Kelly v. State
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Francesco A. Kelly v. State of Maryland No. 49, September Term, 2005 Headnote: The right to compulsory process under the Sixth Amendment of the United States Constitution and Article 21 of Maryland s Declaration of Rights requires that a defendant be given an oppo rtunity to elicit testimony from witnesses on his or her behalf. When the witnesses are in the c ourtroom , or im med iately avai lable to tes tify, th e cou rt gener ally should allow the defendant to call the witnesses. The trial court, gene rally, should not make a ruling on admissibility of evidence without an appro priate objectio n being rais ed by either pa rty. When the court excludes evidence sua spon te in a party-selective manner a nd in the w holesale fashion it utilized here, it leaves its role as an arbiter and assumes a new role as a party to the case; such a proced ure may place into question the defenda nt s right to a fa ir trial. Circuit Co urt for Mo ntgomery C ounty Case # 96683 IN THE COURT OF APPEALS OF MARYLAND No. 49 September Term, 2005 Francesc o A. Ke lly v. State of Maryland Bell, C. J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Cathell, J. Raker and Harrell, JJ. dissent Filed: May 8, 2006 Francesco Alexjandre K elly, petitioner, was convicted by a jury in the Circuit Court for Montg omery Cou nty on Ma y 22, 2003, of two cou nts each of attempted first degree murder, 1 attempted second degree m urder, 2 first degree a ssault, 3 and use of a handgun in the commission of a felony or a crime of violence.4 He was sentenced to twenty-five years for the first count of attempted first degree murder, a consecutive ten years for the second count of attempted first degree murder, and a consecutive five years for the first count of use of a handgun in the commission of a felony or a crime of violence (to run concurrently with five years for the second count of use of a handgun in the commission of a felony or a crime of violence), fo r a total of fo rty years imprisonm ent. 5 The Court of Special Appeals affirmed the convictions. Kelly v. State , 162 Md. App. 122, 873 A.2d 434 (2005). Petitioner filed a petition for writ of certiorari on June 15, 2005. We granted certiorari on August 10, 2005. Kelly v. State, 388 Md. 404, 879 A.2d 1086 (2005). The following questions are presented for our review: 1 Md. Code (2002), § 2-205 of the Criminal Law Article. 2 Md. Code (2002), § 2-206 of the Criminal Law Article. 3 Md. Code (2002), § 3-202 of the Criminal Law Article. 4 Maryland Code (1957, 1996 Repl. Vol., 2001 Supp.), Article 27 § 36B, was codified as Maryland Code (2002), § 4-204 of the Criminal Law Article effective October 1, 2002. Although the sentencing sheet and charging documents reference Article 27 § 36B, section 4-204 was in effect at the time of the offense. Because the tw o sections a re substantially identical the reference to Article 27 does not have any effect in these proceedings. 5 The attempted second degree murder and attempted first degree assault convictions were merged with the attempted first degree murder as lesser included offenses for the purpose of sentencing. I. Whether the right to be present at every stage is violated by exclusion of the defendant from an evidentiary hearing when, although evidence is not taken in the traditional se nse, the court s ruling is based on the State s proffer [6] of facts not previously in evidence and, thus, the proceeding is not a conference or argument on a question of law? II. Whether the right to present a defense is violate d when the court, without justification, and as a predicate to permitting a n available witness to take the stand, requires the defense to proffer, in the State s presence, the content and theory of admissibility of the witness s testimony? We hold that the trial court abu sed its discretion whe n it refused to allow the p etitioner to present his witnesse s. Because the answ er to the second question requires that petitioner be granted a new trial, we shall not address the first question presented. 6 Although we are not addressing this question, we will for the purpose of clari ty explain the state s proffer as it is relevant to the answ er of the first question presented in order that the proffer there made can be distinguished from the court imposed proffers that are the subject of the second question. According to the State, a le tter was m ailed to petitioner s counsel 11 days before the trial was set to begin. The letter purportedly stated that the State intended to call as a witness, a jailhouse snitch, who had come forward a couple of days earlier with information regarding petitioner s confession. At the time the trial commence d, petitioner s counsel objected to the testimony of the snitch because she had not received the notification of the State s intention to call that witness and believed such lack of notice constituted a discovery violation. At that time the court postponed ruling on the objection until the State actually called the witness. During trial, when the State informed the court of its intention to call that witness, the court discussed with the State and petitioner s counsel, out of the presence of the jury and in the absence of the petitioner (over petitioner s counsel s objection), whether the witness would b e allowed to testify. The State made a proffer s tating that the w itness wou ld testify as to the state ments made by th e petitioner to the witness confessing to the crime. No objections were raised as to the admissibility of the witness s testimony on evidentiary grounds but only on the fact that the State had not pr ovided ad equate no tice to petitioner s counsel. The court found that there had not b een a discovery violatio n and allo wed the w itnes s to te stify. The prof fers issues ra ised in the second question above all arose subsequent to, and completely independent of, the proffer issue encompassed in the first question. 2 I. Facts The Court of Special Appeals provided the following account of the events that led to these proceedings: The tragic events of this case began to unfold around 11:00 p.m. on October 31, 2002. At that time, Ibrahim Sidibe, his fiancée, Melissa Wainw right, and Sidibe s best friend, Nicholas Watson, were riding together on a public transit bu s. They were on their w ay home fro m City Place M all, in Silver Spring, Maryland, where Sidibe had been performing as the character Spid erman at a chi ldren s H allow een p arty. During the bus ride, Wainwright noticed [petitioner] seated across from them, wearing headpho nes and bobb ing his h ead up and do wn, evidently in time with the music. Wainwright made a remark about [petitioner] that caused Watson and others on the bus to laugh. [Petitioner] responded with a derogatory comment about Wainwright, precipitating an angry excha nge be tween Watso n and [ petition er]. The episode ended w ithin a minute and a half, without further trouble at that time. Shortly thereafter, Sidibe, Wainw right, and Watson got off the bus at the stop in fron t of a 7-E leven S tore in th e Whi te Oak area of Silver S pring. [Petitioner] remained on the bus, but he and Watson made eye contact as Watson left the bus. The three friends went into the 7-Eleven to get something to eat and drink, then returned to the bus stop to await the arrival of the next bus. Sidibe was wearing his headphones and stood about 12 to 15 feet away from Watson and Wainw right. After ten minutes or so , Wainwright and Watson heard a gun shot. Wainw right, who was six months pregnant at the time, turned and recognized the shooter as the person about whom she had made the comment on the bus. She took off running in the direction of the 7-Eleven, hearing additional gun shots as she ran. W ainwrigh t fell twice in he r efforts to g et to the store, but was able to reach it and get inside without being injured. Watson did not immediately flee upon hearing the gun shot. Instead, he turned in the direction of Sidibe in time to see him fall to the groun d. Watson saw a sh adowy figu re standing above S idibe and p ointing a gun directly at Sidibe. The figure lifted his head and pointed the weapon at Watson. Wa tson saw that it was the kid from the bus, i.e., [petitioner]. Watson took off running toward the 7-Eleven. [Petitioner] fired at Watson as he ran, shooting him six times, once each in the arm, the back o f his 3 head, the right buttock, the righ t middle finger, t he sho ulder, an d the ch est. Watson was able to reach the store, and urged the store clerk to call the police or an ambulance. The police and emergency medical personnel arrived shortly thereafter. Watson and Wainwright described the shooter to the police. The description was broadcasted to officers in the area. Shortly thereafter, the police stopped [petitioner] at a location about a mile from the scene of the shootin g. The police transported Wainwright to that location for a show-up. Wainwright identified [p etitioner] as the shooter. [P etitioner] wa s then arrested and taken to the police station. At the hospital several hours after the shooting and after emerging from surgery, Wats on was s hown a photogra phic array that inc luded a photograph of [petitione r] taken earlier that night at the police station. Watson selected [p etitioner] s photograph as dep icting the shooter. Sidibe, who was paralyzed a s a result of th e shooting , was able to testify about the events on the bus and before the shooting , but was u nable to describe the shooter or testify in detail about the shooting itself. He d id tes tify, however, that he had been shot in the forehead, and injured his neck when he fell to the ground. Both Watson and Wainwright identified [petitioner] at trial as the person who had been on the bus w ith them a nd later s hot W atson a nd Sid ibe. Kelly, 162 Md. App. at 127-29, 873 A.2d at 436-37. During trial, the State presented, without the court requiring a prior proffer of each witness s testimony, testimony from twelve witnesses, one of whom testified through a videotaped deposition. At the close of the State s case, the court sent the jury on a fifteen minute recess. Petitioner then moved for judgment of acquittal and the court denied the motion. T he court asked w hether petitioner s witnesses were ready. Petitioner s counsel stated that she planned to call two witnesses. The first witness she had planned to call was Officer Patel, who had been subpoenaed and was somewhere in the building ready to be paged when needed. The second witness was Officer Wells, whom petitioner s counsel had unsuccessfully attempted to serve with a subpoena. 