Appellant points out that the rule in Maryland is that "before the declarations of one conspirator are admissible against a coconspirator, the existence of the conspiracy and the connection of the coconspirators therewith must be established." In support of that argument he cites Mason v. State, 18 Md. App. 130, 136-37 (1973). Butler also argues that the aforementioned rule is applicable where, as here, declarations of the coconspirator are sought to be introduced through a third person, such as Horton. Butler maintains that Horton should not have been allowed to testify as to what the coconspirator (Wright) told him (Horton) until Butler's connection with the conspiracy "is prove[n] by evidence aliunde (evidence independent of the declarations themselves)."
As a prerequisite for the admission of such statements, however, the prosecution must first establish, through evidence aliunde, the existence of the conspiracy allegedly furthered by the statements. Ezenwa, 82 Md. App. at 512, 572 A.2d 1101, quoting Mason v. State, 18 Md. App. 130, 136-137, 305 A.2d 492, cert. denied, 269 Md. 763 (1973). In this case, the State's proffer in response to Baxter's motion to dismiss demonstrates that the State will attempt to prove Baxter's involvement in the conspiracy with the co-conspirator's statements establishing the conspiracy.
To the contrary, it is not necessary that a conspiracy be conclusively established before the declarations are admissible. Flexibility in the order of proof is allowed. Greenwald, 221 Md. at 257, 157 A.2d at 126; see Hill v. State, 231 Md. 458, 461, 190 A.2d 795, 796, cert. denied, 375 U.S. 861, 84 S.Ct. 127, 11 L.Ed.2d 87 (1963); Mason, Taylorand Taylor v. State, 18 Md. App. 130, 137, 305 A.2d 492, 497 (1973). In the instant case, we have reviewed the record and are persuaded that there was ample evidence presented, independent of the challenged hearsay statements, of the existence of a conspiracy to justify the trial court's application of this hearsay exception. For example, Grandison's letter of March 14 to Janet Moore telling her to take "Short" (Evans) to see Rodney (Kelly) to take care of something to do with his upcoming trial; the evidence of Evans' and Moore's visit thereafter with Grandison in the City Jail; and Theresa Purdie's testimony that Evans, Moore, and Kelly all spoke to Grandison over her phone about protective glass at a motel.
Denied September 10, 1973Petition denied September 10, 1973. Opinion of Court of Special Appeals reported: 18 Md. App. 130.
Denied September 10, 1973Petition denied September 10, 1973. Opinion of Court of Special Appeals reported: 18 Md. App. 130.
Denied September 10, 1973Petition denied September 10, 1973. Opinion of Court of Special Appeals reported: 18 Md. App. 130.
We find the following cases, however, persuasive in our consideration of the sufficiency of Taylor's objection.SeeMiller v. State , 380 Md. 1, 843 A.2d 803 (2004) ; Jones v. State , 229 Md. 472, 184 A.2d 809 (1962) ; Tichnell v. State , 287 Md. 695, 415 A.2d 830 (1980) ; Malaska v. State , 216 Md. App. 492, 88 A.3d 805 (2014) ; Robinson v. State , 209 Md. App. 174, 58 A.3d 514 (2012) ; Somers v. State , 156 Md. App. 279, 846 A.2d 1065 (2004) ; Myerberg, Sawyer & Rue v. Agee , 51 Md. App. 711, 446 A.2d 69 (1982) ; Huff v. State , 23 Md. App. 211, 326 A.2d 198, cert. denied , 273 Md. 721 (1974) ; White v. State , 8 Md. App. 51, 258 A.2d 50 (1969), cert. denied , 257 Md. 737 (1970) ; Mason v. State , 18 Md. App. 130, 305 A.2d 492 (1973).Horton v. State , 226 Md. App. 382, 130 A.3d 1002 (2016) ; Chaney v. State , 42 Md. App. 563, 402 A.2d 86 (1979), rev'd on other grounds , 304 Md. 21, 497 A.2d 152 (1985) ; Randolph v. State , 193 Md. App. 122, 996 A.2d 907 (2010) ; Morrow v. State , 47 Md. App. 296, 423 A.2d 251 (1980), aff'd , 293 Md. 247, 443 A.2d 108 (1982).
"[W]hen the State seeks to use statements against a co-conspirator made by another co-conspirator to a third party, it must first demonstrate, through evidence aliunde, the existence of a conspiracy, but the testimony of one conspirator is admissible against a co-conspirator without the necessity of establishing through an independent source the existence of the conspiracy." Mason, Taylor & Taylor v. State, 18 Md. App. 130, 136-37, 305 A.2d 492, cert. denied, 269 Md. 763, 767 (1973).Ezenwa, 82 Md. App. at 512 (emphasis added).
"[W]hen the State seeks to use statements against a co-conspirator made by another co-conspirator to a third party, it must first demonstrate, through evidence aliunde, the existence of a conspiracy, but the testimony of one conspirator is admissible against a co-conspirator without the necessity of establish through an independent source the existence of the conspiracy."Ezenwa, supra, 82 Md. App. at 512 (alteration in original) (quoting Mason v. State, 18 Md. App. 130, 136-37 (1973)). The evidence is sufficient so long as "men of sound mind may reasoningly and reasonably deduce from the facts and circumstances presented to them that there was a conspiracy."
See also McKnight v. State, 280 Md. 604, 375 A.2d 551, 554 (1977); Stevenson v. State, 43 Md. App. 120, 130, 403 A.2d 812 (1979), aff'd, Stevenson v. State, 287 Md. 504, 413 A.2d 1340 (1980); Johnson v. State, 38 Md. App. 306, 310-311, 381 A.2d 303 (1977); McCree v. State, 33 Md. App. 82, 92-93, 363 A.2d 647 (1976); Mason v. State, 18 Md. App. 130, 141, 305 A.2d 492 (1973); Peterson v. State, 15 Md. App. 478, 496, 292 A.2d 714 (1972); cf. Tracy v. State, 319 Md. 452, 458, 573 A.2d 38 (1990). This possibility of significant damage to a defendant by evidence inadmissible as to him but admissible against a codefendant is the only criterion for measuring joinder/severance ever recognized by Maryland law.