*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other

document filed in this Court or any other Maryland Court as either precedent within the

rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Circuit Court for Anne Arundel County

Case No. 02-K-11-002647

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

WILLIAM LLOYD MCDONALD

v.

‒Unreported Opinion‒

On August 12, 2006, at approximately 2 a.m., Benjamin Curtis and Rhonda Briscoe

were robbed at gunpoint. The assailant shot Mr. Curtis in the head.

Appellant William L. McDonald (“McDonald”) was tried before a jury in the Circuit

Court for Anne Arundel County and convicted of first-degree felony murder and second-

degree murder, armed robbery of both Mr. Curtis and Ms. Briscoe, use of a handgun in the

commission of a violent crime, and possession of a firearm after a conviction of a crime of

violence.

McDonald presents five questions for our review:

1. “Did the trial court err in admitting irrelevant and/or highly prejudicial

letters into evidence?”

5. “Did the trial court err in denying Appellant’s motion to strike the State’s

Notice of Intent to Seek Sentence of Imprisonment for Life Without

Possibility of Parole?”

We hold that the trial court abused its discretion by admitting the letters at issue

without first reviewing them and without conducting the requisite analysis under Maryland

Rule 5-404(b). See State v. Faulkner, 314 Md. 630 (1989). More specifically, the court

did not consider the inferences involved in establishing the special relevancy of the letters

as evidence of consciousness of guilt, or weigh the probative value of the evidence against

their prejudicial effect. Because we cannot say the letters at issue are not highly prejudicial,

‒Unreported Opinion‒

we must reverse McDonald’s convictions and remand this case for a new trial. We do not,

therefore, reach McDonald’s remaining issues on appeal.

The following testimony and evidence was presented at McDonald’s trial, which

began on May 5 and ended on May 14, 2015.

Mr. Curtis and Ms. Briscoe were very close friends. On August 11, 2006, they met

some friends after work at the Star Inn, a bar in Odenton, Maryland. Mr. Curtis and Ms.

Briscoe left the bar together in Mr. Curtis’s SUV and drove to the American Legion in

Maryland Code [Section 2-304 of the Criminal Law Article] and Maryland Rule[] [4-342]

the rule provides for sentencing by the court. The second reason McDonald advances is

that “the Maryland sentencing scheme for first-degree murder is void for vagueness as it

lacks guidelines for the circuit court or a jury in deciding whether to impose a sentence of

life imprisonment without the possibility of parole.” At oral argument, both parties

imprisonment without the possibility of parole[.]” Id. at 474. The Court also instructed

that, “in the absence of statutory guidelines explicitly limiting a trial court's discretion, the

imposition of a sentence of life imprisonment without the possibility of parole rests with

the trial court's discretion and is subject to traditional sentencing procedures.” Id. at 512-

13.

Finch,] had received immunity for her testimony.”

‒Unreported Opinion‒

Baltimore. They returned to Odenton around 2 a.m. to pick up Ms. Briscoe’s car, which

was parked near the Star Inn and My Place, another bar.

Ms. Briscoe testified that while they were sitting in Mr. Curtis’s SUV, a man

approached the driver’s window, which was partially open, and pointed his handgun

through the window. According to Ms. Briscoe, the man, later identified in the course of

the investigation as McDonald, said, “give me your wallet and give me your purse, this is

a robbery[.]” Mr. Curtis handed his wallet and Ms. Briscoe’s purse to McDonald.

McDonald then got in the backseat of Mr. Curtis’s SUV and rifled through the wallet and

purse. McDonald said “come on man, I know you got more money than that.” Mr. Curtis

Fort Meade United States Army Installation for help.

McDonald had left the area by the time the police responded, according to Corporal

Dennis Stackewicz, one of the Anne Arundel County police officers who responded to the

scene. Mr. Curtis died shortly after arriving to a hospital from a single gunshot wound to

his head.

‒Unreported Opinion‒

The Investigation

In the early morning hours of August 12, 2006, Corporal Martin Freeman of the

Anne Arundel County police department, was the first officer to respond to the scene.