4 The State initially objected to Officer Patel as a w itness only because the petitioner s counsel had not include d the offic er on the w itness list presen ted to the jury. The court stated that the witness list issue could be resolved after it was determined where the witnesses were. At th at tim e, pe tition er s c ounsel and th e cou rt dis cuss ed O fficer W ells s test imony: [Petitioner s counsel]: . . . I really w ant to call O fficer W ells and I w ant to call Officer Patel, but tho se are my two primary witne sses that I want to call for very specific reasons. ... THE COU RT: Do you know anything about Wells, whether he is or [State]: No. THE COU RT: isn t available? [State]: No. He is not someone that, from my understanding, has any THE CO URT: What does W ells [State]: direct bearing. THE COU RT: proffe r to me w hat his . . . [Petitioner s counsel]: He responded to the scene of the crime and did a number of interviews with other eyewitnesses. THE COU RT: Who have testified? [State]: No. [Petitioner s counsel]: Well, I have his notes THE COU RT: But I am asking you [Petitioner s counsel]: I don t ha ve witn ess state ments s igned b y them. I have notes from his part of the investigation, saying who he talked to and what 5 they said. THE COURT: But how would that be admissible unless those persons are also available, be cause w hat they said w ould be he arsay would n t it? [Petitioner s counsel]: Well, it would be hearsay, just like the description of my client is hearsa y and cam e in all thr ough th e trial. THE COU RT: But does it recognize the exception [State]: Th at s right. THE C OUR T: as w e have disc ussed w ith that? [Petitioner s counsel]: Right, because they actually arrested him, but I think I am entitled to show that they had other information that they didn t follow up on, particularly since some of it would refute the validity of the description given that led to my client. THE COURT: But, one, that would assume that Wells did or didn t follow up on it; and two, it w ould assum e that Wells d idn t give the informatio n to anybody else and that nobody else followed up on it and tha t Wells wo uld know whether or not some body else did o r didn t follow up on it. He is not the lead investigator. [Petitioner s counsel]: No, and the lead investigator said he didn t follow up on anything. S o we kn ow that. [State]: That is not true. [Petitioner s counsel]: He said he didn t follow up on any other witness inform ation, is w hat he s aid. The court then gave petitioner s counsel the remainder of the recess to determine the status of the witnesses.7 When the co urt reconven ed, Offic er Patel wa s present an d was told to wait 7 When the State s case ended, the court sent the jury on a fifteen minute recess. (contin ued...) 6 outside of the courtroom to be called. Petitioner waived his right to testify and prep ared to call Officer Patel. Before the jury was called back into the courtroom, however, the following discussion, part of which is at the heart of this appeal, took place: TH E CO UR T: . . . O kay. A re w e rea dy for the jury? [Petitioner s counsel]: Yes, Y our Honor. THE C OUR T: Becau se you have at least Off icer Patel. [Petitioner s c ounsel]: R ight. [State]: Your H onor, I think it is important that we get, I think, a proffer as to what he is going Officer Patel is going to say because THE COU RT: Okay. What is Officer Patel going to testify to? [Petitioner s counsel]: W ell, I don t know w hat he is go ing to tes tify to. I know what I am going to ask him. THE COURT: What are you going to ask him[?] [Petitioner s counsel]: He is the officer that went to find the bus driver of the alleged bu s incident 7 (...continued) After the jury left the courtroom the court discussed a number of issues with the parties before asking petitioner s counsel if her witnesses were ready. The court then gave petitioner s counsel seven minutes (the time remaining before the jury was due back in the courtroom) to determine the location and status of the w itnesses . When the parties returned, Officer Patel was pre sent in the co urtroom. It is d ifficult to con ceive that a se ven minu te delay in the proceedings, which in fact was no delay at all because the jury was not due back until then, constituted such a burden upon the court to say, as the State contends, that the court could require a detailed proffer of the witnesses testimony. Furthermore, it is clear from the record that the delay was not a reason for the court s decision to exclude the witnesses. 7 THE CO UR T: O kay. [Petitioner s counsel]: and determined that there was no corroboration of the altercation on the b us. The bus driver had no recollection of anybody involved, and there was on e other thing that he can testify about based on at least the notes that I have received. THE COURT: Well, he cannot testify to what th e bus drive r told him occurred [Petitioner s counsel]: Well, I think I can THE C OURT : or didn t occur. [Petitioner s counsel]: R ight. No, I kn ow. I don t think the bus driver c ould either because he didn t have any recollection. THE COURT: Yeah, but we could produce the bus driver to say he didn t have any recollection or that there was nothing unusual that night so far as he recalls [Petitioner s c ounsel]: Th at is right. THE COU RT: Patel cannot testify as to wha t the bus driv er told him about that. So what else is he going to add? [Petitioner s counsel]: If Your Honor would just give me a second . Well, I certainly can ask him, Your Honor, what time the bus driver had been to the or at least what bus he tried to locate and what time that bus route would have run at that time, if he knows, because that has to do with impeaching their testimony about how long they had been standing there and those types of things. THE COURT: But, again, how could he testify as to that b ecause it is presumably what the driver told [Petitioner s counsel]: Well, no, because he went and sought out a specific bus driver based on the schedule of the bus. THE CO UR T: O kay. 8 [Petitioner s counsel]: And so that would be based on a particular time that he was informed would have been the time that was likely that the people got off the bus. He only talked to one bus driver. THE C OUR T: But I just d on t unde rstand the p oint. [Petitioner s counsel]: Well, the point would be because the victims testified to very different times as to when they were standing there and not standing there, and throughout all of the State s case, I was trying to show and I think I did that there was a lot of inconsistencies, and I don t want there to be any confusion that these people were standing there for quite a long time, considering where it is, an d that it is unlikely that somebody that didn t know them w ould kn ow the y would be stan ding th ere. THE COURT : Well, there was reference already through the crossexamination of the various witnesses about the alleged victims and Ms. Wainwright having given various estimates of the time, and there is a lot of testimony alread y with respect to that. So it sound s like Patel w ould only be testifying as to what some other persons told him was their synopsis or their summary of what they think was the time he should be concerned abo ut, which, a gain, wou ld be doub le hear say. [Petitioner s counsel]: Well, Your Honor, is the same as the description, though. I m ean, they we re relying on tha t THE COU RT: There is an exception for the description. [Petitioner s couns el]: We ll, I unde rstand th at, You r Hon or, but I don t understand why I cannot ask him was there a particular time that the bus w ould have stopped there that he I mean, he had to call the Metro place and say who would be driving the bus at this time; right? Th at is what he said. That is based in whatever information he received. THE C OUR T: Right. [Petitioner s counsel]: and that is what I am trying to get out, is how he determine d which bus driver to talk to, not THE COU RT: But that would be based upon 9 [Petitioner s counsel]: who said what to him. THE COURT: but that would be based upon what Metro told him. [Petitioner s counsel]: No. It would be based on well, yeah, in terms of individual, but he would ask for the specific individual based on the time the bus would have been there. [Sta te]: It is still hea rsay. THE COURT: Yes, I know. [Petitioner s counsel]: He also tried to obtain the videotape from the bus because there is a sur veill ance tape . The re w as no tape , app aren tly, operating. That wo uldn t be he arsay. I think that [State]: Well, it depends. It depends on what the question is if it would be hearsay or no t. THE COU RT: W ell, if he was able to identify the bus in question and if he [State]: Really, though, given the recollection of the driver is that he didn t see anything, we know that he located a bus that stopped at around a particular time and that he took a tape from it. We have no way of knowin g if that is in fact the bus. Officer Patel certainly wasn t there. THE COURT: Well, presumably the police were satisfied they had located the bus or they would have looked at other buses. [State]: Bu t the question is, What qu estion can b e asked o f Office r Patel? [Petitioner s counsel]: I don t get to ask them that in their case, and I think that I can ask it without eliciting hearsay. He was given information which caused him she got a particular I am not asking what information was obtained. I am just asking him what bus driver he sought out and why and did he find any evidence or wa s he able to get a videotape or whatever. [State]: Well, but we also then are going to get into there is nothing on the tape and there is an explanation for why there is nothing on the tape, and Offic er Patel k nows what h e was to ld. 10 THE COU RT: W hat is the explanation for why there is nothing there was no tape; right? [State]: Right. The machine wasn t working. THE COU RT: Was there even a tape there, though? [State]: There was a tape there, but it hadn t been working. Apparently, for some union rules they stopped taping things to protect the bus drivers, like a couple of mon ths prior. [State]: Right. That is what this is all about. So there is nothing [Petitioner s counsel]: Every tape [State]: there is nothing on the tape. [Petitioner s counsel]: No. I am conceding that. I am just saying that THE COURT: But then what would the relevance be that he we nt to get a tape that wasn t there? [State]: The only relevance THE C OURT : I am asking [petitioner s cou nsel]. [Sta te]: S orry. [Petitioner s counsel]: Well, I think the relevance is that there isn t the best evidence isn t available, which would be the videotape, which isn t THE C OUR T: But the re is a benign reason fo r that. [Petitioner s counsel]: Right, and I am not suggesting that I am asking for a missing evidence rule or anything, instructio n on that pa rticular issue; bu t I still think that I am entitled to ask him which bus route he would have what time the bus would had been there, that he sought out that bus THE COU RT: Okay. Well 11 [Petitioner s counsel]: or at least estab lish that he only talked to one bus driver. THE COURT: with respect to the issue of the tape, it would appear to me that the only potential relevance would be if you could fashion argument that the Government failed to do something that they should have done, but the proffer is that they did locate a bus they believed to be the bus, they tried to get the tape but the tape was inoperable. So, in light of that proffer, it would not be relevant because, if the explanation were presented to the jury, it would have no eviden tiary significance and it could not be held against the State for a fa ilure to conduct an adequate investigation mindful of their burden. So I will not permit that either. Petitioner s counsel the n asked if s he wou ld be perm itted to elicit the bus schedule from Officer Patel becau se it was im portant to the truthfulness of the witnesses as to how long they had been at th e bus stop. The Court denied the request because the Officer did not have personal knowledge of the schedule. The court concluded sua spon te that based upon what [petitioner s counsel was] pro ffering to [the court], what I would suggest that we do is there is nothing that [petitioner s counsel has] proffered to [the court] about Patel that would be admissible throug h Patel. 8 The Court dismissed Officer Patel and adjourned for the day to allow the petitioner s counsel to determine if Office r Wells w ould be ab le to testify. With respect to Offic er W ells s test imony, however, the court cautioned petitioner s co unsel: [I]f your only purpo se in calling W ells is to have him testify about what other people told him, then I am not goi ng to ad mit that th rough Wells. The next day, the court reconvened and, after sorting out all the exhibits and the fact 8 Unless the State objected, the testimony might well have been admitted. 12 that Off icer W ells h ad not be en su bpoenae d and wo uld n ot tes tify, 9 the court asked petitioner s counsel if there were any unresolved issues befo re calling the jury into the court room. The following discussion ensued: [Petitioner s counsel]: W ell, actually, . . . I mentioned in chambers last night that I did have one civilian witness I wanted to call, and she is here. THE COU RT: Okay. And what would that witness testify to? [Petitioner s counsel]: Well, she is in the room. Would you like me to ask her to leave THE CO URT: By all means. There is a rule on witnesses. [Petitioner s counsel]: because she came in late. M s. Blizzer (ph), can you step out of the room for a minute? Your Honor, I also wanted to note an objection that I have to proffer what witnesses a re going to testify to. I mean, [the State] can make objections just like I have to.