*This is an unreported opinion, and it may not be cited in any paper, brief, motion or other

document filed in this Court or any other Maryland Court as either precedent within the

rule of stare decisis or as persuasive authority. See Md. Rule 1-104.

Circuit Court for Somerset County

Case No. C-19-CR-17-000234

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

______________________________________

DONTE SUMPTER

Opinion by Meredith J.

*Meredith, Timothy E., J., now retired,

participated in the hearing of this case while an

active member of this Court, and after being

recalled pursuant to the Constitution, Article IV,

At the conclusion of a jury trial in the Circuit Court for Somerset County, Donte

Sumpter, appellant, was found guilty of first-degree murder, first-degree assault, armed

robbery, armed carjacking, and use of a firearm in the commission of a felony or crime of

violence, as well four lesser-included offenses. After merging all but two of the

convictions, the court sentenced Sumpter to life-imprisonment without the possibility of

parole for first-degree murder, and sentenced him to a concurrent term of 20 years for use

a firearm in the commission of a felony or violent crime. Sumpter timely appealed and

presents four issues for our review:

l. Did the court below abuse discretion by admitting evidence containing

statements of Lewis Myers?

4. Did the trial judge abuse discretion by permitting improper closing

argument by the prosecutor?

For the reasons set forth herein, we reject Sumpter’s claims of reversible error, and

we shall affirm the judgments of the circuit court.

FACTS

At approximately 3:00 p.m. on September 24, 2017, Lewis Myers observed a silver

car parked in the driveway of his home in Princess Anne, Maryland. Myers began to

approach the vehicle, and as he did so, he noticed a man walking in his yard. Myers called

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vehicle’s driver’s window and lean into the vehicle. Myers then heard two gunshots, and

watched as the assailant removed the victim from the vehicle and “left him for dead” in

Myers’s driveway. The assailant then entered the car and drove away.

Myers called 911. Sergeant Scott Carew and Detective Sue Dize—both of the

Princess Anne Police Department—responded to the scene at 3:07 p.m. Myers reported

what he had witnessed and provided the officers with a description of the shooter. Myers’s

statements were recorded by Detective Dize’s body camera. In that recording, Myers

described the gunman as a black male, 5’10”, 300 pounds, with a “short afro.” And Myers

identified the manner of death as homicide.

According to Alford’s housemate, on the day of his death he had been driving a

silver four-door Mercury Grand Marquis which, Alford had told her, he had recently

purchased. A close personal friend of Alford likewise testified that Alford had purchased

what appeared to be a silver Grand Marquis on September 23. Their testimony was similar

to that of Alford’s stepson, who testified that, when he and Alford had played basketball at

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the University of Maryland Eastern Shore (“UMES”) on the afternoon of September 24,

Alford had been driving a different car than the one he usually drove.

Maryland State Troopers were dispatched to UMES for the purpose of reviewing

video surveillance footage in the hope of identifying the vehicle that Alford had purchased.

That footage depicted a Silver Mercury Grand Marquis with a distinctive windshield

sticker leaving UMES at 2:35 p.m. on September 24. The State Troopers located the vehicle

at around 11:00 p.m., and began to surveil it. At approximately 1:30 a.m. the following

morning, an individual approached the car, entered it, and drove away. The surveilling

In addition to searching for the silver sedan in which Alford had been shot, the police

conducted a search for his cell phone, which was “pinging” in the vicinity of McCormick

Swamp Road. In the course of that search, Detective Sergeant Chasity Blades and Sergeant

Sabrina Metzger observed a man, whose appearance matched the description of the

gunman, walking in the road. At trial, both Detective Sergeant Blades and Sergeant

Metzger positively identified Sumpter as the man whom they had seen.

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As the search for Alford’s cell phone continued on the morning of September 25,

Senior State Trooper James Bryant discovered a bag hanging from a tree branch above

McCormick Swamp Road. In that bag, Trooper Bryant found a ten-round capacity

magazine for a semi-automatic handgun, which was wrapped in a paper towel and

contained eight unfired rounds. Beneath the tree from which the bag had hung, Corporal

Steven Hallman discovered a handgun, later identified as a Beretta .22 U22 Neos model

pistol. The paper towel in which the magazine had been wrapped tested positive for

Sumpter’s DNA, and the handgun tested positive for Alford’s.

numerous telephone calls on September 24, and (ii) Sumpter had received e-mails from

eBay pertaining to his apparent purchase of a “Beretta Factory U22 Neos ten round

stainless 22 long rifle magazine.”