Upon finding Mr. Curtis wounded and unresponsive in the SUV, Cpl. Martin called for

backup. The officers searched the SUV for evidence of gunshots or projectiles and to

determine Mr. Curtis’s identity and how his wounds were inflicted. In the course of this

search, Corporal Ronald Gamble, one of the Anne Arundel County police officers who

responded to Cpl. Freeman’s service call, found a bullet fragment in the rear floorboard of

the SUV. Cpl. Freeman turned the bullet fragment over to an evidence technician, who

Burnie, Maryland.

complex to investigate two days after the shooting and armed robbery. Multiple Spanish-

speaking individuals lived in the apartment unit. Det. Powell asked the residents about the

cell phone, which turned out to be Ms. Briscoe’s cell phone. Det. Powell recounted the

Apartments. This was not known to Det. Powell at the time she located the cell phones.

‒Unreported Opinion‒

residents’ responses over the defense counsel’s objection on the grounds of hearsay and

the right to confrontation. Specifically, Det. Powell testified that

they [(the apartment’s residents)] explained that they had found the phone,

and put it into the phone that they found to see if it was working.

obtained a list of all residents residing in the apartment complex and conducted background

to the murder and armed robbery.

On August 22, 2006, Craig Robinson, an evidence coordinator with the Anne

Arundel Police Department, brought the bullet fragment recovered from Mr. Curtis’s car

to Torin Suber, a firearm and toolmark examiner with the Maryland State Police. Suber

identified the fragment as a “fired caliber .40 S&W /10mm copper jacketed bullet.” Based

on the impressions on the bullet, Suber narrowed the list of the type of firearm to those

manufactured by Glock, Israeli Military Industries, Heckler & Koch, and Kahr Arms.

Det. Powell and Robinson searched Mr. Curtis’s car for a second time on August

24, 2006, to recover any trace evidence. During this search, Robinson found a .40 caliber

‒Unreported Opinion‒

Carlos Wells, one of the State’s key witnesses, became involved in the investigation

after he was arrested in New Jersey on September 4, 2006, with a gun in his possession as

a suspect in an unrelated drive-by shooting. The New Jersey police ran a NCIC check on

the handgun and learned that it was reported as stolen from Maryland. They sent an

intelligence bulletin notifying the Anne Arundel County Police Department that Wells was

arrested with a .40 caliber Glock handgun, which was one of the possible types of guns

used in the murder of Mr. Curtis and armed robbery of Ms. Briscoe.

Det. Powell interviewed Wells at a detention center in Atlantic City. She asked

Wells, among other things, how he procured the handgun. Det. Powell testified that it was

Ms. Briscoe testified that the gunman was a black male, who could also have been biracial

or Hispanic, with a southern accent. On January 18, 2007, she attended a line-up at the

police station. McDonald was one of the six males in the line-up, all wearing black skull

caps; she did not identify any of the six people as the gunman. On cross examination, Det.

the District of Maryland. At the time of trial, McDonald was serving a sentence for a theft

conviction that resulted from a burglary charge.

‒Unreported Opinion‒

Powell admitted that the police were not able to match McDonald’s DNA to any evidence

from the crime.

At some point, the investigation became dormant. Although Det. Powell suspected

McDonald of committing the crimes by September 2006, the State did not have sufficient

evidence connecting McDonald to the crime. In April 2011, the investigation was

reinvigorated, however, when the Anne Arundel Police Department assigned Detective

John Gajda and the Homicide Cold Case Unit to this case.

Shortly thereafter, on June 3, 2011, Kim Finch finally agreed to talk with the police

about the crimes, after denying knowledge of them in 2006 and 2007, when she was granted

that McDonald immediately showered and she believed he destroyed the clothes he wore

on August 12, 2006. After his shower, McDonald continued to detail the events of that

early morning, including that the people be robbed drove an SUV. Finch also testified that

McDonald later told her he lent his gun to Carlos Wells after the murder and armed robbery.

At McDonald’s request, Finch made three or four attempts to call Wells to get McDonald’s

‒Unreported Opinion‒

December 16, 2011—five years after the crimes occurred.

Det. Gajda testified that in January 14, 2014, he brought the bullet fragment,

cartridge case, and handgun to the New Jersey State Police Lab for additional testing.

