Harmless Error

• Jurisdiction: Maryland

XII. Harmless error

If the trial court committed reversible error, and the defendant preserved the issue for appeal, the appellate court will reverse the conviction unless it finds, beyond a reasonable doubt, that the error in no way contributed to the verdict. In other words, the appellate court does not reverse the judgment below if the error was "harmless." Chapman v. California, 386 U.S. 18, 24 (1967); Spain v. State, 386 Md. 145, 161 (2005). In Ross v. State, 276 Md. 664 (1976), the Court of Appeals stated:

The essence of this test is the determination whether the cumulative effect of the properly admitted evidence so outweighs the prejudicial nature of the evidence erroneously admitted that there is no reasonable possibility that the decision of the finder of fact would have been different had the tainted evidence been excluded.

Id. at 674. In Dorsey v. State, 276 Md. 638 (1976), the Court of Appeals held:

[W]hen [the defendant], in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed "harmless" and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of—whether erroneously admitted or excluded—may have contributed to the rendition of the guilty verdict.

Id. at 659. See also Joyner v. State, 208 Md. App. 500, 525-26 (2012); Davis v. State, 207 Md. App. 298, 317 (2012); Ray v. State, 206 Md. App. 309, 356 (2012); Samba v. State, 206 Md. App. 508, 534-35 (2012); Henry v. State, 204 Md. App. 509, 542-43 (2012).

If the defendant establishes that there has been legal error, the burden is on the State to show that the error was harmless beyond a reasonable doubt. Morris v. State, 418 Md. 194, 221-22 (2011); Dorsey, 276 Md. at 658-59.

A. Examples of harmless errors

1. Improper vouching for witness credibility

In Spain, the Court of Appeals held that, although the State made improper remarks that could have caused the jury to believe a police witness is more credible than other witnesses, the error was harmless, and the statements did not mislead or influence the jury. 386 Md. at 154, 158-61.

2. Failure to swear the jury at the start of the trial, but sworn during trial

In Harris v. State, 406 Md. 115 (2008), the Court of Appeals held that complete failure to swear the jury can never be harmless and always requires reversal of the conviction. Id. at 130-31. However, in a case where (a) the jury was sworn three days after the trial began; (b) there was no evidence of improper conversation or activities by the jury; and (c) the defendant was not prejudiced by the delay, the late administration of the oath was found to be harmless error. Alston v. State, 414 Md. 92, 107-09 (2010).

3. Failure to change venue

In Muhammad v. State, 177 Md. App. 188 (2007), the Court of Special Appeals found that the defendant—one of the "Beltway snipers"—failed to preserve the issue of whether there should have been a change of venue based on the extremely high profile of the defendant's case. Id. at 300-02. However, the Court went on to explain that, even if there had been a preserved allegation of error with regard to change of venue, any such error "would have been harmless[,]" because the "result would have been the same wherever in Maryland this case had been tried." Id. at 304.

4. Erroneous admission of hearsay evidence

In Hudson v. State, 152 Md. App. 488 (2003), the Court of Special Appeals held that, although the trial court erred in admitting hearsay within hearsay (i.e., statements made by the victim to his mother, as later relayed by an officer who interviewed his mother), the error was harmless because the hearsay statement was "fairly innocuous by itself" and the defendant's guilt was established, beyond a reasonable doubt, through other witnesses. Id. at 509-11. In Fields v. State, 395 Md. 758 (2006), the Court of Appeals held that, even if the trial court erred in permitting an officer to testify as to the defendant's nickname to prove that the defendant was present at the scene of the crime, the error was harmless because, based on DNA evidence and ballistics, the "State established, beyond a reasonable doubt, that [the defendant] was present" at the scene. Id. at 764.

5. Erroneous admission of DNA evidence

In Gross v. State, 371 Md. 334 (2002), the Court of Appeals held that, even assuming the trial court incorrectly denied the defendant's motion in limine to exclude DNA evidence, any such error was harmless, beyond a reasonable doubt, because there was "overwhelming" evidence of the defendant's guilt, the DNA evidence was merely "cumulative," and the DNA evidence was consistent with the defendant's defense. Id. at 351-53.

6. Erroneous admission of a voice stress test

In Whittington v. State, 147 Md. App. 496 (2002), the Court of Special Appeals held that, even though the trial court erroneously admitted evidence that the defendant failed a voice stress test, the error was harmless, beyond a reasonable doubt, when the trial court gave adequate curative instructions, and it was undisputed that the defendant shot the victim. Id. at 534-36.

7. Erroneous jury instruction regarding deliberations

In Jones-Harris v. State, 179 Md. App. 72 (2008), the Court of Special Appeals held that the trial court's error in telling jury that it could not discuss the case until "all thirteen" jurors (i.e., alternate juror included) were "assembled in the jury room together," instead of saying when "deliberations began," in effect instructing the jury that they could discuss the case prior to hearing all the evidence, was harmless error beyond a reasonable doubt. Id. at 96-97. The Court of Special Appeals based this finding on the fact that the record was silent as to whether the jury actually did discuss the case before deliberations began, due to defense counsel's failure to object to the improper instruction. Id. at 94.

8. Erroneous exclusion of evidence of another shooter

In Bellamy v. State, 403 Md. 308 (2008), the Court of Appeals held that, although the trial court erred in excluding a statement identifying someone other than defendant as the shooter, the error was harmless, beyond a reasonable doubt, when, under the law of aiding and abetting, the State was not required to prove who fired the fatal shot to convict the defendant of first-degree murder. Id. at 333-36.

9. Erroneous limits on cross-examination of expert witness

In Fleming v. State, 194 Md. App. 76 (2010), the Court of Special Appeals held that, even if the trial court erred in denying defense counsel's cross-examination of the State's ballistics expert about new methods of ballistics comparison, the error was harmless, beyond a reasonable doubt, because the State's eyewitness testimony was...