Circuit Court for Baltimore County
Case No. 03-K-12-004853 (Butler)
Case No. 03-K-12-004851 (Duncan)
                                                  REPORTED

                                     IN THE COURT OF SPECIAL APPEALS

                                               OF MARYLAND


                                                    No. 1004

                                             September Term, 2015

                                             CLIFFORD BUTLER

                                                       v.

                                           STATE OF MARYLAND


                                                    No. 1104

                                             September Term, 2015

                                              DERIUS DUNCAN

                                                       v.

                                           STATE OF MARYLAND


                                        Meredith,
                                        Graeff,
                                        Raker, Irma S.
                                          (Senior Judge, Specially Assigned),

                                                     JJ.


                                             Opinion by Meredith, J.


                                        Filed: February 2, 2017
       These consolidated appeals arise out of the convictions of Derius Duncan

(“Duncan”) and Clifford Butler (“Butler”), appellants, for various crimes stemming from

the murder of Ronald Givens (“Givens”) on October 3, 2011. Appellants were jointly tried

in the Circuit Court for Baltimore County beginning on April 28, 2015, and were each

convicted of first degree murder of Givens, conspiracy to commit Givens’s murder,

influencing a witness, and use of a firearm in commission of a crime of violence. Their

timely appeals were consolidated.

                              QUESTIONS PRESENTED

       Duncan presents the following three questions for our review:

              1.     Whether the trial court erred in denying severance of
              [Duncan’s] trial from his co-defendant [Butler] when the State
              intended to introduce a confession of the non-testifying co-defendant
              that implicated Appellant during the trial[.]

              2.    Whether the trial court erred in denying [Duncan’s] multiple
              motions for mistrial after the State used a non-testifying co-
              defendant’s confession during trial that implicated [Duncan.]


              3.    Whether the trial court erred in permitting admission of other
              crimes evidence in the form of a handgun allegedly possessed by
              [Duncan] in an unrelated crime and permitting that handgun to be
              shown to the jury[.]

       Butler presents only one question for our review:

              4.    Did the lower court err in allowing the State to use Mr. Butler’s
              statements made during two proffer sessions against him at trial?

       We answer “Yes” to Question 2 and Question 4, and we will reverse both appellants’

convictions and remand both cases to the Circuit Court for Baltimore County for new trials.

We need not answer Questions 1 and 3.
                     FACTUAL & PROCEDURAL BACKGROUND

                 The Traffic Stops of Ronald Givens and Derius Duncan

       The events giving rise to this appeal began on March 22, 2011. At around 9:00 p.m.

that evening, Baltimore City Police Officer Steffon Scott was on patrol with his partner in

southwest Baltimore when he observed a black PT Cruiser automobile parked “in an

unusual spot.” Officer Scott stopped his patrol car to observe the vehicle, and observed a

man “jump out” of the passenger side of the vehicle and run out of sight. The PT Cruiser

then drove down the street, prompting Officer Scott to follow, and eventually pull over,

the vehicle. Upon pulling the vehicle over, Officer Scott encountered Ronald Givens, who

was the driver. There were no other individuals in the vehicle with Givens at this time.

During the traffic stop, Officer Scott smelled marijuana and observed marijuana within the

vehicle. Officer Scott requested that Givens step out of the vehicle so that he could ask

Givens some “routine questions.” Officer Scott and his partner then searched the vehicle,

including the glovebox, and confiscated the marijuana they found, but they did not issue

Givens a citation. Officer Scott concluded the traffic stop by telling Givens that he was

“done hacking for the night” and that he needed to leave the area. 1

       Roughly 25 to 30 minutes later, Officer Scott again observed the same black PT

Cruiser traveling in the neighborhood where the first encounter with Givens had occurred.

Officer Scott observed the PT Cruiser pull over to the side of the street, at which point an

individual approached and entered the vehicle. Officer Scott noticed that the individual was



       1
           “Hacking” is a term used to describe the operation of an unlicensed taxi service.
                                               2
“like holding his waistband.” Based on the individual’s appearance, Officer Scott believed

that it was the same person who had previously jumped out of the passenger side of the

vehicle when Officer Scott had first observed Givens’s vehicle. Officer Scott followed

Givens’s vehicle, and initiated a second traffic stop by turning on his lights and siren.

Officer Scott additionally activated a “spotlight” on his vehicle so that he could “clearly

see anything [that was] going on inside the vehicle.” As Officer Scott approached the

vehicle on foot, he observed the passenger “motion towards the glovebox” and then close

the glovebox.

       Officer Scott instructed Givens and the passenger (later identified as Duncan) to exit

the vehicle. Officer Scott searched the glovebox, and found a loaded black handgun which

had not been in the glovebox during the search of the vehicle 30 minutes earlier. Duncan

was arrested and later charged with illegal possession of the handgun. Duncan’s trial on

those charges was scheduled for October 26, 2011.

                                 Ronald Givens’s Death

       On the morning of October 4, 2011, a neighbor of Ronald Givens found him lying

face down on his front lawn with no pulse. The neighbor testified at appellants’ trial that

she had heard what she thought was a series of “cherry bombs” at roughly 9:00 p.m. the

previous evening, but thought nothing more of it after the sounds ceased. After discovering

Givens on the morning of October 4, the neighbor called 9-1-1. A Baltimore County police

officer dispatched in response to the call discovered that Givens had multiple bullet wounds

in his torso.



                                             3
       Detective Brian Wolf, from the Homicide Division of the Baltimore County Police

Department, was assigned to be the lead detective for the investigation of Givens’s death.

Detective Wolf arrived at the crime scene at approximately 8:15 a.m. on October 4. Once

at the crime scene, Detective Wolf spoke with Givens’s mother. During their conversation,

Givens’s mother provided Detective Wolf a subpoena Givens had received from the Circuit

Court for Baltimore City. The subpoena ordered Givens to appear as a witness for the State

in the case of “State of Maryland v. Derius Duncan” on October 26, 2011. During the

course of Detective Wolf’s investigation, he later learned that Duncan was on probation at

the time he was charged with illegal possession of the handgun, and was therefore facing

fifteen years of additional incarceration if found to be in violation of conditions of his

probation.

       After investigating the crime scene and meeting with Givens’s mother, Detective

Wolf contacted the “Diagnostic Center” in Baltimore City, where Duncan was being held

pending his trial for the illegal handgun charge. Detective Wolf requested that the officers

at the Diagnostic Center search Duncan’s cell. After the search was completed, Detective

Wolf was provided with copies of documents found in Duncan’s cell. This included a

piece of paper with “a lot of phone numbers,” in addition to “a name with two addresses

underneath of that.” The name written down by Duncan was “Dave,” which Detective

Wolf later determined was a reference to Butler’s nephew David Johnson.

       Detective Wolf also obtained a subpoena for records of phone calls made by Duncan

while he was incarcerated. Detective Wolf listened to over 100 calls Duncan had made

during his incarceration. The Detective determined that 19 of the calls were relevant to the

                                             4
investigation of Givens’s murder. Clifford Butler’s voice was heard on several of the calls

made by Duncan.

                             Butler’s Offers of Cooperation

       Detective Donald Anderson was assisting Detective Wolf in his investigation of

Givens’s murder. At the time Detective Anderson first interviewed Clifford Butler

regarding Givens’s death, Butler was not incarcerated, and had not been subpoenaed to

appear for any matter. Nevertheless, counsel for Butler contacted Detective Anderson and

requested a meeting to discuss the Givens case. That contact resulted in Butler entering

into a proffer agreement with the State which provided, in relevant part:

       1.    Except as otherwise provided in paragraphs two and three, no
       statements made or other information provided by you or your attorney
       during the proffer will be used against you in any criminal trial.

       2.    You agree that the State may make derivative use of, and may pursue,
       any investigative leads suggested by any statements made or other
       information provided by you or your attorney during the proffer.