James Storey, a firearms identification expert with the New Jersey State Police Ballistics

Unit, performed a microscopic comparison of the bullet fragment and shell casing, and

concluded that the bullet and casing had similar impression marks, which indicated that

they were fired from the same handgun. After comparing the bullet, casing, and handgun,

Storey concluded that there was a reasonable degree of certainty that the bullet and casing

were fired by the handgun. Ultimately at trial, the parties stipulated that, prior to Mr.

was signed by “William”. In the first letter, which carried the instruction, “Burn this letter

McDonald for crimes committed in Montgomery County and for which he was

successfully prosecuted. Adrian Lincoln was also investigated by the Montgomery County

Police in connection with those other crimes. Montgomery County Detective Frank

Springer testified in the motions hearing in this case that there was no agreement, formal

or information, between Lincoln and the State in regard to his cooperation in the

the Lincoln Letters in this case were not used in any prosecutions in Montgomery County.

‒Unreported Opinion‒

accident.

review that apply to evidence admitted under Maryland Rule 5-404(b):

before permitting the evidence to be presented to the jury. First, the court

other than mere propensity to commit crime.’” Skrivanek v. State, 356 Md.

665 A.2d 223 (1995)). In other words, the question is whether the evidence

634, 552 A.2d 896 (1989). This determination does not involve discretion;

which the trial judge will be found to have been either right or wrong.”

552 A.2d 896). Second, the court must “decide whether the accused’s

evidence[,]” and we “review this decision to determine whether the evidence

634–35, 552 A.2d 896 (citations omitted). Third, “[t]he necessity for and

against any undue prejudice likely to result from its admission[,]” and this is

‒Unreported Opinion‒

potential misuse of other crimes or bad acts evidence and avoid the risk that

Streater v. State, 352 Md. 800, 807, 724 A.2d 111 (1999).

Several cases explain the special relevancy analysis that a court must undertake under the

of guilt.

In Thomas, the petitioner was tried for the murder of Ms. Mitchell and related

crimes. 372 Md. at 346. During the course of the investigation, the police obtained a

search warrant to take hair and blood samples of the petitioner. Id. The petitioner did not

willingly comply with the warrant and the officers had to forcibly restrain the petitioner to

obtain the blood sample. Id. The petitioner was excluded as the source of blood found at

the crime scene through laboratory testing. Id. Prior to trial, the petitioner moved in limine

to prevent the State from introducing the evidence that he resisted when the police obtained

the blood sample. Id. at 347. The trial court denied the motion and the State introduced

‒Unreported Opinion‒

that petitioner resisted when, pursuant to a search warrant, the police sought to obtain a

sample of his blood.” Id. at 344.

Evidence of consciousness of guilt referring to evidence of “[a] person’s behavior

after the commission of a crime may be admissible as circumstantial evidence from which

guilt may be inferred.” Id. at 351. This evidence “is considered relevant to the question

of guilt because the particular behavior provides clues to the person’s state of mind.” Id.

at 352. Guilty behavior alone, however, is not automatically relevant and admissible as

consciousness of guilt. To be relevant, we must be able to “say that the fact that the accused

580, 596 (2000), the Court fashioned the following four inferences to establish the

relevancy of the petitioner’s resistance to the blood test:

(1) from his resistance to the blood test, a desire to conceal evidence; (2)

consciousness of guilt, a consciousness of guilt of the murder of Ms.

actual guilt of the murder.

‒Unreported Opinion‒

then as evidence of guilt of the murder, there must be evidence to support an

particular crime charged. The jury should not have been permitted to draw

an inference of guilt from petitioner's conduct unless the conduct was related

to the murder investigation.

was devoid of evidence connecting the petitioner’s alleged consciousness of guilt

of Ms. Mitchell. Id. at 358.

In Copeland v. State, the appellant assaulted Ms. Nesmith, his girlfriend, and was

charged with second-degree assault and related crimes. 196 Md. App. 309, 311 (2010).

Approximately four months after the assault occurred but two months in advance of trial

for the assault and the related charges, the appellant threatened to kill Ms. Nesmith and her

family if he received a prison sentence for charges pending against him. Id. at 312-13. A

few days in advance of trial, the appellant threatened Ms. Nesmith again. Id. at 313. At

trial, both Ms. Nesmith and the officer who arrested the appellant testified regarding the

appellant’s threats. Id. at 312-13. The arresting officer testified that Ms. Nesmith initially

‒Unreported Opinion‒

assault of Ms. Nesmith. Id. at 314.

On appeal, the appellant contended that Ms. Nesmith’s and the arresting officer’s

testimony regarding the threats were inadmissible evidence of other crimes and bad acts.

