State v. Payton

State of Maryland v. Brandon Payton, No. 14, September Term, 2018. Opinion by Greene, J.

CRIMINAL LAW – CRIMINAL PROCEDURE – REOPENING THE STATE’S CASE-
IN-CHIEF

The Court of Appeals held that, although trial judges have discretion to permit the State to
reopen its case-in-chief, in this case, the trial judge abused that discretion. The trial judge
impermissibly weighed the nature of the charges pending against Respondent in reaching the
decision to allow the State to reopen its case-in-chief. In addition, he exceeded the bounds of
judicial impartiality by allowing the State to correct a perceived defect in the State’s case.
Finally, the judge abused his discretion when he allowed the State to fill a gap in its case to
avoid granting Respondent’s motion for judgment of acquittal. As a result, in the present case,
Respondent’s right to a fair trial was compromised, thereby warranting a remand for purposes
of a new trial.
Circuit Court for Baltimore City IN THE COURT OF APPEALS
Case No. 115224002
Argued: September 12, 2018 OF MARYLAND

No. 14

September Term, 2018

______________________________________

STATE OF MARYLAND

v.
BRANDON PAYTON

Barbera, C.J.
Greene,
*Adkins,
McDonald,
Watts,
Hotten,
Getty,

JJ.
______________________________________

Opinion by Greene, J.
______________________________________

Filed: November 1, 2018

*Adkins, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to the MD. Constitution, Article IV,
Section 3A, she also participated in the decision
Pursuant to Maryland Uniform Electronic Legal and adoption of this opinion.
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.

2018-11-05
09:43-05:00

Suzanne C. Johnson, Acting Clerk
 Petitioner, the State of Maryland, asks this Court to determine whether a trial judge’s

decision to allow the State to reopen its case-in-chief to recall an expert witness, after the

defense moved for judgment of acquittal, was a proper exercise of the trial judge’s

discretion. We shall hold that there may be circumstances when a trial judge in the exercise

of his or her discretion may allow the State to reopen its case-in-chief after the prosecutor

has rested. In the present case, however, the trial judge abused that discretion. The trial

judge impermissibly weighed the nature of the charges pending against Respondent

Brandon Payton (“Mr. Payton” or “Respondent”) as a factor in his decision to permit the

reopening of the State’s case-in-chief. In addition, the judge impermissibly exceeded the

bounds of judicial impartiality when he instructed the State to clarify a gap that the trial

judge perceived in the State’s case. Finally, pursuant to this Court’s established guidelines,

it was inappropriate for the trial judge to exercise his discretion to allow the State to reopen

its case-in-chief, rather than rule on Respondent’s motion for judgment of acquittal, where

the trial judge had determined that there was insufficient relevant evidence presented to

sustain a conviction. The trial judge’s decision compromised Respondent’s right to a fair

trial. Therefore, we conclude that Respondent is entitled to a new trial.

FACTUAL & PROCEDURAL BACKGROUND

Mr. Payton was tried for murder and related charges before a jury in the Circuit

Court for Baltimore City in September 2016.1 The charges resulted from an incident on

June 12, 2015, during which the victim died from multiple gunshot wounds.

1
Although it does not impact our review of this case, to properly explain the posture of
(continued . . .)
 A witness to the shooting, Christopher Brinker, testified that he believed that the

shooter’s hand touched the hood of his vehicle when the shooter passed by in pursuit of the

victim. The handprint became a key part of the State’s case against Mr. Payton.

Also among the State’s witnesses was Sean Dorr, a certified latent print examiner

employed by the Baltimore City Police Department, who testified as an expert witness.

Mr. Dorr explained that there were three lift cards of the alleged shooter’s latent print2

taken from the hood of Mr. Brinker’s car. One lift card was suitable for comparison. Mr.

Dorr scanned this lift card into the Automated Fingerprint Identification System (“AFIS”).3

The AFIS compared the lift card to its database and produced a candidate list.4 Mr. Dorr

manually compared the candidates’ prints to the unknown latent print to determine if one

was an exact match. Ultimately, Mr. Dorr testified that he identified the latent print “as an

(. . . continued)
this case, we note that this trial was the State’s second attempt to prosecute Mr. Payton on
these charges before the same judge. The first trial ended in a mistrial on April 26, 2016
because the jurors were unable to reach a unanimous verdict.
2
Mr. Dorr described a latent print as “any chance or accidental impression of the friction
ridge skin that you leave on an object when you touch it.” This type of print stands in
contrast to an inked or known print, which Mr. Dorr explained as “an intentional
reproduction of that friction ridge skin, either by placing a printer’s ink on that area and
rolling and tapping that onto a fingerprint card, or [using a] live scan machine. . . that would
give you a digital copy of the friction ridge skin on a fingerprint card.”
3
The AFIS, as Mr. Dorr explained it, compares unknown prints to known prints that are in
Maryland’s database. The known prints in the database come from individuals who have
been arrested, work in children’s services, work as nurses, or have applied for a gun permit.
4
Mr. Dorr explained that the AFIS compared the unknown latent print and its friction ridge
details to known prints in its system. The AFIS then created a list of 20 candidates that it
believed had the exact same friction ridge details.

2
impression of the left palm of Brandon Payton, State Identification Number (“SID

number”) 2476078.”5

Mr. Dorr also stated that on August 9, 2016 he took Mr. Payton’s fingerprints and

made fingerprint cards. Mr. Dorr testified that he did not compare the August 9 prints to

the prints from the AFIS; however, he verified that the August 9 prints were associated

with Mr. Payton’s SID number.

At this point, defense counsel objected. Outside the presence of the jury, defense

counsel and the trial judge told the prosecutor that they were confused. The judge assumed

that the State was trying connect the August 9 print to the print pulled from the AFIS, and

connect the print from the AFIS to the unknown latent print. The judge, however, noted

the gap in this logic, stating, “that’s not what [Mr. Dorr] testified to.” The trial judge

instructed the prosecutor to “go back” and “be as clear as you possibly can as to what [was]

compared.”