[10] THE COURT: Okay. The objection is noted. Overr uled. [ Emph asis add ed.] Petitioner s counsel the n explaine d that Ms . Blizzer w ould testify to Watson s habit of 9 It was deter mined tha t Officer W ells would not be available to testify. Petitioner s counsel conceded at oral argument that Officer Wells w ould have been una vailable. It is important to note, however, that, as stated supra, the court engaged in the same line of questioning regarding Officer Wells s testimony and stated that, had the petitioner b een able to secure O fficer W ells s attendan ce, he wo uld not be a llowed to testify because h is testimony was also hearsay. After the court made tha t statement, pe titioner s coun sel duly stated for the record that there could be some other testimony regarding the conduct of the investigation to which Officer Wells may have been able to testify without violating the hearsay rule or within one of its exceptions. 10 Other than the exchange that is the subject of the first question raised in the petition and briefs, the trial court did not make the State proffer the testimony of its twelve witnesses. The imposition of the proffer requirement was blatantly one-sided. 13 loitering around th e bus stop a nd to his rep utation in the community. Only then, after the trial court forced petitioner s counsel to make a proffer, did the State object to the prof fer, alleging that it was only relevant to a collateral issue and that Ms. Blizzer did not have personal knowledge o f Watson s habits. Petitioner s counsel stated that Ms. Blizzer did have personal k nowled ge, and the discussion th en continu ed: THE COURT: Okay. It would appear to the Court that c ertainly his character [f]or truthfulness would be an issue since he has testified. And so, to crossexamination, the jury is entitled to hear anything that would relate to his character trait for truthfulness . But I don t think the testimony really addresses itself to that issue. Instead, at best, it is an effort to try to impeach h im with respect to some collateral issues. And as I recall, the way in which the testimony unfolded, the issues which you seek to impeach him on are issues that were generated in the cross and n ot in the direct. As the Sta te rightfully points out, as it might bear upon his reputation for violence and I don t even concede that it does but were it to, that has not been generated by the facts of this case. There is no defense of self-defense. And aside from that, as I understood from our c onversatio n in chambers, and I gather what is being alluded to n ow, is that this activity that you described that she could testify to, perhaps in part by personal observations but what you did say was she came to find out in the neighborhood that he does these things, which suggests that it is also [Petitioner s counsel]: Well, that is from THE COUR T: to some exten t from other persons; tha t as a result of th is kind of activity wh ich you wish to attribute to him , that there cou ld have been other people out there who wanted to kill him and presumably Mr. Sidibe as well. And I do share the S tate s view th at that is so spe culative that th ere is no reasonab le founda tion for the ju ry to reasonably infer that even if he did the things that yo u describ ed him as doin g, tha t by virtue of that o n the night in question, that somebody would have set about to shoot him at the 7-Eleven and, as w ell, Mr. S idibe at th e same time. So based upon the proffer, I find that she ha s no releva nt testimony to 14 offer. I will not permit you to call her. [Petitioner s counsel]: Well, Your Honor, I just also wan t to say that with respect to the relevan ce about h im standin g out there and she person ally observed this; I verified that when I spoke with her that she lives in that neighborhood. He has been there frequently on several evenings. He is well known. Reputation is always, among the group of people that live in the community or have access to the person, an issue. And the fact is that this man was standing on the corner, and he does whatever he does. And I wasn t trying to call her to su ggest tha t som ebody I don t hav e someb ody else that did this, obviously, or I would have called them. Howeve r, I do think that the fact that he is frequently there and he is frequently standing there does lead th e inference that there w ere other people that would have kno wn that he is standing th ere more th an he w ill. And that, I think, is a very important issue because I asked every single witness, Do you know him? What is your relationship? How would he know that he was still standing there a half an hour later or more? But if other people are aw are that h e is alw ays there, then there is an issue because clearly this is a person that wasn t just randomly there for 10 minutes this one particular time. This wa s somebody that is a regular fixture there. And frankly, in terms of whether or not there is a sufficient motive as to him to do the acts he is alleged to have done, how am I supposed to know whether or not som ebody else w ould have a motive? How c ould I poss ibly investigate th at? THE COU RT: O kay. Notwithstanding your additional remarks, it still seems to me that th e reasons basically relate to the same reasons the Court has already discussed. I will not permit you to call the witness based upon your proffer. [Petitioner s c ounsel]: A ll right. THE CO URT: So the defense rests? [Petitioner s counsel]: I guess so, since I am not allowed to call any witnesses. THE COU RT: O kay. The defense rests. [Emphasis added.] (May 22, T. 2430). 15 Petitioner s counsel renewed the motion for judgment of acquittal, which the court denied. The parties discussed with the court the instructions that were about to be given to the jury and the jury was then called into the court room. Following instructions and deliberation, the jury found petitioner guilty on all charges. II. Standard of Review In Hopkin s v. State, 352 Md. 146, 721 A.2d 231 (1998), this Court delineated the standard o f review to be used o n issues relate d to the adm issibility of eviden ce at trial: Trial judges are afforded broad discretion in the conduct of trials in such areas as the reception of evide nce. Void v. State, 325 Md. 386, 393, 601 A.2d 124, 127 (1992) (quoting McCray v. State, 305 Md. 126, 133, 501 A.2d 856, 860 (1985)). Accordingly, in our appellate review , we extend the trial court great deference in determining the admissibility of evidence and will reverse only if the co urt abu sed its di scretion . Robinson v. State, 348 Md. 104, 121, 702 A.2d 741, 749 (1997) ( The determination of whether specific evidence is relevant in a given case rests with the trial co urt, and that d etermination will not be disturbed on appeal absent a cle ar abuse o f discretion. ); Merzbacher v. State, 346 Md. 391, 404-05, 697 A.2d 432, 439 (1997) (explaining that appellate courts generally will not reverse a trial court on issues of the admissibility of relevant evidence unless a clear abuse of discretion can be shown); . . . Straughn v. State, 297 Md. 329, 334, 465 A.2d 1166, 1169 (1983) (noting that admissibility of police identification photographs is a discretionary matter for the trial court. ); Schear v. Motel Management Corp ., 61 Md.App. 670, 682, 487 A.2d 1240, 1245-46 (1985) ( [A] determination as to releva nce is lef t to the di scretion of the tr ial judge . ). Hopkins, 352 Md. at 158, 721 A.2d at 237. In Cooley v . State, 385 Md. 165, 175-76, 867 A.2d 1065, 1071 (2005), addressing the abuse of discretion standard, we explained: The abuse of discretion standard requires a trial judge to use his or her discretion soundly and the record must reflect the exercise of that discretion. 16 Abuse occurs when a trial judge exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law. [Jenkins v. S tate, 375 M d.284,] 295-9 6, 825 A .2d [10 08,] 1015 [(2003)]. See Nelson [v. State], 315 Md. [62 ,] 70, 553 A.2d [66 7,] 671 [(1989)]; Ricks v. State, 312 M d. 11, 31, 53 7 A.2d 6 12 (1988 ). As this Co urt explaine d in Wilhelm [v. State], 272 Md. [404,] 413, 326 A.2d [707,] 714-15 [(1974)], The conduct of the trial must of necessity rest largely in the control and discretion of the presiding judge and an appellate court shou ld in no case interfere w ith that judgment unless there has been an abuse of discretion by the trial judge of a character likely to have injured the com plaining party. In Cooley, the court determined that the trial court shou ld not abrog ate courtroo m security to law enfo rcement o fficers. 385 Md. at 18 4, 867 A .2d at 1075 . We did n ot, however, determine whether an abuse of discretion did in fact take place because the Court of Special Appe als had not add ressed f ully the ab rogatio n issue. Id. We rece ntly re cognize d the standard of re view for the ad miss ibility of hearsay evidence in Bernad yn v. State, 390 Md. 1 , 7-8, 887 A.2d 602, 606 (2005). In Bernadyn, where a proper objection was made, we stated that a circuit co urt has no d iscretion to ad mit hearsay in the absence of a provision providing for its admissibility. Id. The case sub judice, howev er, turns not o n the admissibility of hearsay evidence but on the cou rt s discretion to refuse the defenda nt to call witnesses for his defense. W e review the court s decision not to allow the witnesses to testify under the abuse of discretion stan dard app licable to exclusion of eviden ce in gene ral. III. Discussion The Court of Special A ppeals dete rmined tha t the trial court did not abuse its discretion when it required petitioner to proffer the testimony of his witnesses in the presence 17 of the pro secuto r. Kelly, 162 Md. App. at 143, 873 A.2d at 446. The intermediate court found petitioner at fault for not having his witnesses ready at the close of the State s case. As state d pre viou sly, however, at least one of those witnesses was in the courtroom when it was time for him to testify. The Court of Special Appeals points to Wilson v. Sta te, 345 Md. 437, 448, 693 A.2d 34 4, 350 (19 97), for the p roposition th at requestin g a proffe r is helpful, even necess ary, to a pro per rulin g. Kelly, 162 Md. App. at 142, 873 A.2d at 445. Although we agree that proffers are helpful, they are not a substitute for the witnesses testimony when the witnesses are present an d able to testify. The intermediate appellate c ourt agreed with the trial judge s finding that because the proffer by petitioner s counsel indicated that the witnesses testim ony w as he arsay, the trial court did not err in refusing to allow the witnesses to testify. Id. As explained infra, howev er, the court s error was not in the nature of the evid ence as he arsay, but instead in how it determined that the te stimony w ould be hears ay. Moreo ver, hearsay is on ly excluded u pon an o bjection to it. It m ay be very relevan t. Many of the statements in the case law relevant to the issue before us relate to compulsory process. The language of the cases, however, is pertinent to the present issue. The Supreme Court of the United S tates has held that the right of a defendant in a criminal case under the S ixth Am endmen t to have co mpulsory pro cess for ob taining witn esses in his favor is applic able to th e States throug h the Fo urteenth Ame ndme nt . . . . Washington v. Texas, 388 U .S. 14, 14-15, 18, 87 S. Ct. 1920, 1921, 1923, 18 L. Ed. 2d 1019 (1967) (footnote omitted). W e have rec ognized th is holdin g in a nu mber o f cases . Wilson, 345 Md. 18 at 445, 693 A.2d at 348; Redditt v. State, 337 M d. 621, 655 A.2d 39 0 (1995); Void v. Sta te, 325 Md. 38 6, 601 A .2d 124 (1 992). In ad dition to the fe deral protection und er the Sixth Amen dment, the right to compulsory process is protected under Article 21 of Maryland Declaration of Rights, which states [t]hat in all criminal prosecutions, every man hath a right . . . to examine the witnesses for and aga inst him on oath . . . . (emphasis a dded); see Wilson, 345 Md. at 445, 683 A.2d at 348.11 In United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Court explained: We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to de velop all relevant facts in the ad versary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial o r speculative presentation of the fac ts. The very integ rity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the pro secutio n or by the defen se. Id. at 709, 94 S. Ct at 3108, 41 L. Ed. 2d 1039. It is the adversarial system of justice which requires that the defendant be given every opportunity, within procedural an d evidentiary boundaries, to present a defense. H ere the defen dant was effectively de nied the on ly defense avai lable to him the w itnes ses h e hoped wou ld provid e fav orab le tes timo ny. 11 In Wilson, Judge W ilner pointed out that, not o nly has the language of Article 21 remained intact since its introduction as Article 19 of the Declaration of Rights of 1776 , it may have served as the model for M adison s draft o f the Six th Am endm ent . . . . 