«ELVIS G. BAUTISTA v. STATE OF MARYLAND Eyler, Deborah S., Nazarian, Davis, Arrie W. (Senior Judge, Specially Assigned), JJ. Opinion by Eyler, ...»

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1764

September Term, 2015

______________________________________

ELVIS G. BAUTISTA

v.

STATE OF MARYLAND

______________________________________

Eyler, Deborah S.,

Nazarian,

Davis, Arrie W.

(Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Eyler, Deborah S., J.

______________________________________

Filed: November 3, 2016 *This is an unreported opinion and therefore may not be cited either as precedent or as persuasive authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court. Md. Rule 1-104.

—UNREPORTED OPINION— A jury in the Circuit Court for Montgomery County convicted Elvis Geovan Bautista, the appellant, of attempted first degree murder, attempted second degree murder, first degree assault, conspiracy to commit first degree assault, robbery with a dangerous weapon, use of a handgun in commission of a felony or crime of violence, conspiracy to use a handgun in commission of a felony or crime of violence, retaliation for a testimony, conspiracy to retaliate for a testimony, and possession of a firearm by a person under the age of 21. The court sentenced him to an aggregate term of 95 years in prison, all but 50 years suspended, and five years’ supervised probation upon release.

On appeal, the appellant presents five questions for review, which we have

combined and reworded:

I. Did the trial court err by permitting the State to introduce as substantive evidence a copy of the State’s proffer signed by co-defendant Isaac Quinteros and the recording of Quinteros’s plea hearing?

II. Did the trial court fail to exercise or abuse its discretion by denying the appellant’s motion for mistrial?

III. Did the trial courtabuse its discretion by refusing to give a jury instruction on accessories after the fact?

IV. Did the trial court commit plain error by instructing the jury that the appellant could be liable as an accomplice to misdemeanors?

For the following reasons, we shall affirm the judgments.

At around 3:00 a.m. on July 30, 2014, Erilena Liriano returned home from work to her mother’s house on Douglas Avenue, in Wheaton. She asked Dejah Townsend, a

and ask to purchase marijuana from him.1 Townsend did so and Quinteros responded, telling Townsend to meet him at the Best Buy at Wheaton Mall. Townsend, Liriano, Liriano’s sister, and another friend left the house and walked to meet Quinteros.

Liriano then began messaging Quinteros from her own Kik account. After he failed to appear at the Best Buy and two other locations they discussed, the girls decided to walk back home. At a street corner a block from Liriano’s mother’s house, a white SUV pulled up behind them and Quinteros jumped out. He approached Liriano, pointed a gun at her face, and demanded her belongings. When she refused, he shot her five times in the back and left arm. He took her phone and purse and fled the scene. Liriano survived her injuries.

Quinteros, Eber Umanzor, and the appellant all were indicted on numerous offenses, including attempted first degree murder of Liriano. Quinteros and Umanzor pled guilty. As part of his plea agreement, Quinteros signed a proffer of facts prepared by the State. The proffered facts included that Quinteros had given a statement to the police in which he had identified Umanzor as the driver of the white SUV on the night of the shooting, and had stated that a third person, later identified as the appellant, was riding in the back seat of the white SUV at the time of the shooting. The proffer further stipulated that Quinteros had told the police that he first met Umanzor “two to three Kik is a type of messaging app for iPhones that allows the user to send text messages to other individuals who have installed the Kik app.

weeks” before the shooting. Umanzor had told him that Liriano “had been talking to the Feds” and that “motivated [Quinteros] to kill [Liriano].” 2 The appellant’s jury trial commenced on May 4, 2015. The State called Quinteros to the stand. He testified that late on July 29, 2014, Umanzor picked up him and the appellant in his white SUV. Umanzor dropped the appellant off at home before Townsend contacted him in the early morning hours on July 30. When the prosecutor confronted Quinteros with his proffer, he claimed he could not “recall” ever telling the police that the appellant was in the white SUV and claimed that when he signed the proffer he did not realize he was implicating anyone but himself as “the one who shot [Liriano.]” On motion of the State, the court admitted Quinteros’s proffer into evidence.

On cross-examination, Quinteros testified that he had not had an opportunity to read the proffer before his plea hearing and that his lawyer had not fully described the terms of the plea agreement to him. In response, after calling several other witnesses, the prosecutor sought to admit and play for the jury the audio recording of Quinteros’s plea hearing. Defense counsel objected on the ground that the recording was not relevant.

The court overruled the objection and admitted the recording.

Liriano had testified as a witness in a 2012 criminal trial against members of the local “Little R” gang for assault. Although the proffer stipulated that Umanzor told Quinteros about Liriano’s cooperation with the prosecutors in the 2012 case, Quinteros testified at the appellant’s trial that he already knew that Liriano was “talking about people,” because “[e]verybody in Maryland” knew that.

After the audio recording of Quinteros’s plea hearing was played for the jury, the appellant moved for a mistrial. He argued that the State had failed to redact “highly prejudicial” portions of the recording, citing portions of it in which there were discussions of Quinteros’s sentencing and statements made by Quinteros’s defense attorney suggesting that the appellant and Umanzor encouraged Quinteros to kill Liriano.

The court denied the motion, finding that the appellant already had “brought out the issue of” Quinteros’s sentence and plea agreement on cross-examination.

At the close of all the evidence, the appellant requested a jury instruction on accessory after the fact. The court ruled the instruction was not warranted because the State had not charged the appellant with being an accessory after the fact. The court did, however, allow defense counsel to argue in closing that the evidence was not sufficient to prove any offense other than that of being an accessory after the fact.

