       HEADNOTE:             Payton v. State, No. 2115, September 2016 Term

     JUDICIAL IMPARTIALITY – REOPENING CASE FOR FURTHER
EVIDENCE – TRIAL COURT DEPARTED FROM POSITION OF NEUTRALITY
BY SUA SPONTE REOPENING THE STATE’S CASE WITH INSTRUCTIONS
ON HOW TO AVOID JUDGMENT OF ACQUITTAL.

                 Appellant was charged with murder and tried before a jury. After both sides
rested, appellant made a motion for acquittal, arguing simply that the State had not proved
its case. The trial court, concerned that a palm print had not been sufficiently linked to
appellant, sua sponte reopened the State’s case and stated that the motion for acquittal
would be granted unless the State called its forensic expert back to the stand. Two days
later, the trial resumed and the forensic expert testified again, clarifying that the palm print
belonged to appellant. Appellant was subsequently convicted of first- and second-degree
murder, as well as use of a firearm in the commission of a felony, and noted an appeal.

               Held: Judgments vacated and remanded for new trial. An impartial and
disinterested judge is fundamental to a criminal defendant’s right to a fair trial, and the
court abused its discretion by departing from that neutral role. Despite expressing concern
about a perceived defect in the State’s case and opining that it could “easily” grant the
motion for acquittal, the court sua sponte reopened the State’s case and gave the State
specific instructions on how to avoid a judgment of acquittal.

       While there is no per se rule that prohibits a court from sua sponte reopening a case,
such a decision should be made cautiously and with a vigilant eye to ensure that the court
does not cross the line of impartiality.
Circuit Court for Baltimore City
Case No. 115224002

                                                REPORTED

                                   IN THE COURT OF SPECIAL APPEALS

                                             OF MARYLAND

                                                  No. 2115

                                           September Term, 2016



                                           BRANDON PAYTON

                                                     v.

                                         STATE OF MARYLAND




                                      Beachley,
                                      Shaw Geter,
                                      Moylan, Charles E., Jr.
                                        (Senior Judge, Specially Assigned),

                                                     JJ.


                                           Opinion by Beachley, J.



                                      Filed: February 1, 2018
       After a four-day jury trial in the Circuit Court for Baltimore City, appellant Brandon

Payton was convicted of first-degree murder, second-degree murder, and use of a firearm

in the commission of a felony. Appellant timely appealed and presents three questions for

our review, which we have reordered:

       1. Was [a]ppellant deprived of a fair trial when the trial judge departed from a
          position of neutrality, directing the prosecutor to reopen the case after the State
          had rested to introduce critical evidence?

       2. Is the evidence legally insufficient to sustain [a]ppellant’s convictions?

       3. Did the trial judge err by permitting Detective Riker to narrate a video recording
          while it was being played for the jury?

While the evidence was sufficient to sustain appellant’s convictions, we hold that the trial

court abused its discretion when it departed from a position of neutrality and sua sponte

reopened the State’s case, and remand for a new trial.

                 FACTUAL AND PROCEDURAL BACKGROUND

       At approximately 6:00 p.m. on June 12, 2015, in West Baltimore, several

eyewitnesses watched a man dressed in brightly-colored women’s clothing and a floppy

hat chase down and shoot another man. The victim, identified as Steven Bass, died from

multiple gunshot wounds. The shooter fled into an alley by a nearby liquor store, whose

security footage corroborated testimony about an individual wearing a floppy hat and floral

blouse in the vicinity of the shooting. Police officers searched the scene and alley, but

were unable to recover any bullets, shell casings, or articles of clothing belonging to the

shooter. However, they were later able to lift a palm print from the car of a witness who

believed the shooter may have touched the hood of his vehicle while passing by. A search
for the print on an automated database returned a “hit,” and an arrest warrant for appellant

was eventually issued on July 15, 2015.

       Appellant was tried in September 2016 before a jury in the Circuit Court for

Baltimore City. During the trial, the State introduced testimony from two expert witnesses

from the Latent Fingerprint Unit at the Baltimore City Police Department: Sean Dorr and

Elizabeth Patti. Mr. Dorr testified that he examined three fingerprint lift cards taken from

the witness’s vehicle, and found one – a partial latent print – suitable for comparison. That

lift card was uploaded to an automated system that compares unknown prints against

Maryland’s state database of known prints. After examining the results, Mr. Dorr testified

from his report that “the partial latent print . . . has been identified as an impression of the

left palm of Brandon Payton, SID number 2476078.”1 Mr. Dorr further testified that he

personally fingerprinted appellant on August 9, 2016, and that he was able to verify that

the prints he took were also linked to SID number 2476078. Mr. Dorr, however, did not

compare those August 2016 prints directly to the lift card taken from the witness’s vehicle.

