Rainey v. State, 246 Md.App. 160, 172 (citing Crawford, 541 U.S. at 54), cert. denied, 468 Md. 556 (2020).
In its seminal decision in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court "held that, regardless of hearsay rules, the Confrontation Clause generally bars the introduction into evidence, at a criminal trial, of 'testimonial hearsay,' unless the defendant had a prior opportunity to cross-examine the declarant, and the declarant was presently unavailable to testify." Rainey v. State, 246 Md.App. 160, 172, cert. denied, 468 Md. 556 (2020) (quoting Crawford, 541 U.S. at 54). Although the Court in Crawford declined to set forth a "comprehensive definition of [a] 'testimonial'" statement, Crawford, 541 U.S. at 68,
Standard of Review "'We review the ultimate question of whether the admission of evidence violated a defendant's constitutional rights without deference to the trial court's ruling.'" Rainey v. State, 246 Md.App. 160, 171 (quoting Taylor v. State, 226 Md.App. 317, 332 (2016)), cert. denied, 468 Md. 556 (2020).
Although the Court did not offer a precise definition of a "'testimonial' statement," it set forth what it referred to as a "core class" of statements, namely, affidavits, depositions, prior testimony, and confessions. Rainey v. State, 246 Md.App. 160, 172, cert. denied, 468 Md. 556 (2020) (citing Crawford, 541 U.S. at 51-52).
The harmless error "standard must be applied 'in a manner that does not encroach upon the jury's judgment.'" Rainey v. State, 246 Md.App. 160, 185 (2020) (quoting Dionas, 436 Md. at 109), cert. denied, 468 Md. 556 (2020). In conducting a harmless error analysis, "the issue is not what evidence was available to the jury, but rather what evidence the jury, in fact, used to reach its verdict."
The harmless error "standard must be applied 'in a manner that does not encroach upon the jury's judgment.'" Rainey v. State, 246 Md.App. 160, 185 (2020) (quoting Dionas, 436 Md. at 109), cert. denied, 468 Md. 556 (2020). In conducting a harmless error analysis, "the issue is not what evidence was available to the jury, but rather what evidence the jury, in fact, used to reach its verdict."
Rainey v. State, 246 Md.App. 160, 181 n.12 (2020) (quoting Crawford, 541 U.S. at 59), cert. denied, 468 Md. 556 (2020).
"Harmless error review is the standard 'most favorable to the defendant short of an automatic reversal.'" Rainey v. State, 246 Md.App. 160, 185 (quoting Bellamy v. State, 403 Md. 308, 333 (2008)), cert. denied, 468 Md. 556 (2020). We must apply that standard "'in a manner that does not encroach upon the jury's judgment.'"
Harmless error review does not apply to unpreserved claims. See Rainey v. State, 246 Md.App. 160, 185 n.16 (2020) ("Under Maryland law, all preserved errors, whether 'of constitutional significance or otherwise,' are subject to the Chapman [harmless error] standard") (quoting Dorsey v. State, 276 Md. 638, 659 (1976))); Wilkins v. State, 253 Md.App. 528, 542 n.7 (2022) ("[G]enerally, preserved claims of error are reviewed for harmless error, and unpreserved claims of error may be reviewed for plain error.").
Among the factors that should be considered in the harmless error analysis "are the nature, and the effect, of the purported error upon the jury, the jury's behavior during deliberations, including the length of those deliberations, and the strength of the State's case, from the perspective of the jury." Rainey v. State, 246 Md.App. 160, 185, cert. denied, 468 Md. 556 (2020) (cleaned up). The jury's behavior during deliberations supports our conclusion.