concurring and dissenting.
I concur with the Court’s holding that Maryland Rule 5-410 was not violated in the instant case, but I dissent from the reversal of Elmer’s conviction for three reasons. First, the majority reaches out to reverse on an issue not properly before the Court and not decided by the Court of Special Appeals in its review of the instant conviction. The intermediate appellate court refused to decide the issue upon which this Court reverses because that issue was not raised on appeal, and Elmer’s petition for certiorari does not challenge the intermediate appellate court’s decision that the issue was not properly preserved for appeal. Second, the Court reverses a conviction, not because there was any improperly admitted testimony, but solely because of questions asked by the prosecutor. Third, when the witness denied making any prior inconsistent statement, the witness’s denial of the statement apparently satisfied trial counsel, and there was no request for a curative instruction and no request for a mistrial. If counsel believed that mere questions alone constituted incurable prejudicial error, then it ought to be incumbent on counsel to request a mistrial, not to wait to see if the verdict is unfavorable.
THE ISSUE BEFORE THIS COURT
We must keep in mind that co-defendant Brown’s conviction was reversed because Brown was cross-examined about statements his attorney made to the State’s Attorney during plea bargaining discussions in violation of Md. Rule 5-410. The Court of Special Appeals held, and this Court agrees, that Petitioner Elmer is not entitled to have his conviction reversed on this ground. Elmer’s case must be viewed separately from Brown’s case. Brown was, in effect, testifying as a defense *19witness for Elmer because his testimony inculpated himself and exculpated Elmer. Even though the physical evidence and the witness testimony was consistent with the passenger, Elmer, being the person who fired the shotgun, Brown took the stand and testified that it was he, and not Elmer, who fired the gun. That testimony exculpating Elmer was what triggered the cross-examination at issue. The majority decides that a witness, not called by the State, who testifies that he, not the defendant, fired the shots, cannot be cross-examined by the State as to whether he made any prior inconsistent statements, even though the prosecutor was told by the witness’s attorney that the witness would testify that the defendant fired the shots.
The only evidentiary issue presented to and decided by the Court of Special Appeals in the instant case was whether Elmer could object because the prosecutor’s questioning of Brown violated the Maryland rule prohibiting evidence of statements made during plea discussions. Md. Rule 5-410(a)(4).1 The majority recognizes that the Court of Special Appeals held, “Elmer based his entire appeal on a violation of Maryland Rule 5-410.” 353 Md. 1, 9, 724 A.2d 625, 628 (1999). The intermediate appellate court had concerns about the prosecutor’s questions but did not reach that issue, saying:
“In spite of all our concerns regarding the propriety of the prosecutor’s conduct, the appellant has based his appeal entirely upon Rule 5-kl0(a)(h) and its policies, and Brown’s case must be addressed separately. We find no *20error with regard to appellant arising out of Rule 5-410(a)(4) or its policies.” (Emphasis added)
Elmer v. State, 119 Md.App. 205, 219, 704 A.2d 511, 517 (1998). The evidentiary issue in the petition of writ of certiorari also seemed to address only the issue of whether the State’s Attorney’s cross-examination of Brown violated Md. Rule 5-410. The issue in Elmer’s petition for certiorari was framed as follows:
“Whether the Court of Special Appeals erred in affirming the judgments despite the error of the trial court in permitting the prosecutor to cross-examine the co-defendant Robert Brown with statements made by his counsel during plea negotiations, statements inadmissible against him under Maryland Rule lt,10(a)(k) and which directly incriminated Mr. Elmer.” (Emphasis added).