Ms. Patti testified that she used magnifiers to physically compare the lift card to known

prints in the system belonging to appellant. She also verified that the prints Mr. Dorr took

from appellant in August 2016 were linked to SID number 2476078.




       1
         Ms. Patti testified that an SID number (State Identification Number) is unique to
an individual, and one person will not have multiple SID numbers. Mr. Dorr later clarified
that because juvenile records are uploaded to a separate database, it is possible for one
person to have two SID numbers.



                                               2
       When the State rested, appellant made a motion for judgment of acquittal, asserting

simply that “the State has not proven its case at this point.” Perhaps due to the State’s

confusing explanation regarding SID numbers,2 the trial court immediately began to

question the State about whether its experts had testified that the unknown print (on the lift

card) had ever actually been compared to known prints of appellant. Despite replaying

portions of Mr. Dorr’s testimony, the State was unable to provide the trial court with a

satisfactory explanation.    During the following colloquy, the trial court sua sponte

reopened the State’s case and offered the State the opportunity to put on further evidence:

       THE COURT:           I am more than frustrated. Right this minute I don’t
                            think you’ve made your case. So my question is, do I
                            simply grant the motion to dismiss which I could easily
                            do based on what I have heard of this testimony,
                            because you have not convinced me that your client, that
                            you have put this man at the scene of this crime.

                            Now, if you want me to allow you to reopen your case
                            to call your expert back in -- and Ms. Zeit [defense
                            counsel] I’m sure is going to object to that -- and ask
                            that question, in your judgment, to a reasonable degree
                            of certainty, is the print that was taken off of that car
                            Mr. Brandon Payton’s print, if you want to call your
                            witness back for five minutes of testimony with
                            whatever cross-examination, I am going to permit that,
                            because I think justice needs to be done and I --
                            generally speaking, I am generally speaking, not
                            inclined to punish clients -- in your case, the public is
                            your client -- for something that a lawyer may or may

       2
         It appears from the record that the trial court may have confused SID numbers,
which are unique to an individual, with transaction numbers, which are attached to prints
rather than people. In response to the State’s insistence that the prints had all been linked
to the same SID number, the trial court responded that “the same SID number frankly
doesn’t matter. They don’t know what an SID number [is] except it’s an identifier. . . . The
SID number simply associates with a print.”


                                              3
                            not have done. But I don’t think you’ve made your case
                            at this moment. I’m going to permit you to do that.

                            And Ms. Zeit, you’re going to object, I’m assuming?

      [DEFENSE]:            Absolutely, yes.

      THE COURT:            Yeah, I thought so, and I don’t blame you.

                            But right this minute, I’m going to let you reopen your
                            case Friday morning for brief testimony to fill in the gap
                            in your case --

      [THE STATE]:          Yes, Your Honor.

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

      [THE STATE]:          Yes, Your Honor.

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

      Two days later, Mr. Dorr was called back to the witness stand and testified that he

had examined the palm print from the witness’s car, prepared a report identifying the print

as belonging to appellant, and that the associated SID number was 2476078. Mr. Dorr also

testified that he personally took fingerprints from appellant on August 9, 2016, and that

those prints were associated with SID number 2476078. Mr. Dorr explained that whenever

a person is fingerprinted, those prints are tested against an automated database of known

prints. If the prints are found to have an existing match within the system, they will be


                                               4
associated with the same SID number. Mr. Dorr explained that an individual may have

two SID numbers, one for prints taken as a juvenile and one for prints taken as adult, but

that appellant was only associated with SID number 2476078.

       After the cross-examination of Mr. Dorr, the State rested. Appellant produced no

evidence, and the case proceeded with jury instructions and closing arguments. Later that

afternoon, the jury found appellant guilty of first-degree murder, second-degree murder,

and use of a firearm in the commission of a felony. On December 5, 2016, appellant

received a life sentence for first-degree murder and a consecutive twenty-year sentence for

use of a firearm in the commission of a felony.3 Appellant noted this timely appeal.

                                      DISCUSSION

                                             I.

