Opinion
849-2022
07-25-2023
RICKY ROBINSON v. STATE OF MARYLAND
IN THE APPELLATE COURT OF MARYLAND [**]
Circuit Court for Baltimore City Case No. 121075005
Wells, C.J., Beachley, McDonald, Robert N. (Senior Judge, Specially Assigned), JJ.
OPINION [*]
Beachley, J.
A jury in the Circuit Court for Baltimore City convicted Ricky Robinson, appellant, of second-degree murder and use of a handgun in the commission of a felony or crime of violence. The court sentenced Robinson to a total term of 40 years' imprisonment.
In this appeal, Robinson presents two questions, which we rephrase for clarity:
Robinson phrased the questions as:
1. Did the trial court err by allowing the prosecutor to argue facts not in evidence?
2. Did the trial court err by admitting hearsay?
1. Should this Court review, for plain error, comments made by the prosecutor during closing argument that were purportedly based on facts not in evidence?
2. Did the trial court err in admitting an extrajudicial statement made by the victim the day before the shooting?
As to question 1, we decline Robinson's request for plain error review. As to question 2, we hold that the trial court did not err in admitting the victim's statement. Accordingly, we affirm.
BACKGROUND
On February 2, 2021, Terrell Billie was shot and killed outside of the Chick N Littlez Juice Bar located near the corner of Park Heights Avenue and West Belvedere Avenue in Baltimore. Robinson was subsequently identified as the shooter. Robinson was indicted on charges of first-degree murder and use of a handgun in the commission of a felony or crime of violence. At trial, Robinson's ex-girlfriend, Rodneshia Sampson, testified that she and Robinson had lived together as a couple for five years prior to the shooting. Ms. Sampson stated that she and Robinson ended their relationship and began living apart several months before Mr. Billie's murder. Ms. Sampson stated that she had known Mr. Billie since high school and that she began "talking" to him after she and Robinson ended their relationship.
Ms. Sampson testified that, on February 1, 2021, the day before the shooting, she and Mr. Billie were at her father's house, where she lived. At some point, Robinson came to the house and saw Ms. Sampson and Mr. Billie together. Upon seeing Mr. Billie at Ms. Sampson's home, Robinson "blew up" and "started fussing." During the course of the ensuing argument, Mr. Billie told Robinson, "You know where to find me, Park Heights and Belv[e]dere."
Ms. Sampson testified that on the following day, at approximately 4:47 p.m., Ms. Sampson and Mr. Billie were sitting in a vehicle that was parked in front of the Chick N Littlez near the intersection of Park Heights Avenue and Belvedere Avenue. As they were sitting there, an individual, whom Ms. Sampson identified as Robinson, approached the vehicle, reached inside, and stated: "Park Heights and Belv[e]dere. Remember, bitch." After fighting off Robinson, Mr. Billie got out of the vehicle and started running away. Robinson then shot Mr. Billie multiple times, and Mr. Billie fell to the ground. Robinson then approached Mr. Billie and shot him in the head.
The jury acquitted Robinson of first-degree murder, but convicted him of second-degree murder and use of a handgun in the commission of a felony or crime of violence.
This timely appeal followed.
DISCUSSION
I.
Robinson's first claim of error concerns statements made by the prosecutor during closing argument regarding two exhibits that the parties had submitted, jointly, into evidence at trial. The first exhibit, labeled Joint Exhibit 1, included several stipulated facts regarding cell-site location information related to Robinson's cell phone. According to that exhibit, Robinson's cell phone "was not in the area of the 5200 block of Park Heights Avenue on February 2, 2021 at 4:47 p.m. the date and time of the alleged crime."
The second exhibit, labeled Joint Exhibit 2, was a report compiled by the Federal Bureau of Investigation's Cellular Analysis Survey Team that concerned Robinson's cellphone records around the time of the murder. According to that report, at 3:54 a.m. on the day of the murder, Robinson's cell phone made one outgoing call. That same day, Robinson's cell phone received 17 incoming calls between 8:17 a.m. and 9:19 p.m. No other incoming or outgoing calls were made that day. On the report, next to each one of the incoming calls, appeared the letters "MF." At the bottom of that page, the report stated: "MF Denotes Mobile Forwarded."
During closing argument, the prosecutor discussed the report:
I want to draw your attention to the last page of State's Exhibit - or Joint Exhibit No. 2. You know, when I first looked at this, this is so weird. For February 2nd, that entire day there's one outgoing call. Man, that is the life if you don't have to call anybody all day. The only outgoing call is 3:54 in the morning. There's only incoming calls the rest of the day. But then I noticed down here at the bottom, MF denotes local forwarded.
So every single call from 8:17 in the morning to 9:19 that evening was forwarded. Not to this number. To some other number.