This Court, as did the Court of Special Appeals, holds that the State’s cross-examination of Brown concerning statements made during his plea bargaining was not inadmissible under Md. Rule 5-410(a)(4) because: “The purpose of [Md. Rule 5-410] would not be furthered by extending its application to include defendants who were not a party to the plea negotiations.” 353 Md. at 11, 724 A.2d at 630; Elmer, 119 Md.App. at 219, 704 A.2d at 517. Thus, on the only evidentiary issue decided by the Court of Special Appeals, this Court agrees with the intermediate appellate court that there was no violation of Md. Rule 5-410 because the rule’s prohibition does not apply to a co-defendant who was not involved in the plea negotiations. Since this Court concurs with the intermediate appellate court on the only evidentiary issue before either appellate court, we should not reach, let alone reverse on, the issue of whether a new trial is necessary because questions asked by the prosecutor, not answers given by the witness, constituted prejudicial error, even if Md. Rule 5-410 was not violated.
WERE THE PROSECUTOR’S QUESTIONS IMPROPER?
Robert Brown was a co-defendant on trial with David Elmer. He testified as a defense witness. Unquestionably *21the prosecutor has a right to cross-examine any defense witness about a prior inconsistent statement when the prosecutor has a good faith belief the prior inconsistent statement was made by the witness. See Md. Rule 5-613(a). Why then was the mere question about a prior inconsistent statement so improper that, even though the witness denies making the statement, the mere asking of the question requires a new trial? Brown’s counsel acknowledged that he came to the prosecutor and told the prosecutor that his client was willing to plead guilty to reckless endangerment and that he “expect[ed] my client to testify [that Elmer was the shooter].” The trial judge also apparently accepted the prosecutor’s representation that defense counsel said that Brown “wanted to testify in my prosecution” of Elmer and “his client would testify just exactly the same as I am asking right now.” The State’s Attorney and the trial judge could conclude that Brown’s attorney was authorized to make those representations about how Brown would testify, and because they were intended by Brown to be conveyed to a third party, i.e., the prosecutor, they were no longer privileged. It is well recognized that information a client gives to an attorney to be conveyed to a third person is not privileged. See John W. Strong, McCormick on Evidence § 91, at 333 (4th ed. 1992) (“Wherever the matters communicated to the attorney are intended by the client to be made public or revealed to third persons, obviously the element of confidentiality is wanting.”). The trial judge could quite properly conclude the prosecutor had a good faith belief that Brown’s counsel was repeating what he was told by his client and that defense counsel was not offering perjury or merely guessing when he informed the prosecutor that Brown would testify Elmer was the shooter.
It is noteworthy that, in all of the questions where the judge overruled Elmer’s objections, the prosecutor’s questions were not based on prior inconsistent statements made directly to the prosecutor, but simply were “did you ever make the statement____” When Brown denied making the inconsistent statements, the only evidence before the jury was Brown’s denial, and up to that point there was no suggestion by the *22prosecutor that any of the inconsistent statements were made or even relayed to him. It was not a matter of the prosecutor’s credibility being weighed against the defendant’s credibility; Brown was simply asked whether he made any inconsistent statements to anyone and he denied having done so.
The questions that the Court seems to find most offensive were asked after Brown denied making any inconsistent statement. Faced with Brown’s denial of ever telling anyone that Elmer was the shooter and reasonably believing Brown sent a messenger, his attorney, to the prosecutor with the message that, in fact, Brown would testify that Elmer was the shooter, the following occurred:
“THE STATE: Mr. Brown, didn’t you say that you would testify to just that in the prosecution of Mr. Elmer?
BROWN: No, I did not. That was never said, no. I never said I was going to testify. I am saying that now here. I am right now sitting here finally—finally after a year and six months in jail, free of all this terror and nervousness and pain and everything that me and my family has had to suffer. I’m here now finally getting to tell the truth, and what really happened in this case.
THE STATE: Did you ever communicate to me that you were going to testify, or you’d be willing to testify in the prosecution of Mr. Elmer?
[COUNSEL FOR ELMER]: Objection.
[COUNSEL FOR BROWN]: Objection.
THE COURT: Sustained. It’s already been asked and answered.”
The first and most important question of this colloquy was not even objected to, perhaps because Brown’s defense counsel knew it was accurate and based on his conversations with the State. The follow-up question was objected to, and the objection was sustained because the question was repetitious of the previous question that was asked and answered without objection. These were the only questions that in any way indicated statements were made to the prosecutor and that implicated the prosecutor’s credibility. One was not objected to, and the *23follow-up repetitious question was objected to and the objection was sustained.