                          Trial Court’s Reopening of the Case

       Appellant argues that the trial court abandoned its position of impartiality when it

declined to rule on the motion for judgment of acquittal, sua sponte reopened the State’s

case-in-chief, and told the State exactly what it needed to do to survive the motion for

acquittal. We agree, and hold that the trial court abused its discretion by abandoning its

neutral role and sua sponte reopening the State’s case for further testimony.4


       3
          At sentencing, appellant’s conviction for second-degree murder was merged into
his first-degree murder conviction.
       4
         We reject the State’s preservation argument. An appellate court generally will not
decide any issue “unless it plainly appears by the record to have been raised in or decided
by the trial court[.]” Md. Rule 8-131(a). Here, the trial judge explicitly recognized that
reopening the State’s case could “very well . . . be grounds for appeal[.]” Appellant’s


                                             5
       Generally, trial judges have broad discretion to reopen a case to receive additional

evidence, and such decisions will not be overturned on appeal absent an abuse of discretion.

Hunt v. State, 321 Md. 387, 405 (1990). When the State moves to reopen its case-in-chief

to introduce additional evidence, “the judge must consider whether the State deliberately

withheld the evidence proffered in order to have it presented at such time as to obtain an

unfair advantage by its impact on the trier of facts.” State v. Hepple, 279 Md. 265, 271

(1977).

       The instant case, however, does not involve a trial court granting the State’s motion

to reopen its case. Instead, the trial court here sua sponte reopened the State’s case for

additional evidence, in a jury trial, based on its belief that the State had not adequately

proved its case. While we are not aware of any Maryland case directly on point, we

addressed this type of scenario through dicta in Cason v. State, 140 Md. App. 379 (2001).

       In Cason, we held that a trial judge did not abuse his discretion when he sua sponte

reopened the evidentiary portion of a suppression hearing to admit additional evidence that

the prosecution had neglected to introduce during its case-in-chief. Id. at 393. In making

this decision, we acknowledged that courts have identified some factors which may be




objection to the trial court’s action included, among other grounds, that the reopening was
“unfair” and “extremely prejudicial.” We conclude that appellant properly challenged the
trial court’s decision on this issue, thereby affording the parties and the trial judge an
opportunity to respond to the challenge. Id.




                                             6
considered when assessing a trial court’s decision to vary the order of proof in a case, such

as:

       Whether good cause is shown; whether the new evidence is significant;
       whether the jury would be likely to give undue emphasis, prejudicing the
       party against whom it is offered; whether the evidence is controversial in
       nature; and, whether the reopening is at the request of the jury or a party.

Id. at 391-92 (quoting Dyson v. State, 328 Md. 490, 502 (1992)).

       Applying some of these factors, we noted that the additional evidence was not new,

but merely corroborated and clarified earlier testimony. Id. at 392. We also observed that

Cason was not denied the opportunity to cross-examine or present rebuttal evidence and

further noted that, because the proceeding was before a judge, there was no danger of

prejudicing a jury. Id. at 392-93.

       Because Cason involved a suppression hearing with a judge, rather than a jury,

acting as a finder of fact, it is distinguishable from the case at bar. Nevertheless, the Cason

Court reviewed cases which Cason relied upon in arguing that the trial court had “assumed

the role of the prosecutor.” Id. at 393. In distinguishing Cason’s case from those he cited,

we opined that:

       All but one of the cases that [Cason] relies upon in support of his argument
       that the suppression hearing judge “assumed the role of prosecutor” in
       reopening the evidence involved situations in which, after the State failed to
       produce legally sufficient evidence, the judge reopened the State’s case in
       order to allow the prosecution to cure this defect. These cases are inapposite.
       The remaining case relied upon by [Cason] involved a trial judge’s
       “suggesting that the prosecutor should impeach [the defendant’s] testimony
       by proof of a prior conviction,” and reopening cross examination for him to
       do so. In those circumstances, it was clear that the trial judge had abandoned
       his neutral role and had acted as an advocate by assisting the prosecution in
       the presentation of its case.



                                              7
Id. at 393 (internal citations omitted).

       In Wisneski v. State, we applied the factors enumerated in Cason and held that the

trial court did not err in reopening a criminal jury trial for illegal possession of a handgun.

169 Md. App. 527 (2006), aff’d on other grounds, 398 Md. 578 (2007). There, the parties

stipulated on the record but out of the presence of the jury that the defendant, Wisneski,

had been convicted of a crime which made it illegal for him to possess a handgun. Id. at

531. After presenting its case, the State rested under the mistaken belief that the stipulation

had already been entered into evidence. Id. at 532-33. Wisneski moved for acquittal on

the basis that the stipulation had not been introduced into evidence. Id. at 533. The State

responded that it thought the stipulation was already in evidence, and moved to reopen its

case in order to place it on the record before the jury. Id. The trial court granted the State’s

motion. Id.