Subsequently, the prosecutor continued questioning Mr. Dorr. Mr. Dorr explained

that he had “known prints” from the AFIS, which were for SID number 2476078. Mr. Dorr

5
Another expert witness for the State, Ms. Elizabeth Patti, testified that SID numbers are
linked to an individual. Likewise, “[a]s this Court has previously explained, [a] SID . . .
number is a unique number directly linked to an individual’s fingerprints. Because of that
link, no two persons should have the same SID number . . . .” Bryant v. State, 436 Md.
653, 673-74, 84 A.3d 125, 137 (2014) (quoting State v. Dett, 391 Md. 81, 85, 891 A.2d
1113, 1115 (2006)). Unlike SID numbers, Mr. Dorr explained that transaction numbers
are linked to fingerprint cards. Thus, multiple transaction numbers may be assigned to one
SID number.

3
said that he established that the prints he took from Mr. Payton on August 9 were for SID

number 2476078.

After the State rested its case, Mr. Payton’s counsel moved for judgment of acquittal

without particularizing how the State had not proven its case. The trial judge asked the

State when, if ever, it connected the unknown latent print to Mr. Payton. The State offered

an explanation, and portions of Mr. Dorr’s testimony were replayed. The trial judge

remained unpersuaded that the State had connected the unknown latent print to Mr. Payton

and, therefore, was convinced that the State had failed to place Mr. Payton at the scene of

the crime.6 The trial judge explained, “if I am confused . . . are [the members of the jury]

confused? I mean, right now I have to get past this for my own satisfaction to rule in your

favor . . . but I’m just totally at sea as to what [the State had] proven in this case.” He went

on to say:

THE COURT: I am more than frustrated. Right this minute I don’t think
you’ve made your case. So my question is, do I simply grant the motion to
dismiss which I could easily do based on what I have heard of this testimony,
because you have not convinced me that [Mr. Payton], that you have put this
man at the scene of this crime.
Now, if you want me to allow you to reopen your case to call your
expert back in – and [Mr. Payton’s counsel] I’m sure is going to object to
that – and ask that question, in your judgment, to a reasonable degree of
certainty, is the print that was taken off of that car Mr. Brandon Payton’s
print, if you want to call your witness back for five minutes of testimony with
whatever cross-examination, I am going to permit that, because I think justice
needs to be done and I – generally speaking, I am generally speaking, not
inclined to punish clients – in your case, the public is your client – for

6
Based on the record, it appears that the confusion revolved around the significance of a
SID number, as the prosecutor presented it. The prosecutor argued that the SID number is
the control; verifying that the prints are associated with the same SID number was an
identification of Mr. Payton. The trial court’s understanding was that “the same SID
number doesn’t matter” because it is just an identifier that is associated with a print.
4
 something that a lawyer may or may not have done. But I don’t think you’ve
made your case at this moment. I’m going to permit you to do that.
And [Mr. Payton’s counsel], you’re going to object, I’m assuming?

Mr. Payton’s counsel said she was “absolutely” objecting. The court “d[idn’t] blame” Mr.

Payton’s counsel for challenging the reopening, but the court persisted, explaining to the

State:

THE COURT: I’m going to let you reopen your case Friday morning for brief
testimony to fill in the gap in your case –

THE STATE: Yes, your Honor.

THE COURT: Because I think you intended to do it and I don’t think you
did it, and the fact that you can’t point me to right now – I mean, I’ve listened
to what you’re talking about here and it is not convincing me at all. I think
you got lost in the weeds, quite frankly. And so, I’m going to let you do it,
but you know, right this minute, I’m not seeing it. You’re not convincing me
that you’ve made your case because you haven’t put this man on the scene
of the crime. And –

THE STATE: Yes, your Honor.

THE COURT: Again, if you can’t do it on Friday, that’s fine, then I will
grant the motion.

THE STATE: Yes, your Honor.

THE COURT: So you have, you have – and I don’t want to go on for an hour
and a half of testimony on Friday. You’ve already laid the groundwork. You
just simply didn’t ask the punch line question which to me was, is this the
print of this man [Mr. Payton].

Again, Mr. Payton’s counsel objected. Counsel reasoned that recalling Mr. Dorr would be

the last thing the jury heard, and it would be in isolation to other evidence presented. The

trial court responded:

THE COURT: I understand your point, but I – you know, and I’m not crazy
about the notion, but as I said, if this were a lesser crime than a murder, I

5
 might not be so generous. It is a murder and I think Mr. Payton is – deserves
a fair trial and I’ve tried to do it and the State deserves a fair trial and I’m
trying to do that. So I’m trying to balance these competing needs. And it
may very well be that if he’s convicted, you’ll have grounds for appeal. I
don’t know. But at this point, I’m going to let this – I’m going to let you re-
call your witness for a very brief period of time for that one purpose.

Two days later, Mr. Payton’s counsel objected again to Mr. Dorr re-testifying. Mr.

Payton’s counsel stated:

MR. PAYTON’S COUNSEL: I’m objecting to this entire testimony with
[Mr.] Dorr being allowed to come back and testify. This is extremely
prejudicial. This – we took a break yesterday . . . . This, this rings loud and
clear. This is the crucial key piece of evidence. This is the only evidence
linking Mr. Payton and this is the last thing and . . . in isolation that the jury’s
[going to] hear, and this is extremely prejudicial. It’s unfair, and I’m asking
the Court not to allow the State to reopen its case and have [Mr.] Dorr re-
testify to this prejudicial piece of evidence at this point, the way it’s presented
right now in isolation.

The trial court, however, overruled the objection:

THE COURT: I think I have made clear that if this were a simple drug
possession case, I might, in fact, not be allowing this. But this is a murder
case. It’s an execution-style murder case. I think there is a strong public
interest in having definitive resolution of cases involving crimes as serious
as this one. And there – although there may very well be some prejudice,
I’m not sure, about doing this in isolation or not, but I understand the point
[Mr. Payton’s counsel is] making. I feel in this case though that the public
interest is sufficiently strong and the possible prejudice is sufficiently
speculative that I think it’s – I’m going to permit it. But – I’m going to permit
it.

The State recalled Mr. Dorr to the witness stand and sought to assuage the trial

judge’s confusion by connecting the fingerprint evidence to Respondent’s SID number.