We shall include additional facts as pertinent to our discussion of the issues.

I

Sumpter contends that the court abused its discretion by admitting into evidence

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appearance. Sumpter argues that Myers’s recorded description was “not materially

inconsistent” with his trial testimony, and that it was not, therefore, admissible as a prior

inconsistent statement. The State counters by arguing that, although Myers’s initial

description of the shooter was not a “‘flat contradiction’” of his testimony, the

discrepancies between his initial statement to the police and his in-court description were

sufficiently significant to render the former statement materially inconsistent with the

latter.

The Inconsistencies at Issue

and black pants.

The court admitted the footage over defense counsel’s objection, ruling that it was

admissible under the prior inconsistent statement exception to the rule against hearsay.

Standard of Review for Admission of Hearsay

As the Court of Appeals has explained, the admission of hearsay is subject to a two-

tier standard of review.

[T]he trial court’s ultimate determination of whether particular evidence is

hearsay or whether it is admissible under a hearsay exception is owed no

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deference on appeal, but the factual findings underpinning this legal

conclusion necessitate a more deferential standard of review. Accordingly,

the trial court’s legal conclusions are reviewed de novo, but the trial court’s

factual findings will not be disturbed absent clear error.

Gordon v. State, 431 Md. 527, 538 (2013) (internal citations omitted).

body camera worn by a law enforcement person or by another type of

recording device employed by a law enforcement agency may be admitted

contained within another hearsay statement, each must fall within an exception to the

hearsay rule in order not to be excluded by that rule.”

In Paydar v. State, 243 Md. App. 441, 453-54 (2019), this Court traced the history

of Rule 5-803(b)(8)(D), and explained:

recording: (1) is made contemporaneously; (2) is properly authenticated; (3)

is otherwise trustworthy; and (4) any hearsay statements within the recording

fall within an independent hearsay exception under Md. Rule 5-805.

Although the last requirement is not expressly articulated in Md. Rule 5-

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803(b)(8)(D), it is subject to Md. Rule 5-805, which provides that “[i]f one

or more hearsay statements are contained within another hearsay statement,

each must fall within an exception to the hearsay rule in order not to be

excluded by that rule.”

Id. at 454. We further said: “In other words, for the recording to be admissible, the party

offering the evidence must establish a hearsay exception for statements contained therein.”

were not admissible under Md. Rule 5-803(b)(8)(D).” Id. at 456 (footnote omitted).

In Sumpter’s case, the State contends that the description recorded by the police

body camera was admissible as a prior inconsistent statement pursuant to Maryland Rule

5-802.1.

Maryland Rule 5–802.1 addresses the admissibility of a witness’s prior inconsistent

statements, and provides, in pertinent part:

trial or hearing and who is subject to cross-examination concerning the statement

statement was . . . (3) recorded in substantially verbatim fashion by . . . electronic

Sumpter does not contest that the recording at issue was “recorded in substantially

verbatim fashion by . . . electronic means contemporaneously with the making of the

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statement[.]” Rule 5–802.1(a)(3). But he argues that the recorded statement “was not

materially inconsistent” with Myers’s trial testimony. Sumpter contends that “[t]he only

two disparities were in the hairstyle (‘stringy twists’ vs. ‘short afro’) and the estimate of

the suspect’s weight (180-200 pounds vs. ‘about 300 pounds’).”

Although Sumpter did not cite authority for imposing a materiality requirement for

admission of a prior inconsistent statement pursuant to Rule 5-802.1(a), this Court held in

Wise v. State, 243 Md. App. 257, 271–72 (2019), that the inconsistency at issue must be

material, and not merely peripheral or inconsequential. And, after the briefs were filed in

Court of Appeals has previously advised: “When determining whether inconsistency exists

between testimony and prior statements, ‘in case of doubt the courts should lean toward

receiving such statements to aid in evaluating the testimony.’” McClain v. State, 425 Md.