       We affirmed the trial court’s decision, noting that there was no evidence that the

State withheld the stipulation for tactical advantage. Id. at 555. Moreover, because

Wisneski had agreed to the stipulation, the reopening did not impair Wisneski’s ability to

respond or impede his right to a fair trial. Id. We also observed that from the jury’s

perspective, the stipulation was not presented out of order or unduly highlighted, because

the trial court read it to the jury at the close of the State’s case. Id.

       While Cason and Wisneski provide important guidance in resolving the case at bar,

there does not appear to be any Maryland appellate decision addressing the propriety of a

trial judge sua sponte reopening the State’s case for additional evidence to cure a perceived

flaw in the prosecution’s case. Courts from other states, however, have addressed this


                                                8
issue. In J.F. v. State, 718 So. 2d 251 (Fla. Dist. Ct. App. 1998), the court held that the

trial court erred when it sua sponte reopened the prosecution’s case to obtain fingerprint

evidence in a juvenile appellant’s trial for theft of an automobile. There, the investigating

officer testified that he had obtained fingerprints from the stolen automobile but that the

test results were not available at the time of trial. Id. at 252. After the State and defense

rested, the trial judge called the officer back into the courtroom. Id. The trial judge then

asked the officer when the fingerprint analysis would be available and directed the officer

to have the results available within a week. Id. Though the prosecution never asked for a

continuance nor indicated that it intended to submit fingerprint analysis, the trial judge sua

sponte continued the case to obtain the fingerprint evidence. Id. Approximately one week

later, the hearing resumed and, over J.F.’s objection, the trial court admitted incriminating

fingerprint evidence against J.F. Id. The Florida intermediate appellate court reversed the

conviction, noting that “[a] trial judge ‘should never assume the role of prosecuting

attorney and lend the weight of his great influence to the side of the government[.]’”

(quoting Hunter v. United States, 62 F.2d 217, 220 (5th Cir. 1932)). In reaching its

decision, the Florida appellate court stated,

       Here, the trial court assumed the role of the prosecutor by directing a witness
       for the state to obtain additional evidence and sua sponte continuing the
       hearing pending the results when the state never gave any indication that it
       intended to admit the fingerprint evidence. The judge’s actions can easily be
       seen as giving the state an unrequested second chance to prove its case.
       Indeed, the trial judge even suggested that he was not convinced beyond a
       reasonable doubt regarding appellant’s guilt until the fingerprint results were
       admitted into evidence. After finding appellant guilty, he said “I just can’t
       get around the fingerprint.”

Id.; accord Lyles v. State, 742 So. 2d 842 (Fla. Dist. Ct. App. 1999).


                                                9
       Nebraska’s intermediate appellate court reached a similar result in State v. Gray,

606 N.W.2d 478, 495-97 (Neb. Ct. App. 2000), overruled on other grounds by State v.

Nelson, 636 N.W.2d 620, 628 (Neb. 2001). In that case, when the State rested, its evidence

of Gray’s prior convictions was insufficient to prove that Gray was a habitual criminal

under Nebraska law. Id. at 495. The trial judge informed the State by letter of the

evidentiary insufficiency and allowed the State to reopen its case to establish that Gray was

a habitual criminal. Id. In concluding that the trial judge committed reversible error by

“depart[ing] from his role as neutral fact finder[,]” the court stated,

       In the instant case, the court did more than suggest a pleading. Instead, he
       assessed the State’s evidence, found it insufficient, advised the State of the
       insufficiency, and then over objection allowed the State to put in more
       evidence to attempt to plug the gaps in its proof. Regardless of the judge’s
       intention, we cannot avoid the conclusion that the judge assisted the State,
       which compromised his duty to be impartial.

Id.; see also State v. Bol, 846 N.W.2d 241, 251 (Neb. 2014) (withdrawal of State’s rest

proper “as long as court does not advocate for or advise State to withdraw its rest”).