In addition, these questions were based on the fact that Brown’s attorney acknowledged to the trial judge that, acting as Brown’s agent, he told the State’s Attorney that Brown would testify that Elmer was the shooter. It really is difficult to understand what the prosecutor did that justifies reversing Elmer’s conviction based solely on these cross-examination questions, even if the issue was properly before this Court. The State’s Attorney simply used a leading question to cross-examine a defense witness about a prior inconsistent statement he had reason to believe the witness made to an agent to be conveyed to the State’s Attorney. Maryland Rule 5—611(c) permits leading questions and Md. Rule 5-613(a) permits examining a witness about a prior inconsistent statement. Both appellate courts held the question does not violate Md. Rule 5-410 prohibiting questions about statements made during plea discussions. There is no suggestion, let alone any valid claim, that the questions violated the attorney-client privilege because the questions related to Brown’s proposed testimony, which Brown apparently intended to be communicated to the State’s Attorney via his attorney.
How does the majority justify reversing this conviction? At one point the majority tells us: “As to Elmer, the statement which the prosecutor attempted to elicit from Brown constituted inadmissible hearsay.” 353 Md. at 11-12, 724 A.2d at 630. If the majority is really suggesting that impeaching an adverse witness with the witness’s own prior inconsistent statements constitutes inadmissible hearsay, this radical departure from Md. Rule 5-613, which covers prior statements by a witness, should be more fully explained. Another reason given by the majority for its reversal apparently involves an appellate fact finding that is simply not justified by the record. The majority says:
“[T'jhe prosecutor’s questions suggested the existence of facts which he could not prove, and indeed, after the bench conference, he knew he could not prove. Following the bench conference where defense counsel articulated the *24source of the information, the prosecutor lacked a good faith belief in the factual predicate implied in the question.”
353 Md. at 14-15, 724 A.2d at 631 (1999). The trial judge had a hearing at the bench and obviously concluded that the prosecutor had a good faith belief that Brown told his attorney Elmer was the shooter and/or he would testify Elmer was the shooter. There was a dispute about what the defense attorney said, and the trial judge was entitled to accept the State’s version, but even accepting only the defense version, the judge could still find a good faith basis for the prosecutor’s questions. Defense counsel said to the judge, “I told him what my client would testify to. I never told him my client said that.” That clarification at the bench after the colloquy began does not negate the prosecutor’s good faith belief that defense counsel’s representation about what his client would say under oath was based on what his client told him, even if defense counsel did not expressly so state. If an attorney represents to another member of the bar “this is what my client would testify to,” then it could be reasonably assumed that this was not merely a wild guess, but that the attorney was authorized by the client to so state or, at least, that the client led the attorney to believe that would be the client’s testimony. It is reasonable to assume that attorneys, unless they have express authorization or a sound basis for doing so, would not make representations about how their clients would testify. Because Brown’s attorney expressly stated to the State’s Attorney, “this is what my client will testify to,” the State’s Attorney is entitled to assume that is what the client said and need not assume that the attorney was just making this up or offering to have his client testify any way the State wanted him to.
Let us look at another example of the same issue. A witness’s attorney comes to a plaintiff in a civil case and says “my client, John, wants to testify in your case and will testify the defendant’s light was red.” Months later when the case comes to trial, John is called by the defendant and testifies the defendant’s light was green. A trial judge ought to be able to conclude that there is a good faith basis for the plaintiff to *25cross-examine John about whether he ever told anyone that the light was red, or told his lawyer that he would testify that the light was red. Posing those questions in cross-examination based on what the plaintiff was told by the witness’s attorney should not be deemed to be bad faith and reversible error. These are analogous to the cross-examination questions asked by the State’s Attorney in the instant case.