       3.     Your complete truthfulness and candor are express material
       conditions to the undertaking of the State set forth in this letter. Therefore,
       the State may use statements made or other information provided by you or
       your attorney during the proffer under the following circumstances. . . .

                                          ***

              b.     If the State should ever conclude that you have
              knowingly withheld material information from the State or
              otherwise have not been completely truthful and candid
              with the State, the State may use any statements made or
              other information provided by you or your attorney during
              the proffer against you for any purpose. If the State does
              ever so conclude, it will notify you prior to making any such
              use of any such statements or other information.

(Emphasis added.)

                                             5
       The proffer agreement was read and explained to Butler, and was signed and dated

by Butler, his attorney, and the prosecutor during a proffer session on December 1, 2011.

A copy of the agreement was again read and initialed at a second proffer session on

December 5, 2011.

       During the first proffer session, Butler was not “completely truthful and candid with

the State.” Butler had indicated that three individuals were involved in the murder of

Givens: Derius Duncan, Darren Thomas, and Keon Beads. Toward the beginning of the

December 1 proffer session, Butler indicated that he had not been personally involved in

the murder. Butler explained that the jail calls on which his voice could be heard, and a

letter exchanged between him and Duncan, concerned a drug transaction and trying to

persuade Givens to provide exculpatory testimony at Duncan’s trial on the handgun charge,

but did not include discussions of actually harming or killing Givens. However, later

during the December 1 proffer session, Butler stated that he had been in contact with Darren

Thomas on Duncan’s behalf regarding the Givens case. By the end of the first proffer

session, Butler acknowledged that he had, in fact, asked Darren Thomas to either harm or

kill Givens. Butler further stated that he had been told that the murder of Givens had been

carried out by Keon Beads.

       Based on Butler’s statements during the December 1 proffer session, Detective

Anderson took numerous steps to try to corroborate the information provided by Butler,

including interviewing Darren Thomas, subpoenaing phone records, and eventually,

issuing a grand jury subpoena for Thomas. Based on their investigations following the first



                                             6
proffer session, Detectives Anderson and Wolf believed that Butler had made false

statements during the first proffer session.

       But, at the request of Butler’s attorney, a second proffer session was held on

December 5, 2011. According to Detective Anderson, Butler was made aware at the outset

of the second proffer session that, “if he’d already lied that the [proffer agreement] would

in some sense already be breached.” Detective Anderson testified that Butler was told that,

if he “continued to lie,” the State would be able to use his statements against him. But

Detective Anderson also acknowledged in his testimony at a hearing regarding the use of

Butler’s statements that everyone “started fresh” on December 5:

       Q [COUNSEL FOR BUTLER]: So wouldn’t you say, detective, at this point
       in time you started fresh? You believed that Mr. Butler had told you a lie,
       you asked him to tell you the truth in the second proffer; correct?

       A [DETECTIVE ANDERSON]: Yes.

       Q: And you said if he didn’t tell you the truth now the State could use it
       against him; correct? Correct?

       A: Yes, it’s in the agreement.

A second proffer agreement – which appears to be a photocopy of the December 1 proffer

agreement – was initialed by all parties at the beginning of the second session and dated

“12/5/11.”

       At the December 5 proffer session, Butler told Detective Anderson that Keon Beads

had offered Givens drugs and money to induce Givens to change his testimony or not show

up in court for Duncan’s trial on the handgun charges. Butler also changed his account of

Darren Thomas’s role in Givens’s murder.           Butler told Detective Anderson at the


                                               7
December 5 session that Thomas had refused to be involved in the Givens matter, and that

Butler had asked his nephew David Johnson to carry out the murder. Butler told Detective

Anderson that he had given Johnson certain information pertaining to Givens, such as a

description of his car and his address, during a meeting to plan the murder. Butler also told

Detective Anderson that he had received two letters, rather than one, from Duncan

discussing hurting or killing Givens. According to Detective Anderson, Butler also

changed his prior statement regarding the identity of the person who had told him of

Givens’s murder, stating at the December 5 proffer that he learned of the murder from

David Johnson himself, not Keon Beads. Following the December 5 proffer session,

Detective Anderson concluded that Darren Thomas had no involvement in the murder of

Givens, and Anderson believed that, in addition to Duncan and Butler, David Johnson and

Keon Beads had been involved in the murder as Butler had said on December 5.

                    The Charges, Request for Severance, and Trial

       Duncan and Butler, as well as David Johnson and Keon Beads, were all charged

with various crimes arising out of the October 4, 2011, murder of Givens. On April 7, 2015,

a pretrial hearing was held in the Circuit Court for Baltimore County, at which time the

court considered Duncan’s motion for severance of his trial from the trials of both Butler

and Johnson. The State agreed that severance of Johnson’s trial was appropriate, but

argued that there was no need to conduct separate trials of Duncan and Butler. As we will

discuss in more detail later in this opinion, based upon assurances from the prosecutor, the

circuit court denied Duncan’s motion for severance of his trial from that of Butler.



                                             8
       Later, immediately prior to jury selection, the court considered the State’s motion

in limine for permission to introduce evidence of any statements Butler made during the

proffer sessions. The State argued that, because Butler had made false statements to

Detective Anderson during the first proffer session, the terms of the proffer agreement

permitted use of any statements made during the proffer sessions. Butler opposed the

State’s motion, arguing that he had been given a “fresh start” at the second proffer session

in exchange for the information he provided that proved useful to the State, and that the

premise of participating in the second proffer session was that any lies he had told during

the first session would be forgiven if he was truthful during the second session. Following

a hearing on the matter, the circuit court ruled in favor of the State, finding that Butler had

clearly breached the proffer agreement by lying during the first proffer session.

Consequently, the court ruled that, under the terms of the proffer agreement, the State could

introduce any statements Butler had made.

       Following a multi-day trial, appellants were each convicted of first degree murder,

conspiracy to commit murder, influencing a witness, and use of a firearm in commission

of a crime of violence. Additional relevant facts arising out of the trial are discussed at

greater length later in this opinion. This consolidated appeal followed.

                                       DISCUSSION

I. Denial of Duncan’s Motion for Severance & Motions for a Mistrial

       A.     Standard of Review

       We “will only disturb a trial court’s decision to deny a motion for a mistrial if the

court has abused its discretion, and it is clear that the accused has been prejudiced.”

                                              9
Conyers v. State, 345 Md. 525, 561 (1997). Accord Parker v. State, 189 Md. App. 474,

493–96 (2009). As we explain in the following section, there are some circumstances in

which the trial court’s discretion is limited by constitutional considerations.

       B.     The Bruton Violation

       Duncan contends that, in light of the Supreme Court’s holding in Bruton v. United

States, 391 U.S. 123 (1968), the circuit court erred in denying both his motion for severance

of his trial from Butler’s and his multiple motions for mistrial that followed. The Court of

Appeals has succinctly summarized the holding of Bruton as follows:

       Bruton rights are triggered when testimonial hearsay is introduced into
       evidence. In Bruton, the Supreme Court addressed “whether the conviction
       of a defendant at a joint trial should be set aside although the jury was
       instructed that a codefendant’s confession inculpating the defendant had to
       be disregarded in determining his guilt or innocence.” Bruton, 391 U.S. at
       124–25, 88 S.Ct. at 1622, 20 L.Ed.2d at 478. During Bruton’s joint trial with
       Evans, Evans’s out of court confession inculpating both defendants had been
       admitted into evidence. The trial judge had given a limiting instruction to the
       jury to consider the confession only against Evans, but not against Bruton.
       The United States Court of Appeals for the Eighth Circuit affirmed. Bruton
       v. United States, 375 F.2d 355 (8th Cir.1967).