Mr. Dorr testified that the unknown lift card was identified as the left palm of Mr. Payton,

SID number 2476078. He also testified that he took Mr. Payton’s fingerprints on August

9, 2016, and he ascertained that the SID number associated with Mr. Payton is 2476078.

6
Mr. Dorr went on to explain that matching prints are designated to have the same SID

number, but each print has a different transaction number. The State of Maryland’s AFIS

only knows Mr. Payton as having one SID number.

After Mr. Payton’s attorney cross-examined Mr. Dorr, the State again rested its case.

Mr. Payton moved for judgment of acquittal, which the trial judge denied. Without offering

any evidence, Mr. Payton rested his case. Then, Mr. Payton renewed his motion for

judgment of acquittal. The trial court denied the renewed motion. The case proceeded to

closing arguments, after which the trial judge sent the case to the jury for deliberations.

The jury convicted Mr. Payton.7

Mr. Payton appealed his conviction to the Court of Special Appeals. Payton v. State,

235 Md. App. 524, 178 A.3d 633 (2018). The intermediate appellate court held that, in

this case, the trial court abused its discretion when it reopened the State’s case. Id. at 537,

178 A.3d at 641. The court determined that Mr. Payton properly challenged the trial court’s

decision, so it was preserved for appellate review. Id. at 531 n. 4, 178 A.3d at 637 n. 4.

Reaching the merits of the trial court’s decision, the intermediate appellate court

explained that, rather than ruling on Mr. Payton’s motion for judgment of acquittal, “the

trial court elected to sua sponte reopen the case for further testimony, and advised the State

on how to avoid a judgment of acquittal.” Id. at 537, 178 A.3d at 641. The Court of Special

Appeals determined that the evidence was important. Id. Moreover, the evidence was

7
Specifically, the jury convicted Mr. Payton of first-degree murder, second-degree murder
and use of a firearm in the commission of a crime of violence. The first-degree and second-
degree murder charges were merged for sentencing.
7
highlighted for the jury by being the last thing the jury heard. Id. The Court of Special

Appeals held that “where the trial court was on the precipice of granting an acquittal, the

[trial] court abused its discretion by abandoning its position of impartiality and sua sponte

reopening the State’s case to correct a perceived defect.” Id. In closing, the intermediate

appellate court clarified that its opinion should not be construed “as a per se rule prohibiting

the trial court from sua sponte reopening the evidence in a jury trial. Such a decision . . .

should be made cautiously and with a vigilant eye to ensure that the court does not cross

the line of impartiality.” Id. at 538, 178 A.3d at 641. Ultimately, the Court of Special

Appeals vacated the trial court’s judgment and remanded the case for a new trial. Id. at

540, 178 A.3d at 642.

The State timely petitioned this Court for a writ of certiorari, which we granted.

State v. Payton, 459 Md. 170, 185 A.3d 63 (2018). Reframed for clarity, the issue

presented in this case is:

Did the trial court abuse its discretion when it reopened the State’s case to
hear additional testimony, before ruling on the Defendant’s motion for
judgment of acquittal?8

8
The issues presented, as stated by Petitioner, are:
1. Where Payton made specific objections to reopening the State’s case for more
fingerprint-expert testimony only on the grounds that the additional fingerprint
testimony would be the last thing that the jury would hear and that it would be
presented in isolation, were defense counsel’s claims that reopening would be
“unfair” and “extremely prejudicial,” or the trial court’s statement that the reopening
could “very well . . . be grounds for appeal” sufficient to preserve a judicial-
partiality claim?
2. Did the Court of Special Appeals err in concluding that the trial court abused its
discretion in reopening the State’s case sua sponte?
3. Where the reopening of the State’s case was based on the trial court’s incorrect
assumption that there had been no testimony linking Payton to the handprint, when
(continued . . .)
8
 DISCUSSION

Parties’ Arguments

First, Petitioner argues that the Court of Special Appeals erred in concluding that

Respondent’s claim of lack of judicial impartiality was preserved for appellate review.

Petitioner posits that the issue was not plainly raised before the trial court. Next, Petitioner

claims that, even if the issue were preserved for appeal, the trial court’s decision to allow

the State to reopen its case-in-chief fell within the trial court’s broad discretion. Lastly,

Petitioner contends that any evidence received on reopening was cumulative. As such,

Petitioner claims that any error was harmless beyond a reasonable doubt.

Respondent asserts that his claim of lack of judicial impartiality was preserved for

appeal because Respondent objected to the trial judge’s entire procedure of permitting the

State’s to reopen its case. Even if the issue were not preserved, Respondent argues that

this Court should exercise its discretion to review Respondent’s claim of lack of judicial

impartiality. Furthermore, Respondent maintains that trial courts do not have discretion to

act on their own initiative to allow reopening of the State’s case. If trial courts do have

such discretion, Respondent argues that the trial court, in this case, abused that discretion.

Finally, Respondent argues that when a trial judge departs from a position of neutrality,

such an error can never be considered harmless. Alternatively, Respondent contends that

(. . . continued)
in fact three State’s witnesses had already testified that the handprint had been
linked to Payton, was any error [] harmless beyond a reasonable doubt because the
testimony was cumulative of the testimony of three prior witnesses linking Payton
to the handprint?
459 Md. 170, 185 A.3d 63.
9
if this Court utilizes the harmless error framework, the error here cannot be harmless

because the trial court, at a minimum, unfairly permitted the State to reopen its case to

emphasize certain evidence.

Preservation

Before we reach the merits of the case, we first address the preservation issue.

Petitioner preemptively argues that Respondent’s claim of lack of judicial impartiality was

not preserved for appellate review. Relying on Diggs v. State, 409 Md. 260, 973 A.2d 796

(2009), Petitioner asserts that Respondent failed to lodge an objection on the grounds of

lack of judicial impartiality. Further, Petitioner contends that, because Respondent voiced

such specific objections to the State’s case being reopened, the objections did not alert the

trial judge that his impartiality was at issue. Respondent counters that he effectively

objected to the trial court’s procedure. Alternatively, if the matter were not preserved,

Respondent contends that this Court should exercise its discretion to review Respondent’s

claim of lack of judicial impartiality. The Court of Special Appeals concluded that

Respondent’s argument was preserved for appellate review. Payton, 235 Md. App. at 531

n. 4, 178 A.3d at 637 n.4. We agree.

