Elliott v. State

Annotate this Case
Download PDF
REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1963 SEPTEMBE R TERM, 2007 ON MOTION FOR RECONSIDERATION ANDRE JEROME ELLIOTT v. STATE OF MARYLAND Hollander, Zarnoch, Matriccian i, JJ. Opinion by Hollander, J. Filed: June 1, 2009 Kellie McCullough, the estranged w ife of An dre Jerom e Elliott, appellant, suffered multiple stab wounds when she was attacked by appellant on February 5, 2006. Mr. Elliott was subsequently indicted on a variety of charges, including attempted first-degree murder of Ms. McCullough. Following a jury trial in the Circ uit Court fo r Montg omery Cou nty in July 2007, appellant was convicted of attempted second-degree murder, in violation of Md. Code (2002, 2006 Supp.), § 2-206 of the Criminal Law Article ( C.L. ); first-degree burg lary, in violation of C.L. § 6-202; and first-degree assault, in violation of C.L. § 3-202. The court sentenced appellant to a total term of fifty years incarceration.1 This appeal followed. Appellant poses four questions,2 which we quote: 1. Did the trial court err in empaneling the jury after the State admitted that it had exerc ised perem ptory challeng es on the im permissible basis of gender? 2. Did the trial court err in refusing to continue the trial to remedy the prejudice arising from the State s last-minu te and inco mplete production of evidence required to be disclosed under Maryland R ule 1 The court declared a mistrial as to attempted first-degree mu rder, because the jury was unable to reach a unanimous verdict. The court initially sentenced ap pellant to consecutive terms of thirty years for attempted second-degree murder, twenty-five years for first-degree assault, and tw enty years for first-de gree burg lary, for a total of seventy-five years. On D ecemb er 12, 20 08, a sentencing review panel for the circuit court merged appellant s assault conviction with h is attempted murder co nviction, there by reducing h is senten ce to fif ty years. 2 Appellant initially included a fifth question, pertaining to the court s failure to merge for sentencing purposes the convictions for attempted second-degree murder and first-degree assault. But, in his rep ly brief, appellan t concede d that this issue is now moot, based on the action of the sen tencing review panel. T he State agrees , as do w e. See In re Julianna B., ____ Md. ____, No. 70, Sept. Term 2008, slip op. at 9-13 (filed March 17, 2009) (discussing mootness); Albert S. v. Dep t of Health & Mental Hygiene, 166 Md. App. 726, 743-44 (2006) (same). 4-263(b)? 3. Did the trial court err in refusing to dismiss the indictm ent or afford other relief to remedy the State s bad -faith failure to preserve evidence? 4. Did the trial court err in refusing to clarify the jury s confusion about the intent requirement of attem pted murder? For the reasons set forth below, we conclude that the State improperly exercised its peremptory challenges . Therefo re, we sha ll vacate the judgment and remand for a new trial. Acc ordingly, we declin e to address Questions Two and Four, as they are not likely to recur. For the benefit of the parties and the court, however, we shall address the third question. FACTUAL AND PROCEDURAL BACKGROUND 3 Elliott and McCullough were married in August 2004. In June 2005, after the parties had already se parated , McC ulloug h purch ased a h ouse in Germ antow n. About two or three months later, McCullough told Elliott that he could stay at her house until he could get [him]self together. He later refused to leave. Accordingly, on January 3, 2006, 3 Nume rous witne sses testified at tria l. In view of the issues presented, we need not include a detailed su mmary of a ll the evidence adduced at trial. Instead, we shall include only the portions of the trial evidence necessary to provide a context for our discussion . . . . Washing ton v. State, 180 Md. App. 458, 461 n .2 (2008); see Singfield v. State, 172 Md. App. 168, 170 (2 006), cert. denied, 398 Md. 316 (200 7); Martin v. S tate, 165 Md. A pp. 189 , 193 (2 005), cert. denied, 391 Md. 115 (2006). We note that t wo a ttorn eys represented appellant at a motions hearing on December 27, 2006, and two other attorneys represented him at another motions hearing on July 20, 2007, and at trial. For ease of discussion, we shall refer to them collectively as defense counsel or appellant s counsel, unless otherwise noted. Similarly, two prosecutors attended the motions hearings and later tried the case. We shall refer to them collectively as the pro secuto r or the State. 2 McCullough gave Elliott th irty days notice to vacate her house. O n January 27, she obtained a temporary protective order against Elliott because he was volatile, abusive, and had threaten ed to kill her. Sh e obtain ed a fin al protec tive ord er on F ebruar y 3, 2006 . At around 7:17 a.m. on Sunday, February 5, 2006, Elliott left a voice message for McCullough, stating that he needed to talk to her. McCullough testified that she got out of the bed at around 8 a.m. that morning. She soon heard banging coming from dow nstairs; imm edia tely she knew it was Elliott. She retreated to the bathroom, but Elliott kicked through the door and started stabbing her. McCullough screamed, hoping the neighbors would hear her. W ith her hand , she tried to block the knife. Nevertheless, Elliott stabbed her hand and then stabbed her wrist, where the knife was stuck until Elliott yanked it free. Elliott also stabbed McCullough in the chest. Blood was everywhere.4 McCullough testified that when she woke up the knife was still in her chest. She pulled it out and slid to the bottom of the stairs, where she was able to reach her cell phone. 4 Willie Clifton Blair, M.D., a general surgeon, treated McCullough at Suburban Hospital on February 5, 2006. He testified that she had a total of fourteen lacerations, which were inflicted on the right hand, left upper extremity, the breast, and left arm. Moreover, her bones were fractured in her hand. In addition, a CT scan revealed air around the heart and under t he diap hragm . Harrison Solomon, M.D., a hand surgeon, operated on McCullough s hand on February 5, 2006. He w as received as an ex pert in orthopaedic surgery, and specifically in surgery involving the ha nd and u pper extrem ities. Dr. Solo mon testifie d that the victim suffered a through and through injury to the hand; the stabbing penetrated the skin, three bones, and tendons. Dr. Solomon opined that M cCulloug h was no t likely to regain fu ll functio n of the hand b ecause the me dian ne rve wa s partially se vered. 3 She called 911, and told the dispatcher she had been stabbed. B ut, McC ullough d id not recall whether she m entioned that it was her hu sband who had stabbed her. Sh e lay on the floor, which was covered in glass, and was in and out of consciousness. When the police arrived, McCullough identified Elliott as the person who had stabbed her. She also indicated that he had be en we aring a b lue or b lack cre w nec k shirt, a c oat, boo ts, and a New York hat. The prosecutor asked: Who is the person who did this to you? McCullough responded: Andre Elliott. She also identified the knife used during the attack and a New York Yank ees hat r ecove red fro m app ellant s c ar. On cros s-examin ation , Mc Culloug h confirmed that [t]here w as a d iary that was in [her] apartment that was taken . . . [a]nd sometim e after th e incide nt . . . given back. She also agreed that she received a copy or copies of the diary from Detective Ana Erazo, and was not instructed to preserve the m ateri al. M cCu llough su bseq uently di scar ded the d iary and shredded the copies . . . . D efen se co unse l did not a sk ab out the co nten ts of the d iary. 5 Shortly after 8 a.m. on February 5, 2006, Patrol Officer John Chucoski responde d to McCullou gh s 911 call. The front door of the house was locked, but some of the windows were shattered. The police found McCullough lying in a pool of blood. There was large 5 When defe nse c ounsel began to qu estio n M cCu llough about the d iary, the prosecutor objected on the grounds that the questions were leading, no basis of her knowledge was established, and the questions were beyond the scope of the direct. Appellant s attorney claimed that McC ullough s destruction of the diary g oes to her bias. The court overruled the objection, but cautioned defense c ounsel that h e was o pening this up for this w itness to say that this was a bloody diary of a horrible past that she wanted to forget and that she had no reas on to ke ep it. 4 amounts of blood on her, on the ground below her and coming down the stairs and on the walls. Officer Chucoski noted that there was also blood in the bedroom, where a knife was found on the floo r. He desc ribed M cCulloug h as upset and in pain. Another officer asked McCullough who assaulted he r, and she resp onded that it w as her h usban d, And re Elliott. Forensic Specialist Collette Sarns-Gaunt of the Montgomery County Police Department Forensic S ervices Sec tion collected evidence from the house, including a kitchen knife, approximately eight inches long, found in the master bedroom, and a diary or a journal located . . . next to the bed . . . . in the master bedroom. Sarns-Gaunt testified that she took the diary because diaries usu ally speak to the person s state of mind . Moreover, she explained that she believed she had arrived on wh at was g oing to becom e a hom icide, and felt that [the diary] was important if the victim d id not survive. She read parts of the diary and gave a copy of it to the lead investigator, Detective Erazo. Sarns-Gaunt also collected a bathrobe with suspected blood, as well as swabs of blood from the inside of the front door and where the victim lay just inside the front door. She explained that she swab[s] blood m ostly because b lood is not usually pres ent, so it seem s out of place . . . . Ms. Sarns-Gaunt also assisted in searching Elliott s car. Among other items, the police seized a New York Y ankees h at. Detective