The few cases cited by the majority for their language about a prosecutor’s duty are really not relevant. I agree there should be a reversal when the prosecutor acting in bad faith attempts to get inferences not based on evidence before the jury in the question, or where the fact assumed to be true in the prosecutor’s question was inadmissible and prejudicial, or perhaps even where the fact improperly assumed to be true in the question was not denied by the witness and thus might be assumed to be true by the jury. None of the cases cited by the majority reversed a conviction where the question was based on a good faith belief that the fact asserted as part of the question was true and where the question sought to elicit an admissible prior inconsistent statement.
FAILURE TO REQUEST A MISTRIAL
A final troubling aspect of the majority’s decision is that the Court finds that the prosecutor’s questions were so prejudicial as to require a new trial, but the defense attorney did not think the questions were prejudicial enough to ask for a mistrial. There was no inadmissible evidence in the instant case; at most there were improper questions. When the questions were asked defense counsel merely objected but he did not request a mistrial. After the questions objected to were answered and Brown denied ever making any statement inconsistent with his trial testimony that he, not Elmer, was the shooter, counsel seemed quite willing to let the trial continue. When the final, and perhaps most damaging, question was asked about whether Brown communicated a prior inconsistent statement to the prosecutor, there was not even an objection until the question was again asked, and then defense counsel’s objection was sustained and again, although *26there was a colloquy at the bench, there was no motion for mistrial or curative instruction. Does the majority really believe the benefits to Elmer from Brown’s testimony that he, not Elmer, was the shooter were nullified by the questions concerning Brown’s prior inconsistent statement, especially when he denied making the statements? The reason why Elmer’s attorney did not make any motion for a mistrial seems obvious; defense counsel did not believe the cross-examination questions, especially when the inconsistent statements were denied, were so prejudicial that the trial should be aborted. Had Elmer’s counsel requested and received a mistrial, there was a good chance that at any subsequent trial co-defendant Brown might not be available or willing to assume culpability for the shooting and exonerate Elmer. A new trial, possibly without co-defendant Brown’s exculpatory testimony, would not be as advantageous as the present trial with Brown’s exculpatory testimony, regardless of any inference that Brown may have made a prior inconsistent statement to the prosecutor. A mistrial may not have been requested by Elmer’s attorney because it would not have been advantageous to his client at that time.
When an improper question is asked and there is an objection, the attorney is saying the question should not be answered, and if the judge sustains the objection, there is no reversible error unless the attorney asks for and is denied a mistrial. When the question is not answered or the answer the witness gives is favorable to the objecting party, that ought to be treated the same as the judge sustaining the objection. An objection is, in effect, a statement that the question as phrased should not be answered. It is not a statement that the question is so prejudicial that the trial must immediately be aborted even if the objection is sustained, the witness does not give any response or any damaging response. If a question is objected to and either the question is not answered or the answer is favorable to the objecting party, then the question objected to should be considered moot, and if the attorney makes no further request, then there should be no reversible error. When an *27attorney believes the opponent’s question is so prejudicial that nothing will cure the prejudice regardless of whether the objection is sustained, the question is not answered, or the answer is favorable, then it should be incumbent on the attorney not to merely object, but to request a mistrial. If there is a mere objection to a question and not a motion for mistrial, the question becomes harmless by the objection being sustained, the witness not answering the question, or the question being answered in a manner clearly favorable to the objecting party. In the absence of a motion for mistrial, merely objecting to a question that evokes no answer or a favorable answer should not justify a new trial.
An attorney must make clear and explicit any request for a mistrial. In this case, after Elmer’s counsel’s objection had already been sustained, he approached the bench and made another formal objection. When the court responded, “You’ve already got your objection. What are you bringing it up again for?” Elmer’s counsel replied the objection was being made “for the record.” At this point, if the attorney really felt so prejudiced that the trial should be aborted, counsel should have requested a mistrial. If the court granted a mistrial in the absence of a clear request, as the majority requires, it might impair prospects for a new trial due to the defendant’s double jeopardy rights.