Maryland Rule 8-131(a) governs preservation. It provides that, ordinarily, an

appellate court will not review an “issue unless it plainly appears by the record to have

been raised in or decided by the trial court, but the Court may decide such an issue if

necessary or desirable to guide the trial court or to avoid the expense and delay of another

appeal.” In the present case, the objection plainly appeared in the record.

10
 In Diggs, the defense attorneys, on behalf of their clients, claimed that the trial judge

was impartial, even though, “[i]n nearly every instance of alleged judicial misconduct,

neither [defense attorney] objected.” 409 Md. at 283-87, 973 A.2d at 809-12 (invoking the

“plain error” doctrine to reach the defendants’ claims of lack of judicial impartiality).

Before concluding, we advised that the onus is on defense counsel to object in order to

preserve an issue for review. Id. at 294, 973 A.2d at 816. Failure to object, we cautioned,

will only be countenanced when a trial judge “exhibits repeated and egregious behavior of

partiality, reflective of bias.” Id.

Here, unlike in Diggs, Respondent made objections to the trial court’s action.

Respondent objected when the trial judge initially instructed the State to reopen its case

and also two days later, just before Mr. Dorr testified for the second time. Respondent

pointed out that the trial judge’s decision was “unfair” and “extremely prejudicial.” Urging

the court to reconsider its decision, Respondent clearly asked the court “not to allow the

State to reopen its case and have [Mr.] Dorr re-testify.”

Perhaps most telling, the trial court recognized the ramifications of its decision.

Specifically, the trial judge invited Respondent to object and “d[idn’t] blame” Respondent

for challenging the reopening. The trial judge expressed his concern that he was “not crazy

about the notion,” and he was “very sympathetic” toward Respondent’s position. The trial

judge even acknowledged that Respondent “may very well . . . have grounds for appeal.”

Under these circumstances, the trial court had ample opportunity to correct any mistakes

in its ruling. See Bible v. State, 411 Md. 138, 149-52, 982 A.2d 348, 354-56 (2009)

(citations omitted) (explaining that the purpose of the preservation rule is to prevent parties

11
from “sandbagging” the trial judge, along with promoting fairness and judicial economy).

Thus, we reject Petitioner’s preservation argument and reach the merits of the trial judge’s

decision to reopen the State’s case.9

Reopening the State’s Case-in-Chief

Petitioner argues that the trial court’s decision to reopen the State’s case to recall

Mr. Dorr was appropriate. Petitioner contends that the presiding judge properly exercised

his discretion to allow the State to reopen its case pursuant to Booze v. State, 334 Md. 64,

637 A.2d 1214 (1994). Additionally, Petitioner claims that because the trial judge

misperceived a defect in the State’s case there can be no prejudice to Respondent.

Respondent contends that trial courts do not have the authority to sua sponte allow

reopening the State’s case. If trial courts do have such discretion, Respondent argues that

the trial court abused its discretion in this case because it assumed the role of prosecutor.

Also, Respondent contends that Booze v. State, when properly considered, does not support

the trial court’s decision to permit the State to reopen its case.

In the present case, Mr. Payton moved for judgment of acquittal. The trial judge

did not rule on Mr. Payton’s motion, even though he was convinced that the State had not

met its burden. Instead of ruling on the motion, the trial judge, on his own initiative,

allowed the State to reopen its case-in-chief so that Mr. Dorr could re-testify. Determining

the propriety of the trial judge’s action requires that we analyze the rules pertinent to this

juncture of a trial.

9
Given our conclusion that the claim of judicial impartiality was preserved, we need not
and do not decide whether the “plain error” doctrine applies in this case.
12
 Motion for Judgment of Acquittal

Under Maryland Rule 4-324, a criminal defendant may move for judgment of

acquittal at the close of the State’s case-in-chief. The defense may renew its motion for

judgment of acquittal at the conclusion of all the evidence in the case.

Upon consideration of the defendant’s motion, the trial court must assess the legal

sufficiency of the State’s evidence. State v. Taylor, 371 Md. 617, 651, 810 A.2d 964, 984

(2002) (citing Brooks v. State, 299 Md. 146, 150, 472 A.2d 981, 983 (1984)). Whether the

State’s evidence is legally sufficient does not amount to a determination of whether the

State has proven its case beyond a reasonable doubt. Id. Rather, the trial court must weigh

whether the State’s evidence is legally sufficient to sustain a conviction. Id.

If the trial court finds the evidence legally sufficient, it should deny the defendant’s

motion. Id. The trial court’s decision to deny the defendant’s motion is reviewable, but

appellate review is limited. Morgan v. State, 134 Md. App. 113, 126, 759 A.2d 306, 312-

13 (2000). The reviewing court “merely ascertains whether there is any relevant evidence,

properly before the jury, legally sufficient to sustain a conviction.” Id. (citation omitted).

On the other hand, if the trial judge does not find evidence that is legally sufficient to

sustain a conviction, the judge must grant the motion for judgment of acquittal. Taylor,

371 Md. at 651, 810 A.2d at 984. Granting the defendant’s motion has the same force and

effect as the fact finder rendering a verdict of not guilty. Id. at 651, 810 A.2d at 983; Pugh

v. State, 271 Md. 701, 705, 319 A.2d 542, 544 (1974) (quoting State v. Shields, 49 Md.

13
301, 303 (1878)); Brooks, 299 Md. at 150-51, 472 A.2d at 983-84. Succinctly, the granting

of a motion for judgment of acquittal, ordinarily, is not subject to an appeal.

Protecting the Defendant’s Right to a Fair Trial

Although there are general rules for the order in which evidence is presented to a

jury, the customary order of proof may yield to the circumstances of a trial. State v. Hepple,

279 Md. 265, 270-71, 368 A.2d 445, 449 (1977). For instance, the customary order in

which evidence is presented to the jury may differ when the State’s case-in-chief is

reopened after the State has rested. Id. at 271, 368 A.2d at 449.