       Other courts have reached a similar conclusion. State v. Brock, 940 S.W.2d 577,

580-81 (Tenn. Crim. App. 1996) (holding that trial court abused its discretion in statutory

rape prosecution in which defendant’s age was an element of the offense by sua sponte

reopening case, calling defendant back to witness stand, and asking defendant his age after

noting that no evidence of defendant’s age had been presented); State v. Finley, 704 S.W.2d

681, 684 (Mo. Ct. App. 1986) (holding it “improper for the trial judge to assume the

prosecutor’s role . . . by suggesting that the prosecutor should impeach [defendant’s]

testimony by proof of prior conviction”).



                                              10
       We recognize the existence of decisional law to the contrary. See Lebedun v.

Commonwealth, 501 S.E.2d 427, 436 (Va. Ct. App. 1998) (holding that trial court, in a jury

trial, did not abuse its discretion in sua sponte raising issue of in-court identification and

allowing Commonwealth to reopen its case to establish identification of defendant); People

v. Betts, 400 N.W.2d 650, 652-53 (Mich. Ct. App. 1986) (holding that, where there were

two conflicting versions of the testimony and the trial court did not know which to believe,

it was not error in a bench trial for the trial judge to sua sponte call a witness that had been

listed but that both parties had declined to call); Commonwealth v. Safka, 141 A.3d 1239,

1251 (Pa. 2016) (holding that in a non-jury vehicular manslaughter trial, there was no

distinction between reopening the case on a party’s motion and reopening on the court’s

own initiative, and that the trial court had discretion to reopen the record sua sponte to

receive additional testimony concerning the reliability of the vehicle’s Event Data

Recorder, which recorded the car’s speed prior to the airbag’s deployment); State v.

Medeiros, 909 P.2d 579, 588-89 (Haw. Ct. App. 1995) (recognizing that trial court must

be impartial when exercising power to call its own witnesses, but holding that in non-jury

trial, judge did not behave partially by sua sponte calling its own witnesses after both sides

rested, noting that testimony was not essential and did not necessarily benefit the State’s

case). We note, however, that, with the exception of Lebedun, all of these cases permitted

reopening of the prosecution’s case in a bench trial where the trial judge was the factfinder.

And while Virginia’s intermediate appellate court in Lebedun found no error in the court’s

reopening of the prosecution’s case in a jury trial after the trial judge sua sponte pointed




                                              11
out that the defendant had not been properly identified, we are not persuaded by that court’s

limited, and somewhat perfunctory, analysis.

       A criminal defendant has the right to a fair trial, and it is well-settled in Maryland

that an impartial and disinterested judge is fundamental to this right. Jackson v. State, 364

Md. 192, 206 (2001). In other contexts, we have observed that, “Although a conviction is

rarely reversed on the grounds that the judge has compromised his or her impartiality by

intervening in a case, there have been instances where the egregiousness of a trial court’s

intervention indeed warranted admonishment of the trial court or, even in some cases, a

new trial.” Smith v. State, 182 Md. App. 444, 483 (2008); see Archer v. State, 383 Md. 329,

358-60 (2004) (awarding new trial after holding that trial court abandoned role of

impartiality through its efforts to force a witness to testify after that witness refused to do

so); see also Vandegrift v. State, 237 Md. 305, 310-11 (1965) (granting new trial when trial

court’s questioning of a witness manifested its disbelief of that witness’s testimony).

       In the instant case, despite stating that the motion for acquittal could be granted, the

trial court declined to rule on the motion as Rule 4-324(b) dictates.5 Although the State




       5
           Rule 4-324(b) provides:

       Action by the court. If the court grants a motion for judgment of acquittal
       or determines on its own motion that a judgment of acquittal should be
       granted, it shall enter the judgment or direct the clerk to enter the judgment
       and to note that it has been entered by direction of the court. The court shall
       specify each count or degree of an offense to which the judgment of acquittal
       applies.


                                              12
made no motion to reopen, the trial court elected to sua sponte reopen the case for further

testimony, and advised the State on how to avoid a judgment of acquittal.

       As noted supra, when deciding whether the trial court has abused its discretion in

reopening a party’s case, relevant factors include: the significance of the additional

evidence, whether it is controversial, and whether the jury will be unduly influenced,

thereby prejudicing the party against whom it is offered. Dyson, 328 Md. at 502. Here,

while perhaps not controversial, it was important for the State to establish a clear and

explicit link between appellant’s known prints and the unknown palm print taken from a

witness’s car. This evidentiary link was highlighted by Mr. Dorr’s testimony, which was

presented two days after the State had rested. Because appellant elected not to present any

evidence, Mr. Dorr’s testimony was the last evidence the jury heard, thereby increasing the

danger of the jury placing undue emphasis on that testimony. We therefore hold that, under

these circumstances where the trial court was on the precipice of granting an acquittal, the

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

reopening the State’s case to correct a perceived defect. We accordingly vacate appellant’s

convictions and remand for a new trial.