Kenneth H alter testified about the message lef t on Ms. M cCullough s voice mail at 7:17 a.m. on February 5, 2006. He claimed he was familiar with Elliott s voice, and identified the voice on the message as Elliott s. After the attack, he played the message for 5 Ms. McCullough; she identified Elliott s voice. Forensic Specialist K imberly Clements testified that the knife found in the victim s bedroom was examined f or fingerp rints; no latent p rints of value were fo und. Fore nsic Biologist Erin Farr testified that the DNA profiles from the knife blade and the handle matched McCullough s DNA, not Elliott s DNA. She explained that the DNA from the blood on the knife could mask or overpower . . . the DNA from something of a lesser amou nt, i.e., the testing would only detect the DNA from the blood without detecting some other kind of DNA. After the State rested, appellant moved for a judgment of acquittal on the first degree attempted murder charge and second degree, lesser included attempted murder. He alleged that the evidence of premeditation and specific intent to kill was insufficient for those charges, and submitted as to the other counts. The court denied the motion. Appellant called Detective A na Erazo , who w orked fo r the Mo ntgomery C ounty Police Department s Family Crimes Division and was the lead detective on the case. She stated that the blood on the diary was not tested for Elliott s DNA. Detective Erazo received two co pies of the diary f rom M s. Sarns -Gaun t, but she did not read the diary. Once the decision was made to return the diary to McCullough, Detective Erazo retrieved the original and returned it to the victim on March 6, 2006. Erazo returned the copies to McCullough on April 27, 2006. Detective Erazo did not direct Ms. McCullough to preserve either the diary or the copies. She testified that her understanding of the 6 significance of th e dia ry wa s that it ma y have been useful if Ms. McCullough had not survive d; beca use she survive d, the dia ry was no longer neede d. The follo wing co lloquy is relevan t: [APPELLAN T S COUNSEL ]: And in investigatio ns in the Family Crime[s] Division do you sometimes obtain copies of or originals of victim diaries? [ERAZO]: No. *** [APPEL LANT S COUNSEL ]: Are you aware whether there s a standard practice in the Family Crimes Division as to what to do when you do obtain a copy of a v ictim diary? [ERAZ O]: No. . . . We don t . . . have that I m aware of in my unit within the Family Crimes. You ve got to understand the Family Crimes has several different sections. And they re all very different crimes. Erazo testified that sh e did not discuss the diary with McCullough. Although the diary came up during one of the m eetings that we had w ithin my division with the State s Attorney s Offic e, no one informed her of its contents. And, as noted, Erazo claimed that she di dn t rea d it. On cross-examination, the pros ecutor asked Erazo about her understanding of the significance of the journal. The detective replied: We thought the victim was going to die and that would ve been a good piece of evidence to have. She maintained that the State returned the diary [b]ecause the victim . . . survived. T he follow ing excha nge is releva nt: [PROS ECUT OR]: [Y]ou need to investigate a case with a mind towards the State pro secu ting its ca se if the v ictim does not wan t to te stify. [ERA ZO]: Th at s correct. *** 7 [PROS ECUT OR]: And forensic evidence can be important in a case to show what hap pened, esp ecially if the victim does not tes tify, is that correct? [ERAZO ]: Yes. [PROS ECUT OR]: And tha t could include evidence of a journal [or] DNA evidence if the victim d oes not testify, is tha t correct? [ERAZO ]: Yes. On redirect, appellant s counsel asked Erazo wheth er the State had a meeting on March 22, 2006, to consid er wha t eviden ce to us e if there was n o victim coope ration. Erazo responded in the affirmative. The following ensued: [APPEL LANT S COUNSEL ]: Now you d agree with me that the reason that victim diaries can be important for exam ple in hom icide cases is b ecause it might give you some lea ds about th e crime that w as comm itted, correct? [ERAZO ]: Yes. [APPE LLAN T S CO UNS EL]: It mig ht tell you who did it, correct? *** [ERAZO ]: In other cases, yes. Appellant did not testify. Th e defense rested and renew[ ed] it s [sic] motion for judgment . . . for the reasons previously stated and on the evidence submitted. The cou rt again denied the Motion. With regard to jury instructions, the court denied appellant s request for a spoliation instruction, pointing out that defense counsel n ever asked McC ullough w hat she w rote in the diary, and obse rving that th ere really isn t any evid ence of sp oiliation [sic] in this case. Defense counsel responded that the blood spatter on the d iary was an add itional re ason . . . 8 why we think that the spoiliation [sic] instruction ou ght to be giv en. The c ourt ruled: W ell, you re not going to get it for that reason. There was blood everywhere in this case and a substantial amount of it was tested. In closing argument, defense counsel pointed out inconsistencies between McCullou gh s testimony and that of other witnesses, and argued: S he can t ke ep it straight, ladies and gentlemen, and those are the symptoms of a mistaken witness that s not telling the truth. She s w rong. M oreove r, he noted that no DNA evidence linked appellant to the crime. According to defe nse coun sel, it was co mmon sense in a ca se like this you w ould read the diary of a v ictim, yet the State had returned the diary and cop ies of it to McCullough, who discarded the diary and destroyed the copies. He contended that the State s explan ation fo r why the y returned this diary d oesn t h old wa ter . . . . We shall include additional facts in our discussion. DISCUSSION I. Appellant contend s that the court erred by failing to remedy the constitutional violations arising from the State s gender-based exercise of its challenges. As Elliott observes, the State exercised the first six of seven strikes against men, and, in total, exercised eight of its nine pe rempto ry strikes (8 8.8% ) agains t men . . . . 6 Moreover, 6 Appellant appended to his brief an affidavit of counsel, averring that, [a]fter a number of potential jurors were struck for cause, twenty-three males and twenty-five females remained in the ven ire. However, we do not know the statistical gender composition (contin ued...) 9 appellant twice objecte d to the State s peremptory challenges against men. Relying on Batson v. Kentucky, 476 U.S. 79 (198 6), and its progeny, he a rgues: Th e trial court erred in empaneling a jury over objection after the State s admitted exercise of peremptory challenges on the imp ermissible b asis of gende r. Before reviewing the parties co ntentions in detail, we pa use to re view w hat trans pired b elow w ith respe ct to jury se lection. After the State ha d exercised seven of its ten allotted strikes,7 the following ensued at the bench : [DEFENSE CO UNSEL]: . . . I m not certain, but I be lieve the State used six of its seven . . . strikes on men. . . . [T]he issue I m raising is whether they ve used a disproportionate number of those strikes on men. I believe it may be six out of seven but I would need to consult the official records. I just don t want to waive th e issue, Yo ur Hono r. That s all. THE COU RT: V ery well. I ll consid er that an objectio n. Ove rruled. Twelve jurors and two alternates were seated. The following colloquy transpired at 6 (...continued) prior to the strikes fo r cause. In an y event, the State has not ob jected to the affidavit. It explains: Upon review of the record, undersigned counsel was unable to loca te the Jurors Reporting for Service list, which includes demographic information, generated by the lower court. The prosecutor has a marked copy in her files. See Bailey v. Sta te, 84 Md. App. 323, 331-32 (to establish a pattern of discrimination, a party must provide percent of strikes directed against specific target group and percent that the group represents o f the who le venire, and thereby show a disproportionately heavy employment of peremptories against a target group out of line with what random selection would predict . . . would happen to the group simply by th e law o f avera ges ), cert. denied, 321 Md. 225 (1990). 7 Ultimately, the State only exercised nine strikes. 10 the bench, before the jury was sworn:8 [DEFENSE COUNSEL ]: I just want to preserve the issue of using strikes on men . . . THE COURT: Is there any specific reason[?] [DEFENSE COU NSEL ]: I believe they us ed all but one of their strikes on men. I wo uld have to look at my no tes to verify that. [PRO SECU TOR ]: I d actually like to re spond to th at point. THE COU RT: Yes, Go ahead, Madam State. [PROS ECUT OR]: First of all, they have to show a pattern of discrimination and they haven t. And I w ould also like to say tha t they used mo st of their strikes on women [9] and then when we started using our strikes, we had a panel of men and felt the need to balance out the jury. So if we did use more strikes on men, it would be because we wanted a balanced jury, which I believe we have. I guess it s more men than women on the jury now. THE C OUR T: Yes. O kay. Very well. [PROSECUT OR]: Thank you. THE COU RT: Thank you. [DE FEN SE C OUN SEL] : Than k you, Y our H onor. (E mpha sis adde d.) According to appellan t, the State proffer[ed] a patently gender-based explanation for its strikes against men and admitted that it was striking men because they were men, 8 As best we can determine, four of the empaneled jurors were wom en, seven were men, and the twelfth juror s gender cannot be determ ined fro m the n ame. There were two alternates, both of whom were women. 9 The State never objected to the defense s strikes, nor did it particularize its contention as to the defense s alleged misuse of its peremptory strikes. 