Additional facts will be included in our discussion, as necessary.

The appellant contends the trial court erred by admitting as substantive evidence Quinteros’s signed proffer and the recording of his plea hearing. He argues that neither one was sufficiently reliable to satisfy the prior inconsistent statement exception to the rule against hearsay, under Rule 5-802.1. The appellant maintains that Quinteros did not adopt any facts in the proffer that implicated him, because those facts were “superfluous” to Quinteros’s guilty plea and Quinteros had no “incentive to correct the proffer as to [the

appellant’s] involvement.” For the same reasons, the appellant argues that the recording of Quinteros’s plea hearing, at which the prosecutor read the proffer into evidence and Quinteros signed it, also was not reliable.

The State counters that the appellant either forfeited or waived his right to dispute the admissibility of either item of evidence. It argues that, at the very least, the appellant failed to object when the proffer was admitted in evidence, and therefore has not preserved the issue for review. It also argues that the appellant objected to the admission of the recording of Quinteros’s plea hearing on the specific ground that it was irrelevant, and consequently “waived all other grounds, including [the appellant’s] appellate argument.” The State maintains that, even if these issues are properly before this Court on appeal, they lack merit.

After the prosecutor offered Quinteros’s proffer (Exhibit 16) into evidence, the

following exchange took place:

[Prosecutor]: Your Honor, at this time State would seek to move State’s Exhibit 15 and 16 into evidence….16 is the prior inconsistent statement under penalties of perjury by this defendant…

[Defense Counsel]: 16 was prepared totally by the State. I can use it for cross-examination. I’m sure you’re going to let it in.

The Court: You guessed right. Okay, No. 16 will be received into evidence.

(Emphasis added.) Defense counsel’s prediction that the court would admit the proffer and his suggestion that he could use it for cross-examination were not objections to the proffer’s admission. Indeed, they were acknowledgements that the proffer was admissible. Accordingly, the appellant did not preserve for review the issue of the admissibility of the proffer and in fact waived it.

Even if the issue were properly before us, it lacks merit. The proffer was properly admitted, substantively, as a prior inconsistent statement, under Rule 5-802.1(a).

That rule excludes from the rule against hearsay statements made by a witness/declarant who “testifies at the trial or hearing” and is “subject to cross-examination” if:

[The statement] is inconsistent with the declarant’s testimony…was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement[.] The proffer satisfies each element of Rule 5-802.1(a). Quinteros testified at trial and was subject to cross-examination. The proffer was in writing and signed by Quinteros under oath at his plea hearing. It included facts that directly contradicted Quinteros’ testimony at trial that the appellant was not in Umanzor’s vehicle when Quinteros robbed and shot Liriano. Accordingly, the proffer was admissible as substantive evidence without any further proof of reliability. Contrary to the appellant’s argument, Rule 5-802.1(a), unlike the former testimony and statement against interest hearsay exceptions in Rules 5-804(b)(1) and (b)(3), does not include elements related to the circumstantial reliability of the declarant’s statement. That is because a statement

only may be admitted under Rule 5-804(b)(1) or (b)(3) when the declarant is unavailable to testify, whereas Rule 5-802.1(a) requires that the declarant be available and actually testify at trial. Additional indicia of reliability is not an element of Rule 5-802.1(a) and need not be demonstrated for a prior inconsistent statement to be admissible as substantive evidence.

The appellant also may not challenge the court’s ruling admitting the audio recording of Quinteros’s plea hearing on the ground that it failed to satisfy Rule 5a) because he did not make that argument below. At trial, he objected to the admission of the recording on the ground that it was “not relevant” because the proffer already had been admitted. He cannot challenge the court’s ruling on different grounds on appeal. See Colvin-el v. State, 332 Md. 144, 169 (1993) (“Appellate review of an evidentiary ruling, when a specific objection was made, is limited to the ground assigned.”).

In any event, to the extent the trial court rejected the appellant’s “relevancy” objection, which really was an objection that the recording was needlessly cumulative, the court did not abuse its discretion.3 The recording rebutted Quinteros’s testimony that “he didn’t understand basically any of the terms or conditions of [his] plea agreement[.]” It served a different evidentiary purpose than did the proffer, which the State offered to Defense counsel’s stated ground for objecting to the recording was: “It’s not relevant. You’ve got the proffer there that he says was read, and the document speaks for itself. The jury has the complete proffer.”

show that Quinteros previously had recounted the events of July 30, 2014, differently.

The State offered the recording of Quinteros’s plea to show why Quinteros’s previous statements were truthful and reliable.

The appellant contends the trial court abused its discretion by declining to grant a mistrial after the prosecutor failed to redact prejudicial portions of the recording of Quinteros’s plea hearing before it was played for the jury.4 He argues that certain The appellant makes an alternative contention that the court failed to exercise its discretion in denying the motion for mistrial because it “improperly concluded that the defense opened the door to the portions of the plea hearing concerning Quinteros’s anticipated sentence and his attorney’s opinions about [the appellant’s] culpability.” The doctrine of “opening the door” “authorizes admitting evidence which otherwise would have been irrelevant in order to respond to (1) admissible evidence which generates an issue, or (2) inadmissible evidence admitted by the court over objection.” Clark v. State, 332 Md. 77, 84-85 (1993). The doctrine is “based on principles of fairness.” Little v.

Schneider, 434 Md. 150, 157 (2013).