345 Md. at 445, 693 A.2d at 348. 19 In Washington, the defendant was not allowed to call an exculpatory witness under a Texas statute, which prohibited co-participants in a crime to testify at each other s trials. Chief Justice Warren reviewed the history of compulsory process, stating: Joseph Story, in his famous Commentaries on the Constitution of the United States, observed that the right to co mpulsory pro cess was included in the Bill of Rights in reaction to the notorious common-law rule that in cases of treason or felony the accused was not allowed to introduce witnesses in his defense at all. Although the absolute prohibition of witnesses for the defense had been abolished in England by statute before 1787, the Framers of the Constitution felt it necessary specifically to provide that defendants in criminal cases should be provided the means of obtaining witnesses so that their own eviden ce, as w ell as the prosec ution s, m ight be e valuate d by the ju ry. Washington, 388 U.S. at 19-20, 87 S. Ct. at 1923, 18 L. Ed. 2d 1019 (footnote omitted). As a result, the right to compulsory process and the right to present one s witnesses are fundamental rights essential to due process: Few rights are more fundamental than that of an accused to present witnesses in his own defense. In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Although perh aps no rule of eviden ce has been mo re respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustwo rthy have long ex isted. . . . In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are imp licated, the hearsa y rule ma y not be ap plied mec hanistically to defeat the ends of justice. Foster v. Sta te, 297 Md. 191, 206, 464 A.2d 986, 993 (1 983), cert. denied, 464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221 (1984) (quoting Chambers v. Mississippi, 410 U.S. 284, 30002, 93 S. Ct. 1038, 1048-49, 35 L. Ed. 2d 2 97 (1973 )); Void, 325 Md. at 392, 601 A.2d at 20 126. This Court has also recognized that the right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State s accusations. The right[] to . . . call witnesses in one s own behalf ha[s] long been recognized as essential to due process. Foster, 297 Md. at 203-04, 464 A.2d at 993 (quoting Chambers, 410 U.S. at 294-95, 93 S. Ct. at 104 5, 35 L. Ed. 2d 29 7). The right to compu lsory process d oes not en d with the ability to subpoena witnesses to show u p in court. That right encompasses the defendant s ability to elicit testimony from those witn esses prese nt at trial: The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant s version o f the facts as well as the pro secution s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution s witnesses for the purpose of challenging their testimony, he has the right to present his own w itnesses to esta blish a defe nse. The rig ht is a fundamen tal element of due pro cess of law. Wilson, 345 Md. at 447, 693 A.2d at 349 (quoting Washington, 388 U.S. at 19, 87 S. Ct at 1923, 18 L. Ed. 2d 1019 ); Redditt, 337 Md. 621, 655 A.2d 390. In Void we also determined that [t]he right to compel a witness presence in the courtroom could not protect the integrity of the adversary process if it did not embrace the right to have the witness testimony heard by the trier of fact. 325 Md. at 394, 601 A.2d at 127 (quoting Taylor v. Illinois, 484 U.S. 400, 408, 108 S. Ct. 646, 652, 98 L. Ed. 2d 798 (1988)). In the case sub judice the defendant was denied even the right to present the witnesses he chose to call who were in court at the time. While the right to elicit certain types of testimony by opposing 21 counsel, upon pro per objectio n, may be de nied, the righ t to present the witnesses in the first instance should not be. That is especially so when defense counsel specifically informs the court that she only knows what questions she will ask of a witness, but not the answers. Cases involving the trial court s discretion in allowing or requiring a witness to testify can be divided into two distinct ca tegories . Wilson, 345 Md. at 447-48, 693 A.2d at 349. First, when the witness is unavailable and the court either refuses to give the d efendant more time to secure the witness attendance or the court refuses to require the witnesses to tes tify. Id.; Void, 325 Md. at 392, 601 A.2d at 126. The second category, as in the case sub judice, the witnesses are present and availab le but for on e reason o r another the court refus es to allow them to testify. Wilson, 345 Md. at 447, 693 A.2d at 349; Redditt, 337 Md. 621, 655 A.2d 39 0; McCr ay v. State, 305 Md. 126 , 501 A.2d 856 (1985). We addressed the right to com pulsory proce ss in Wilson, 345 Md. at 450, 693 A.2d at 350. Wilson was originally convicted of possession of heroin. On appeal he argued that the trial court erred in refusing to issue a body attachment for one of his witnesses, whom he had duly subpoenaed and who failed to appear in court. Id. at 440, 6 93 A.2 d at 345 . The trial court had refused to issue the attachment and grant a continuance because [t]he likelihood that we re going to get that witness in here and have her testify and help to your client seems so remote, it just does not warrant the expenditure of other resources. Id. at 444, 693 A.2d at 34 8. We he ld that the right to compulsory process embodies more than just the right to have a subpoena issued, even if it does not constitute an actual guarantee of 22 attendance. We must keep in mind that the raison d'etre of the right of compulsory process is the right of th e defend ant to present a defense, and that right would h ardly be served if the subsidiary right were limited to the issuance of a subpoena. A defendant needs his or her w itnesses in co urt, not simply subjec t to later p unishm ent for f ailure to obey a su bpoen a. Id. at 450, 693 A.2d at 350. While we recognized that the petitioner has a right to compulsory process, we also acknowledged that this right has limitations: The right of com pulsory proce ss, under bo th the Fede ral and State Constitutions, though fundamental, is not absolute. It does not, for example, confer a right to present inadmissible evidence, and thus is not violated if a court declin es to subpoen a, grant a continuance to locate, or otherwise assist in the appreh ension or p roduction o f a missing witness, in the absence of a showing that the testimony of that witness would be both admissible and helpful to the defense. The Supreme Court made that clear in Taylor v. Illino is and United Sta tes v. Valenz uela-Bern al, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). In Taylor, supra, 484 U.S. at 410, 108 S.Ct. at 653, 98 L.Ed.2d at 811, the Court held: The accused d oes not ha ve an unf ettered right to offer testimony that is incompetent, privileged, or otherwise inadmissib le under standa rd rules o f evide nce. The Com pulsory Process Clause pr ovides him with an ef fective w eapon, bu t it is a wea pon tha t canno t be use d irrespo nsibly. In Valenzuela- Bernal, the Court confirmed the additional element of materiality to the defense, pointing out that, to establish a violation of the compulsory process clause, the defendant must at least m ake som e plausible showing of how [the] testimo ny would h ave been both mate rial and fav orable to his de fense. 458 U .S. at 867 , 102 S .Ct. at 34 46, 73 L .Ed.2d at 1202 . Wilson, 345 M d. at 448, 69 3 A.2d a t 349-50; see also Chambers, 410 U.S. at 295, 93 S. Ct at 1046, 35 L. Ed. 2d 2 97( Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial proc ess. But its denial or significant diminution calls into que stion the ultim ate 23 integrity of the fact-finding process and requires that the com peting interes t be closely examined. ) (citations om itted). Wilson involved an effort to secure the presence of witnesses and the limitations there discussed relate to wh ether the court was required to delay the proceedings while the witnesses were secured with compulsory process and thus made available. In the present case at least two w itnesses we re present, yet the tria l court required defendant to make a proffer and then denied him the right to call the witnesses which in essence denied him the right to assert a defense. Moreover, the petitioner made the required showing to, at the very least, perm it him to question the witnesses. Pe titioner s counsel proffered that Officer Patel would testify to the conduct o f the investig ation questio ning the ev ents related b y the three victims. Ms. Blizzer was to impeach Wat son s test imony, which would go to his credibility as a witness. This testimony pres umably cou ld have be en favora ble to the petitioner. Watson was one of two witnesses w ho could id entify the petition er as the sho oter. The tria l court s refusal to place the witnesses on the stand was premature. This Court has previously he ld that [t]he proper time for the judge to determine the admissibility of [witnesses ] testimony was upo n their examination. Void, 325 Md. at 392, 601 A.2d a t 126. Void was convicted of a number of crimina l offenses . The State s main witness was Officer Steedly who had been accused, b ut acquitted o f perjury in resp ect to his prosecution for dru g related offen ses. Id. at 390, 601 A.2d at 125. The def ense intend ed to 24 call as witnesses two other officers who had previously testified against Steedly in his trial for perjury. The defense s purpose was to call these witnesses to testify as to Steedly s character for truth and veracity. The State moved to quash the defense s subpoenas alleging that the defense would try to impeach the witness with evidence of prior bad acts for which he had been acquitted. The trial judge agreed with the State and quashed the subpoenas preventing the defendant from calling the officers to testify. The C ourt of Sp ecial App eals affirmed the conviction in an unreported opinion, and this Court reversed stating: We believe that a fair conclusion can be drawn from the proceedings at the hearing on the motion that the testimony Void sought was directed to the character of Steedley. We are not in accord with the State s notion that Void was merely attempting to introduce evidence of prior bad acts by Steedley under the guise of character e vidence. It may be that defense counsel s argument could have been articulated in more specific terms. And perhaps some of the reasons he gave for desiring the w itnes ses testim ony, and which the judge dec lared he would not per mit, ma y not hav e been admiss ible. But that did not justify pre cluding Void s exam ination o f the w itnesses . The proper time for the judge to determine the admissibility of their testimony was upon their examination. Void, 325 Md. at 392 , 601 A.2d at 126 (emphasis added ). In Void, the judge relied on the witnesses affidavits, motions and proffers by counsel on arriving at the decision to quash the subpoenas. The witnesses had submitted signed affidavits stating that they had no knowledge of the defendant s proc eedings or his character, and that their knowle dge of S teedley was d erived exc lusively from th eir investigation into the drug related offenses . The State had complained that requiring the officers to be in court would place a gre at burden u pon the departm ent. This Co urt determin ed that all this 25 information was not sufficient to allow the trial court to prevent the defendant from calling his witnesses. The Court in closing stated: The short of it is that the trial judge should have heard from the subpoenaed witnesses, either at a pretrial hearing or at the trial out of the presence of the jury. He could, at that time, determine whether the witnesses had admissible testimony to