11 which was not gender-neutral, a s req uired by Batson. He argu es that by its adm itted exercise of peremptory challenges on the impermissible basis of gend er . . . . the State violated [the] constitutional mandates of the United States Constitution and Articles 24 and 26 of th e Mar yland D eclaratio n of R ights. Pointing to [t]he State s unfounded suggestion that defense counsel exercised gender-based strikes, appellant notes that the State never raised a Batson objectio n. Moreover, he characterizes as astoun ding the State s sugge stion that one party s constitutional violation justifies another party s constitutional violation . . . . In his view, the State s motive to create a gender-balanced jury does not cure the State s Batson violation. Appellant posits that [t]he appropriate rem edy for the State s Batson violation is to set aside his conviction. In his view, a limited remand to determin e whethe r a permissib le rationale for the strikes existed is not appropriate, because there is no question whether the State had a gender-neutral rationale; the State admitted that its peremptory strikes were gende r-based . The State counters that Elliott failed to perfect his challenge to the State s use of peremptory strikes and he also acquiesced to the trial court s empaneling the jury without having ruled as to each challenged juror. Elaborating, the State observes that, after the State responded, during the second exchange, to Elliott s stated belief that [the State] used all but one of [its] strikes on men, Elliott did nothing but say thank you to th e judge. In its 12 view, appellant fa iled to ensure that the trial co urt conside red his objection under the Batson three-part test as to each challenged juror. Elliott, in eff ect, acquiesc ed to the co urt s tacit action to overrule h is numbers objection and has no basis fo r appea ling tho se action s now . Alte rnatively, the State claims that the remedy of granting a new trial is not warranted when a limited remand would permit the trial court to conduct a proper hearing on the parties resp ective claim s of gend er discrimina tion in the use of pere mptory st rikes. According to the State: Each party should be re quired to show, as to ea ch challenged juror, their respective prima facie case of alleged gender discrimination in juror selection, and the State should be permitted to articulate its reasons for striking a juror . . . . In its view, a limited remand wou ld pe rmit t he trial co urt an opportunity to co nsid er fu lly and prop erly, under the three-part test, the objection raised as to each challenged juror after the other (or striking ) party has articulate d its basi s for ex ercising a strike a gainst th e juror. Further, the State argues that even though it sta ted a pref eren ce fo r a ba lanc ed ju ry, the State should be permitted the opportunity to demonstrate to the trial court whether it had legitimate permissible reasons for striking a par ticular juror. In this regard, the State maintains that if it struck a juror for both permissible and impermissible reasons it would be up to the trial court to dete rmine if the strike was a ppropriate o r not. [] In his reply, appellant insists that he preserved his Batson challenge because the defense objected twice on Batson grounds, and . . . the trial court twice considered, and twice rejected, the challenge. He reiterates that his objection to the State s exercise of its nine 13 strikes established a prima fac ie case because it dem onstrated a pattern sufficient to sup port an inference of discrimin ation, in violation of federal and State law. Moreover, he argues that because the State volunteered its explanation for striking jurors, the question whether a prima facie case of impermissible motivation has been established was moot. In that circumstance, argues appellant, the defe nse no longer nee ded to prove that the State s strikes w ere gen der-ba sed on ce the S tate adm itted that t o be true. In addition, referring to defense counsel s thank you remark, appellant cla ims that, when defense counsel objects and is heard on a jury-based challenge, ultimate acceptance of or acquiescence to the emp aneling of the jury does not result in waiver. He maintains that counse l s thank you m erely indicated c ounsel s ob edience to the court s overruling of the Batson objection. In the alternative, he asks this Court to exercise its discretion to review the Batson challen ge for p lain erro r. Prelimin arily, we are sa tisfied that there is no merit to the State s contention that appellant failed to preserve his Batson challenge. We explain. Maryland Rule 4-323(c), gov erning objections to non -evidentiary rulings, provides, in part: For purposes of . . . appeal of any . . . ruling or order, it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court. He re, the record reflects that appellant twice objected on Batson grounds, a nd the trial cou rt twice rejecte d his challenge. Notably, [a] Batson objection is timely if the defendant makes it no later than 14 when the last juror has been seated and be fore the jury has b een sw orn. Stanley and Trice v. State, 313 Md. 50, 69 (1988). That is precisely what occurred here.10 We also reject the State s claim of waiver by acquiesce nce. First, as ap pellant poin ts out, [t]he suggestion that counsel risks waiving objections by maintaining a courteous and professional dialogue w ith the court is at odds with the legal profession s standards of conduct. See Md. R ules of Prof l C onduc t, Pream ble § 9 ( lawyer m ust zea lously . . . protect and pursu e a client s legitim ate interests . . . wh ile maintainin g a profes sional, courteous and civil attitude toward all persons involved in the legal system ). Second, although defense counse l thanked the court after it heard argu ment on th e State s use of its jury strikes, defense counsel s response was merely obedient to the court s ruling and obviously [was] not a w ithdrawal of the prior [ Batson] objection . . . . Ingoglia v. State, 102 Md. App. 659, 664 (1995) (concluding that acceptance of venire panel did not waive earlier challenge to court s refusal to pose a particular voir dire question) (citation om itted); see Miles v. Sta te, 88 Md. App. 360, 377 (concluding that defense counsel s statement, my client and I are satisfied with the selection process, did not waive prior objections regarding voir dire ), cert. denied, 325 Md. 94 (1991)). Notably, in contrast to Gilchrist v. Sta te, 340 10 As noted, after the State s exercise of its first seven strikes, defense counsel stated: [T]he issue I m raising is whether they ve used a disproportionate number of those strikes on men. . . . I just don t want to waive the issue, Your Honor. The trial court overruled the objection. At the end of jury selection, but before the jury was sworn, appellant said: I just want to preserve the issue of using strikes o n men . . . . I believ e they used all b ut one of th eir strikes on men. The court acce pted the Sta te s explana tion that it wan ted a ba lanced jury. 15 Md. 606, 618 (1995), in which the defendant s attorney said that the second jury panel was acceptable, defense counsel did not affirmatively represent that the jury was acceptable. We turn to the merits. In the landmark case of Batson v. Kentucky, 476 U.S. 79, 89 (1986), the Supreme C ourt examined pe remptory challenges and held that the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race[.] To the contrary, a defendant [has] the right to be tried by a jury whose members are selected p ursuant to non-d iscrimin atory criter ia. Id. at 85-86. The underlying purpose of Batson and its prog eny is to protect th e parties right to a fair trial; the venire pers on's right not to be excluded o n an impermissible, discrimina tory basis; and to preserve public confid ence in the judic ial system. Power s v. Ohio, 499 U .S. 400 , 404, 406-09 (1991). 11 In Tyler v. State , 330 Md. 261 (1993), the Court of Appeals extended the rationale of Batson to sex-based peremptory strikes as a matter of State constitu tional law . It said, id. at 270: The equality of rights under law, witho ut regard to g ender, besto wed by A rt. 46 of the Maryland Declaration of Rights, flowing through the equal protection guarantees of Art. 24 of the Maryland Declaration of Rights to Batson v. Kentucky, 467 [476] U.S. 79, 106 S .Ct. 1712, 9 0 L.Ed.2d 69 (1986 ), prohibits 11 Howeve r, there is no freestanding federal constitutional right to peremptory challenges. Rivera v. Illino is, ____ U.S. ____, 173 L. Ed. 2d 320, 329 (2009 ). See United States v. Martinez-Salazar, 528 U.S. 304, 31 1 (2000). Rather, such rights are a creature of statute. Ross v. Oklahoma, 487 U.S . 81, 89 (198 8). Theref ore, a state ma y opt not to provide for suc h challe nges. Rivera, 173 L. Ed. 2d at 329; Georgia v. McCollum, 505 U.S. 42, 57 (1992). 16 the State in a criminal prosecution from using pere mptory challen ges so as to exclude a person from service as a juror because of that person s sex. Sub sequ ently, in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), the Supreme Court reached the same result. It determined that the Equal Protection clause forbids peremptory challenges on the basis of gender, because gender, like race, is an unconstitutional proxy for juror competence and impartiality. Id. at 129- 30. In evaluating a claim that perempto ry challenges w ere exercise d in an imp ermissibly discriminatory mann er, trial co urts mu st follow a three- step pro cess. See Miller-El v. Cockrell , 537 U.S . 