It is well settled that when deciding whether to allow the State to reopen its case,

the trial court must ensure that reopening the State’s case does not “impair[] the ability of

the defendant to answer and otherwise receive a fair trial.” Booze, 334 Md. at 76, 637 A.2d

at 1220. We have identified several factors relevant to that inquiry. Id. at 74-77, 637 A.2d

at 1219-20. The factors pertain to the reason for the timing of the evidence, the nature of

the evidence, and the effect of belatedly admitting the evidence. Id. at 74-76, 637 A.2d at

1219-20. Additionally, we have cautioned that trial courts should be reluctant to exercise

their discretion to permit the State to reopen its case-in-chief and should only do so under

extraordinary circumstances. Id. at 70, 637 A.2d at 1217 (explaining that trial courts should

be reluctant to grant reopenings because it is desirable to conduct orderly trials and there

is danger that the trier of fact will unduly emphasize evidence offered upon reopening)

(citations omitted).

We do, however, afford deference to the trial court’s determination of whether the

circumstances warrant reopening the State’s case. A reviewing court will only disturb such

14
a decision if the trial court abused its discretion. See id. at 79, 637 A.2d at 1221 (holding

that the trial court abused its discretion in permitting the State to reopen its case to receive

testimony from a previously unavailable witness); Wisneski v. State, 169 Md. App. 527,

905 A.2d 385 (2006) (deciding that the trial court did not abuse its discretion in letting the

State reopen its case to introduce a stipulation into evidence); Cason v. State, 140 Md. App.

379, 780 A.2d 466 (2001) (determining that the suppression hearing judge did not abuse

his discretion in having the State reopen its case to receive tangible evidence that had been

referenced during trial). An appellate court’s review must, likewise, inquire into whether

the trial court’s decision has impaired the defendant’s right to a fair trial. Collins v. State,

373 Md. 130, 142, 816 A.2d 919, 925 (2003) (stating that a trial court’s decision to permit

the State to reopen its case “will not constitute an abuse of discretion so long as [it] does

not impair the ability of the defendant to answer and otherwise receive a fair trial.”)

(citation omitted) (internal quotation marks omitted).

Contrary to Respondent’s suggestion, this Court has never imposed a hard and fast

rule that trial courts lack authority to, sua sponte, allow the State’s case-in-chief to be

reopened. Indeed, this Court has recognized that trial courts have discretion to invoke their

authority to allow the State to reopen its case. Hepple, 279 Md. at 273, 368 A.2d at 450

(“The fact that the prosecution made no motion to reopen . . . is not dispositive, of course,

since the court could have invoked its discretionary power sua sponte.”). We adhere to

that same principle today.

As our jurisprudence makes clear, the trial court’s discretion is broad, though not

unlimited. Booze, 334 Md. at 68, 637 A.2d at 1216. The trial court’s discretion to allow

15
the State to reopen its case is limited by the defendant’s ability to answer and receive a fair

trial. Id. at 69, 637 A.2d at 1216. This determination is made with reference to the

evidence’s nature and probable effect, and the reason for its delay. Id. at 76, 637 A.2d at

1220. This standard, however, is not the only safeguard this Court has afforded a criminal

defendant to ensure a fair trial.

Criminal defendants have the right to a fair, yet not a perfect, trial. Crawford v.

State, 285 Md. 431, 451, 404 A.2d 244, 254 (1979). “It is well settled in Maryland that

fundamental to a defendant’s right to a fair trial is an impartial and disinterested judge.”

Jefferson-El v. State, 330 Md. 99, 105, 622 A.2d 737, 740 (1993). The right to an impartial

and disinterested judge includes the right to a judge with the appearance of being impartial

and disinterested. Jackson v. State, 364 Md. 192, 207, 772 A.2d 273, 281 (2001). Thus,

when deciding whether to reopen the State’s case-in-chief to receive additional evidence,

another safeguard of the defendant’s right to answer and receive a fair trial is an impartial

and disinterested judge.

We have had occasion to address the trial judge’s duty to exhibit impartiality. For

example, in Abdul-Maleek v. State, we considered whether a trial court impermissibly

based a defendant’s sentence on the fact that he exercised his right to a trial de novo. 426

Md. 59, 43 A.3d 383 (2012). We acknowledged that the trial court relied on several

permissible factors in rendering its sentence. Id. at 73, 43 A.3d at 391. The trial court also

mentioned the defendant’s exercise of his right to an appeal de novo. Id. A majority of

this Court determined that, under the circumstances, the trial court did not actually consider

the defendant’s exercise of the right to appeal to then impose a more severe sentence. Id.

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Yet, the majority was “constrained nonetheless to remand this case for resentencing

because the court’s explicit reference to Petitioner’s exercise of his [right to a] de novo

appeal could ‘lead a reasonable person to infer that [the court] might have been motivated’

by an impermissible consideration.” Id. at 74, 43 A.3d at 391 (citing Jackson, 364 Md. at

207, 772 A.2d at 281). We explained, “[i]n this circumstance, we are bound to resolve any

doubt in [Mr. Abdul-Maleek’s] favor.” Id.

To reach this conclusion, the Court looked to Jackson. In Jackson, this Court

determined that a sentencing judge’s comments gave the impression that he imposed a

sentence based, at least in part, on consideration of the defendant’s place of residence. 364

Md. at 201, 772 A.2d at 278. Recognizing residence as an improper consideration, this

Court held that a reasonable person could question the sentencing judge’s impartiality. Id.

at 207, 772 A.2d 281-82.

In Diggs v. State, the Court considered whether two defendants were entitled to new

trials when the presiding judge acted as a co-prosecutor. 409 Md. at 262-63, 973 A.2d at

797. There, the trial judge questioned witnesses and commented on the trial. Id. at 263-

83, 973 A.2d at 798-809. In doing so, the trial judge implied a disbelief in the defense,

elicited key evidence for the State’s case, and, ultimately, bolstered the State’s evidence.

Id. at 293, 973 A.2d at 815. We acknowledged that a trial judge has discretion to question

witnesses, but, in exercising that discretion, the trial judge must maintain neutrality. Id. at

292-93, 973 A.2d at 814-15. Thus, this Court concluded that the trial judge “crossed the

line of propriety,” thereby depriving the defendants of fair trials. Id. at 293, 973 A.2d at

815.