              The Supreme Court reversed. The Court held that the trial court’s
       limiting instruction did not sufficiently protect Bruton’s Sixth Amendment
       rights, because Evans had not testified, the introduction of Evans’s
       confession added substantial weight to the Government’s case against
       Bruton, and Bruton could not cross-examine Evans. Bruton, 391 U.S. at 137,
       88 S.Ct. at 1628, 20 L.Ed.2d at 485. The Court opined that a limiting
       instruction was insufficient to protect Bruton’s right to cross-examine
       and that there was no basis upon which to admit Evans’s confession against
       Bruton. When “the powerfully incriminating extrajudicial statements of
       a codefendant, who stands accused side-by-side with the defendant, are
       deliberately spread before the jury in a joint trial”, the Court concluded,
       “limiting instructions [were not acceptable] as an adequate substitute
       for [Bruton’s] constitutional right of cross examination.” Id. at 135–36,
       137, 88 S.Ct. at 1628, 20 L.Ed.2d at 483, 484. Bruton, then, is premised
       upon the Confrontation Clause of the Sixth Amendment and limits joinder,

                                             10
       as well as the efficacy of cautionary instructions when evidence of a
       testimonial nature is introduced.

State v. Payne, 440 Md. 680, 717 (2014) (emphasis added) (alterations in original). 2

       Prior to trial in this case, the State conceded at the April 7 pre-trial hearing that

Butler’s statements made during his proffer sessions and phone calls with Duncan “do

constitute testimonial statements and therefore trigger the confrontation clause which

therefore implicates Bruton.” At that hearing, the State also acknowledged that a mere

redaction of Duncan’s name from any of Butler’s communications would not be sufficient

to satisfy Bruton, but the State assured the circuit court that a Bruton violation could be

avoided and that any Bruton issue “could be remedied” because the State would take

greater precautions than those that had been held insufficient in “[Gray v. Maryland, 523

U.S. 185, 197 (1998)] . . . which was a simple deletion.” 3

       The following colloquy then took place regarding the State’s assurances that it

would avoid the potential Bruton violation without the need for severing Butler’s case from

Duncan’s:

             THE COURT: So these proffers by Mr. Butler don’t say that he
       was soliciting and enlisting Mr. Johnson to do Duncan’s bidding?

       2
         The Sixth Amendment to the United States Constitution – incorporated to apply
to the states via the Fourteenth Amendment, Pointer v. State of Texas, 380 U.S. 400, 406
(1965) – provides, in pertinent part:

       In all criminal prosecutions, the accused shall enjoy the right . . . to be
       confronted with the witnesses against him . . . .

       3
        In Gray v. Maryland, the Supreme Court held that a Bruton violation occurred
where the prosecution inserted blanks or “delete” in place of the defendant’s name in the
incriminating confession of a codefendant. 523 U.S. 185, 197 (1998).

                                             11
       [THE STATE]: They do implicate Mr. Duncan, but the jail calls --

       THE COURT: Well, okay so the --

      [THE STATE]: -- so there’s no doubt about that. But respectfully,
the State submits that first of all what we would be referring to is
conversations that are on the jail calls themselves.

       But secondly, Your Honor, I think this is why we were alluding to the
redaction solution, if the court has concerns, and what I was gonna add is if
the court has concerns as trial is unfolding as to the substance of those passing
references the State would be prepared to agree that what Mr. Butler
told detectives about Mr. Duncan’s role in that would not be presented
to the jury through the detectives.

       So in other words the State would present the jail calls to establish Mr.
Duncan and Mr. Butler talking together about what they would do. The State
would then present the detectives to present what Mr. Butler told them about
getting Mr. Johnson and then Mr. Johnson reporting back to them. So that’s
the only part that . . . implicates the testimonial comments by Mr. Butler, and
then the State would return to the jail calls with respect to Mr. Butler
reporting back to Mr. Duncan what had happened. So the, the silo of
information that would come from the testimonial statements, which is
the only category of statements that would implicate Bruton, would be
redacted if the, if the court wished and if defense counsel wished to not
implicate Duncan.

                                     ***

       THE COURT: The State’s prepared to, so with respect to the
detective’s testimony that’s how you’re presenting this information?

       [THE STATE]: That’s right Your Honor.

       THE COURT: So you’re prepared to direct the detectives that in
answering questions about what Mr. Butler said to them, they are not to
include references to what Mr. Butler said about Mr. Duncan.

       [THE STATE]: Exactly your honor.

                                     ***


                                       12
              THE COURT: All right. You’re gonna direct the detectives when
       they testify what Butler said to them at these proffer sessions, said to
       them about Johnson. They are not to mention Duncan.

(Emphasis added.)

       With that assurance from the prosecution, the court concluded that Duncan could be

tried jointly with Butler. Cf. State v. Hines, 450 Md. 352, 369–70 (2016) (recognizing that,

in some instances, it may be possible for a trial judge to eliminate any unfair prejudice

attributable to non-mutually admissible evidence by “redacting evidence to remove any

reference to the defendant against whom it is inadmissible”).

       At trial, however, the State introduced statements made by Butler that incriminated

Duncan. During the direct examination of Detective Wolf, for example, the State played

recordings of jail calls between Duncan and Butler, in which the voices of both defendants

could be heard. Detective Wolf testified that, in his opinion, Duncan, whom the State

identified by name, was one of the individuals participating in the calls played by the State.

Over objections from appellants, the jury was also provided with transcripts of the calls

between Duncan and Butler which identified Duncan by name in the left hand column of

the transcript as one of the speakers.

       The State then asked Detective Wolf to explain the meaning of various portions of

conversations between Duncan and Butler – in essence, translate the coded words used by

Duncan and Butler – and Detective Wolf provided those translations based upon the

explanations of the meaning of certain words and phrases Butler had provided to Detective

Wolf during his proffer sessions. In this manner, the State utilized incriminating statements

codefendant Butler had made during the proffer sessions to support its case against Duncan.

                                             13
Those statements Butler made during the proffer sessions were clearly testimonial hearsay

which would have been otherwise inadmissible against Duncan. 4

       After Duncan had made numerous objections to the State’s examination regarding

Detective Wolf’s translation of Duncan’s jail calls with Butler, the circuit court sua sponte

called a bench conference during which the following exchange occurred:

              THE COURT: I’m thinking further about [counsel for Duncan’s]
       objection and it seems that it’s appropriate at this time[, a]lthough [counsel
       for Duncan] didn’t request it, to tell the jury that this information is not to be
       considered against Mr. Duncan.

              [THE STATE]: I know that that happens in jury instructions and we
       anticipated that, --

              THE COURT: But it seem --

              [THE STATE]: -- don’t know that we have an objection to it here.

              THE COURT: All right.

               [COUNSEL FOR DUNCAN]: I, while we’re up here I have a motion
       to make. I’m gonna make a motion for a mistrial on behalf of Mr. Duncan.
       When we had our motions hearing I asked for a severance when I learned
       that the State intended to use the statements by Mr. Butler. The State assured
       all of us that it would redact the statements by Mr. Butler so that it would not
       implicate Mr. Duncan and thereby not offend Bruton.



       4
           One example of Butler’s translations of conversations he had with Duncan that
was introduced at trial via Detective Wolf explained what Duncan and Butler meant when
they used the words “air holes.” At trial, a recording of a jail phone call between Duncan
and Butler was played for the jury, in which Butler could be heard asking “where was the
air, air, air holes at for real?” In response, Duncan told Butler that “it’s still in the house.”
On direct examination, the prosecutor asked Detective Wolf: “And did you speak to Mr.
Butler about the term air holes? . . . What did he say air holes meant?” Detective Wolf
responded, over objection from appellants’ counsel, that he had spoken to Butler regarding
the meaning of the term air holes, and that Butler had explained that air holes “referred to
a, a gun.”
                                               14
              When the State asked this detective to explicate what Butler meant
      he’s talking to Duncan. Butler says, according to the detective, that what I
      meant here is we’re going to get, we’re going to get the victim, we’re going
      to kill the victim, everything’s in place in the victim. It’s, and [Duncan is]
      talking to him. It’s . . . hopeless that the State has elected to go further than
      what they indicated at the motions hearing. They’ve gone further in the sense
      that they’re asking the detective now to explicate what Butler meant. That
      would be fine if my client weren’t there but he’s sitting right there and he’s
      on the phone with him. It’s hopeless.