322, 328-2 9 (2003); Purkett v. Elem, 514 U .S. 765, 767 (1995); Hernandez v. New York, 500 U.S. 352, 358 (1991); Parker v . State, 365 Md. 299, 308 (2001); Whittlesey v . State, 340 M d. 30, 46 -47 (19 95), cert. denied, 516 U.S. 1148 (199 6). The Court explained in Gilchrist, 340 Md. at 625 -26 (some citations om itted): First, the complaining party has the burden of making a prima facie showing that the other party has exercised its peremptory challenges on an imperm issibly disc riminato ry basis, su ch as ra ce or ge nder. . . . Second, once the trial court has determined that the party complaining about the use of peremptory challenges has established a prima fac ie case, the burden [of production] shifts to the party exercising the peremptory challenges to rebut the prima fac ie case by offering race-neutral explanations for challenging the exc luded ju rors. The ex planation m ust be neu tral, related to the case to be tried, clear and reasonably specific, and legitimate. Stanley v. State, 313 Md. 50, 78, 542 A.2d 1267, 1280 (1988). The reason offered need not rise to the level of a challenge for cause. At this step of the inquiry, the issue is the facial validity of the . . . explanation. Hernandez v. New York, 500 U.S. 352 , 360, 111 S .Ct. 1859, 1 866, 114 L.Ed.2d 3 95, 406 (1 991). It is insufficient, howev er, for the pa rty making the perempto ry challenges to "merely deny[] that he h ad a dis crimina tory motiv e or . . . merely affirm [] his good faith." Purkett v. Elem, [514 U.S. at 769]. 17 Fina lly, the trial court must "determine[] whether the opponent of the strike has carried his burden o f proving purpos eful discrimination." [Id. at 768]. This includes allowing the complaining party an opportunity to demons trate that the reasons given for the peremptory challenges are pretextual or have a discriminatory impact. It is at this stage "that the persuasiveness of the justification becomes relevant. . . . [Id.] At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. [Id.] As noted, the first step requires the party claiming discriminatio n in the jury selection process to make a prima facie case of purposeful discriminatio n by show ing that the tota lity of the relevant facts gives rise to an inf erence of disc riminato ry purpo se. Batson, 476 U.S. at 93-94 . The [r]elevant circumstances that might give rise to or support or refute such showing include a pattern of strikes against . . . jurors [of the cognizable group] in the particular venire . . . . Mejia v. Sta te, 328 Md. 522, 533 (1992) (citation omitted). The fact that the persons struck are members of a cognizable group may be sufficient for a prima fac ie case, dependin g on ho w, if at all, the S tate respond ed to the proffer or assertion that the person s struck were m embe rs of tha t group . Id. at 534. Once the party challenging the use of peremptory strikes makes the requisite prima facie showing , the burden shifts in the se cond step to the striking p arty to articulate a neutral explanation for the exercise of the strikes. Purkett, 514 U.S. at 767. A lthoug h eac h strike, and the reason given for it, must be examined in light of the circu mstances under w hich it was exercised, including an examination of the explanations offered for other strikes, Chew v. State, 317 Md. 23 3, 245 (19 89), the Fo urth Circuit has e xplained th at Batson . . . does not require individualized explanations for peremptory strikes. . . . [A] court may . . . find that 18 the prosecutor has complied with Batson based on an overall explanation that is found satisfactory as to each of the challenged strikes. Evans v. Smith, 220 F.3d 306 , 314 (4th Cir. 2000) (empha sis added). The third step includes allowing the complaining party an o pportunity to de monstrate that the reasons given for the peremptory challenges are pretextual or have a discriminatory impac t. Gilchrist, 340 M d. at 626; see Parker, 365 Md. at 309. While the complaining party [bears] the . . . burden of proving unlawful discrimination, the trial court makes the ultimate determination as to whether the stated reasons were pretexts for discrimination. Gilchrist, 340 Md. at 626-27. Because the trial court's assessment of a Batson claim is factually intensive, we defer to its factual determ ination. Id. at 627. Such findings will not be overturned unless they are c learly erroneous. Hernandez, 500 U.S. at 364-65, 369; Harley v. State, 341 Md. 395, 402 (1996) (per curiam); Gilchrist, 340 M d. at 627; Brogden v. State, 102 Md. App. 423, 433 (1994). Nevertheless, if the relevant fac ts are not in dispute , the appellate court may exercise [its] independent cons titutional judgm ent to determine what should be concluded from those facts. Mejia, 328 Md. at 539; see Stanley, 313 Md. at 71. The State asserts that, [e]xcept for merely stating the numbers, [appellant] articulated no other relevant facts, that in their totality, would demonstrate a discriminatory purpose by the State in exercising its peremptory strikes. It relies on Ball v. Ma rtin, 108 Md. App. 435, 457, cert. denied, 342 M d. 472 ( 1996) . 19 In Ball, 108 Md. App. at 439, after defense counsel struck the only African-American venireperson, the plaintiff asserted a race-based Batson challenge. Following a Batson hearing, the cou rt overru led the o bjection . Id. at 440. Then, the plaintiff stated: I m going to put one more thing on the record . . . . [A]ll of his strikes were of women. Id. The court did not hold another Batson hearing or othe rwise a ddress the plain tiff s ass ertion. Id. On appeal, the plain tiff cha llenged , inter alia, the court s failure to address the gender-based challenge. Id. at 438. This Court held that the plaintiff waived any gender-based objection for failure to raise it. Id. at 457. Quoting from Johnson v. Nadwodny, 55 Md. App. 227, 238 (1983), the Ball Court exp lained, 108 Md. A pp. at 457: [T]he judge did not expressly deny the motion and procedurally we find that the judge was never ask ed to rule upon the motion . . . . [I]t is the respons ibility of the movant to bring them to the attention of the trial judge prior to the conclusion of the tr ial. . . . [W]e . . . consider th at she has w aived her rig hts to have a ruling on it. See also Johnson v. Commonwealth, 529 S.E.2d 769, 780-81 (Va.) ( The fact that the prosecution has exclud ed Africa n-Ame ricans by using perempto ry strikes does no t itself establish . . . a prima facie case under Batson. A defendant also must identify facts and circumstances that raise an inference that potential jurors w ere exclud ed based on their race. ) ( citations omitted ), cert. denied, 531 98 1 (200 0). In our view, the State s reliance on Ball is misplaced. The defendant in Ball never responded to the plaintiff s allegation that he used his strikes aga inst wom en. Here, th e State responded, acknowledging that the reason for its strikes was, indeed, gender-based; it sought 20 to create a gen der-bala nced jury. Mejia, 328 M d. 522, is informativ e with respect to the import of u ndisputed facts in the context of a Batson challenge. In that case, the defendant was convicted of attempted rape and second degree assa ult b y a jury that was em paneled a fter the cou rt overruled h is challenge to the State s exerc ise of a p eremp tory strike. Id. at 525. The defendant had alleged in his challenge that the defendant was Hispanic and the potential juror whom the State struck was the only Hispanic person in the venire. Id. at 528. Th e Court of Appea ls granted certiorari to consider what proof a moving party is required to produce to establish a prima fac ie case of purposeful discrimination against Hispanics. Id. at 525. Noting that neither the State nor the court expressed any disagreement with the petitioner's prof fer of the p reliminary fact th at a venirep erson wa s the only Hisp anic in the venire, the Court concluded that a prima fac ie showing of that fact was made. Id. at 539. Further, it determined that the defendant made a prima fac ie case of purposeful discrimination because th e State struck the only Hispanic person in the venire. Id. Howeve r, because the trial court overruled the defendant s Batson challenge without affording the prosecution the opportunity to provide racially neutral reasons f or its strike, the Court ordered a limited remand for the trial cou rt to perform the proper Batson analysis.12 Id. at 540-41. 12 As we discuss, in this case the State had an opportunity to offer an explanation. Therefore, a limited remand would serve no purpose. 21 We agree with appellant that the first prong of Batson, which requires a prima fac ie showing of an improper peremptory challenge, is not at issue. This is because, in response to appellant s c hallenge, the State imm ediately volunte ered its gend er-based re ason for its strikes. That concession relieved appellant of the obligation to prove that the State s strikes were gender-based. As the Court recognized in Edmo nds v. State , 372 Md. 31 4, 332 (2002), once the State o ffered ex planations f or its perem ptory cha llenges , the first prong of Batson was moot and theref ore not at is sue. See also Hernandez, 500 U.S. at 369 (recognizing that where p rosecutor d efended strikes witho ut promp ting, court ha d no occa sion to rule and preliminary issue of . . . prima fac ie showing [was] moot ); Gilchrist, 340 Md. at 628 (same). Alternatively, we agree with appellant that he satisfied the first prong by pointing to a pattern eight of nine strikes used aga inst men sufficient to support an inference of intentio nal disc riminatio n. As to the second prong of Batson, which required the State to provide a neutral reason for its strike, unrelated to race or gender, w e again ag ree with appellant, who argues: [T]he State s unambiguous admission that it exercised eight of its nine peremptory challenges because the challenged jurors w ere men and it preferred women to fill the remaining spaces so as to obtain a balance[d] jury . . . directly violated Batson s second requirement because it was not gender-neu tral[.] The question, then, is whether the State s de sire to obtain a gender-balan ced jury violated Batson and its progeny. We agree with appellant that the State s objective, however well intentioned, was no more permissible than would be the exercise of a peremptory strike 22 against a black prospective juror in order to ensure that the jury reflected the racial make-up of the community as a whole. See Heather K. Gerken, Second- Order D iversity, 118 H ARV. L. R EV. 1099, 1114 (20 05) (stating th at Batson prohibits using perempto