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 In Archer v. State, this Court analyzed the extent to which a trial judge may compel

a recalcitrant witness to testify at trial. 383 Md. 329, 335, 859 A.2d 210, 214 (2004).

There, the trial court called a colleague to initiate contempt proceedings against a

compellable witness. Id. at 336, 859 A.2d at 214. The presiding judge threatened the

witness with life imprisonment and instructed the witness on how he could testify to avoid

contempt proceedings. Id. at 349-51, 859 A.2d 223-24. This Court acknowledged that

trial judges may warn witnesses of the consequences of contempt proceedings. Id. at 350,

859 A.2d at 223. In this instance, however, the trial judge’s actions were not judicious or

neutral; they were excessive. Id. at 336, 859 A.2d at 214. We determined that the trial

judge influenced the witness’s decision to testify and may have caused the witness to

change his testimony. Id. at 360, 859 A.2d at 228-29. Accordingly, this Court concluded

that the trial judge strayed from his impartial role and impeded the defendant’s right to a

fair trial. Id. at 360, 859 A.2d at 229.

Turning to the matter sub judice, we are asked to evaluate the trial judge’s

impartiality when he or she exercises discretion to allow the State to reopen its case-in-

chief after the defense has moved for judgment of acquittal. Although the aforementioned

cases are factually distinguishable from the present case, the underlying principle is

instructive. Trial judges have an abundance of discretion. Yet, the manner in which a trial

judge exercises that discretion must be impartial. To determine whether a judge has

abdicated his or her neutrality, in contravention to a criminal defendant’s right to a fair

trial, we review whether a reasonable person could question the judge’s impartiality.

Archer, 383 Md. at 356-57, 859 A.2d at 227. If a reasonable person could question the

18
trial judge’s impartiality, “then the defendant has been deprived of due process and the

judge has abused his or her discretion.” Id. at 357, 859 A.2d at 227.

We recognize at the outset that, here, the trial judge endeavored to provide Mr.

Payton and the State a fair trial. Before allowing the reopening of the State’s case-in-chief,

the judge considered the prejudice to both parties, noting that this case involves “a murder

and I think Mr. Payton is – deserves a fair trial and I’ve tried to do it and the State deserves

a fair trial and I’m trying to do that. So I’m trying to balance these competing needs.” The

irony is that until this point, neither party had reason to complain about the trial’s fairness.

Only by acting outside the scope of his discretion did the trial judge create the problem

raised in this appeal.

Nonetheless, we cannot escape the fact that the trial judge gave consideration to the

nature of the charges brought against Mr. Payton in assessing whether to allow the

reopening of the State’s case. After instructing the State that it could reopen its case, the

trial judge stated that “if this were a lesser crime than a murder, I might not be so generous.”

Two days later, just before Mr. Dorr re-testified, the trial judge reiterated his justification:

I think I have made clear that if this were a simple drug possession case, I
might, in fact, not be allowing this. But this is a murder case. It’s an
execution-style murder case. I think there is a strong public interest in having
definitive resolution of cases involving crimes as serious as this one.

The trial judge’s comments indicate that he impermissibly based his decision on the

severity of the crimes charged. Neither ruling on a motion for judgment of acquittal nor

deciding whether to reopen the State’s case requires weighing the nature of the crimes

charged. Whether a defendant is charged with murder or “simple drug possession,” it is

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his or her right to have a trial conducted by a judge whose inquiries are dispassionate and

neutral. An impartial judge must extract a “definitive resolution” from a cold review of

the evidence, not define a proper resolution based on the charges brought. Thus, a

reasonable person would be justified in questioning the judge’s impartiality in this case.

In deciding whether to allow the State to reopen its case, the trial judge exceeded

the bounds of judicial impartiality and essentially acted as a prosecutor. After the defense

moved for judgment of acquittal, without articulating a particular basis for the motion, the

trial judge interjected his doubt as to the sufficiency of the State’s evidence. He questioned

the State on the crux of its case – how the fingerprint evidence connected Mr. Payton to

the scene of the crime. The State rendered an explanation and replayed portions of Mr.

Dorr’s testimony for the court. The trial judge continued to express doubt about the State’s

proof stating, “if I am confused. . . are [the members of the jury] confused? I mean, right

now I have to get past this for my own satisfaction to rule in your favor. . . but I’m just

totally at sea as to what you have proven in this case.”

At this point, the trial judge could have ruled on the motion or sought additional

assistance from the parties to understand the evidence. Instead, the trial judge essentially

gave the State an ultimatum: recall Mr. Dorr and elicit additional testimony or suffer the

consequences of the court ruling on the motion. The trial judge posited, “do I simply grant

the motion to dismiss which I could easily do based on what I have heard of this

testimony[;]” or “if you want to call [Mr. Dorr] back . . . I am going to permit that.”

Furthermore, the trial judge advised the State on how it could fill the gap that the trial judge

perceived in the case before him. The trial judge stated that the prosecutor “simply didn’t

20
ask the punch line question which to me was, is this the print of [Mr. Payton].” In addition,

the trial judge specified that the State could recall Mr. Dorr to ask, “in your judgment, to a

reasonable degree of certainty, is the print that was taken off of that car Mr. Brandon

Payton’s print.”

Clearly, it was the trial judge’s duty to try to understand the evidence that the State

had presented and rule on the motion for judgment of acquittal. He had the benefit of Mr.

Dorr’s initial testimony, portions of which were replayed outside the presence of the jury.

In addition, the trial judge had the benefit of the prosecutor’s explanation of what the

prosecutor believed had been proven. Despite the State’s efforts to persuade the judge it

had proven its case, the judge was still not convinced.

Nothing happened prior to the State resting its case that prevented the trial judge

from taking a recess to review again the evidence in the case and then rule on the motion

for judgment of acquittal. Once the State rested, and Respondent moved for judgment of

acquittal, the trial judge’s responsibility was to rule on the motion. Instead, the court sought

further clarification of the evidence before it by permitting the State to recall Mr. Dorr. In

doing so, the trial judge provided the State with an unfair opportunity to clarify a gap that

the judge perceived in the evidence. Under the circumstances, it was fundamentally unfair

to Respondent for the court to permit the State to recall a witness in order to persuade the

trial judge and eventually the jury that the evidence in the case was legally sufficient to

sustain a conviction. For us to condone such a procedure would result in two grave

consequences: 1) there would be no finality when a prosecutor closes his or her case and

21
2) a trial judge would be able to take over the prosecution of a criminal case without

violating the defendant’s right to a fair and impartial trial.