[DEFENSE]: Objection, Your Honor. That's not in evidence.
THE COURT: Sustained.
[STATE]: It is.
THE COURT: Sustained.
[DEFENSE]: Not the conclusion she's drawing.
THE COURT: Sustained.
[STATE]: So, ladies and gentlemen, the fact that this report indicates all of these calls are local forwarded, I would suggest to you there's only one reason to forward your calls. Your common sense and your everyday experience tells you, you are not going to forward the calls of a phone that you have right next to you.
This is my cell phone. The calls are forwarded, because I have it. If I wasn't going to have it, then I would have to forward it for me to get it. As the Defense told you, everybody knows they can track your phone.
So what does that make him guilty of? The judge instructed you about second-degree murder and first-degree murder. This didn't happen while they were arguing on February 1st. This didn't happen as far as a spur of the moment, heat of passion kind of thing. This was planned.
The Defendant waited. He knew where he was going to find the victim. I would suggest the reasonable inference is that he left his phone somewhere else knowing that people can track phones, forwarded his calls somewhere else, went to where he knew the victim was, went directly there, pulled him out of the car, chased him down and shot him ten times.
During rebuttal closing argument, the prosecutor again discussed the report:
I would suggest to you most importantly, and it's on the report that Defense agreed to, and maybe he regrets it now, MF, which is the notation
besides every single one of these calls except for the one at 3:54 in the morning, denotes mobile forwarded. So he can be mad as the day is long.
Did the Defendant have his cell phone that day? Probably, but I tell you what, it wasn't this one. Because your common sense tells you, you have no reason to forward calls for a phone that you have in your pocket, and the Defense himself told you, everybody knows you can track a phone.
So I submit to you, ladies and gentlemen, that the evidence about this phone, the physical evidence, the plotting done by the FBI, the stipulation, and your common sense tells you, the Defense was absolutely right, the Defendant knew that the police could track his phone and that's why his phone wasn't with him. That's why his phone doesn't show up at the area of the murder, because every single call was forwarded to another phone.
I had no idea how long the Defendant sat there waiting for that man, if he came back and forth, I don't know, because all of his phones were forwarded. I can't track his phone. But I know he was there shortly before 5:00.
We all know that on February 2nd, 20[2]1 that man executed Terrell Billie. He planned it. He tried to cover his tracks by not having the phone that could be tracked[.]
Parties' contentions
Robinson asserts that the trial court erred in permitting the prosecutor to repeatedly argue that the "MF" notation on the cell-phone report meant that, on the day of the murder, Robinson had forwarded all incoming calls to a different cell number because he knew that, had he brought his cell phone to the murder scene, the police would have been able to track his cell phone and place him at the scene of the crime. Robinson contends that, in making those arguments, the prosecutor was improperly arguing facts not in evidence. Recognizing that he lodged an objection only to the prosecutor's first comment and not to any subsequent comment, Robinson insists that his argument was nevertheless preserved because "an additional or continuing objection after the trial court had already ruled the argument permissible would have been futile and unprofessional." Robinson alternatively requests that we engage in plain error review in the event we conclude that the argument was unpreserved.
The State responds that Robinson failed to preserve the issue because the trial court sustained his initial objections and because there is nothing in the record to indicate that a further objection would have been futile or unprofessional. The State also contends that plain error review is unwarranted because the court's "error" was not plain and did not affect Robinson's substantial rights.
Analysis
A.
We first address the preservation argument. Generally, "a defendant must object during closing argument to a prosecutor's improper statements to preserve the issue for appeal." Shelton v. State, 207 Md.App. 363, 385 (2012). Moreover, when a defendant lodges an objection to a prosecutor's argument and that objection is sustained, "there is nothing for this Court to review unless a request for specific relief, such as a motion for a mistrial, to strike, or for further cautionary instruction is made." Hairston v. State, 68 Md.App. 230, 236 (1986).
We hold that Robinson's appellate argument is not preserved for our review. Although Robinson lodged an initial objection when the prosecutor first argued that Robinson had forwarded his cell phone calls on the day of the murder, the trial court sustained the objection, and Robinson did not ask for any additional relief. From that point forward, Robinson did not lodge any other objections to any of the prosecutor's other disputed arguments. Robinson's failure to request relief after the court sustained his objection and his failure to object further foreclose appellate review.