238, 250 (2012) (quoting KENNETH S. BROUN, MCCORMICK ON EVIDENCE, § 34, at 153

(6th ed. 2006)). See also JOSEPH F. MURPHY, JR., MARYLAND EVIDENCE HANDBOOK §

1302(F) (4th ed. 2010, 2019 Supp.) (citing McClain).

The Jury Instruction at Issue

After the close of the evidence, but before closing arguments, the court instructed

the jury, and included the following instruction based upon Maryland Criminal Pattern Jury

Instructions (2d ed. 2012, 2013 supp.), MPJI-Cr 3:30:

The burden is on the State to prove beyond a reasonable doubt that the

committed it. You have heard evidence about the identification of the

witness’[s] opportunity to observe the criminal act and person committing it,

the crime, the witness’[s] state of mind, and any other circumstance

lack of certainty, the accuracy of any prior description and the witness’[s]

credibility or lack of credibility as well as any other factors surrounding the

examine the identification of the Defendant with great care. It is for you to

determine the reliability of any identification and give it the weight you

believe that it deserves.

The burden is on the State to prove beyond a reasonable doubt that the

offense was committed and that the defendant was the person who committed

it. You have heard evidence about the identification of the defendant as the

person who committed the crime. You should consider the witness’s

opportunity to observe the criminal act and the person committing it,

including the length of time the witness had to observe the person committing

the crime, the witness’s state of mind, and any other circumstance

surrounding the event. You should also consider the witness’s certainty or

lack of certainty, the accuracy of any prior description, and the witness’s

After the court had completed giving its instructions to the jury, it asked the parties:

“Counsel, are you satisfied with the jury instructions?” They answered:

shown a photo array and never picked him out. He never has said that that

person is the person who shot Mr. Alford. And that is what we’re really here

about is who shot Mr. Alford.

[You have heard evidence that prior to this trial, a witness identified

the defendant by __________.]

[The identification of the defendant by a single eyewitness, as the

person who committed the crime, if believed beyond a reasonable doubt, can

be enough evidence to convict the defendant. However, you should examine

the identification of the defendant with great care.]

When the State then made its closing rebuttal, the State did not dispute these

assertions regarding the lack of identification testimony by Myers.

Plain Error

Sumpter focuses his claim of plain error on the sentence in MPJI-Cr 3:30 that

instructed the jury: “You have heard the evidence that prior to this trial a witness identified

the Defendant.”

Although Sumpter acknowledges his trial counsel’s failure to object to this

instruction at trial, he urges us to consider it as a plain error. He acknowledges that

rights of the defendant, despite a failure to object.” And, Sumpter observes, apart from

Rule 4-325(e), an appellate court has discretion to address an unpreserved error in “‘cases

in which correction is necessary to serve the ends of fundamental fairness and substantial

justice.’” (Quoting Campbell v. State, 243 Md. App. 507, 538 (2019), cert. denied, 467

Md. 695 (2020), cert. denied, ___ U.S. ___, 2021 WL 78082 (January 11, 2021).) See also

Yates v. State, 429 Md. 112, 130 (“Plain error review is reserved for errors that are

‘compelling, extraordinary, exceptional or fundamental to assure the defendant a fair

trial.’”).

But, even if Sumpter had not affirmatively waived this issue by telling the trial judge

that he was satisfied with the court’s instructions, we would hold that plain error review is

unavailable because the court did not clearly commit reversible error by using MPJI-Cr

3:30 to instruct the jury in this case. Contrary to Sumpter’s claim, at no point in its jury

instructions did the court say that Lewis Myers had positively identified Sumpter as the

gunman. And, because, as the State notes, two police officers identified Sumpter as the

Those pattern jury instructions regarding identification testimony—although

arguably gratuitous in light of the fact that Myers, the sole eyewitness to the shooting, had

not even been asked when he was on the witness stand to identify Sumpter as the shooter—

did not constitute a plain error in this case that was so “material to the rights of the accused”

that a new trial “is necessary to serve the ends of fundamental fairness and substantial

justice.” Campbell, 243 Md. App. at 538.