At worst, the trial judge exhibited bias against Mr. Payton and that was the very

reason the State overcame the motion for judgment of acquittal and secured a guilty verdict.

At best, the trial judge gave the appearance of helping the State meet its burden of proof

and emphasized or highlighted an important aspect of its evidence. In either instance, the

trial judge relinquished his role as an impartial and disinterested arbiter when he decided

to permit the State to reopen its case instead of ruling on Respondent’s motion for judgment

of acquittal. See Brooks v. State, 299 Md. at 151, 472 A.2d at 984 (“If the trial judge finds

that there is no relevant evidence which is legally sufficient to sustain a conviction, he [or

she] must grant the motion for judgment of acquittal.”).

Petitioner correctly notes that in Diggs the judge’s improper comments occurred in

front of the jury. See generally Diggs, 409 Md. 260, 973 A.2d 796. A jury’s presence,

however, is not dispositive to our analysis of a trial judge’s apparent impartiality. See, e.g.,

Archer, 383 Md. 329, 859 A.2d 210 (holding that the trial judge failed to maintain

impartiality during a sentencing hearing); and Jackson, 364 Md. 192, 772 A.2d 273 (2001)

(determining the trial judge failed to maintain impartiality in a sentencing hearing). To

hold otherwise would suggest that the defendant’s right to a fair trial, and thus an impartial

judge, diminishes when the jury leaves the courtroom. To the contrary, this right exists at

all stages of a trial. We hold, therefore, that under these circumstances, a reasonable person

would be justified in questioning the trial judge’s impartiality when he permitted the State

22
to reopen its case to present additional testimony from Mr. Dorr. As such, the trial judge

abused his discretion, and Respondent was deprived of his right to a fair trial.

Separate from the trial judge’s duty of impartiality, Petitioner and Respondent agree

that our decision in Booze is instructive on whether the trial judge properly exercised his

discretion to reopen the State’s case. In Booze, the trial judge suggested that the State

reopen its case-in-chief. Id. 334 Md. 64, 66, 637 A.2d 1214, 1215 (1994). The State sought

to elicit testimony from an eyewitness, whose testimony should have been elicited during

its case-in-chief. Id. at 72-73, 637 A.2d at 1218. The trial court granted the State’s request.

Id. at 73, 637 A.2d at 1219. We reviewed whether the trial court’s decision constituted an

appropriate exercise of discretion. Id. at 66, 637 A.2d at 1215.

We identified a list of factors relevant to determining whether the trial court’s

decision to allow the State to reopen its case constituted an abuse of discretion. Booze, 334

Md. at 76, 637 A.2d at 1220 (citing State v. Hepple, 279 Md. at 271, 368 A.2d at 449). The

factors serve to weigh any prejudice to the defendant that may come from varying the

standard order for the presentation of evidence. Id. at 76-77, 637 A.2d at 1220. These

factors include “the State’s intention in withholding the evidence, i.e., whether it did so in

order to gain an unfair advantage from the impact later use of the evidence likely would

have on the trier of facts, the nature of the evidence, and its relationship to evidence already

in the case.” Id. at 76, 637 A.2d at 1220. In addition, we consider the effect of the

evidence’s late admission, and the probability that the trier of fact will give it undue

emphasis. Id. at 69, 637 A.2d at 1217. These factors focus our review on “[t]he critical

23
issue [which] is whether the reopening of the State’s case impaired the ability of the

defendant to answer and otherwise receive a fair trial.” Id. at 76, 637 A.2d at 1220.

In applying these factors, in Booze, we determined that the State made an intentional

decision to withhold the eyewitness’s testimony. Id. at 75, 637 A.2d at 1219-20.

Accordingly, the Court concluded that the State’s decision to withhold testimony did not

constitute good cause for reopening the State’s case. Id. at 77, 637 A.2d at 1220. In

addition, the evidence admitted was not rebuttal evidence; instead it was cumulative to and

corroborative of evidence that the State had produced in its case-in-chief. Id. at 76, 637

A.2d at 1220. The testimony closed a gap in the State’s case but came after the defense

put on its case in response to the State’s evidence. Id. at 75-76, 637 A.2d at 1219-20. The

potential cure in the State’s case by way of the eyewitness’s testimony was likely given

undue emphasis by the jury to the detriment of the defendants. Id. at 78-79, 637 A.2d at

1221. We recognized that even though the eyewitness testified on the same day that the

State rested its case-in-chief, the State was given an unfair opportunity to piecemeal its

case, which, under those circumstances, was “prejudicial as a matter of law.” Id. at 80-81,

A.2d at 1222 (noting that the defendants had defended based on the facts which the State

used to prove its case, “but knew, at the time, were not complete,” and reopening allowed

the State thereafter to offer clarifying evidence). Likewise, even though the trial judge

provided an opportunity for the defense to cross-examine the eyewitness,

the court must also consider whether the prejudicial impact of the admission
of the challenged testimony . . . undermine[d] the defendant’s right to a fair
trial; the fact that the trial court affords a defendant a procedure . . . is of little
comfort when the very effect of allowing the evidence is to render the trial
unfair.

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Id. at 81, 637 A.2d at 1222-23. We held, therefore, that because of the unfair prejudice to

the defendants’ right to a fair trial, the trial court abused its discretion when it allowed the

State to reopen its case. Id. at 66-67, 637 A.2d at 1215.

Booze unmistakably reminds us that, when reviewing a trial court’s exercise of

discretion to reopen the State’s case, we must examine the effect the act of reopening had

on the entire trial and whether the defendant’s right to a fair trial was compromised as a

result. Although the factors stated in Booze are not exhaustive, they help in weighing the

impact that reopening will have on the defendant’s right to receive a fair trial. Ultimately,

in this case, we must determine whether reopening the State’s case was unfairly prejudicial

to Respondent.

