JUDGE’S RULING
April 14,2016
Rockville, Maryland
DEPOSITION SERVICES, INC.
12321 Middlebrook Road, Suite 210
Germantown, Maryland 20874
(301) 881-3344
REDACTED
102a
IN THE CIRCUIT COURT FOR MONTGOMERY
COUNTY, MARYLAND
X
STATE OF MARYLAND
Criminal No. 123952
v.
RAMINDER KAUR,
Defendant.
X
Rockville, Maryland
April 14,2016
WHEREUPON, the proceedings in the aboveentitled matter commenced
BEFORE:
THE HONORABLE MICHAEL
D. MASON, JUDGE
APPEARANCES:
FOR THE STATE:
JESSICA HALL, Esq.
MARYBETH AYRES, Esq.
State’s Attorney’s Office
REDACTED
103a
50 Maryland Avenue, 5th Floor
Rockville, Maryland 20850
FOR THE DEFENDANT:
STEPHEN B. MERCER, Esq.
Chief of Forensics Division
Office of the Public Defender
6 Paul Street, Suite 1400
Baltimore, Maryland 21202
COLETTE CONNOR, Esq.
LANCE A. WADE, Esq.
Williams & Connolly
72512th Street, N.W.
Washington, D.C. 20005
HARRY J. TRAINOR, JR., Esq.
Trainor, Billman, Bennett and Milko, LLP
116 Cathedral Street, Suite E
Annapolis, Maryland 21401
WILLIAM C. BRENNAN, JR., Esq.
Brennan, Sullivan & McKenna, LLP
6305 Ivy Lane, Suite 700
Greenbelt, Maryland 20770
REDACTED
104a
PROCEEDINGS
JUDGE’S RULING
THE COURT:
So the matter is before the Court on
the defendant’s motion for a protective order seeking,
among other things, to have the assistant state’s
attorneys in this case assigned to the case recused from
further proceedings in the case, and that the Court limit
the ability of new counsel to prosecute the case to those
persons who have not been exposed to any of the
confidential information that was disclosed in the course
of the plaintiffs pursuing her ineffective assistance claim.
So as the Court views the case, I’m going to make
alternative findings. Because frankly, under the Bittaker
analysis, I think this is an express waiver case, and as
such, the defendant would not be entitled to any of the
relief that she seeks. And I think it’s express waiver by
virtue of the fact that the defendant, through her
attorneys, published the affidavit in a public forum which
was quickly picked up by the Washington Post, the
newspaper of wide circulation, and placed all of this
information in the public domain. And that is the classic
definition of express waiver under Bittaker. in which case,
REDACTED
105a
all of her communications then are exposed and available
to the State for any and all purpose.
She has waived the privilege, however, quite frankly,
fearing and so as to avoid another round of post-conviction
proceedings, the Court will elect in this case — because the
defendant may later claim according to some future time
claim that she didn’t authorize the publication of that
information and the privilege is hers to waive, not her
attorneys’ — so to eliminate any potential problem in the
future, notwithstanding that I think it’s an express waiver
case as defined by Bittaker. the Court will craft a remedy
as though it were an implied waiver in this case under
Bittaker. as though there had not been an express waiver,
notwithstanding the fact that I believe there has been.
So under the Morrison case, when you’re dealing with
an implied waiver with respect to Sixth Amendment
issues, then the Court is directed to craft a remedy. But
the remedies should be tailored to the injury suffered
from the constitutional violation and should not
unnecessarily infringe on competing interests. Now here,
the defendant, in order to pursue her claim of ineffective
assistance of counsel, disclosed certain attorney/client
communications as well as Ms. Connor has argued that
REDACTED
106a
she disclosed the Defense strategies. There really were
more than one.
The strategy that appears to be of concern to the
defendant in this case is the one that Mr. Drew
abandoned. Mr. Drew, of course, in the middle of trial,
because it appeared that one of the eyewitnesses of the
firing range identified the person there as not the
defendant but some other person, so in the middle of trial,
as I recall from the evidence of the hearing, Mr. Drew
decided the best defense to pursue would be an identity
case, which is a defense strategy which under the
circumstances I frankly found no fault with,
But
presumably, that’s not the strategy that we’re talking
about now. Instead, the strategy that the Defense seems
to be claiming that the Prosecution would have the unfair
benefit of is a strategy that
The testimony at the new trial hearing demonstrated
that there were substantial potential problems with the
REDACTED
107a
strategy, and basically, the strategy, to use my
paraphrase as I recall, was that
And Mr. Drew was also concerned that - is there a
problem?
MS. CONNOR: Your Honor, the courtroom is not
sealed, and Your Honor is getting into the strategy that
we assert privilege over, so we do make a request at this
point in time to seal the courtroom.
THE COURT:
To seal the record, are you asking?
Because that strategy is already a matter of public record.