             THE COURT: Well I’ll consider that further. It’s not without merit.

             [THE STATE]: Your Honor, if I may? At the beginning of this trial if
      [counsel for Duncan] had said I’m gonna concede that this is Mr. Duncan’s
      voice, and this is his SID number, and this is him talking . . . . [B]ut the State
      has had to laboriously address his comments in pretrial, as well as in opening,
      and establish that this is Mr. Duncan. If the State is, has to prove that we have
      to prove that. With the thanks [sic] of an admonition that this is not be used
      against him, with the jury instruction that indicates that separate
      consideration [of] the [defendants] is appropriate I respectfully --

             THE COURT: I think it’s almost impossible for the jury to
      disregard all of these conversations being with Mr. Duncan. How, how
      does this information [come] in against Mr. Duncan?

             [THE STATE]: Your Honor, it, it, we’re not trying to bring it in
      against Mr. Duncan. The catch is that we have had to prove that this is Mr.
      Duncan. [Counsel for Duncan] is two-thirds of the way through this trial now
      indicating that it’s obvious to the jury. That, it is not obvious to the jury until
      we prove it. And we have now, perhaps in [Duncan’s counsel’s] view, proven
      that and so he’s prepared to concede it. But that is not the beginning of --

             THE COURT: Well no, the testimony from this detective is that this
      is Mr. Duncan’s voice which we’ve been listening to.

(Emphasis added.)

      The circuit court then elected to defer ruling on Duncan’s motion for a mistrial.

After additional testimony, the circuit court initiated another bench conference regarding

Duncan’s objections and motion for a mistrial:


                                              15
              THE COURT: [Mr. Prosecutor], I’ve been considering further
       Detective Wolf’s testimony about the words [that] Mr. Butler told Detective
       Wolf and the others at the meeting the words meant. And that seems
       testimonial. And that should not be coming in against Mr. Duncan. And so I
       am going to tell the jury to disregard that testimony of Detective Wolf.

                 [THE STATE]: Very well Your Honor.

                 THE COURT: I’m gonna strike it from this record.

          The circuit court then instructed the jury to disregard Detective Wolf’s testimony

regarding the meaning of the coded language used in the jail calls between Duncan and

Butler:

                 Members of the jury I have considered further over our luncheon
          recess some arguments that had been made to the court, and pursuant to my
          consideration of those issues I believe it appropriate at this time to tell you
          that you are to disregard, and I am going to strike from the record
          testimony by Detective Wolf about what words meant according to Mr.
          Butler in the meeting that Mr. Butler had with Detective Wolf, Mr.
          Butler’s attorney and some other individuals that they have des [sic], that
          Detective Wolf has described. So disregard what Detective Wolf said Mr.
          Butler said that words mean in the jail calls that we’ve heard.

(Emphasis added.)

          Later, during closing arguments, the State used a visual aid asserting that Butler had

explained to Detective Anderson the entire conspiracy to murder Givens. Counsel for

Duncan objected, and again moved for a mistrial as to Duncan. The circuit court denied

the motion, but provided a second limiting instruction to the jury which arguably

contradicted the court’s prior instruction for the jury to disregard what the detective had

“said Mr. Butler said that words mean in the jail calls.” This time, the circuit court

instructed the jury:



                                                16
              The statement made by Clifford Butler about which you’ve heard
       testimony that alleged, those alleged statements by Mr. Butler to Detective
       Anderson and Detective Wolf must only be considered by you against Mr.
       Butler in consideration of the charges against Mr. Butler. So the alleged
       statements by Mr. Butler to the detectives should not be part of your
       consideration of the charges against Mr. Duncan.

       Despite the second instruction, the State now contends that no Bruton violation

occurred because the testimony of Detective Wolf regarding his conversations with Butler

that implicated Duncan was “stricken” from the record by the circuit court and the jury was

instructed to disregard those conversations. In support of this contention, the State argues

that this case was “not one of those extraordinary circumstances where the jury cannot be

trusted to follow instructions.” The State asserts in its brief: “With regard to the trial court’s

instruction to disregard entirely a portion of Detective Wolf’s testimony, this type of

instruction is commonplace and there is no reason to doubt the jury’s ability to follow it.”

       But the Supreme Court said in Bruton that limiting instructions will generally be

inadequate to cure the prejudicial impact of “powerfully incriminating extrajudicial

statements of a codefendant, who stands accused side-by-side with the defendant, [when

those statements] are deliberately spread before the jury in a joint trial.” Bruton, supra, 391

U.S. at 135–36. The Bruton Court further observed that “there are some contexts in which

the risk that the jury will not, or cannot, follow instructions is so great, and the

consequences of failure so vital to the defendant, that the practical and human limitations

of the jury system cannot be ignored.” Id. at 135.

       As the Supreme Court stated in Bruton, “in the context of a joint trial we cannot

accept limiting instructions as an adequate substitute for petitioner’s constitutional


                                               17
right of cross-examination” where incriminating statements made by one codefendant are

presented to the jury in a joint trial in which the codefendant does not testify and there is

no opportunity for cross examination. Id. at 137 (emphasis added). Cf. Crawford v.

Washington, 541 U.S. 36, 59 (2004) (“Testimonial statements of witnesses absent from

trial have been admitted only where the declarant is unavailable, and only where the

defendant has had a prior opportunity to cross-examine.”).

       The State’s contention that “[t]he general rule that juries are expected to comply

with a court’s instructions applies here” is in direct conflict with what the Supreme Court

said in Bruton. This Court has also previously rejected this very argument, stating:

               In Bruton, the “basic premise of Delli Paoli[ v. United States, 352
       U.S. 232, 242 (1957),] that a properly instructed jury would ignore the
       confessor’s inculpation of the nonconfessor in determining the latter’s guilt,”
       391 U.S. at 129, was given a full burial and replaced by a completely
       opposite premise or assumption, i.e., that in spite of limiting instructions,
       a jury could not and would not disregard the inadmissible hearsay
       evidence contained in a confessor’s inculpation of the nonconfessor in
       determining the latter’s guilt. Admission of such an extrajudicial statement
       at a joint trial, where the declarant confessor does not take the witness stand,
       would thus violate the defendant’s right of cross-examination secured by the
       Confrontation Clause of the Sixth and Fourteenth Amendments to the United
       States Constitution.

Earhart v. State, 48 Md. App. 695, 698 (1981) (emphasis added). Accordingly, we reject

the State’s contention that the Bruton problem in this case was cured by the circuit court’s

limiting instructions to the jury.

       The State contends in the alternative that “Detective Wolf’s and Andersons’s

testimony about Butler’s statements did not mention Duncan even in the abstract,” and

therefore, did not implicate Duncan, which is necessary for a Bruton violation to occur,


                                             18
citing: Gray v. Maryland, 523 U.S. 185, 195–96 (1998); Richardson v. Marsh, 481 U.S.

200, 208 (1987) (for a Bruton violation to occur, a statement by a codefendant must be

“incriminating on its face” or expressly implicate a codefendant); United States v.

Coleman, 349 F.3d 1077, 1085 (8th Cir. 2003) (stating that “Bruton is not violated if the

non-testifying defendant’s statement only inculpates a codefendant inferentially–through

linkage to other evidence.” (citing Richardson, supra, 481 U.S. at 208)); Brooks v. State,

32 Md. App. 116, 119 (1976) (“In a joint trial, Bruton proscribes the admission of a non-

testifying co-defendant’s confession which implicates another co-defendant.”).

