Friday, February 29, 2008
The Third Man: Maryland Court Of Appeals Find Government Attorneys Are Servants Of A Party Opponent For The Purposes Of The Admissions Rule
The Maryland Court of Appeals' recent opinion in Bellamy v. State, 2008 WL 382938 (Md. 2008), is a case with two interesting evidentiary rulings. In Bellamy, Joseph Nathan Bellamy was convicted of first degree murder and use of a handgun in the commission of a crime of violence in connection with the shooting death of Jermaine "Jay" Carter. The prosecution's theory of the case was that Bellamy shot Carter twice, once in the back of the head and once in the right shoulder, near a Gaithersburg elementary school in July 2003. Among the evidence presented at Bellamy's trial was (1) a witness' testimony that on the night of the murder, Bellamy, Calvin "Southside" Welch, and Andre Saunders accompanied Carter to a park behind the school, and (2) a witness' testimony that on the night of the murder, she saw Bellamy, Welch and Saunders running from the park to Welch's apartment after hearing two gunshots.
Bellamy's defense counsel argued at his trial that it was Welch, not Bellamy, who murdered Carter, and they called Welch and Saunders as witnesses. Both Welch and Saunders, invoked the Fifth Amendment privilege against self-incrimination. Bellamy, however, attempted, inter alia, to get into evidence the state's factual proffer from Saunders' plea hearing. You see, before Bellamy's trial, the state reached a plea agreement with Saunders under which he pleaded guilty to being an accessory after the fact to the murder. During the plea hearing, the state proffered facts, based upon Saunders' statements to authorities. The proffered facts which Bellamy sought to introduce were the facts that Bellamy initiated the physical attack on Clark, assaulted Clark, and then physically restrained Clark so that Welch could attack him, but that it was Welch who shot Clark while Bellamy was restraining him.
The state objected that this proffer constituted inadmissible hearsay, and the trial judge agreed and ruled it inadmissible. On appeal, the first interesting question addressed by the Maryland Court of Appeals was whether the state's proffer constituted an admission by a party opponent under Maryland Rule of Evidence 5-803(a)(2). Under this rule, a statement that is offered against a party and which is a statement of which the party has manifested an adoption or belief in its truth is not excluded by the hearsay rule. Defense counsel's argument was that the State manifested its “adoption or belief in ... [the] truth” of Saunders's statement when, inter alia, the Assistant State's Attorney stated at the plea hearing, “And it is our belief, based on our investigation and review of everything, is that he's been truthful."
In answering this question, the court had to resolve a question that has sharply divided state and federal courts across the country: In a criminal prosecution, are government attorneys considered servants of a party-opponent for the purposes of the admissions rule? The Maryland Court of Appeals came to the conclusion that they are, rejecting the arguments that government attorneys cannot manifest a belief in a defendant's statement and are traditionally unable to bind the sovereign. Instead, the court found that
-the Assistant State's Attorney unequivocally manifested an adoption of or belief in Saunders' statement when he said, “And it is our belief, based on our investigation and review of everything, is that he's been truthful;"
-the prosecutors acted as authorized agents of the State of Maryland at Saunders' plea hearing because the judge presiding at Saunders's plea hearing accepted the representations made by the prosecutors as a sufficient substantive basis for Saunders' plea; and
-there are many opportunities for a prosecutor to bind the government in the course of a criminal trial.
I think that all of these arguments hold water, and I thus fall in line with those courts holding that government attorneys in criminal prosecutions are servants of a party-opponent for the purposes of the admissions rule.
However, once the court decided that the factual proffer should have been admissible, it still had to determine whether its exclusion constituted harmless error, precluding reversal. And the court did find that this was a case of harmless error because Saunders's statement indicated that Bellamy initiated the physical attack on Carter, assaulted Carter, and then physically restrained Carter so that Welch also could attack. According to the court, that evidence, on its own, would be sufficient for a reasonable jury to convict Bellamy of aiding and abetting Carter's murder.
To me, this decision makes no sense. The prosecution's theory of the case was that Bellamy shot and killed Careter. Saunders' statements directly contradicted the prosecution's theory because he claimed that Welch was the shooter. It also directly supported Bellamy's theory of the case, which, again, was that Welch was the shooter. Now, it's true that if the jury believed the entirety of Saunders' testimony, it still could have convicted Bellamy based upon his aiding and abetting. But it's just as true that the jury could have believed that Welch was the shooter but disbelieved that Bellamy aided in the shooting. Or maybe the simple fact that Saunders' testimony directly contradicted the prosecution's theory of the case would have led the jury to disbelieve the prosecution's case in general. Based upon the court's ruling, however, no jury will get that chance.