In all of the cases cited by the majority where a prosecutor’s question justified a new trial, there were defense requests for mistrial and the reversible error was in not granting the mistrial. See Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); United States v. Meeker, 558 F.2d 387 (7th Cir.1977). The majority cites no case, and I have found no cases, where merely objecting to a question that ultimately produces an answer favorable to the objecting party justified a new trial in the absence of a motion for mistrial.
The type of questioning that the majority decides must require a new trial, even in the absence of a harmful answer or a motion for mistrial, occurs not infrequently during cross-examination. Usually, when leading questions that imply the *28existence of a fact or statement known to the cross-examiner are denied by the witness, the situation is dealt with by a curative instruction or an instruction routinely given to the jury at the end of the case. For example, 1 Modern Federal Jury Instructions ¶ 5.01, at 5-12 (1998), instruction 5-3, Questions, provides in pertinent part:
“Let me emphasize that a lawyer’s question is not evidence. At times, a lawyer on cross-examination may have incorporated into a question a statement which assumed certain facts to be true and asked the witness if the statement was true. If the witness denies the truth of a statement, and if there is no evidence in the record proving that the assumed fact is true, then you may not consider the fact to be true simply because it was contained in the lawyer’s question.”
See also 1 Federal Jury Practice and Instructions, Civil and Criminal § 12.08, at 347 (4th ed. 1992) (“The questions asked by a lawyer for either party to this case are not evidence. If a lawyer asks a question of a witness which contains an assertion of fact, therefore, you may not consider the assertion by the lawyer as any evidence of that fact. Only the answers are evidence.”). Had Elmer’s attorney requested such an instruction in the instant case and had the judge refused, then there would have been cause for reversal. The obligation should be on counsel who believes a client is prejudiced by a mere cross-examination question, even though it is answered by the witness in a manner favorable to the client, to either request a curative instruction or a mistrial.
HARMLESS ERROR
A primary issue raised by the State in the Court of Special Appeals and an issue that is always before this Court pursuant to Md. Rule 8-131(b) is harmless error. Since the intermediate appellate court affirmed Elmer’s conviction, that court did not decide the harmless error issue. It is difficult to imagine a case better suited to the application of the harmless error doctrine.
*29The instant case involved a drive-by shooting with racial overtones. Two white males drove into a predominantly African-American housing development and swerved toward a group of African-American youngsters, narrowly missing one of them. The teenagers walked to a nearby basketball court and told two people there what had just occurred. When the same two men driving the same car returned to the area, people threw rocks at the car. The car again swerved toward the crowd and drove into the basketball area.
A short time later the car returned for a third time, and Elmer, the passenger, was brandishing a loaded shotgun. The gun belonged to Elmer, and he had nine additional shotgun shells in his pocket. The shotgun was discharged, wounding an innocent bystander. Based on the evidence and the jury’s findings, the issue of who actually pulled the trigger is simply irrelevant. The jury quite properly found both men conspired to commit an assault with intent to disable and both were joint participants in shooting with intent to disable. The evidence more than justified both of these guilty verdicts as to both of these participants. Since Brown and Elmer were joint conspirators and joint participants, it is irrelevant who pulled the trigger. Even if the question posed to Brown erroneously implied a prior inconsistent statement that Elmer was the shooter, that error was harmless beyond any reasonable doubt.
Appellate courts should be very cautious in reversing any judgment where there was no inadmissible evidence presented to the trier of fact. Reversal in the absence of a motion for mistrial should not occur merely because of a cross-examination question that contained an assertion of fact and especially after, as in the instant case, the asserted fact is denied by the witness. I respectfully dissent from the portion of the Court’s opinion reversing Elmer’s conviction.
Judge RODOWSKY has authorized me to state that he joins in the views expressed in this concurring and dissenting opinion.
. Maryland Rule 5-410 provides in pertinent part:
“(a) Generally. Except as otherwise provided in this Rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or nolo contendere or which result in a plea of guilty or nolo contendere which was not accepted or was later withdrawn or vacated.”