I frankly don’t know — honestly, I don’t know what your
strategy currently is. I’m referring to a strategy that was
announced at a hearing, I guess, six months to - however
long ago we had that hearing.
So what the current
strategy is, I don’t know. But this is a strategy that was
REDACTED
108a
testified to at the time of the last hearing. And as I said,
presumably - I don’t know - but presumably, this is the
strategy you’re concerned about, so it would do no good to
seal this part of the record because the other part’s
unsealed.
MS. CONNOR: We want to make the request to not -we recognize the earlier proceedings weren’t sealed, but
we do make a request at this point that the proceedings to
be sealed, to not further reveal the strategy.
THE COURT: If you want to seal this portion of the
record, I will seal this portion of the record. Okay?
MS. CONNOR: Thank you, Your Honor.
THE COURT: But as I was saying, with respect to
the strategy that was talked about at the time of the last
hearing many, many months ago, Mr. Drew was
concerned that it
REDACTED
109a
And as I said earlier, my
recollection - which is not always perfect - my
recollection is that I think I found that Mr. Drew was not
ineffective for abandoning that strategy and pursuing a
new strategy. So quite frankly, there’s no way at this
particular point in time of knowing what the current
strategy is, because the
situation has
changed
dramatically. She’s now going to be tried by herself with
the defendant not being - sorry, with Mr. Taneja not
being present in the courtroom.
Further, the Court finds, really in addition to not
really knowing what the current strategy is, that if it is to
pursue this strategy from two and a half years ago, as the
State argued - to pursue that kind of strategy requires
expert testimony, and the expert testimony would have to
be disclosed in advance of trial. Because if the Defense is
going to call experts on these issues, the State has the
opportunity also to present expert testimony, so the
Defense would be required to disclose the name and
identity of the experts as well as the opinions that they
REDACTED
110a
were going to offer. So in effect, that strategy would be
required to be disclosed in advance of trial were it to be
the one that is to be pursued.
So the Court finds from the evidence presented that
there is little to no evidence that the defendant is suffering
or has suffered from the disclosure of a two and a half year
old strategy that was crafted for a very different
procedural circumstance out of a joint trial.
However, the defendant was required to disclose and
did disclose, in order to pursue her claim of ineffective
assistance of counsel and her due process right to a fair
trial, certain attorney/client communications. To allow
the State to use those communications would benefit the
State. And under the holding of Carter v. State. 149 Md.
App. 509, when you are dealing with the Sixth
Amendment, unlike the Fourth and Fifth Amendment, in
order to assure the defendant a fair trial, that it is
necessary the Government not be permitted any
beneficial use of information obtained as a result of the
Sixth Amendment violation.
So with respect to that, in order to protect the
defendant, the Court will prohibit the State from making
any use of any attorney/client communication between the
REDACTED
111a
defendant and her attorney, as well as making any use of
the affidavit that was filed in this case. This would include
any
testimony
relating
to
any
attorney/client
communication that the defendant or her attorney
produced at a hearing or trial - at a hearing, rather, on
this matter. Frankly, I’m going to reserve on whether or
not the State can have the right to make use, but it would
only be for impeachment purposes, if at all, of the
testimony of any other witness or the testimony that the
defendant
may
have
given
unrelated
to
any
attorney/client communication at any subsequent trial of
this matter. But if that use was permitted, it would be
available for impeachment purposes only.
The Court expressly declines to strike the appearance
of present counsel in this case. I find that it is unnecessary
to protect the defendant against any prejudice suffered by
result of her pursuing her ineffective assistance claim.
Any advantage that the prosecutor might have had has
been substantially, if not entirely, eliminated by the
Court’s order on this motion.
As well, the Court finds that there is a competing
interest that the Court has to take into consideration, and
that is the State’s ability in this case to use the senior
REDACTED
112a
prosecuting attorneys who have been prosecuting this
case and working for the past two and a half years, and to
permit those to prosecute the case at retrial.
To afford the defendant the protection she seeks
because of disclosures that were made in this case where
no protective order was ever sought at any time until just
now when counsel asked that this record be sealed in part
and where this information was so widely disseminated
because of the nature of the case - it held a great degree
or a great deal of public interest, it was widely published
in the newspapers to include the information that was
filed in the affidavit post-trial - that the Court reasonably
concludes it would be extremely difficult to find, certainly,
anybody in the State’s Attorney’s Office currently who
hadn’t been exposed to that information, and quite
probably, anybody in the criminal bar in Montgomery
County who hadn’t been exposed to that information
because it was so widely covered, which means that if I
were to require the State to find somebody who had not
been exposed to the information, they would almost
certainly have to go out of county or find somebody who
was a junior or inexperienced - they weren’t around when
this case was tried two and a half years ago. And I think
REDACTED
k
113a
that is an unreasonable and unnecessary remedy in this
case and that the remedy instead that I have tailored, I
think, addresses any prejudice that the defendant has
suffered.
(End of requested portion of proceeding.)
REDACTED
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.