ry challenges to reme dy . . . gend er imba lances o n indiv idual jur ies ). In United States v. Nelson, 277 F.3d 164, 20 7-12 (2d Cir.), cert. denied, 537 U.S. 835 (2002), the United States Court of Appeals for the Second Circuit und erscored th at efforts to balance the composition of a jury nonetheless violate Batson, because such conduct requires exclusion of prospective jurors on a prohibited basis (i.e., religion or race). In Nelson, the defendant was acquitted on state criminal charges, and w as later charg ed with federal hate crimes related to the fatal stabbin g of a J ewish man. Id. at 170-72. The federal trial court believ ed that the state trial had resulte d in an acq uittal becau se the . . . jury did not represent the community, and decided th at it would e mpanel a represe ntative ju ry. Id. at 171-72 (quoting district court). Therefore, it replaced an excused African-American juror with another A frican-Am erican juror, ra ther than the Caucasia n first alternate, and it replaced another empaneled Caucasian juror with a Jewish juror, also selected out of order from the alternate list. Id. at 172. Th e court justified its action by reference to its desire for a balanced jury. Id. The Second Circuit held that the exclusion of jurors based on race or religion was an error . . . made plain by the reasoning [of] Batson, that could not constitutionally have been achieved at the instigation of the parties. Id. at 207. Of import here, it also said: 23 [A]lthough the motives behind the district court s race- and religion-based jury selection procedures were undoubtedly meant to be tolerant and inclusive rather than bigoted and exclusionary, that fact cannot justify the district court s race-conscious actions. Id. As appellant points out, the Supre me Court has s ignaled that use of a pere mptory strike for the p urpose of gen der-ba lancing would not be c onstitutio nally tolera ble. He cites Rice v. Collins, 546 U.S. 333 (20 06), to support his assertion. There, the rec ord seemed to suggest that one of the prosecutor s aims in striking [the juror] was achieving gender balance on the jury, id. at 340 and the Supreme Court observed that the trial court co rrectly, disallow ed any re liance o n that gr ound. 13 Id. at 336. In our view, the State s explanation does not pass muster und er Batson. The State had the burden of pro viding a gend er-neu tral expl anation for its strik es. It failed to do so. Instead, it remarked that when [the State] started using [its] strikes, there was a panel of men, and it felt the need to balance out the jury. By striking men to reduce the number of men on the jury, a dis crimina tory intent [ was] in herent in the pro secuto r's explan ation, and that explan ation could not be dee med gen der-neutral. Hernandez, 500 U.S. at 360. No matter how noble [the State s] intentions, such a strategy would offend Batson . . . . United 13 It is also notew orthy that, in his dissent in Evans v. S tate, 396 Md. 256 (2006), cert. denied, ____ U .S. ____, 12 8 S. Ct. 65 (2007), Ch ief Judge B ell observed that Batson precludes the use of peremp tory strikes for the purpose of trying to get a jury which ro ughly reflects the composition of a cross-section of the county, id. at 390 (quoting trial court), even though that may seem benign. Id. at 392. The majority did not suggest it disagreed with th at view . Id. at 284. 24 States v. Stephens, 421 F.3d 503, 524 (7th Cir. 2005) (Kan ne, J., dissenting). See Nelson, 277 F.3d at 207-12 (noting that jurymandering violates Batson). Therefore, the court erred in de nying appellan t s ch allen ge to the e mpa nelin g of the ju ry. 14 We must next determine whether to remand for a Batson hearing . Tyler, 330 Md. 261, provides guidance. In that case, the defense challenged the composition of the jury on the grounds of race and ge nder. Id. at 267. Alth ough the tria l court refused to consider the gender groun ds, the p rosecu tor ack nowle dged h is purpo se, statin g: I w as trying to get . . . more men . . . . Id. at 268. The trial court denied the Batson challenge, ruling that the prosecutor has not unconstitutionally or impermissibly used his peremptory [challenges] 14 We note that several courts have upheld peremptory strikes based on race or gender so long as the strikes were also motivated by a permissible factor. In Jones v. Plaster, 57 F.3d 417 , 421 (4th C ir. 1995), for e xample, the Fourth C ircuit said: If the court co ncludes, or th e party admits, that the strike has been exercised in part for a discriminatory purpose, the court must consider whether the party whose conduct is being challenged has demonstrated by a preponderance of the evidence that the strike would have nevertheless been exercised even if an improper factor had not motivated in part the decision to strike. See Howard v. Senkowski, 986 F.2d 24, 26-30 (2d Cir. 1993). If so, the strike stands. See also Gattis v. Snyder, 278 F .3d 222 , 235 (3 d Cir.) (s ame), cert. denied, 537 U.S. 1049 (2002); Wallace v. Morrison, 87 F.3d 1271, 1274-75 (11th Cir.) (s ame), cert. denied, 519 U.S. 1044 (19 96); United States v. Darden, 70 F.3d 1507, 1 531 (8 th Cir. 1 995) (s ame), cert. denied, 517 U.S. 11 49, cert. denied, 518 U.S. 1026 (1996); Guzm an v. State, 85 S.W.3d 242, 244 (Tex. Crim. A pp. 200 2) (sam e). But see Robinson v. United States, 890 A.2d 674, 681 (D.C. 2006) (holding that the exclusion is a denial of equal protection and a Batson violatio n if it is pa rtially motiv ated as w ell by the ju ror s rac e or gen der ). We need not determine whether the cases cited above have any application here. This is because the State never suggested any permissible basis to justify its strikes of the men. 25 based on race[.] Id. The ju ry convic ted Tyler. Id. On appeal, Tyler alleged a violation of his equal protection rights based on the court s denial of his Batson challen ge. Id. at 263. The State conceded that [t]here is no doubt that the prosecutor did strike women jurors on the basis of their gender . . . . Id. at 268. The Court observed that the trial judge flatly rejected defense counsel's objections to the pros ecut or's peremptory challenges based on gender discrimination without requiring the prosecutor to explain his conduct, as required under Batson. Id. at 270-71. It declared that, under Maryland constitutional law, the State may not use peremptory challenges to exclude potential jurors because of their gender. Id. at 266. The Tyler Court recognized that the prosecutor's remarks in explaining his use of peremptory challenges with respect to race made perfectly clear that his use of peremp tory challenges to exclude women fro m the jury were gende r motivated and, therefore , contrary to Marylan d cons titutiona l law. 15 Id. at 271. The Court concluded: In the face of what the prosecutor said at trial, he is not entitled to c ome forw ard at this time in an attemp t to present a neutral explanation for challenging women jurors. Tyler [is] entitled to a new trial without further ado. Id. In Mejia, 328 Md. at 540-41, as we have seen, the Court ordered a limited remand 15 The Tyler Court differentiated State v. Gorman, 324 Md. 124 (1991), observing that a majority of [the Gorman] Court agreed to remand the case to give the prosecutor an opportun ity to supply race-neutra l reasons fo r the exercise of his pere mptory challen ges to exclude African-American venire persons from jury service. 330 Md. at 271. 26 because the State w as not affo rded an o pportunity to explain the basis of its strike s. That is not the situation here. Here, the prosecutor stated that, when we started using our strikes, we had a panel of men and felt the need to balance out the jury. The prosecutor added: [W]e wanted a balanced jury. Because the State acknowledged its gender-based motives, a limited remand is neither necessary nor appro priate. The S tate is not entitled to a second chance to provide a gende rneutral explanation. Rather, Elliott is entitled to a new trial with out fur ther ado . Tyler, 330 Md. at 271. II. Upon retrial, the issue pertaining to the diary is likely to arise again. Therefore, we shall ad dress it f or the b enefit o f the pa rties and the cou rt. Referring to the diary, appellant argues: The trial court erred in refusing to dismiss the indictment based on the State s intentional non-preservation of evidence. We pause to review additional facts. On August 11, 2006, appellant filed a request for discove ry. He sought discovery and inspection [of] [a]ny material or information tending to negate the guilt of the Defendant as to any offense charged, and made a specific demand, inter alia, for [a]ll evidence going to the lack of credibility of any government witness . . . . At a hearing on December 27, 2006, app ellant mov ed to compel the production of the diary recovered at the scene. The court denied the motion, because the diary no longer exist[ed], in that it had been thrown 27 away b y the victim . Thereafter, appellant moved for sanctions on February 28, 2007, alleging: The State in this case has allowed e xculpatory ev idence to be destroyed. At issue is the complaining witness diary, which was found at the scene of the crime covered with blood spatter. The blood spatter was not tested by the State, and the Defense was denied the opportunity to test the blood spatter due to the destruction of the diary by the complaining witness after having the diary returned to her by detectives in this case with the State s attorney s approva l. In addition, the contents of the diary could have been exc ulpatory under a number of different theories of the Defense case. Appellant pointed out that the diary was logged into evidence, and that he had requested the diary . . . d uring th e Dec embe r 27, 20 06, M otions H earing. He complained that the original diary and a photocopy of the diary contents were returned to Ms. McCullough because th e State did not need it, and McCullough then shredded the copy of the diary and disposed of the original diary. Therefore, he