IV

Finally, Sumpter claims that the court abused its discretion by permitting the State

to suggest a possible motive, during its rebuttal closing, after defense counsel had asserted:

“there’s just no motive, they only had one interaction.” On rebuttal, the prosecutor said:

“The Defense wants you to believe that there’s no motive. I’ll give you a motive[:] how

about Donte Sumpter ripped off Arthur Alford because he sold him a vehicle with a lien

on it.” A general objection was overruled. The prosecutor then added: “The Defendant

never intended to give a true sale [sic] of the vehicle to Arthur Alford.”

Alford—because Alford had just paid Sumpter for the car and may have felt “ripped off”

by Sumpter—was a reasonable inference from the evidence presented at trial.

“A trial court is in the best position to evaluate the propriety of

a closing argument as it relates to the evidence adduced in a case[.]” Ingram v. State, 427

Md. 717, 726 (2012). Accordingly, “‘[t]he permissible scope of closing argument is a

matter left to the sound discretion of the trial court.’” Cagle v. State, 462 Md. 67, 74 (2018)

of that discretion unless it was clearly abused and likely prejudiced the defendant. Id. A

court abuses its discretion when its judgment is “‘well removed from any center mark

imagined by the reviewing court and beyond the fringe of what that court deems minimally

acceptable.’” Moreland v. State, 207 Md. App. 563, 569 (2012) (quoting Gray v. State, 388

Md. 366, 383 (2005)).

The State enjoys “a great deal of leeway” when making a closing argument. Degren

v. State, 352 Md. 400, 429 (1999). It is free to engage in oratorical flourishes, to “use the

testimony most favorable to [its] side of the argument,” and to examine, collate, sift, and

But, even when a prosecutor exceeds the boundaries of proper argument, we will

not find reversible error if we “conclude ultimately that those statements did not mislead

or influence the jury unduly to the prejudice of [the defendant].” Id. at 154. As the Court

of Appeals stated in Spain:

Not every improper remark [made by a prosecutor during closing argument],

permissible comment depends on the facts in each case.” We have said that

“[r]eversal is only required where it appears that the remarks of the

prosecutor actually misled the jury or were likely to have misled or

influenced the jury to the prejudice of the accused.” This determination

of whether the prosecutor’s comments were prejudicial or simply rhetorical

flourish lies within the sound discretion of the trial court. On review, an

appellate court should not reverse the trial court unless that court clearly

abused the exercise of its discretion and prejudiced the accused.

386 Md. at 158-59 (quoting Degren, 352 Md. at 430-31, internal citations omitted in Spain)

(emphasis added).

residence. He testified that, during that search, the officers recovered nine items, including

a certificate of sale for a 2005 Mercury Grand Marquis and a “Notice of Security Interest

latter named him as its owner. On cross-examination of Corporal Hallman, the following

colloquy occurred:

is it?

Acceptance Corp still has some possessory interest in the vehicle, correct?

interest is resolved, if you know?

be the title that you would need to sell the car?

lien search or something like that to determine who actually is the owner of

that vehicle.

* * *

there that they still --

title to the ones that –

Corporal Scott Sears, the lead investigator into Alford’s death, also testified for the

State, and he confirmed that, in order to obtain new vehicle tags, a buyer must demonstrate

that the seller has “clear title” to the vehicle free from any liens.

The testimony of Corporal Hallman and Corporal Sears, coupled with the fact that

the vehicle’s tags had not been replaced as of the date Alford was murdered and Sumpter

regained possession of the vehicle, supported the prosecutor’s inference that Sumpter may

not have been in a position to transfer title to the vehicle to Alford because the lien on that

vehicle had not yet been removed, and that could have led to Alford demanding the return

of his purchase money. We also find persuasive the State’s argument that, because “the

only apparent connection between Sumpter and [Alford] was the sale of the vehicle, it is

reasonable to infer that the motive may have had something to do with one of them being

unhappy with the sale,” either because Sumpter misrepresented “the condition of the car,

or the condition of the title.” Even though the testimony about the lien was hazy, the

prosecutor’s argument was not so clearly beyond the evidence that it would have misled

the jury. Consequently, we conclude that the trial court did not commit an abuse of

discretion in overruling the objection to the prosecutor’s argument.

JUDGMENTS OF THE CIRCUIT COURT

COSTS TO BE PAID BY APPELLANT.