       We again disagree with the State. The testimony of Detective Wolf regarding

Butler’s explanatory statements to him clearly implicated Duncan and thereby triggered

Bruton. Although the State contends that “substantial evidence was necessary in this case

to link Butler’s statements to Duncan,” the record reflects otherwise. During direct

examination of Detective Wolf, before playing recordings of jail calls during which

Duncan could be heard, the State asked: “Are you able to compare the voice that you heard

on the excerpts, as well as the full calls corresponding to these 19 records and determine

whether or not in your opinion these are Mr. Duncan’s voice on the calls at points or not?”

After objection from appellants’ counsel, Detective Wolf stated “Yes sir,” and indicated

that one of the voices on these calls was Duncan’s. The jury was also provided transcripts

of the calls with Duncan’s name next to portions of the transcript indicating when he was

speaking. Detective Wolf went on to testify regarding specific calls between Butler and

Duncan, and what Butler told him regarding the meaning of the statements made during

those calls.

                                            19
       As the Supreme Court said in Gray, supra, 523 U.S. at 196, where “[t]he inferences

at issue [] involve statements that, despite redaction, obviously refer directly to someone,

often obviously the defendant, and which involve inferences that a jury ordinarily could

make immediately,” Bruton is triggered. Detective Wolf’s testimony rehashing his

conversations with Butler “obviously refer[red] directly to someone,” namely, Duncan.

The jury did not need additional “substantial evidence,” as the State contends, in order for

Butler’s statements to incriminate Duncan. Rather, the jury was told by the State that

Duncan was one of the parties speaking in these phone calls, and that, based on Butler’s

incriminating statements to Detectives Wolf and Anderson, the subject matter of many of

these calls was a plan to murder Givens and efforts to avoid prosecution after Givens had

been murdered. Butler’s statements implicated Duncan, who was not able to cross-

examine Butler. Therefore, the statements fall under Bruton. See also Hines, supra, 450

Md. at 385 (stating: “Because the evidence implicated [the defendant] in a manner so

obvious that there is a risk that the jury would not have followed the limiting instruction

and not have considered [the codefendant’s incriminating] statement against [the

defendant], the trial court erred in denying a trial severance.” (footnote omitted)).

       The State also argues that any Bruton violation constituted harmless error. See

Dorsey v. State, 276 Md. 638, 658–60 (1976) (applying the harmless error analysis in the

context of Bruton). The Court of Appeals has summarized the harmless error standard as

follows:

       [“]In Dorsey v. State, . . . we adopted the test for harmless error announced
       by the Supreme Court in Chapman v. State[, 386 U.S. 18, 87 S.Ct. 824, 17
       L.Ed.2d 705 (1967)] . . . . As adopted in Dorsey, the harmless error rule is:

                                             20
             [‘]When an appellant, in a criminal case, establishes error,
             unless a reviewing court, upon its own independent review of
             the record, is able to declare a belief, beyond a reasonable
             doubt, that the error in no way influenced the verdict, such
             error cannot be deemed “harmless” and a reversal is mandated.
             Such reviewing court must thus be satisfied that there is no
             reasonable possibility that the evidence complained of –
             whether erroneously admitted or excluded – may have
             contributed to the rendition of the guilty verdict.[’]

      [“]In performing a harmless error analysis, we are not to find facts or weigh
      evidence. Instead, what evidence to believe, what weight to be given it, and
      what facts flow from that evidence are for the jury . . . to determine. Once it
      has been determined that error was committed, reversal is required unless the
      error did not influence the verdict; the error is harmless only if it did not play
      any role in the jury’s verdict. The reviewing court must exclude that
      possibility beyond a reasonable doubt. To say that an error did not contribute
      to the verdict is, rather, to find that error unimportant in relation to everything
      else the jury considered on the issue in question, as revealed by the record.
      The harmless error rule . . . has been and should be carefully circumscribed.
      Harmless error review is the standard of review most favorable to the
      defendant short of an automatic reversal.[”]

Taylor v. State, 407 Md. 137, 164–65 (2009) (quoting Bellamy v. State, 403 Md. 308, 332–

33 (2008)) (citations omitted) (some internal quotation marks omitted). In applying the

harmless error standard, it is not appropriate to simply focus on the strength of other

evidence in the State’s case. Dionas v. State, 436 Md. 97, 116–17 (2013).

      Upon reviewing the record in this case, we cannot say beyond a reasonable doubt

that the testimony of Detective Wolf describing Butler’s statements explaining the alleged

conspiracy to murder Givens “in no way influenced the verdict” against Duncan, even

though the trial court gave instructions to disregard that portion of Detective Wolf’s

testimony. Taylor, supra, 407 Md. at 165.



                                              21
       We hold that the circuit court abused its discretion in denying Duncan’s motions for

a mistrial once it became clear that Detective Wolf’s testimony about Butler’s

incriminating statements also implicated Duncan.

II. Butler’s Proffered Statements

       Prior to the beginning of trial, the circuit court held that Butler breached the proffer

agreements he entered into with the State, finding: “I think the proffer agreement is clear.

The fact that Mr. Butler initially says that Mr. Thomas is the shooter [during the first proffer

session] and then says Mr. Johnson is the shooter [during the second proffer session;] when

he said Mr. Thomas was the shooter, he breached the agreement that existed between the

parties.”

       Butler, however, contends in his brief that the December 1 proffer agreement

       was orally modified when, on December 5, 2011, he was told by Detective
       Anderson, without objection by . . . the prosecutor in Mr. Butler’s case who
       was also present, that the parties were going to “start over”, that Mr. Butler
       was being given “an opportunity to start from the beginning”, and that “if he
       continued to lie . . . the proffer will be used against him.”

(Emphasis in original, citations to the record omitted.)

       Under these circumstances, Butler argues, the December 5 proffer agreement

“abrogated the previous one.” Butler asserts that the circuit court should have found that

the second proffer session gave him a “fresh start,” and any false statements he had made

during the first proffer session would be of no consequence so long as he was truthful

during the second session that he had requested. As a result, Butler argues, the circuit court

erred by allowing the State to declare the proffer agreements materially, and incurably,

breached because of false statements the circuit court determined he made during the first

                                              22
proffer session, and the court erred in ruling that the State could offer into evidence any

statements Butler had made during the proffer sessions. We agree with Butler.

       A. Standard of Review

       “As a general proposition, pre-trial agreements such as cooperation and proffer

agreements are interpreted according to principles of contract law.” United States v.

$87,118.00 in U.S. Currency, 95 F.3d 511, 516 (7th Cir. 1996). Given the lack of case law

in Maryland concerning proffer agreements, and the similarities between proffer

agreements and plea agreements, we view cases addressing construction and breaches of

plea agreements as instructive. “‘[C]ontract principles should generally guide the

determination of the proper remedy of a broken plea agreement.’” Cuffley v. State, 416

Md. 568, 579 (2010) (quoting Solorzano v. State, 397 Md. 661, 668 (2007) (second internal

quotation omitted)).

       “Contract principles, however, ‘are not enough to resolve disputes over the proper

interpretation of a plea bargain.’” Id. at 580 (quoting Solorzano, supra, 397 Md. at 668).

“Rather, ‘[d]ue process concerns for fairness and the adequacy of procedural safeguards

guide any interpretation of a court approved plea agreement.’” Id. (quoting Solorzano,

supra, 397 Md. at 668). “‘[T]he standard to be applied to plea negotiations is one of fair

play and equity under the facts and circumstances of the case, which, although entailing

certain contract concepts, is to be distinguished from . . . the strict application of the

common law principles of contracts.’” Tweedy v. State, 380 Md. 475, 488 (2004) (quoting

Jackson v. State, 358 Md. 259, 278 (2000)).



                                            23
       The United States Court of Appeals for the Seventh Circuit has expressly ruled that

similar concerns of fairness and due process apply when interpreting proffer agreements.