offer. He erred in short-circuiting the common law and statutory rights of Void by quashing the subpoenas. Void is entitled to a new trial. Void, 325 Md at 394, 601 A.2d at 127-28 (citations omitted). Likewise, in the case sub judice, the trial judge should have allowed the witnesses to testify and rule on the admissibility of their testimony, if proper objections were made, during questioning by the defense, not before. His ruling upon that testimony based upon petitioner s proffer was premature, specially in light of the fact that two witnesse s were present, read y, and able to testif y. As stated in Void, if there we re co ncer ns as to the adm issib ility of their testim ony, the judge could have allowed the petitioner to question the witnesses out of the presence of the jury. Such an approach would allow the State to make the appropriate objections on the testimony to be offered. Instead, the court sua sponte opted to require the petitioner s counsel to proffer the questions she was going to ask. It then decided that, because such questions would only e licit h earsay testimo ny, the w itnes ses w ould not b e allo wed to tes tify. In doing so, the judge went beyond being an impartial officer in dismissing testimony which, had the State failed to timely object, might have been admitted. In cases wh ere the witn esses have been in the courtroom and are im mediately available to tes tify w e hav e hel d tha t exc lusio n of testim ony can cons titute erro r. Redditt, 26 337 Md. at 635, 655 A.2d at 39 7; McCray, 305 Md. at 135, 501 A.2d at 860. In McCray, a witness was not allowed to testify because she had been present throughout the trial and the trial court believed that she should have been sequestered. The State had not requested a sequestration order beca use the def endant ha d stated that sh e was to be the only witness on his behalf. When the defense asked the court to allow the testimony of a surrebutal witness who had been in the courtroom throughout the trial, the court refused. This Court held that in the absence of a sequestration order, the co urt abused its discretion w hen it refuse d to allow the witnes s to testify. McCray, 305 Md. at 135 , 501 A.2d at 860 . In Redditt, a witness remained in the courtroom althou gh a sequestration order was in effect. T he trial court, again, refused to allow the witness to testify. This Court determined that the trial court abused its discretion in excluding the witness. 337 Md. at 635, 655 A.2d at 397. Add ition ally, in our adv ersarial system, ge nerally it is the parties that are charge d with objecting to the propriety of the evidence presented at trial. Maryland Rule 4-323 provides: (a) Objections to Evidence. An objection to the adm ission of evide nce shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived. The grounds for the objection need not be stated unless the court, at the request of a party or on its own initiative, so directs. The court shall rule upon the objection promptly. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court may ad mit the eviden ce subject to the introduction of additional evidence sufficient to support a finding of the fulfillment of the condition. The objection is waived unless, at some time before final argument in a jury trial or before the entry of judgment in a court trial, the objecting party moves to strike the evidence on the ground that the conditio n was not fulf illed. (E mpha sis adde d.) When a party fails to object, the evidence normally will be admitted and, gene rally, that party 27 will not be allowed to raise the issue on appea l. Klauenberg v. State, 355 Md. 528, 539, 735 A.2d 1061, 10 67 (1999 ); Brazerol v. Hudson, 262 Md. 269, 275-76, 277 A.2d 585, 588-89 (1971); Gwaltn ey v. Mo rris, 237 Md. 173, 178, 205 A.2d 266, 268 (1964). As a result, it is incumbent upon the State to make the objections to the testimony as it is elicited by the defense. When the trial court makes a ruling as to the admissibility of evidence on its own without a prior objection by any of the parties, the court leaves its role as an arbiter and assumes another role as a party to the p roceeding , placing into question the defendant s right to a fair trial. Especially where, as here, it requires a preexam ination prof fer as to all of the defendant s witnesses but never required a preexamination proffer as to either of the State s witnesses. In this situation, the trial court was becoming an advocate for the State. We have addressed the issue of the trial court s departure from its role as an impartial arbiter mostly in cases where the court questioned the witnesses, the defendant or inappr opriatel y address ed cou nsel in f ront of the jury. Johnson v. State, 352 Md. 374, 722 A.2d 873 (1999) (reversing the judgment due to the trial court s order to arrest defense counsel in the presence of the jury, frequen t interruptions, the court s own questions preventing the defense from asking his question s); Marshall v. State, 291 Md. 205, 213, 434 A.2d 555, 559 (1981) (reversing the judgm ent becau se the court im properly admonished the defenda nt to tell the truth c ausing him to testify in a certain way, out of f ear that if he d id not, he would suffer some severe, but unexplain ed conse quence. ); Vandeg rift v. State, 237 Md. 305, 311, 206 A.2d 250, 254 (1965) ( The questioning by the trial judge showing his 28 disbelief of the witness testimony was beyond the line of impartiality over which a judge must not step. ). Although, the conduct of the trial judge in the case sub judice is not as egregious as that of the judges in the cases cited supra, and it was not in the presence of the jury, it nonetheless resulted in the denial of the defendant s right to put on a defe nse. This is clear from petitioner s counsel statement in response of the court s question of whether the defense w as resting its cas e: I guess so, since I am not allowed to call any witnesses. We addressed the discretion of the trial court to ask questions of w itnesses in a jury trial in Marsh all, stating: In sum, w hile we agree with the court below that a judge presiding over a jury trial has the right to interrogate witnesses in an effort to clarify the issues, we stress that he should exercise this right sparingly. It is a far more prudent practice for the judge to allow counsel to clear up disputed points on cross-examination, unassisted b y the court. In this manner, the judge is most likely to preserve his role as an impartial arbiter, because he avoids the appea rance o f acting as an ad vocate . 291 Md. at 21 3, 434 A .2d at 560. F urthermo re, the defe ndant is entitled to present and conduct his defense unha mpered by the judge s idea of w hat that defe nse is or how it should be presented. Id. at 214, 434 A.2d at 560. The same principles apply when the ju dge requires defense couns el, and only defense counsel, to provide detailed proffers of the testimony to be presented in the presence of the prosecution as to each of the defendant s potential witnesses. When the court ass umes the r ole of a party by ruling on the admissibility of evidence in the absence of appropriate objections, the court departs from the adversarial nature of our 29 system where the State, not th e court, bear s the burde n of objec ting to the testimony offered by the opposing party. Should the State fail to object, otherwise inadmissible evidence sometimes may be admitted to the detriment of its case because as explained supra such a failure to object is considered a waiver. This is not to say that the defendant will be allowed to present properly objected to testimony that violates the rules of evidence o r procedure. It merely requires that exclusion take place at the ap propriate tim e and in the appropriate manner. The responsibility of the trial court to control the proceedings before it does not extend to the right to take over a party s case. When that occurs, as it occurred here, the court risks denying to a defendant the fair trial guaranteed to him by both the U nited State s Constitution and Maryland s Constitution. We agree with the Court of Special Appeals that [t]he conduct of the trial must of necessity rest largely in the control and discretion of the presiding judge. Kelly, 162 Md. App. at 141, 873 A.2d at 446 (quotation marks omitted) (quoting Cooley, 385 Md. at 176, 867 A.2d at 1071). That control, however, must safeguard the defendant s constitutional rights. The trial court denied petitioner his constitutional right to present a defense by not allowing the witnesses who were present to even be presented. Und er the circumstances here present, his refusal constitutes an abuse of discretion, requiring that petitioner be granted a new trial. 30 JUDGMENT OF THE COURT OF SPECIA L APPEALS REVERSED. CASE R E M A N D E D T O T H AT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCU IT COURT FOR M ONTGOM ERY COUNTY AND REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY MONTGOMERY COUNTY. 31 In the Circu it Court for M ontgom ery County Case No. 96683 IN THE COURT OF APPEALS OF MARYLAND No. 49 September Term, 2005 FRANCESCO A. KELLY v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting opinion b y Raker, J., wh ich Harrell, J., joins. Filed: May 8, 2006 Raker, J., dissenting, in which Harrell, J., joins: To reverse this case would be a travesty upon justice. Petitioner received a fair trial before a fair judge, and was not deprived of due process in any way. In addition, petitioner was not denied his right to be present at every critical stage of the trial when, in petitioner s absence, the trial judge received a proffer of the State s proposed evidence to determine whether a witness for the State would be permitted to testify before the jury. I agree with the Court of Specia l Appeals that the judgments of conviction should be aff irmed. Kelly v. State , 162 Md. A pp. 122, 873 A .2d 434 (2005). I. Holding that the trial court denied petitioner the right to put on a defense , the majority reverses the judgm ents of convic tion and ho lds that the trial c ourt abuse d its discretion when it refused to allow th e petitioner to p resent his w itnesses. M aj. op. at 2. Th e majority reasons as follows: When the court ass umes the role of a party by ruling on the admissibility of eviden ce in the abs ence of a ppropriate objections, the court departs from the adversarial nature of our system where the State, not the court, bears the burden of objecting to the testim ony offer ed by the o pposing party. Should the State fail to object, otherwise inadmissible evidence sometimes maybe admitted to the detriment of its case because explained supra suc h a failure to o bject is considered a waiver. T his is not to say tha t the defendant will be allowed to present properly objected to testimony that violates the rules of evid ence o r proce dure. It merely requires that exclusion take place at the appropriate time and in the appropriate manner. Th e responsib ility of the trial court to control the procee dings bef ore it does n ot extend to the right to take over a p arty s case . When that occurs, as it occurred here, the court risks denying to a defendant the fair trial gua ranteed to him by both the United States Constitution and Maryland s Cons titution. Maj. op. at 29-30. T he majority ho lds that [u]n der the circu mstances here prese nt, his refusal constitutes an abuse of discretion, requiring tha t petition er be gr anted a new tri al. Id. at 30. I have difficulty understanding the majority s basis for reversing this conviction. It appears that the Court is reversing the convictions solely because the trial judge required defense counsel to proffer the relevance of witnesses testimony rather than to permit the defendant to call the witnesses before the jury. The majority states that reversal is necessary because the court s error was not in the nature of the evidence as hearsay, but instead in how it determine d that the testim ony would be hearsay. Maj. op. at 18 (emphasis added). The majority seems to be grossly offended that the trial court required defense counsel to proffer the relevan cy of the te stimon y he wish ed to pr esent to the jury an d that su ch a pro cedure , in and of itself, requires reversal and a new trial. Without any discussion