       To be clear, the bench and bar should not construe our opinion as a per se rule

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

decision, however, should be made cautiously and with a vigilant eye to ensure that the

court does not cross the line of impartiality.




                                                 13
                                             II.

                               Sufficiency of the Evidence6

       We next address appellant’s contention that the evidence was not legally sufficient

to sustain his convictions. Appellant claims that the State failed to prove that the victim of

the shooting was the same person who was autopsied, and argues that the State therefore

failed to prove that a crime occurred.

       The standard of review for the sufficiency of the evidence is “whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Hobby v. State,

436 Md. 526, 538 (2014) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “The

test is not whether the evidence should have or probably would have persuaded the

majority of the fact finders but only whether it possibly could have persuaded any rational

fact finder.” Painter v. State, 157 Md. App. 1, 11 (2004) (citations and internal quotation

marks omitted). In applying this test, “[w]e defer to the fact finder’s opportunity to assess

the credibility of witnesses, weigh the evidence, and resolve conflicts in the

evidence.” Neal v. State, 191 Md. App. 297, 314 (2010) (citations and internal quotation

marks omitted).

       Here, eyewitnesses testified that an individual dressed in women’s clothing used a

handgun to shoot the victim multiple times. Detective Jonathan Riker, the lead investigator


       6
         We address appellant’s sufficiency of evidence claim because, if the evidence were
legally insufficient, appellant would be entitled to a reversal of his convictions with no
remand for retrial.


                                             14
on the case, identified the victim as Steven Bass, and testified that Mr. Bass died at the

scene of the crime. The assistant medical examiner who performed the autopsy of Mr.

Bass testified that the manner of death was homicide. Finally, the jury heard evidence that

the shooter may have touched an eyewitness’s car, and two fingerprint experts testified that

a palm print taken from that same vicinity of the eyewitness’s car matched prints taken

from appellant. Simply put, the evidence was sufficient to sustain appellant’s convictions.

                                            III.

                             Narration of Surveillance Video

       During trial, the State introduced surveillance footage from a nearby liquor store.

Detective Riker narrated while the video played, identifying the locations depicted and

explaining which way the suspect was traveling. According to appellant, Detective Riker

prejudiced the jury by describing the suspect in the video as a man, because while some of

the witnesses described the shooter as a man dressed in women’s clothing, one of the

witnesses identified the shooter as a woman.7 Appellant also asserts that Detective Riker

should not have been permitted to highlight for the jury that the suspect was not wearing a

glove on his left hand.8



       7
          Two witnesses described the shooter as male: Rhonda Berkley said she knew the
shooter was male because he had facial hair on his chin, and Leah Rossman described the
shooter as a man wearing a floppy hat and shorts. Another witness, Christopher Brinker,
testified that he saw a man pass behind his car through his rear-view mirror, and then saw
what he perceived to be a woman wearing a big hat run past the front of his car in pursuit
of the man.
       8
          Investigators were able to link appellant to the shooting based on a left hand palm
print lifted from the hood of a witness’s car.

                                             15
       In the event the State attempts to have Detective Riker narrate the video at

appellant’s re-trial, we encourage the trial court to be mindful of Md. Rule 5-701 when

ruling on appellant’s objection to that testimony:

       Opinion testimony by lay witnesses. If the witness is not testifying as an
       expert, the witness’s testimony in the form of opinions or inferences is
       limited to those opinions or inferences which are (1) rationally based on the
       perception of the witness and (2) helpful to a clear understanding of the
       witness’s testimony or the determination of a fact in issue.

(Emphasis added). We also commend to the trial court Ragland v. State, 385 Md. 706

(2005), which provides a thorough discussion of Md. Rules 5-701 and 5-702 dealing with

lay and expert testimony, respectively. As a general rule, caution should be exercised by

the trial court when determining whether to permit a police officer to narrate a video when

the officer was not present during the events depicted therein.



                                   JUDGMENTS OF THE CIRCUIT COURT FOR
                                   BALTIMORE     CITY   VACATED.   CASE
                                   REMANDED TO THAT COURT FOR A NEW
                                   TRIAL. COSTS TO BE PAID BY MAYOR AND
                                   CITY COUNCIL OF BALTIMORE.




                                            16