United States v. Farmer, 543 F.3d 363, 374 (7th Cir. 2008) (“[P]roffer agreements that are

a part of ongoing criminal proceedings are unique contracts and the ordinary contract

principles are supplemented with a concern that the bargaining process not violate the

defendant’s rights to fundamental fairness under the Due Process Clause.”) (internal

quotation marks omitted)). Cf. United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998)

(“The construction of proffer agreements, like plea agreements, is governed generally by

the principles of contract law, as we have adapted it for the purposes of criminal law.”

(emphasis added)). Cases from the United States Courts of Appeals for the Fourth Circuit

and Second Circuit have limited construction of proffer agreements to the four corners of

the document, see, e.g., United States v. Gillion, 704 F.3d 284, 292 (4th Cir. 2012) (“[A]

proffer agreement operates like a contract; accordingly, we examine its express terms to

determine whether the defendant is in breach.”); United States v. Liranzo, 944 F.2d 73, 77

(2d Cir. 1991) (“Where the language of a contract is unambiguous, the parties’ intent is

discerned from the four corners of the contract.”). But, because the view expressed by the

United States Courts of Appeals for the Seventh and Eleventh Circuits is more in line with

the approach that the Maryland Court of Appeals has adopted with respect to plea

agreements, we conclude that Maryland courts should apply the principles of interpretation

those courts have applied to proffer agreements, i.e., ordinary contract principles

supplemented with due process concerns for fundamental fairness as in Cuffley, Solorzano,

and Tweedy.

                                            24
       In Ray v. State, 230 Md. App. 157, 189 (2016), we stated that an “appellate court

makes the de novo determination, as a question of law, as to what the terms of a plea

agreement actually were.” Our “prime directive for statutory construction, for contract

construction, and now for the construction of a plea agreement is simply to read the words

themselves that call for construction. If their meaning is clear and distinct and undisputed,

the interpretive exercise is over. This is the core principle for construing the meaning of

any contract.” Id. at 182–83. We also note that any “ambiguity in [a] plea agreement is

resolved against the government ‘[b]ecause of the Government’s advantage in bargaining

power.’” Cuffley, supra, 416 Md. at 583 (quoting United States v. Gebbie, 294 F.3d 540,

552 (3d Cir. 2002) (second alteration in original)). In Ray, supra, 230 Md. App. at 188–

89, we endeavored to determine objectively “what a reasonable non-lawyer’s version of

the deal would have been under circumstances similar to those of the defendant . . . .” We

shall apply similar principles to our interpretation of Butler’s proffer agreements, and our

consideration of whether the circuit court properly held that the version of the proffer

agreement dated December 5 did not, as Butler contends, supersede the agreement signed

December 1.

       B. One or Two Proffer Agreements?

       First, we review de novo whether the circuit court correctly viewed the December 5

proffer agreement as ineffective to provide Butler any protection against the prosecution’s

use of the statements he made during either of the proffer sessions. During a hearing

conducted prior to jury selection, the circuit court addressed a motion by the State to avoid

the proffer agreement’s restrictions on the use of Butler’s statements. The State argued

                                             25
that Butler’s proffered statements, in their entirety, should be admissible in evidence

against him because he clearly gave false information during the December 1 session:

             [THE STATE]: Your honor, just to clarify the scope of the motions
      hearing it’s my understanding that Mr. Butler does not claim, nor does
      defense counsel claim that there was a constitutional defect of this . . . . Mr.
      Butler’s counsel, was present for the proceeding. He was not subpoenaed. He
      was not there against his will. He had . . . initiated the proceeding. The
      question is whether or not there was a breach of contract with respect to the
      proffer agreement. As the proffer agreement sets forth, the statements
      cannot be used against Defendant unless an, an express material
      condition he withholds material information knowingly, or if he is not
      fully truthful and candid. And the contract is explicit that if he is not
      truthful during the proffer then the State is permitted to use the statements
      that Mr. Butler makes with counsel present against him for any purpose in
      any proceeding is the express language of the contract. As a consequence the
      State intends to present testimony and evidence this morning that what Mr.
      Butler said during those proffer sessions was untruthful. Some of it was
      certainly truthful, but there are material misrepresentations and material
      omissions in the course of those.

(Emphasis added.)

      The State then called as its witness Detective Anderson, who participated in both

proffer sessions with Butler. After Detective Anderson testified that Butler had made what

he believed were false statements during the December 1 session, the following exchange

took place concerning the second proffer session held on December 5:

      Q [THE STATE]: So let’s turn to the second proffer. You’ve already seen
      the Exhibit that was marked. This was reaffirmed at the beginning of the
      second proffer. Is that a fair characterization of what happened at the
      beginning of the second proffer?

      A [DETECTIVE ANDERSON]: Yes.

      Q: And again this was initiated by defense counsel?

      A: Yes.


                                            26
      Q: There was no grand jury subpoena for Mr. Butler at this point?

      A: No sir.

                                         ***

      Q: And on that second date on the right column of the proffer session there
      are initials next to my name, [and defense counsel’s] name, and Mr. Butler
      with the date 12/5/2011. Were you present when those initials were affixed
      to the, to the, to the dates?

      A: I was.

                                         ***

      Q: And was it made clear to Mr. Duncan that, excuse me, Mr. Butler,
      excuse me, was it made clear to Mr. Butler during that session that any
      lies that he had said during the first session would be forgiven and that
      it was a blank slate?

      A: No.

      Q: Was it clear that if he’d already lied that the contract would in some
      sense already be breached?

      A: Yes.

(Emphasis added.)

      But, on cross-examination, counsel for Butler elicited the following testimony from

Detective Anderson regarding the second proffer session:

      Q [COUNSEL FOR BUTLER]: Now [on December 5, 2011,] there was
      actually a new contract entered into; correct? And it’s indicated by the
      new date and the initials of the party; is that correct? Is that correct?

      A [DETECTIVE ANDERSON]: I don’t think that’s an accurate
      reflection. It’s not a new contract, it was the same contract with the same
      language --

      Q: Okay.


                                          27
A: -- that they just initialed with a new, new date on it.

Q: The original contract is a separate contract from this; correct? It’s
not the same contract. The original contract doesn’t have December 5th
date on it; correct?

A: Correct.

                                   ***

Q: Okay. And the proffer agreement is, is read to him correct?

A: Yes.

Q: And who actually reads the proffer agreement to him on that particular
date?

A: Same person from the State.

Q: Okay the State? And on that particular date you started fresh; right?
Correct?

A: What do you mean by “fresh”?

Q: You started fresh. It, it, it’s a new date as indicated by the initial,
initials by the individuals and the date of 12/5/2011, it, you started from
the beginning; correct?

A: We started from the beginning --

Q: And did you --

A: -- but not, not because it was a, a new agreement, we started from the
beginning because we didn’t have this, the actual story. So we had to
start from the beginning. It was explained to him again that look, you
have to be honest, you have to be truthful.

Q: Um hum.

A: And so let’s start over again because we don’t believe you were.

Q: Okay.


                                    28
A: So we gave him an opportunity to start from the beginning but it
wasn’t a new, I don’t think that’s a good way to categorize it.

                                     ***

Q: Okay. Did you tell Mr. Butler that if you gave us the, the true story that
you were seeking that you were gonna use his statements against him?

A: Yes.

Q: So you, you asked the man for the true story and you said if you give
me the true story, Mr. Butler, we’re gonna use this against you, and then
he gave you a different story; is that your testimony?

A: Yeah, it was not, I don’t think it was framed in that way but he was
read the proffer agreement again and it was explained to him explicitly
that if he continues to lie that the information he tells us will be used
against, or could be used against him by the State.

                                     ***

Q: -- so at that particular time you, you told Mr. Butler that if you tell us the
truth now, or, or you told Mr. Butler if he continued to tell you the non-truth
it would be used against him by the State; correct? Correct?

A: I don’t think it was framed in those terms, no. I don’t think that’s an
accurate statement.

Q: Well detective, you just testified that you told Mr. Butler that you
read him the elements of the proffer agreement.

A: Yes.