of the relevancy of the proposed evidence, the majority decides that petitioner was effectively denied the only defense available to him the witnesses he hoped would provide favorable testimony. Id. at 19-20. The majority notes that the right to compulsory process includes the right to subpoena witnesses to compel their attendance at trial and the right to present a defense, i.e., the defendant s version of the facts to the jury. Id. at 18-24. Following this protracted discussion of the con stitutional right to c ompulso ry process, the majority concludes that -2- petitioner was denied the right to assert a defense, apparently because the trial court required defendant to make a proffe r and then denied h im the right to call the witnesses. . . . Id. at 24. The majority focu ses solely on the procedure employed by the trial court in excluding the testimony of Officer P atel and M s. Blizzer. Th e majority neve r analyzes the ad missibility of the proffe red testimon y, and effectiv ely concedes that the testimony of petitioner s witnesses would h ave been properly excluded as hearsay. See maj. op at 18. Th e majority s argument for reversa l, then, appea rs to be that (1) the trial court used an im permissible procedure in excluding the testimony of petitioner s witnesses, thereby depriving petitioner of his constitution al right to prese nt a defense, and (2) that petitioner was prejudiced by the trial court s use of this procedu re because the testimony of his proposed witnesses, even though it was hearsay, may have nonetheless aided his case because the prosecution may have neglec ted to ob ject to its a dmissio n into ev idence . See maj. op. at 27-28. This argument is unpersuasive. To the extent that the majority s decision rests on the premise that the rules of trial practice and evidence do not permit a trial court to employ the procedure used by the trial court to exclude the testimon y of petitioner s w itnesses, it is mistaken.1 Cf. Md. Rules 5- 1 The majority seem s to hold that an accused has an absolute right to put witnesses before the jury, irrespective of whether the witness has any admissible testimony to offer. Con sequ ently, the majority seems to be saying that the trial court has no discretion to require a proffer of the testimony of a criminal defense witness when the witness is present at court (contin ued...) -3- 103, 5-104, and 5-602. The majority recognizes that the trial judge has discretion to control the trial. See maj. op. at 16-17 (quoting Cooley v. Sta te, 385 Md. 165, 175-76, 867 A.2d 1065, 1071 (2005)). It is well-established that a trial judge s discretion to control the conduct of the trial gives a trial court the authority to exclude inadmissible evidence sua spon te. See, e.g., Weaver v. United States, 374 F.2d 878, 882 (5th Cir. 196 7); United States v. Clarke, 390 F. Supp. 2d 131, 135 (D. Conn. 2005) ( [a]n objection is not . . . a precondition to the exclusion of eviden ce ); People v. Sturm, 129 P.3d 10, 23 (C al. 2006) (ob serving tha t it is well recognized that the trial judge . . . may sua sponte exclude irre levant evid ence ); Morris ex rel. Morris v. Thomson, 937 P.2d 1212, 1218 (Idaho 1997) ( trial court may exclude evidence offered by a party on its own authority, without a motion to strike or an objection made by the oppos ing party ); Barber v. State High way Com m n, 342 P.2d 723, 727 (Wyo. 1959) (noting that trial judge, being more than a mere referee, has a duty to control the conduct of the trial so that the true facts in a given litigation may be ascertained, and that a trial judge may rule sua spon te on the admissibility of evidence to ac complish this end). It is equally well-established that it is not necessary for witness testimony to be presented before the jury in order for the testimony to be excluded legitimately from evidence, and that a trial judge may exclude inadmissible testimony prior to presentatio n to the jury on the basis of a proff er of the testimo ny. See, e.g., State v. Martinez, 824 A.2d 443, 1 (...continued) and able to testify. For the reasons stated above, I disagree. -4- 448 (R.I. 2003) (observing that exclusion of evidence by means of a motion in limine has become widely recognized as a salutary device to avoid the impact of unfairly prejudicial evidence upon the jury and to save a significant amount of time at the trial (internal quotations omitted)). Maryland Rules 5 -103, 5 -104, a nd 5-602 inferentially suggest that hearings outside the presence o f the jury to determine admissibility are appropriate. Rule 5-103(c) provides as follows: (c) Hearing of jury. Proceedings shall be conducted, to the extent practicable, so as to preven t inadmissible evidence from being suggested to a jury by any means, such as making statements or offers of proof or asking questions within the hearing of the ju ry. Rule 5-104 provides, in pertinent part, as follows: (a) Questio ns of adm issibility gen erally. Preliminary questions concernin g . . . the admiss ibility of evidence shall be determ ined by th e court . . . . (c) Hearing of the jury. Hearings on prelim inary matters shall be conducted out of the hearing of the jury when required by rule or th e interes ts of just ice. In tandem, Rules 5-103(c) and 5-104 plainly permit, and sometime s require, a trial co urt to rule on the admissibility of evidence2 prior to its presentation to the jury. As the Martinez court observed, permitting trial courts to exclude evidence prior to presentation of the evidence to the jury serves the dual purposes of preven ting the jury from examinin g unfairly 2 The exception is found in Rule 5-104(b), which leaves questions of conditional relev ance for the ju ry. -5- prejudicial evidence and of saving time and expen se at trial. See Martinez, 824 A.2d at 448. To promote th ese ends, R ule 5-103(c) provides that [p]roceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to a jury by any mea ns. . . . In addition to permitting preliminary eviden tiary rulings outside the presence of the jury on most matters, Maryland law requires a trial court to make an advance ruling outside of the presence of the jury on the admissibility of some types of evidence. For example , Rule 4-252 requires a criminal defendant to raise in a pretrial motion objections to the admission of evidence on grounds that it was obtained by [a]n unlawful search, seizure, interception of wire or oral communication, or pretrial identific ation, or by [a ]n unlaw fully obtained admission, stateme nt, or co nfessio n. Rule 4-252(a)(3), (a)(4). If these issue s are not timely raised by preliminary motion, ordinarily they are waived. Rule 4-252(a). The trial court is required to rule on these motions in advance of trial. Rule. 4-252(g)(1) (providing that [m]otions filed pursuant to [Rule 4-252] shall be determined before trial, and, to the extent practicable, before the day of trial ). In addition, Maryland s rape shield law requires advance ruling outside the presence of the jury on the admissibility of evidence (including testim ony) of prior sexual conduct of a victim towards a defendant in prosecutions for rape and certain o ther sex ual off enses. See Md. Code (2002, 2005 Cum. Supp.), § 3-319(c) of the Criminal Law Article (proh ibiting presentation of prior sexua l history evidence to a jury unless the court has first held a closed hearing and de termined tha t the eviden ce is -6- admissible ). Furthermore, trial courts are required to make an advance determination outside the presence of the jury on the admissibility of evidence of other crimes, wrongs, or acts un der M d. Rule 5-404 (b). See State v. Faulkner, 314 Md. 630, 633-35, 55 2 A.2 d 896, 897-98 (1989) (detailing the procedure trial court must follow in determining the admissibility of such evidence). A trial court d oes not ex ceed its auth ority when it raise s the admissib ility of the testimony of a witness sua spon te, and decides that issue on the basis of a proffer of the witness testim ony. C onse quently, the trial judge in the instant case did not act without authority when he employed such a procedure to exclude the testimony of petitioner s witnesses. The only real question of procedure and evidence before us is whether the trial court excluded the testimon y of the witne ss imprope rly, and the prop er focus sh ould be on the substance of the trial court s rulings, not the procedure it employed in making these rulings. The majority is equa lly misguided in its contention that the procedure used by the trial court in excluding the testimony of petitioner s proposed witnesses violated petitioner s constitutional right to present a defense. The Confrontation Clause of the United States Constitution grants to the defendant the right to effective cross-examination of witnesses whose testimony is advers e. See Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 1111, 39 L. Ed. 2d 347 (1 974). The right granted by the Compulsory Process Clause of the United States Constitution is fundam ental and es sential to achie ving a fair trial. See Chambers v. -7- Mississippi, 410 U.S. 284, 294-95, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297 (1973 ). Together, the two rights grant defendants a constitutional right to present evidence and a defense. See Washington v. Texas, 388 U.S. 14, 19, 87 S . Ct. 1920, 1923, 18 L . Ed. 2d 1019 (19 67). The right to present evidence is not absolute, however. A defendant does not have the constitutional right to present any and all evide nce in s uppor t of a cla im. See Chambers, 410 U.S. at 302, 93 S. Ct. at 1049; Wilson v. State, 345 Md. 437, 448, 693 A.2d 344, 349-50 (1997). A defendant in a criminal case does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evid ence. Taylor v. Illinois, 484 U.S. 400, 410, 108 S. C t. 646, 653, 9 8 L. Ed. 2d 798 (198 8); see also United States v. Scheffer, 523 U.S. 303, 308-309, 118 S. Ct. 1261, 1264-65, 140 L. Ed. 2d 413 (1998) (noting that the right to present evidence is subject to the reasonable restrictions of evidentiary rules that serve legitimate interests, includ ing ensu ring that only reliab le evidence is introduced at trial ); United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 3446, 73 L. Ed. 2d 1193 (1982) (holding that to establi sh a violation of the compulsory process clause, the defendant must at least make some plausible showing of how [the] testimony would have been both material and favorable to his defen se ); Wilson, 345 Md. at 448-49, 693 A.2d at 350-51. As discussed above, the majority essentially concedes that the Court of Special Appea ls did not err in concluding that the proffered testimony of petitioner s proposed witnesses was exc ludable from evidence as hearsay not subject to an exception . Because this -8- testimony is evidence that does not meet the requirements of the rules of evidence for adm issib ility, petitioner was not deprived of any constitutional right by the trial court s conclusion that he could not present the testimony of his proposed witnesses. Fina lly, even if the majority were correct that trial court s exclusion of the testimony of his prop osed w itnesses was er ror, the error must be both wrong and injurious. 