Applying Booze’s teachings to the facts of this case, the trial court’s decision to

reopen the State’s case was unfairly prejudicial. Here, the trial judge had before him

Respondent’s motion for judgment of acquittal. In accordance with this Court’s

jurisprudence, the trial judge should have evaluated the legal sufficiency of the State’s

evidence and then ruled on the motion. See Brooks v. State, 299 Md. 146, 151, 472 A.2d

981, 984 (1984) (“If the trial judge finds that there is no relevant evidence which is legally

sufficient to sustain a conviction, he [or she] must grant the motion for judgment of

acquittal.”). Instead, the judge neither granted nor denied the motion; he signaled the

reopening of the State’s case and allowed the prosecutor to recall Mr. Dorr. Although the

trial judge acknowledged that reopening “may very well [cause] some prejudice,” he

25
determined that “the public interest [was] sufficiently strong and the possible prejudice

[was] sufficiently speculative.”

Given that we cannot know how the jury would have understood Mr. Dorr’s initial

testimony or weighed his credibility, we also cannot know precisely how recalling Mr.

Dorr impacted the jury. What is abundantly clear, however, and of particular concern, is

that the trial judge’s decision gave the State an unfair second chance to present the crux of

its case to Respondent’s disadvantage. The State purported to use Mr. Dorr’s testimony to

connect Mr. Payton to the crime scene and eventually to the crimes alleged. At the close

of the State’s evidence, however, the trial judge was unpersuaded that the State had

connected Mr. Payton to the crimes alleged. The judge was on the brink of acquitting Mr.

Payton. By reopening the State’s case to recall Mr. Dorr, instead of ruling on Respondent’s

motion, the trial judge permitted the State to present the crux of its case to the jury for a

second time. The prejudicial impact of this doubling down on one piece of evidence is

exacerbated by the fact that Mr. Dorr’s testimony on reopening was elicited two days after

the State rested and in isolation to other evidence in the case. Mr. Dorr was the only witness

to testify twice, and his testimony was the last evidence the jury heard before convening.

Thus, the trial judge’s decision to reopen the State’s case critically affected Respondent’s

right to receive a fair trial.

Petitioner contends that Mr. Payton could not be prejudiced by the trial court’s

decision to permit the State to reopen its case because the trial court misperceived a defect

in the prosecutor’s case. According to Petitioner, this Court must consider whether the

perceived defect constituted an actual defect in the evidence, and the Court of Special

26
Appeals erred in failing to do so. Finally, Petitioner contends that any error under a Booze

analysis should be subject to harmless error.

We know of no instances when the appellate courts undertake a review of whether

“the trial court could have reasonably granted [a] motion for judgment of acquittal,” as

Petitioner urges us to do. Moreover, if the trial court had granted Mr. Payton’s motion, its

decision to acquit Mr. Payton would have been subject to double jeopardy – regardless of

whether the perceived defect was an actual defect. See Pugh v. State, 271 Md. 701, 705,

319 A.2d 542, 544 (1974) (“It has always been a settled rule of the common law that after

an acquittal of a party upon a regular trial on an indictment for either a felony or a

misdemeanor, the verdict of acquittal can never afterward, on the application of the

prosecutor . . . be set aside . . . .” (quoting State v. Shields, 49 Md. 301, 303 (1878)));

Brooks, 299 Md. at 150-51, 472 A.2d at 983-84 (explaining that a trial judge granting a

motion for judgment of acquittal has the same force and effect as the finder of fact

rendering a verdict of not guilty).

With respect to Petitioner’s contention that the trial judge’s error was harmless

beyond a reasonable doubt, we reiterate that the trial judge allowed the State to reopen its

case in order to avoid ruling on Mr. Payton’s motion for judgment of acquittal. Under

these circumstances, the trial judge’s decision impaired Mr. Payton’s right to a fair trial to

such an extent that, as a matter of law, the error was unduly prejudicial. Had the trial judge

denied Mr. Payton’s motion and sent the case to the jury, the jury may have concluded that

the State failed to connect Mr. Payton to the crime with the handprint evidence, just as the

trial judge initially concluded before settling on the reopening of the State’s case. Thus,

27
the jury may have returned a not guilty verdict. It is also reasonable to conclude that

recalling Mr. Dorr bolstered his prior testimony. At a minimum, we know Mr. Dorr’s

testimony on reopening reemphasized the State’s evidence. Where we have determined,

as a matter of law, that an error committed by the trial judge is prejudicial, it is unnecessary

to invoke a harmless error analysis. See, e.g., Diggs, 409 Md. at 294-95, 973 A.2d at 816

(concluding that the trial judge’s “egregious and repeated behavior reflecting partiality and

bias… denied [the defendants] the right to fair and impartial trials, to which a harmless

error review is unavailing.”); Booze, 334 Md. at 81, 637 A.2d at 1222 (concluding that

reopening the State’s case to present clarifying evidence was “prejudicial as a matter of

law”). Moreover, where a trial judge abdicates his or her responsibilities, thereby causing

prejudice to the trial, the abandonment of judicial impartiality undermines the public’s trust

and confidence in our courts. It casts doubt upon whether, in a particular case, justice has

been done. We, therefore, conclude that the trial judge’s errors in this case were prejudicial

as a matter of law. Accordingly, we affirm the judgment of the Court of Special Appeals.

CONCLUSION

In conclusion, although trial judges have discretion to allow the State to reopen its

case-in-chief, we hold that, in this case, the trial judge abused that discretion. When he

allowed the State to reopen its case, the trial judge impermissibly weighed the nature of the

charges the State brought against Respondent. In addition, the trial judge exceeded the

bounds of judicial impartiality when he, in effect, assumed the role of prosecutor in

directing the State to fix a perceived defect in its case. Finally, the trial judge acted in

contravention to our caselaw pertaining to reopening the State’s case-in-chief when he

28
permitted the State to reopen its case to avoid granting Respondent an acquittal. As a result,

Respondent’s right to a fair trial was compromised, and he is entitled to a new trial.

JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS IN THIS COURT TO BE PAID
BY PETITIONER.

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