Q: And that you told Mr. Butler that if he continued to lie to you as you
felt he did in the first proffer session it would be, the State would be able
to use that against him; correct? You testified to that just now; correct?

A: Yeah, it was, it’s in the agreement --

Q: Right.

A: -- and the agreement was read to him.


                                       29
       Q: So wouldn’t you say, detective, at this point in time you started fresh?
       You believed that Mr. Butler had told you a lie, you asked him to tell you
       the truth in the second proffer; correct?

       A: Yes.

       Q: And you said if he didn’t tell you the truth now the State could use it
       against him; correct? Correct?

       A: Yes, it’s in the agreement.

(Emphasis added.)

       After cross-examination and re-cross examination of Detective Anderson, the

circuit court heard additional argument from Butler and the State. Following argument

from both parties, the circuit court focused on a false statement Butler had made during the

first session, and granted the State’s motion to avoid the use restrictions of both proffer

agreements, stating:

       THE COURT: All right. So is your argument, is, I don’t know that I follow
       all these breaches you’ve listed. That the fact that in the first proffer he
       says Darren Thomas is the shooter, and second proffer he says Mr.
       Johnson is the shooter, that’s sufficient all by itself.

       [THE STATE]: Yes.

       THE COURT: Even if I don’t follow any                      of   these   other
       misrepresentations that you’re telling me about?

       [THE STATE]: Absolutely Your Honor. That, that is, that is exactly the
       State’s position. I was trying to reinforce the record on this matter with a
       number of additional ones, but this could have been perhaps a simpler
       proceeding by just pointing to that.

       THE COURT: All right.

       [THE STATE]: Thank you Your Honor.



                                            30
       THE COURT: All right. I think the proffer agreement is clear. The fact that
       Mr. Butler initially says that Mr. Thomas is the shooter and then says Mr.
       Johnson is the shooter, when he said Mr. Thomas was the shooter [during
       the December 1 session] he breached the agreement that existed between
       the parties.

(Emphasis added.)

       Although the Maryland appellate courts have not addressed interpretations of

proffer agreements, we recently addressed the application of contract principles to

interpretations of plea bargains, and we described the appropriate perspective for a court’s

interpretation as that of a reasonable non-lawyer in the position of the defendant:

       Rather than accept the defendant’s subjective version of what his
       understanding actually was, however, we prefer to determine objectively
       what a reasonable non-lawyer’s version of the deal would have been under
       circumstances similar to those of the defendant, confining the knowledge of
       that hypothetical reasonable man to that which was formally on the record of
       the hearing on the acceptance of the plea.

Ray, supra, 230 Md. App. at 188–89 (emphasis omitted).

       We will apply a similar approach to our interpretation of proffer agreements. But,

we recognize that, unlike the formal record available when plea agreements are accepted,

there may not be any “record of the hearing on the acceptance” of the proffer agreement.

Here, the evidence before the circuit court regarding the proffer agreements consisted of

the two signed agreements and Detective Anderson’s testimony. Courts outside of

Maryland have held that, in construing proffer agreements, “[t]he written agreement should

be viewed against the background of the negotiations” leading up to the agreement, and

“[a]ny ambiguities in the terms of a proffer agreement should be resolved in favor of the




                                            31
criminal defendant.” Pielago, supra, 135 F.3d at 709–10 (internal quotation marks

omitted).

       We have previously stated that “[t]he best evidence of what the contract (the plea

agreement) is or what the contract says is indisputably the original contractual document

itself.” Carlini v. State, 215 Md. App. 415, 446 (2013), rev’d on other grounds, 444 Md.

278, 292 (2015). But evidence of what the defendant reasonably understood may also be

considered. Ray, supra, 230 Md. App. at 188–90. The Court of Appeals stated in Baines

v. State, 416 Md. 604, 615 (2010): “[I]f examination of the terms of the plea agreement

itself, by reference to what was presented on the record at the plea proceeding before the

defendant pleads guilty, reveals what the defendant reasonably understood to be the terms

of the agreement, then that determination governs the agreement.” As the United States

Court of Appeals for the Eleventh Circuit noted in Pielago, supra, 135 F.3d at 709, the

negotiations leading up to a proffer agreement play a role in the interpretation of a proffer

agreement similar to the manner the record at the plea proceeding plays a role in the

interpretation of plea agreements.

       Bearing in mind that “[d]ue process concerns for fairness and the adequacy of

procedural safeguards guide any interpretation” of a proffer agreement, Solorzano, supra,

397 Md. at 668 (addressing plea agreements), and that any ambiguity is resolved against

the government, Cuffley, supra, 416 Md. at 583 (addressing plea agreements), we turn to

the proffer agreements in this case and consider what a reasonable person in Butler’s

position would have thought the agreement meant on December 5, 2011, when he



                                             32
voluntarily met with the police and prosecutor, and agreed to provide additional

incriminating statements. See Ray, supra, 230 Md. App. at 188–89.

       The proffer agreements signed at each of the proffer sessions contain identical

terms. The sole difference between the two versions of the agreements is the addition of

dates and initials to the document dated “12/5/11.” On December 5, each party initialed to

the right of the signature lines where they had signed on December 1, and added the date

“12/5/11” next to their initials. In all other respects the agreements are identical.

       The language of the proffer agreement outlining Butler’s obligation of candor, and

the consequences for failing to abide by the agreement, states:

       1.     Except as otherwise provided in paragraphs two and three, no statements
       made or other information provided by you or your attorney during the proffer will
       be used against you in any criminal case.

                                             ***

       3.     Your complete truthfulness and candor are express material
       conditions to the undertaking of the State set forth in this letter. Therefore,
       the State may use statements made or other information provided by you or
       your attorney during the proffer under the following circumstances. . . .

                                             ***

              b.     If the State should ever conclude that you have knowingly
              withheld material information from the State or otherwise have not
              been completely truthful and candid with the State, the State may use
              any statements made or other information provided by you or your
              attorney during the proffer against you for any purpose. If the State
              does ever so conclude, it will notify you prior to making any such use
              of any such statements or other information.

       As noted above, Butler’s proffer agreements “should be viewed against the

background of the negotiations” leading up to the agreement, Pielago, supra, 135 F.3d at


                                              33
709, similar to the manner in which plea agreements are viewed in light of statements made

during the hearing at the time a plea is accepted. Ray, supra, 230 Md. App. at 188–89.

During the circuit court’s hearing on the State’s motion to avoid the proffer agreement’s

restrictions on the use of Butler’s proffer statements, Detective Anderson testified at

different points during his testimony that Butler was told at the outset of the December 5

session that, if he “continues” to lie, the State would be able to use his statements against

him. The transcript reflects that, on December 5, Butler “was read the proffer agreement

again and it was explained to him explicitly that if he continues to lie that the

information he tells us will be used against, or could be used against him by the State.”

(Emphasis added.)

       We are persuaded that, when Butler was cautioned that, if he “continues to lie,” his

statements could be used against him, that would be understood by a reasonable defendant

who appeared voluntarily for a second proffer session (and who was deciding whether to

make additional incriminating statements) as an offer of a fresh start on December 5. From

the perspective of a reasonable defendant, there would be nothing to gain by providing

additional, and more accurate, incriminating evidence if the State had irreversibly

determined he was already in breach of the agreements and everything he said – both before

and during the second session – could be used in a criminal prosecution against him. The

more reasonable interpretation that a defendant in Butler’s position would have inferred

from the cautionary warning and the execution of the renewed non-use agreement was that,

if he did not continue to lie, but now provided truthful information, he could enjoy the



                                             34
benefit of Paragraph 1 of the proffer agreements, and “no statements made” by him would

be used against him in any criminal case.