3 As this Court has often stated, an error by the trial court does not warrant reversal unless that error is both manifestly wrong and substantially injurious. Lawson v. State, 389 Md. 570, 580, 886 A.2d 876, 882 (2005) (internal citations and quotations omitted); Rule 5-103 (stating in relevant part that [e]rror may not be predicated upon a ruling that admits or excludes evidence unless th e party is p rejudice d by the ru ling ). Consequently, the Court does not reverse a conviction on the basis of an erroneous eviden tiary ruling if that ruling does not prejudice the def endan t. Id.; Dorsey v . State, 276 Md. 63 8, 659, 350 A.2d 665, 678 (1976 ). The majority, however, seems content to re verse simp ly on the basis that it is possible that if petitioner s witnesses were per mitted to testify, the prosecu tion wou ld have fa iled to raise a hearsay objection and the testimon y would ha ve been a dmitted. Th e majority notes that the court risks denying to a defendant the fair trial guaranteed to him by both the United States Constitution and Maryland s Constitution. Maj. op. at 30. What is the standard applied by the majority? Is it the mere risk of denying a de fendant a fair trial, or is it whether a defenda nt was pre judiced and was denied a fair trial that requires a new trial? The 3 See Rule 8-131(b)(1), providing that the Court of Appeals may consider the issue of harmless e rror even if n ot raised in a p etition for w rit of certiorari. -9- universal rule has alw ays been that, ab sent structura l error, it is not the risk of prejudice, but actual prejudice, tha t justifies a new trial. Judge G reene, writin g for this C ourt in Crane v. Dunn, 382 Md. 83, 854 A.2d 118 0 (2004), reiterated this principle as follows: The exclusion of competent, relevant and material evidence may constitute prejudice and result in re versible erro r. It is the policy of this Court not to reverse for harmless error and the burden is on the appellant in all cases to show prejudice as well as error. Prejudice will be found if a showing is made that the error was likely to have affected the verdict below. It is not the poss ibilit y, but the prob ability, of prejudic e which is the object of the appellate inquiry. Cour ts are reluctan t to set aside verdicts for errors in th e admissio n or exclus ion of evid ence unless they cause substantial injustice. Substantial prejudice must be shown. To justify the reversal, an error below must have been . . . both man ifestly wrong and substa ntially injurious. Id. at 91-92, 854 A.2d at 1185 (inte rnal citations o mitted). The majority, aband oning this well-established approach, fails to adequately establish that the trial court s purported error in refusing to permit petitioner s proposed witnesses to testify was not harmless. II. I would a lso hold that p etitioner s con stitutional right to be presen t at all critical stages of the procee dings aga inst him was not violated when he was excluded from a conference addressing the question of whether the prosecution committed a discovery violation by failing to disc lose the iden tity of a witness it in tended to c all at trial. -10- Judge Barbera, writing for the Court of Specia l Appeals , summariz ed the facts surrounding the discovery conference as follows: Defense counsel b rought the a lleged discovery violation to the attention o f the trial court . . . during a bre ak in proceedings after the jury was selected but before it was sworn. In the presence of appellant, defense counsel informed the cou rt that the State had included one Christian Phillips on its witness list. Counsel reported that she had asked the prosecutors about Phillips s iden tity and was told that he was a jailhouse snitch who had come to the State s attention two weeks before trial. The prosecutors told defense counsel that Phillips was prepared to testify that appellan t confesse d to Phillips h is involvem ent in the shootin gs. Defense counsel denied receiving any information about Phillips before trial and objected to the State s calling him as a witness. The prosecutors in turn explained that they had learned of appellant s statement to Phillips throu gh Phillips s c ounsel. After interviewin g Phillips, they informed defense counsel by letter that he might be called as a witness. Defense counsel denied receiving the letter. Before the matter was resolved, the prosecutors said that they had not yet decided whether they would be calling Phillips to testify. The court therefore tabled further discussion until such time a s the State de cided that it wan ted P hillip s to te stify. The jury was sworn soon thereafter and trial began. On the evening of the second day of trial, after the jury had been excused for the day, the prosecutors notified the court that the State wanted Phillips to testify. T he def ense ag ain obje cted. As the court prepared to take up the issue, defense counsel asked that appellant, who was then still in the courtroom, be permitted to be present for the discussio n. The co urt denied th e request, reasoning that n o testimo ny would be taken; the question for decision was simply whether, based on the State s proffer of what Phillips might say, the S tate would be permitted to call him; and, if Phillips w ere permitted to testify, appellan t would have his right of cross-examination. The court then told the sheriffs that they could take [the d efendan t] because it is close to 6:00 . -11- The discussion tu rned to w hether and when th e State had informed the defense that Phillips might be a State s witness. While explaining how Phillips had come to the S tate s attention, the prosecutors proffered wh at he wou ld say if perm itted to tes tify. The defense again dispu ted the State s assertion that it had informed the defense promptly upon learning that Phillips might be a State s w itness. Defe nse coun sel argued th at it was patently unfair to allow the State to call Phillips, pointing out that the defense had been given no opportunity to interview him. The court ruled th at Ph illips could tes tify, but only after the def ense ha d a cha nce to s peak w ith him. Kelly, 162 Md. App. at 130-31, 873 A.2d at 438-39 (f ootnote omitted) (alteration in original). Once the trial court found that there was no discovery violation and that Phillips, the State s witness, would be permitted to testify, the trial court considered the extent to which petitioner would be perm itted to impeach Phillips s testimony on the b asis of Phillips s recently entered guilty pleas and his pending sentencing hearing on the charges to which he plead guilty, schedule d to take place before the sa me judge that presided over petitioner s trial. The trial court ruled that the defense could impeach Phillips with his guilty pleas and the p oten tial se nten ces h e wa s fac ing o n the char ges to wh ich h e ple ad guilty. After this ruling, defense counsel again argued for the exclusion of Phillips s testim ony, this time apparently arguing that Phillips s testimony should be excluded on -12- grounds other than as a sanction for a discovery violation.4 The following exchange ensued between the trial court an d defens e counse l: [Defense Coun sel:] Als o secon dly, I think there is a bottom threshold issue here. You have to make a decision for any evidence that comes in. You have to do a balancing test on the credibility or the reliability of that evidence as the permanent [sic] value versus the prejudicial effect. In a cas e like this , [The Court:] A s opposed to expert witnesses, you think a trial judge has to make a thre shold decision in every case about whether a lay witness can testify and if the trial judge doe sn t believe him, you think it is not admissible? [Defense Counsel:] If we can generate th e issue that the re is substan tial preju dice inv olved in a witne ss testifyin g, [The Court:] Le t s say this argument. You find me the case that says that a trial judge determines the admissibility of lay testimony based up on a thresh old even o f credibility determina tion and the n I will listen to you r argumen t. [Defense Counse l:] It is not testimon y. It is the rules. It is all eviden ce that c omes in and m ore than that, [The Court:] Okay. Give me the rule cite. [Defense Counse l:] [Md. R ule] 5-602 says also, the State has to I will read it. The State a witness may not testify on a matter unless evidence is introduced sufficient to sup port finding that the witness has personal knowledge about the matter he is testifying about. We have go t a witness coming in h ere who has extensive motivation to fabricate this. I think there 4 This line of argument was to some extent repetitive of some of the arguments defense counsel made during discussion of the discovery issue. In ruling on the discovery issue, the trial court observed that these arguments raised issues that go to the credibility of the witnes s whic h is for th e jury to as sess an d not th e Cou rt to asse ss. -13- should be a threshold issue here o f them esta blishing ho w this witness ha s personal k nowled ge of w hat he is testifying about. [The Court: ] He is in carcera ted with the def endan t. After some additional discussion of the impeachment issue, the trial court revisited the objections ra ised by defen se counse l, and indicated again that it would refrain for the time bein g fro m ruling on his ob jections. The trial c ourt then rece ssed for the day. The United States Supreme Court has recognized that the right to personal presence at all critical stages o f the trial is a fun damenta l right of a crim inal defen dant. Rushen v. Spain, 464 U.S. 114, 117-18, 104 S. Ct. 453, 455-56, 78 L. Ed. 2d 267 (1 983) (per curiam). The federal constitutional right of an ac cused to be present during all critical stages of the trial has two bases. The Confrontation Clause of the Sixth A mendm ent to the United States Constitution guarantees an accused the right to be present in the courtroom at every stage of his trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 1058, 25 L. Ed. 2d 353, 356 (1970). The seco nd basis for the con stitutional right to be present is provided by the federal Due Process Clause of the Fifth and Fourteenth Amendments. The Supreme Court has recognized that the defendant s right to be present is protected by the Due Process cla use in some circumstances where the defendant is not actually confronting witnesses against him or her. An accused has a due process right to be present at any proceeding related to the charges against the accused if the accused s presence has a relation, reasonab ly substantial, to the fulness of his opportunity to defend against the charge. Snyder v . Massac husetts, 291 -14- U.S. 97, 105-06, 54 S. Ct. 330, 332, 78 L. Ed. 2d 674 (1934). In United States v. Gagnon, 470 U.S. 522, 105 S. Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam), the Supreme Court noted that [t]he prese nce of a d efendan t is a condition of due pr ocess to the extent tha t a fair and just hearing would be thwarted by is absence, and to that extent only. Id. at 526, 105 S. Ct. at 1484 (internal quotations omitted). A ccordingly, an accused h as a constitutio nal right to be present at any proceeding where his presence would contribute to the fairness of the proced ure. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667, 96 L. Ed. 2d 631 (1987). In determining whether an accused s due process right to be present has been violated, a reviewing court should be careful to consider the accused s exclusion from a part of the pro ceedin gs in lig ht of the whole record . Gagnon, 470 U.S. at 526-27, 105 S. Ct. at 1484. Maryland law has long recognized that an acc used has a right to be prese nt at every critical stage of the trial. See Tweed y v. State, 380 Md. 475, 490, 845 A.2d 1215, 1224 (2004). An accused s right to be present was recognized at common law, and is protected also by Article 21 of the M aryland D eclaratio n of R ights. Id. at 490-91, 845 A.2d at 1224. -15- Rule 4-2315 impleme nts an accu sed s fede ral and state c onstitutional rig hts to be pre sent. Id. at 491, 8 45 A.2 d at 122 4. Petitioner presents tw o argum ents that his absence d uring the co nference violated his constitutional right to be present. First, petitioner maintains that, to the extent that the court restricted itself to consideration of the disco very violation issue, petitioner had a right to be present because the trial court s ruling on the discovery issue was based in part on the prosecution s proffer of Phillips testimony, which petitioner could have aided his counsel in challen ging ha d he be en pres ent. Sec ond, petitioner argues that, ev en assum ing his constitutional right to be present would not have been violated if the trial court had restricted itself to consideration of the discovery issue while petitioner was not present, the trial court violated his right to be present when it proceeded to consider the other grounds for exclusion of P hillip s tes timo ny raised b y petit ione r. Ne ither argu men t withstands s crutiny. Petitioner s first argument is belied by examination of the disco very issue before the trial court, and the grounds upon which it rested its conclusion that there was no violation. The discovery issue before the trial court was whether the prosecution violated Rule 4263(b). Rule 4-263(b)(1) requires the prosecution, upon request, to [d]isclose to the 5 Rule 4-231(b) provides as follows: (b) Right to be present Exceptions. A defendant is entitled to be physically present in person at a preliminary hearing and every stage of the trial, except (1) at a conference or argument on a question of law; (2) when a nolle prosequi or stet is entered pursua nt to Ru les 4-24 7 and 4 -248. -16- defendant the name and address of each person then know n whom the State inten ds to call as a witness a t the hearing or trial to prove its cas e in chief o r to rebut alibi tes timony. Ru le 4-263(h) provides that [a] party who has responded to a request or order for discovery and who obtains further material information shall supplement the response promptly. Rule 4263(i) states that [i]f at any time during the proceedings the court finds that a party has failed to comply w ith this Rule o r an order issu ed pursua nt to this Rule, the court may order a range of enumerated sanctions, including the striking of testimony, or any other sanctions which are ap propria te unde r the circ umstan ces. The discovery issue before the trial court was whether the prosecution had violated Rule 4-263(b)(1 ) and (h) by fa iling to timely supp lement its orig inal disclosur e of its witnesses under Rule 4-263(b)(1) once it learned of Phillips and decided to offer him as a witness. In the course of reaching its conclusion that the prosecution did not violate the rule, the trial court relied principally on the representations of the attorneys. The pros ecutors told the trial court that they interviewed Phillips in jail on M ay 7, and, after h aving dec ided to offer his testimony at trial o n the basis o f this interview, notified defen se counse l of their intention to call Phillips by means of a letter sent on May 8. Defense counsel told the trial court that they did not read this letter, but conceded that they may have received it, explaining that they would have expected the prosecution to notify them by other means on the basis of their prior communications with the prosecution. On the basis of these representations by -17- the parties attorneys, the trial court found that the prosecution did not violate Rule 4-26 3(h), explaining its reasoning as follows: I don t find on the based upon the record that has been disclosed that it is a discovery violation. The inform ation didn t become known apparently until the 7th . You were notified by mail on the 8th . I have no re ason to be lieve that it wasn t s ent. Why you didn t get it is unclear to me. I guess you, yourself sugge st it migh t be in you r in-box somew here at yo ur offic e. Shortly thereafter, the trial court reiterated its conclusion, stating that I don t find that there was any discovery violation. I don t find that there was any intentional concealing of the information by the State. As the colloquy makes clear, the trial court s conclusion rested on a credibility findin g as to wh en the pros ecution learn ed of Ph illips, the steps it took to notify the defense of its intention to call him as a witness, and the defense attorneys actions in monito ring the ir incom ing ma il. Clearly, because petitioner s presence could not have aided the trial court in any appreciable way in its making of these findings, there was no violation of petitioner s co nstitutional righ t to be presen t. Courts have held that a defen dant s con stitutional right to b e present is n ot ipso facto violated when the trial court has conducted conferences, at the bench or in chambers, in the defendant s absence. For example, in Haywood v. Portunado, 288 F. Supp. 2d 446, 465-66 (S.D.N .Y 2003), the court held that a defendant s constitutional right to be present was not violated by his absence from a hearing on the issue of whether the defense s use of peremptory strikes violated Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986 ). See also S tate v. Smulls, 935 S.W.2d 9, 17 (Mo. 1996) (en banc) (holding that -18- defendant s absence f rom hearin g on wh ether the prosecu tion had violated Batson did not violate his constitutional right to be presen t), cert. denied 520 U.S. 1254, 117 S. Ct. 2415-16, 138 L. E d. 2d 180 (1997). Th e rationale offered by the Haywood court for its holding was that, because the determination as to whether the prosecution had committed a Batson violation depended up on the trial court s assessment of th e reasons offere d by the defendant s attorney, not the defendant himself, for the use of the peremptory strikes at issue, the defendant s presence w ould not h ave had a reasonab ly substantial relation to his opportun ity to defend against the charges, a nd so did n ot violate his c onstitutional rig ht to be presen t. Haywood, 288 F. Supp. 2d at 466 (quoting Snyder, 291 U.S. at 105-06, 54 S.Ct. at 332); see also Sm alls, 935 S.W.2d at 17 (concluding that defendant s absence from hearing on Batson violation did not violate his right to be present because the defendant had nothing to do or gain from h is presence ). Similarly, the resolution of the discov ery issue before the trial court durin g the hearin g from w hich petitione r was abs ent required the trial court to make a factual determination about the conduct and reasons therefor of petitioner s co unsel, not petitioner. Petitioner s presence would not have had a reasonably substantial relation to his opportunity to defend against the charg es, and his a bsence d id not violate h is constitutional right to be presen t. Haywood, 288 F. Supp. 2d at 466 (quoting Snyder, 291 U.S. at 105-06, 54 S .Ct. at 332). As for petitione r s second a rgumen t, it rests on an incorrect reading of the record. The trial court did not rule on the other ob jections raised by defense c ounsel, bu t declined to ru le -19- on them in advance of trial. The trial court was within its discretion t o do so . See, e.g ., Martinez, 824 A.2d at 448; cf. Rule 5-103(c) (requiring [p]roceedings [to] be conducted, to the extent prac ticable, so as to prevent ina dmissible ev idence fro m being s uggested to a jury by any means ). Because the trial court did not make such a ruling, and left defense counsel s evidentiary objections to Phillips testimony at trial, petitioner s defense was not harmed by his absence when these objections were first raised by his counsel. Inasmuch as the trial court reserved ruling on the evid entiary objection s raised by def ense cou nsel, this case is distinguishable from those in which courts have held that a defendant s constitutional right to be present was violated because of the defendant s absence during a conference on the admissibility of evid ence. Comp are, e.g., Rob inson v. Co mmon wealth, 837 N.E.2d 241, 246-47 (Mass. 2005) (holding that in the specific case, defendant waived his right to be present at the suppression hearings, but that a suppression hearing is critical stage of proceedings and that because the hearing would have required the taking of evidence and also involved th e admissib ility of substantial ev idence that c ould determine the outcome of the case , the def endan t was en titled . . . to b e prese nt ). For these reasons, I would affirm the judgment of the Court of Special Appeals. III. Fina lly, I turn to the majority s tone and criticisms of the trial judge. T he record does not support the majority s conclusions. Not content to reverse petitioner s conviction on -20- constitutional grounds, the majority then proce eds to admonish, un fairly, the trial judge s rulings and his condu ct of the trial. The ma jority accuses the judge of taking over the party s case and of b ecoming an advoc ate for the S tate. Maj. op. at 28, 30. I do not agree that the trial judge [took] over the party s case. Id. at 30. As discussed above, a trial court has the responsibility to control the trial, and, inciden t to this respon sibility, has the autho rity to request a proffer of evidence. Requesting a proffer was not an abuse of discretion, but rather, under the circumstances of this case, simply a prudent step taken to save trial time and expense, and was well within the discretion of the trial cou rt. See Martinez, 824 A.2d at 448. It is important to remember that this case was tried before a jury, and the trial judge was cognizant that he had a jury waiting to come into the courtroom. The judge was coming up against the 3 day weeke nd Mem orial Day holid ay, and was trying to avoid stretching the case over the long weekend.6 At the pro mpting of the Assistant State s Attorney, the trial judge requested a proffer as to the substance of the witnesses testimony. This action, in and of itself, is not error. Indeed, the trial court reviewed the admissibility of the State s evidence out of the jury s presence when it reviewed the transcript and videotape of Officer M ercer s deposition. The trial judge was patient with defense c ounsel, and repeatedly tried to 6 To be sure, the impending holiday and juror schedules do not trump due process concerns. They are, ho wever, le gitimate concerns of the trial court and under the circumstances presented h erein, the cou rt did not abuse its discretion in the procedure emplo yed. -21- understand the purpose for which counse l wished to present O fficer Patel and M s. Blizzer. This conc lusion is sup ported by the tra nscript. The trial court had difficulty understanding the purpose for which defense counsel wished to call the witnesses. I can unders tand the trial cou rt s diffi culty. Defense cou nsel s response to the court s q uestions as to relevancy was a moving target. For example, counsel alluded to a videotape on the bus. When pressed by the court, defense counsel conceded that the tape was inoperable on the night in question, and therefore there [was] a benign reason for [it not being presented]. She told the court as follows: Right, and I am not suggesting that I am asking for a missing evidence rule or anything, instruction on that particular issue; but I still think that I am entitled to ask him which bus route he would have what time the bus would have been there, that he sough t out that bus . The court then ruled as follows: [W]ith respect to the issue of the tape, it would appear to me that the only potential relevance would be if you could fashion [some] argument that the Government failed to do something that they should have done, but the prof fer is that they did lo cate a bus that they believed to be the bus , they tried to get the tape but the tape was ino perable. So , in light of that p roffer, . . . if the explanation were presented to the jury, it would have no evidentiary significanc e and it cou ld not be held against the State for a failure to conduct an adequate investigation mindful of their burden . So I w ill not pe rmit that e ither. On this issu e, the trial judge was corre ct. As to Officer Wells, defense counsel conceded that he had never been subpoenaed as a witness and had not been included by defense counsel on the list of witnesses the court -22- identified to the jury before trial during voir dire. Nonetheless, the judge went beyond any required measures and gave the defense an opportunity overnight to locate the witness. The court told defense counsel as follows: With respect to Wells, what I will do, if he is the only witness that you have remaining, in light of your client s statement that he is not going to testify elects not to testify in this case we will simply, becau se we are going to have to review instructions anyw ay, I will leave the case open until tomorrow morning, and you can try and track down Wells and see if you can get him in here; but, again, if W ells is only if your only purpo se in calling Wells is to have him testify about what other people told him, then I am not goi ng to ad mit that th rough Wells. The majority notes that Officer Wells would not have been available to testify and that counsel concede d at oral argu ment that O fficer W ells would have b een un availab le. Maj. op. at 13, n.9. Considering all the circumstances and the entire record, I find no basis for the majority s contentions that the trial judge co-opted p etitioner s case and beca me an ad vocate for the prosecution. Judge Harrell has authorized me to state th at he joins in th e views e xpressed in this opinion. -23-
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