asked the court to dismiss the indictmen t, disqualify McCullough, and instruct the jury that exculpatory evidence was destroyed in this case by the State and that the destroyed evidence should be viewed in favor of the D efense . The court held an evidentiary hearing on July 20, 2007, with respect to the Motion for Sanctions.16 Appellant called Sarns-Gaunt and questioned her about the search of 16 The court had initially granted appellant s Motion for Sanctions in an Order issued on March 8, 2007 (docketed March 13, 20 07). Howev er, the State filed an opposition to the motion on March 16, 2007. Then, on March 20, 2007, it filed a Motion to Vacate Order, insisting that it had timely filed its opposition. On March 23, 2007, the court vaca ted its Orde r grantin g sanct ions. 28 McCullough s home on February 5, 2006. Sarns-Gaunt testified that she thought the diary had evidentiary valu e because it spoke to th e emotional state of the victim prior to the event. Sarns-Gaunt photocopied the diary and read it. Although Sarns-Gaunt did not remember the exact details or the wording of the diary passages that she read, she got the impression that the victim w as in fear of her safety. When asked if she discussed the diary with anyone in the police d epartmen t, Sarns-Ga unt recalled o nly that she drew it to the attentio n of o ne of th e detec tives. Appellant s counsel then stated to the court: We re learning for the first time . . . that the State actually did read it. We ve always believed and been led to believe, I m not suggesting it was disho nest, but that nobody read the diary. He asserted that the diary was a piece of evidenc e that we wou ld very much like to have an d we don t hav e. The court responded: [W]hat this is shaping up as is both the prosecutors and the police are being accused of misconduc t. . . . That s a pretty serious allegation that you have a heavy burden to prove . And if the re is any miscon duct here, it w ill be dealt with . . . swiftly and appropriately. But I m not going to allow a fishing expedition to see if there was pros ecutorial mis conduct. The defense called Lieutenant Jam es Humph ries, Deputy Director of the M ontgomery County Police De partment s F amily Crimes Division, and asked abo ut the standard practice concerning diaries recovered from a crime scene. He rep lied: The standard practice is, if they re taken as evidence , generally speak ing, they wou ld be reviewed by the investig ating of ficer to s ee wh ether or not they h ave an y type of ev identiar y value. 29 Defense counsel also called Ms. McCullough, who testified that she wrote about appellant and [n]o thing else in her diary. Mc Cullough claimed, co nsistent with her later trial testimony, that she threw [the diary] away and shredded the copies. She explained that she ne eded to quickly re move [her] p roperty . . . from the home so that [she] could put it on the ma rket to sell it . . . . Asked why she did not write abou t anyone but a ppellant in her diary, Mc Cullough explained : I wrote about things that were on my mind. And I, he had isolated me, and was very controlling, and had ran pretty much everyone out of my life, so that any thoughts that I might have had were only of him. In addition to that, I was going through so much, so much trouble, you know, dealing with him in a relationship, and that was the only thing on my mind. Appellant s counsel also called Detective Erazo, who testified: I went through all the paperwork in the envelope [containing the diary], and I put the copy of the journal in my case file. Erazo retu rned the dia ry to McCullough, indicating that the State didn t need it and she could hav e it back if she wanted it. Erazo acknowledged that the diary was discussed on February 16, 2006, at a meeting in reference to the case, attended by the pro secutor, Lieutenant Humphries, and others. She elaborated: We were going through what evidence and things that we had for the case. And when the journal came up, I asked if they wanted it returned or anything done with it. A nd they sa id, Just g o ahea d and re turn it. Ms. Koch and Ms. Chase discussed it and then gave me the release. With regard to the contents of the diary, appellant s counsel argued: I think the inference to be drawn from the fact that the journal and the copies were given to her, at the initiatio n of the po lice, I think the in ference is inescapab le that that was so that I as the defense lawyer for Mr. Elliott, or 30 whoever else was defending him, wouldn t be able to see it. . . . I d love to be able to read that, but I don t have it now. *** Ms. McCullough does not remember everything she wrote dow n. There might be incons istent statemen ts. Her diary mig ht tell us who really did this. It might tell us h ow mu ch she ha ted And re Elliott. It might tell us about her own psychological issues, relationships that she had with others. As to the blood on the diary, appellant s cou nsel insisted that, under Brady v. Maryland, 373 U.S. 83 (1963), and State v. Williams, 392 M d. 194 (2006), it would be exculpatory if it s not Mr. Elliott s b lood. . . . A nd we don t h ave a c hance to test tha t. . . . [I]t could have been the blood of the real perpetrator. The State countered: [T]he purpose of that meeting at that time was to go through all of the evidence, because th ere was a lot seized, fully understanding that we pro bably would not need all of the evidence seized, but to sort of run through and figure out wh at evide nce w e wou ld need . . . . At that time, you heard testimony, Detective Erazo said to us do you need the diary, they ve seized the diary. It was seized because at that time they believe d that the y were p rocessin g a mu rder sce ne. . . . . . . Ms. Chase and I conferred. The decision was made, as is often made, we do not need the diary. So because no one had read the diary, to our knowledge, Detective E razo was told she cou ld return the d iary to the victim. *** . . . [C]ertain pieces of evidence have different evidentiary value when you have a life [sic] victim versus a dead victim. A live victim can speak for herself. . . . A diary speaks for a dead victim. . . . A diary would be inadmissible, most likely, with a live victim. *** And the burden that they have is not that the diary may b e exc ulpa tory, and not that it may b e ma teria l. Th ey have to prove that it would have been material. Brady mate rial is that it must b e mater ial to sho w, to pr oving t hat . . . the defen dant s not g uilty . . . . And they just hav en t done th at. 31 With regard to the blood on the diary, the prosecutor said: [T]he blood on the diary was consistent with all of the other blood within the room. That there were other pieces of evidence seized from the room that can and were tested . That the de fense is saying that they did no t have the ab ility to test the diary, test the blood on the diary. But they had the ab ility to test any other item seized from the room. They have chosen not to do so. *** . . . They ve chosen not to test anything else. That gives us no reason to be lieve that t hey w ould have tested th e dia ry, the bloo d on the d iary. In rebuttal, appellant s counsel said that he didn t test the knife because to [his] knowledge that s the only other blood sample taken from the room. They tested it, and it did not have M r. Elliott s DNA[.] The court ruled: Well, I don t find that there s any bad faith in this case. But that s not the e nd o f the anal ysis. Prosecutors can en gage in conduct that is not appropriate, and in those c ases it s appropriate for the court to impose a certain sanction, even if there isn t bad faith. *** . . . What we have here is the possibility that there might have been some evidence that could have been exculpatory. If that were the standard, that argumen t could be m ade in virtua lly every single criminal trial, because there is always something collected on a crime scene that is not used in the trial. The prosecution, the State doesn t use every single item that is collected. It is not at all unusual that certain items are returned to victims, having been viewed as having no prosecutorial value. . . . [T]hey don t know what was in the diary, any more than they know what the results would have been on other items in the room that were not tested. *** Now, with respect to the issue of p rosecutorial misconduc t, the court 32 addresses that in DeLeon.[17] And I ve already alluded to it, but let me just say with respect to prosecutorial misconduct generally, the court says, actual prejudice must be shown before any sanction or reversal of a conviction can be prop erly impo sed. *** And they talk about Brady. I m not so sure that we even get to the issue of Brady here, because there s been no proffer, or no argum ent of wh at exactly it is that the gov ernment th rew aw ay. . . . This is just a belief that there could have been evid ence in the jo urnal that could have been exculpatory, but we don t know what it was, or even if there was any such evidence. . . . I find that there would have to be an egregious violation of the discovery rules, and serious prosecutorial misconduct, for a court to dismiss an entire indictm ent. . . . *** Not only do I find no bad faith, but I don t find any miscond uct in this case. *** And s o for th ose rea sons, th e motio n for sa nctions is denie d. . . . Now, with respect to jury instructions, we will discuss that [at trial] with respect to whether or not the facts are such that an instruction on spoliatio n is app ropriate . . . . With this background, we turn to the parties contentions. Appellant asserts that, by failing to preserve the diary as evidence, the State violated his due process rights, as articulated in Brady v. Maryland, 373 U.S. 83 (1963 ); Arizona v. Youngblood, 488 U.S. 51 (1988); and Patterson v. State, 356 Md. 677 , 696 (1999). 18 17 See State v. Deleon, 143 Md. A pp. 645 (2002). 