Id. at 314–16. While this Court recognized that evidence of a defendant’s prior bad acts is

generally inadmissible, such evidence may be admissible if its use falls within a special

relevancy exception pursuant to Rule 5-404(b). Id. at 316. We concluded that the

testimony regarding the appellant’s threats to Ms. Nesmith amounted to witness

intimidation and was admissible under the consciousness of guilt exception to Rule 5-

404(b). Id. at 317. We reasoned that the appellant’s “attempt[] to intimidate Ms. Nesmith

an inference of flight as evidence of consciousness of guilt. 408 Md. 641-42. The Court

held that Decker’s “departure from the courthouse . . . was prompted by a concern that the

trial would not conclude well for the defense.” Id. at 646. Therefore, the Court concluded

that Decker’s flight from the courthouse after trial had begun was properly considered by

‒Unreported Opinion‒

Id. at 648.

Even if the evidence sought to be admitted is relevant, the inquiry as to whether to

admit the prior bad acts evidence is not at an end. The court must “decide whether the

evidence.” Faulkner, 314 Md. at 634 (citations omitted). Appellate courts “review this

finding.” Id. at 635. Finally, the trial court must carefully weigh the “probative value of

In Faulkner, the respondent, who was awaiting trial on charges of robbing a

Safeway store, moved in limine to exclude evidence of three other robberies that occurred

at the same store. 314 Md. at 632. The State sought to introduce evidence of the other

robberies to demonstrate that each crime was conducted with a similar modus operandi and

would, therefore, establish Faulkner’s agency in the robbery with which he was charged.

‒Unreported Opinion‒

necessary; the State could not establish Faulkner’s role in the other crimes by clear and

convincing evidence; and the prejudicial value outweighed the probative value. Id. at 632–

33. Despite Faulkner’s challenges, the trial court denied Faulkner’s motion and the

evidence was admitted at trial. Id. at 633. This Court reversed the trial court’s ruling and

the State appealed. Id.

The Court of Appeals established the three-part inquiry for admitting evidence of

prior bad acts, supra, and concluded that the prior robberies established Faulkner’s

identity—an exception to the general exclusionary—because the robberies were committed

with a distinctive modus operandi. Id. at 639-40. Next, the Court determined that

other crimes evidence was necessary because the only other evidence linking him to the

robbery was circumstantial evidence of an accomplice. Id. at 642–43. Because a

conviction cannot rest on uncorroborated accomplice evidence, the other crimes evidence

was necessary. Id. at 642. Therefore, the Court held that the circuit court did not abuse its

discretion for admitting the evidence of other crimes for the limited purpose of establishing

‒Unreported Opinion‒

Returning to the case on appeal, the trial court was required to conduct the three-

part inquiry as explained in Faulkner and subsequently in Page, supra. Additionally,

relevancy of the other crimes evidence under the consciousness of guilt exception. Thomas

elaborates that “there must be evidence to support an inference from petitioner’s conduct

to a consciousness of guilt for the particular crime charged.” 372 Md. at 357-58 (emphasis

added). In this case, the trial court failed to make any relevancy determination on the

record, or, give any indication that the court weighed the probative value of the Lincoln

letters against any undue prejudice that could result from their admission. Indeed, the court

prosecution in this case to prove consciousness of guilt, the evidence must demonstrate

sending the letters to Adrian Lincoln, a desire to conceal evidence; (2) from a desire to

conceal evidence, a consciousness of guilt; (3) from a consciousness of guilt, a

consciousness of guilt of the murder of Mr. Curtis; and (4) from a consciousness of guilt

‒Unreported Opinion‒

if we could get past this first hurdle under de novo review, we would have to embark on an

analysis under the second prong as to whether the evidence was sufficient in this case to

deduce, by clear and convincing evidence, that McDonald solicited Lincoln to engage in

the murder of Carlos. We are tasked with reviewing the record “to determine whether the

evidence was sufficient to support the trial judge’s finding.” Faulkner, 314 Md. at 634–35

(citations omitted).

Finally, we review the third prong of the prior bad acts evidence test—the court’s

weighing of the probative value of the evidence against its prejudicial effect—for abuse of

discretion. Id. at 641. As we have now stated repeatedly, the record before us is bare as to