       Although Detective Anderson testified that Butler was told that, “if he’d already

lied that the contract would in some sense already be breached,” this would not

communicate to a reasonable defendant in Butler’s position that he could never cure that

breach, and, no matter how truthful he was during the second proffer session, his statements

could all still be used against him due to false statements he had made during the first

proffer session. In our view, a reasonable person in Butler’s circumstances would have

understood the effect of re-signing the proffer agreement on December 5 as providing him

an opportunity to speak truthfully during the second session, and thereby cure any breach

he had previously committed by virtue of any prior lies he had told.

       The Court of Appeals has stated on multiple occasions that “ambiguity in [a] plea

agreement is resolved against the government ‘[b]ecause of the Government’s advantage

in bargaining power.’” Cuffley, supra, 416 Md. at 583 (quoting United States v. Gebbie,

294 F.3d 540, 552 (3d Cir. 2002) (second alteration in original)); Solorzano, supra, 397

Md. at 673 (stating that it “is axiomatic that due process requires courts to construe any

ambiguity in a plea agreement against the government”) (internal quotation omitted)).

Accord Pielago, supra, 135 F.3d at 709–10 (“Any ambiguities in the terms of a proffer

agreement should be resolved in favor of the criminal defendant.”). Moreover, “[d]ue

process concerns for fairness and the adequacy of procedural safeguards” support Butler’s

interpretation of the proffer agreement. See Solorzano, supra, 397 Md. at 668.



                                            35
       Detective Anderson testified that, at the conclusion of the first proffer session, he

“didn’t necessarily believe what Mr. Butler was saying,” and, once he completed further

investigation of Darren Thomas’s involvement, Detective Anderson definitely believed

that Butler had falsely named Darren Thomas as the shooter. If the State’s interpretation

of the proffer agreement were correct, Detective Anderson and the State would have known

at the start of the meeting on December 5 that the proffer agreement had been breached,

and that Butler’s statements could be used against him, regardless of Butler’s performance

at that session. To permit the State’s encouragement of Butler to speak truthfully and

provided additional incriminating statements under the guise of a “fresh start,” while the

State actually viewed the proffer agreement as already having been incurably breached and

providing no assurance against use of the statements, is an affront to the notions of fair play

and equity we employ when scrutinizing proffer and plea agreements.

       As quoted above, the circuit court accepted the prosecutor’s argument that one

specific false statement made during the first proffer session – namely, that Darren Thomas

was the shooter – was sufficient to fully relieve the State of its agreement not to use in the

criminal prosecution of Butler any statements he made during the proffer sessions. For the

reasons we have explained above, we conclude that the circuit court erred in accepting the

State’s argument and in failing to interpret the December 5 proffer agreement as a

modification of the proffer agreement, providing Butler an opportunity for a fresh start.

       But the State argues on appeal that, even if the circuit court had focused on the

December 5 session, it could have found that Butler committed material breaches of his



                                              36
obligations to be completely truthful and not withhold information. In its brief, the State

asserts:

               Even at the conclusion of the second proffer session Butler failed to
       be “completely truthful and candid” with the State. He neglected to tell police
       about a phone call with Duncan’s sister four hours before the murder; in fact,
       Butler claimed that he had only ever spoken with Duncan’s sister on three-
       way calls with Duncan. He also claimed that he never wrote Duncan any
       letters while Duncan was in jail . . . that he had not spoken with Keyon
       [presumably Keon] Beads after the murder. Phone records and the recorded
       jail calls established that both of those statements were false.

              Butler also failed to tell the State that the person referred to as “shorty”
       in the last recorded phone call was Johnson, and that when Butler said
       “shorty” was “deep somewhere,” “off the radar,” he meant that Johnson was
       hiding in Baltimore City to avoid detection. During argument on the motion,
       the State reiterated that Butler told police on December 1st that he did not
       know who “shorty” was, and failed to correct that misrepresentation on
       December 5th.

       But the State conceded at oral argument that Butler was not asked the identity of

“shorty” during the December 5 session, and no letters between Butler and Duncan were

ever introduced at trial. Butler points out that none of the other alleged misstatements made

on December 5 were material or detrimental to the State’s prosecution of the case. Indeed,

the trial court made no finding of any material misstatement during the December 5 proffer

session. The State does not deny that it benefitted from the additional information provided

by Butler during the December 5 session. During closing arguments at trial, the State told

the jury that Butler had “confirmed the entire conspiracy for us. Everything we thought

was true he told us was true.” Detective Anderson made a similar acknowledgment during

the pretrial hearing addressing the State’s motion to use Butler’s proffer statements against

him:


                                               37
      Q [COUNSEL FOR BUTLER]: Okay. Now sir, during the second proffer
      did Mr. Butler talk about Mr. Beads[’] involvement?

      A [DETECTIVE ANDERSON]: Yes.

      Q: Did Mr. Butler talk about Mr. Duncan’s involvement?

      A: Yes.

      Q: Did Mr. Butler talk about Mr. David Johnson’s involvement?

      A: Yes.

      Q: Did Mr. Butler talk about his own involvement?

      A: Yes.

      Q: And based on your investigation and . . . subsequent arrests[,] these four
      individuals were arrested for these charges; correct?

      A: Yes.

      Q: And at the time of the proffer on December 5, 2011, no one [had been]
      arrested; correct?

      A: Correct.

      Q: And this man [Butler] doing the proffer, when he agreed to tell you the
      truth, implicated, [he] implicated everyone that you . . . subsequently
      charged; is that correct?

      A: Yes.

      Q: So overall [as to] Mr. Butler, would you say he told you the truth as
      far as you putting together your homicide case?

      A: At the, at the end of the proffer, yes.

      Q: Okay. So at the end of the proffer he told you this was correct.

      A: Yes.

(Emphasis added.)

                                           38
       We agree with Butler’s contention that the State failed to present evidence sufficient

to show the motion court that he committed a material breach of the December 5 proffer

agreement. Consequently, the circuit court erred in granting the prosecution permission to

introduce evidence of the statements Butler made during the proffer sessions.

       The State contends in the alternative that any error on the part of the circuit court in

denying the exclusionary effect of the proffer agreements and admitting Butler’s statements

against him was harmless error. The State argues that “[t]he majority of the testimony

about Butler’s statements to police was merely cumulative to the far more damning

evidence in the recorded phone calls between Duncan and Butler” that were played for the

jury. The State further contends that Detective Anderson’s testimony as to what certain

words or phrases in Butler and Duncan’s calls meant, based upon Butler’s explanation of

the calls, was “ultimately inconsequential” because “it does not take much imagination to

decipher” the meaning of the words and phrases used by Duncan and Butler. We disagree.

       We cannot say, “beyond a reasonable doubt, that the error in no way influenced the

verdict.” Dorsey, supra, 276 Md. at 659 (emphasis added). Detective Anderson’s

testimony, based upon the proffer sessions with Butler, provided explanations for the jury

of the words and phrases in multiple phone calls implicating both Butler and Duncan as

participants in the murder of Givens. Although the State now contends that it does not take

“much imagination to decipher” the meaning of the coded language used by Butler and

Duncan in their phone calls, the prosecution elected not to take that risk at trial, and we

cannot say beyond a reasonable doubt that the use of Butler’s statements via Detective

Anderson’s testimony did not help persuade the jury to conclude that Butler and Duncan

                                              39
plotted to kill Givens. Id. Therefore, we hold that the circuit court erred in granting the

State’s motion to find Butler in violation of the proffer agreements, and remand for a new

trial as to Butler.

                                          IN APPEAL NO. 1004 JUDGMENTS OF
                                          THE CIRCUIT COURT FOR BALTIMORE
                                          COUNTY    REVERSED,   AND   CASE
                                          REMANDED FOR NEW TRIAL. COSTS
                                          TO BE PAID BY BALTIMORE COUNTY.

                                          IN APPEAL NO. 1104 JUDGMENTS OF
                                          THE CIRCUIT COURT FOR BALTIMORE
                                          COUNTY    REVERSED,   AND   CASE
                                          REMANDED FOR NEW TRIAL. COSTS
                                          TO BE PAID BY BALTIMORE COUNTY.




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