18 In his Motion for Sanctions, appellant requested a jury instruction pertaining to the destruction of evidence. On appeal, he does not specifically challenge the court s denial of a spoliation instruction. Instead, he focuses on the court s refusal to dismiss the charges and the alleged violation of his due process rights. Therefore, we shall not address the court s failure to instruct the jury on spoliation. 33 According to appellant, [t]he Youngblood doctrine pe rmits a defe ndant . . . to establish a due process violation if (1) the item in question is potentially useful evidence and (2) the State s fa ilure to preserve it was in bad faith. He insists that [t]he diary was such potentially useful evidence because it was splattered with blood from the crime scene and the diary entries about Mr. Elliott might have been used to impeach Ms. McCullough, the State s key witness, for example, by revealing her motive to testify against Mr. Elliott. By photocopying the diary, argues appellant, the D epartment treated it as important evidence . Further, he claims that, by the State s admission, the evidence was the voice of an essential witness who might not be willing to cooperate . . . . Claiming that bad fa ith can be established without s howing that the State a cted with malice or intent to harm the defen dant, Elliott offers many grounds to support his claim of bad faith non-preservation. In particular, he points to the State s violation of and disregard for its duty to preserv e evidenc e, its violation of protocol relating to preservation of evidence, and its internally inconsistent rationale for its decision to return evidence to a key witness . . . . In appellant s view, the State s violation of standard protocol establish es bad f aith. He argues that the State made a conscious decision . . . to break protocol and discard the diary without ever having read the diary to determine whether the information contained therein was incu lpatory, exculpa tory, or neutral. [] According to appellant, [t]he State had a clear and a ffirmative obligation to p reserve materia ls that ha ve pote ntial evid entiary va lue, 34 yet the Sta te . . . returned the diary based on the untested belief that it wa s not ex culpato ry. In appellant s view, the State s conduct its deliberate departures, on two occasions,[19] from police protocol regarding evidence preservation indicates that the State did not want the diary to be available to Mr. Elliott during discovery. Further, appellant co mplains tha t the State erro neously believ ed that its du ty to preserve collected evidence ceased once the State had accumulated the evidence it believed to be sufficient to prove its case . . . . Yet, he po ints out that it w ould not h ave been difficult for the Department to retain the diary, because it was not sizable; it did not require refrigeration or other special storage conditions; and it was not contraban d. With re gard to the State s rationa le for its delibe rate decision to return the d iary, appellant p osits: The State s evolving account of what happened to the diary . . . indicates that the State did not want to prod uce the diary in dis covery. In his view, the State offered shifting stories about how many copies of the diary there w ere, when they were re turned to Ms. McCullough, whether anyone had read the diary, and who participa ted in mee tings abo ut the dia ry . . . . Further, appellant alleges that the court applied an erroneous legal standard, by faulting appellant for not demonstrating the contents of the missing evidence. As to his due process rights un der Brady, appellant maintains that the State was responsible for identifying and disclosing m aterial, exculpatory evid ence , such as the d iary. 19 Appellant apparently refers to the State s initial dec ision to return the diary and its later deci sion to return the c opie s of the diary. 35 He explains: To establish a Brady violation, a de fendant m ust demo nstrate that the w ithheld evidence was favorable to the defe nse either becau se it is exculpa tory . . . or because it provides grounds for impeaching a witness and . . . that the suppressed evidence is material. (Quoting Conyer s v. State, 367 Md. 5 71, 597 , cert. denied, 537 U.S. 942 (2002)) (Citations and quotation m arks omitted ). In his view , the State effectively acknowledged that the blood-spattered diary would have been exculpatory, by asserting that the blood on the diary was the same blood as the blood on the knife, the testing of which excluded Mr. Elliott as the source[.] He reiterates that the diary could have been use d to show Ms. McCullou gh s bias against Mr. Elliott or motive to testify against him because McCullough testified at the motion hearing that she regularly wrote about he r trouble with appe llant. Moreover, appellant contends that eviden ce of Ms. M cCullough s motive to testify against Mr. Elliott . . . may [have made] the difference between conviction and acquittal. (Quoting Conyers, 367 Md. at 60 6 (citations and quotation m arks omitted)). He declares that had the jury not cr edited M s. McC ulloug h s testim ony, it wo uld not have b een ab le to con vict. The State counters: The trial court properly refused to dismiss the indictment on the basis of alleged bad-faith non-preservation of evidence. It alleges that Elliott did not establish that the State a cted in bad fa ith in regar d to the non-p rese rvation o f the diary, because nothing in the due process clause confers an absolute duty on the part of the police to retain and preserve all material that might be of conce ivable evidentiary significance in a particular prosecution. (Quoting Youngblood, 488 U.S. at 58.) M oreover, 36 the State main tains that the d iary was clearly no t Brady material. It explains: The possibility that there might have been some evidence that could have been useful to the defense is simply not enough to make the diary subject to Brady. In addition, the S tate observes th at Elliott had a n opportu nity at trial to question Ms. McCullough about the c ontents of th e diary, yet he did no t do so. M oreover, the State contends that it is not required to test every item that had blood on it. It posits: The fact that the blood on this one piece of evidence was not tested does not mean that the State acted improper ly in the preservation of evidence. The blood on the diary was consistent with the blood found in the bedroom, including on the knife . . . . Further, the State points out that appellant did not request to test the blood on other items that were seized. In Brady v. Maryland, 373 U.S. 83, 87 (1 963), the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the eviden ce is material eithe r to guilt or to punishm ent, irrespective of the goo d faith or bad faith of the prosecution. See Wilson v. State, 363 Md. 333 (2001) (same). As the Supreme Court explained in Strickler v. Greene, 527 U.S. 263, 280 -82 (1999), to establish a Brady violation a defendant must show: (1) the State suppressed or withheld evidence, whether inadverten tly or willfully; (2) the evidence at issue was favorable to the defense, either because it was exculpatory, provided a basis for mitigation of sentence, or provided grounds for impeaching a witness; and (3) the suppressed evidence was material to the guilt or pun ishmen t of the d efend ant, there by prejud icing the defen dant. 37 To ensur e that a m iscarriag e of jus tice doe s not oc cur, the State is required to disclose evidence favorable to the accus ed that, if suppressed, would deprive the defendant of a fair trial[.] United States v. Bagley, 473 U.S. 667, 675 (1985). Such disclosure requireme nts extend to helpful impeachment evidence as well as directly exculpatory evidence on the merits . . . . Adams v. State, 165 M d. App . 352, 35 9 (200 5), cert. denied, 391 Md. 577 (2006); see Conyers, 367 Md. at 606 (recognizing that impeachment evidence may make the diff erence betwe en con viction a nd acq uittal). Nevertheless, [t]he dismissal of an indictment is at the sound discretion of the trial court, which we review for an abuse of discretion. State v. Lee, 178 M d. App . 478, 48 4 (200 8) (citatio n omitte d). In our view, appellant s reliance on Brady is misplaced. In that case, 373 U.S. at 84, the prosecution failed to disclose exculpatory evidence before trial; the defense had no knowledge of the information.20 Here, Elliott knew of the existence of the diary well befo re trial. To be sure, he did not know of its contents, and the diary was unavailable for testing, because the State did not preserv e it. As discussed infra, it was not known w hether the diary was excu lpato ry. Be caus e the issue rais ed by appellant concerns the S tate s failure to preserve potentially useful evidence, we shall examine the State s conduct under Youngblood, not Brady. 20 In Brady, an extrajudicial statement given by the defendant s accomplice, admitting to the murder for which Brady was on tria l, was withheld by the prosecution and did not come to [Brady s] notice until after he h ad been trie d, convicted , and senten ced, and a fter his conviction had been affirmed. 373 U.S. at 84. 38 In Youngblood, 488 U.S. 51 , the def endan t was ch arged, inter alia, with sexu al assault of a ten-year-old boy. The prosecution disclosed relevant police repo rts to [the defendant], which contained information about the existence of [a rectal] swab and the [victim s] clothing , as well as labo ratory rep orts. Id. at 55. Although the swab and clothing were made available to the defenda nt, the prosec ution did not refr igerate o r freeze the cloth ing. Id. As a result, months later, when semen stains were discovered on the clothing, the criminologist could not obtain blood group substances or analyze the semen to determine the perpetrator s iden tity. Id. at 53-54.21 The state appellate court reversed the defendant s convictions on the ground that the State had failed to preserve semen samples from the v ictim s body and clothing . Id. at 52. The Suprem e Court granted certiorari to consider, under the Due Process Clause , the pro secutio n s duty to preserv e poten tially usefu l eviden tiary mater ial. Id. Recognizing that the State complied with Brady and United States v. Agurs, 427 U.S. 97 (1976), and noting that the prosecutio n made th e physical evid ence ava ilable to the defense, id. at 55, the Supreme Court conside red whe ther there w as some constitutiona l duty over and above that imposed by cases such as Brady and Agurs. Id. at 56. The Cou rt distinguished the circumstances in which Brady applies , i.e., when the State fails to disclose to the defendant material exculpatory evidence, and the circumstances of the case befo re it, 21 The defense never re quested testimony of the swab or clothing, but relied on the defense that Youngblood was not the perpetrator. It presented testimony about what might have been shown by tests performed on the samples shortly after they were gathered, or by later tests performed on the samples from the boy s clothing had the clothing been pro perly refrigerated. Id. at 54. 39 which presented the failure of the State to preserve evidentiary material of w hich no more can be said than that it could have been subjected to tests, the result of which might have exonerated the defendant. Id. at 57. It concluded that wh en the contents of the ev idence are unknown, because of the State s failure to preserve the evidence, a defendant s due process rights are violated upo n proo f that the prosec ution ac ted in ba d faith. Id. at 57-58. The Supre me Co urt reaso ned, id. at 57-58: The Due Process Clause of the Fourtee nth Amendment, as interpreted in Brady, makes the good or b ad faith of the State irrelev ant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defen dant. Part of the reason f or the diffe rence in treatment is found in the observation made by the Court in [California v.] Tromb etta, [467 U .S. 479, 486 (1984)], tha t [w]hen ever poten tially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import o f materials w hose con tents are unknown and, very often, dispute d. Part of it stems from our unwillingness to read the fundamental fairness requirement of the Due Proces s Claus e, see Lisenb a v. Californ ia, 314 U.S. 219, 236 (1941), as imposing on the police an undifferentiated and absolute duty to retain and to preserve a ll material that m ight be of c onceivab le evidentiary significance in a particular prosecution. We think that requiring a defendant to show b ad faith on the part of th e police bo th limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases wh ere the interes ts of justice m ost clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defen dant. We therefore h old that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due pro cess of law. (E mpha sis adde d.) Patterson, 356 Md. 677, illuminates the concept of bad faith. Patterson was charged with driving and na rcotics o ffense s. Id. at 680. In a search subsequent to his arrest, police 40 recovered cocaine in the pocket of a jacket in the trunk of the car that Patterson was driving. Id. at 681. At tria l, Patterson so ught to sho w that the jacket was not his by trying it on and demonstrating that it did not fit him. Howeve r, it was not available; the State only offered into evidence a photogr aph of the jacket. Id. at 681. On cross-exam ination, it was established that the jacket was never held as evidence by the police, that the jacket was not the kind of evidence typically held as evidence by their agency, and that neither officer was aware of the jack et's current whereabouts. Id. at 681-82. The trial court denied Patterson s request for a spoliatio n instruc tion. Id. at 681. On appeal, Patterson alleged that the court erred in denying the spoliation instruction, and thereby denied him due process of law. Id. The C ourt of Appe als disag reed. Id. at 688. Relying on Youngblood, 488 U.S. 51, the Co urt said: [T]here is no suggestion of bad fa ith on the part of th e police. The of ficer testified that h e dealt with the jacket ac cording to standard police procedure. There was no evidence to the contrary. Id. at 697. It elaborated, id. at 696: Petitioner offers no evidence that the police purposely suppressed or destroyed the jacket. The record reveals that the police accurately reported the existence of the jacket during the inventory search of the vehicle. While the defendant may have considered the jacket to be relevant evidence, there is little evidence that the police consid ered it to be evid ence, a nd eve r held it a s evide nce. . . . [N]ot only is there no evidence that the police destroyed the jacket, petitioner has not established what the police motive or intent behind destroying the jacket would be. In the case sub judice, appellant su ggests that the actual conte nts of the dia ry would have shed light on the victim s motive to testify against appellant. 41 It is, of course, speculation that wh at Mc Cullou gh wr ote in he r diary m ight hav e exon erated th e defe ndant. Youngblood, 488 U.S. at 57. Sarns-Gaunt alone read the diary, as [she] was copying it, but she could not re call what sh e had read . The victim testified at the motion hearing on July 20, 2007, explaining that she wrote only about appellant and [n]othing else, explaining that he was very controlling and she had so much trouble . . . dealing with him in a relationship . . . . Surely, passages to that effect are not exculpatory. Nor has appellant suggested any basis to believe that the diary included any information that would have provided a motive for the victim to fabricate her claim that it was appellant who stabbed her on Feb ruary 5, 20 06. To the contrary, the victim s motive in testifying against appellant was es tablishe d by her c lear reco llection o f the ev ents of Febru ary 5, 200 6. It is also salient tha t appellant h ad the opportunity at trial to de lve into the co ntents of the diary on cross-examination, but chose not to do so.22 Neverth eless, appellan t did establish that McCullough s diary was seized by the State, which later returned it to the victim, and that the victim destroyed it. Appellant then argued in closing that McCullough destroyed the diary, and that comm on sense required the State to read and prese rve it. It is also total speculation that the bloo d spa tter o n the diary was excu lpato ry. To be sure, the blood on the diary could have been subjected to tests, Youngblood, 488 U.S. at 22 As noted, the court overruled the State s objection to appellant s line of crossexamination about the diary, but explicitly told defense counsel he was opening this up for this witness to say that this was a bloody diary of a horrible past that she wanted to forget and that she had no reason to keep it. 42 57, such as DNA analysis. Yet, the b lood on th e diary was a f ar cry from the only blood at the crime scene. There was evidence that blood was found all over the be droom wh ere McCullough was stabbed; on the walls and the stairs of the house; and in the kitchen, where the victim w as fou nd with large a moun ts of blo od on h er [and ] on the groun d below her. Although the knife, blo od swab s from the inside of the front doo r, and from where th e victim lay, as well as a bathrobe with suspected blood, were collected from the crime scene, the State only tested the knif e for D NA e videnc e. This suggests that the State did n ot return the diary to avoid testing it. And, of im port here, giv en that app ellant never a sked the S tate to test any other evidence, there is no basis to credit his claim that he wanted to test the diary the one item tha t happe ned to b e unav ailable. Furthermore, there was no evidence whatsoever that the assailant was injured or bled during the attac k. This makes it unlikely that any of the blood at the crime scene, including the blood on the diary, was that of the assailant. Put another way, the blood that was tested belonged to the victim; a test indicating th at the blood on the diary w as not app ellant s wo uld not hav e exon erated h im. The court below credited the State s claim that the diary was recovered in the event that McCullough did not survive the attack. As the prosecutor explained, the State collected a lot of evid ence, fully un derstandin g that [it] prob ably would not need all of the evidence seized, but to sort of run through and figure out wha t evidence [ it] wou ld ne ed. Similarly, Sarns-Gaunt testified, I believed I had arrived on what was going t o beco me a h omicid e, 43 and she thought the diary was important if the victim did not survive. With McCullough available to testify, howe ver, the State d id not nee d the diary, and returned it to McCullough. Youngblood stated that requiring a defendant to show bad f aith on the part of the police . . . limits the extent of the police s obligation to preserve e vidence to reasonab le bounds . . . . 488 U.S. at 58. The trial judge, as fact finder, determined that minor inconsistencies in the State s account of how or why it decided to return the diary were not sufficient to establish bad faith. Nor did the State violate proto col in hand ling the diary. To be sure, Lieutenant Humphries testified that the standard practice for a diary recovered from a crime scene was for the investigating officer to re view it for any type of evidentiary value. Yet, Detective Erazo explained that the Family Crimes Division has several different sections to handle very differe nt crime s, and in her section there was no standard practice for handling such items. In sum, the State s decision to return the diary and copies of it to McCullough was not proof of bad faith. The cou rt below fo und that the State did not act in bad faith; that finding was not clearly erron eous. With out proof of bad fa ith, appellant d id not establish a due process violation under Youngblood. We conclude tha t the court did not err or ab use its discretion in refusing to dismiss the charges. JUDGMENT VACATED. CASE REMANDED TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY FOR A NEW TRIAL. COSTS TO BE PAID BY MONTGOMERY COUNTY. 44

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.