Citing State v. Robertson, 463 Md. 342 (2019), a case involving the sufficiency of a defendant's single objection to a line of questions posed by the State to a witness, Robinson argues that he substantially complied with the preservation requirement because any additional objection following his first objection would have been futile or unprofessional. We disagree. First, Robinson's reliance on Robertson is misplaced because, in that case, the trial court overruled the defendant's initial objection. Id. at 36667. The Supreme Court of Maryland explained that, by overruling the objection, the trial court demonstrated that it was permitting the objected-to testimony, and, consequently, any additional objection to the same line of questioning would have been futile and would have only highlighted the objectionable testimony to the jury. Id. (citing Johnson v. State, 325 Md. 511, 514-15 (1992)). Here, by contrast, the court sustained Robinson's objection, thereby signaling to the jury that the court found the argument improper. We fail to see how further objection would have been futile where the court obviously agreed that the prosecutor's argument was improper. By failing to object, counsel deprived the court of the opportunity to take additional corrective measures.
At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. See also, Md. Rule 1-101.1(a) ("From and after December 14, 2022, any reference in these Rules or, in any proceedings before any court of the Maryland Judiciary, any reference in any statute, ordinance, or regulation applicable in Maryland to the Court of Appeals of Maryland shall be deemed to refer to the Supreme Court of Maryland....").
Moreover, because the trial court sustained Robinson's initial objection, and because Robinson neither asked for any corrective measures nor lodged any further objection, the court very well may have assumed either that Robinson was abandoning his initial objection or that counsel was of the opinion that the prosecutor's subsequent arguments were, for whatever reason, not objectionable. Absent an objection, the court properly declined to intervene.
B.
We turn to Robinson's alternate argument that we should review his unpreserved claim for plain error. Generally, "[w]e reserve our exercise of plain error review for instances when the 'unobjected to error [is] compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.'" Harris v. State, 251 Md.App. 612, 660 (2021) (quoting State v. Brady, 393 Md. 502, 507 (2006)), aff'd 479 Md. 84 (2022). On the other hand, plain error review is inappropriate "as a matter of course" or when the error is "purely technical, the product of conscious design or trial tactics or the result of bald inattention." Brady, 393 Md. at 507 (quoting State v. Hutchinson, 287 Md. 198, 202-03 (1980)). Moreover, plain error review "is a discretion that appellate courts should rarely exercise, as considerations of both fairness and judicial efficiency ordinarily require that all challenges that a party desires to make to a trial court's ruling, action, or conduct be presented in the first instance to the trial court[.]" Chaney v. State, 397 Md. 460, 468 (2007).
In Beckwitt v. State, the Supreme Court of Maryland set forth the following four-prong test regarding plain error review:
Before an appellate court can exercise its discretion to find plain error, the following four conditions must be satisfied: "(1) there must be an error or defect-some sort of deviation from a legal rule-that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant; (2) the legal error must be clear or obvious, rather than subject to reasonable dispute; (3) the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the . . . proceedings; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings."477 Md. 398, 464 (2022) (quoting Newton v. State, 455 Md. 341, 364 (2017)).
We hold that plain error review is unwarranted here. In our view, the alleged error was neither clear nor obvious (the second condition for plain error review). Citing Whack v. State, 433 Md. 728 (2013), Robinson insists that the prosecutor's comments constituted an improper mischaracterization of forensic evidence. In Whack, the defendant was charged with murder after an individual was shot inside of a vehicle. Id. at 732. At trial, the State called a forensic chemist to testify about a DNA profile found on one of the vehicle's headrests and a mixture of DNA profiles found on one of the vehicle's armrests. Id. at 735-36. The chemist testified that the victim, an African-American male, was a major contributor to the DNA profile found on the headrest and that "the odds of someone in the African American population, other than [the victim], having been the source of the DNA profile on the headrest was one in 212 trillion[.]" Id. at 745. As for the DNA profiles found on the armrest, the chemist testified that the defendant, an African-American male, may have contributed to the DNA mixture. Id. at 737-38. The chemist explained that "[t]he odds of randomly selecting an African American individual as a contributor to that sample were one in 172." Id. at 745. From this evidence, the prosecutor argued in closing argument that the defendant's DNA was in fact found in the vehicle. Id. at 745-46. The State also argued that the one-in-172 probability statistic cited by the chemist in linking the defendant to the DNA mixture found on the armrest was "no less strong" than the one-in-212 trillion probability statistic cited by the chemist in linking the victim's DNA profile to the profile found on the headrest. Id. At the conclusion of argument, the defendant moved for a mistrial, that motion was denied, and the defendant was convicted. Id. at 741.
On appeal, the Supreme Court of Maryland held that the trial court had erred in denying the defendant's mistrial motion. Id. at 751-54. The Court explained that the prosecutor "went too far in stating emphatically that [the defendant's] DNA was present in the truck," as the DNA evidence merely established that one out of every 172 African-Americans could have contributed to the DNA sample found on the armrest. Id. at 746. The Court noted that the prosecutor compounded this error by "overstating the statistical significance of the DNA evidence by equating the odds of one in 172 with one in 212 trillion." Id. The Court noted further that the prosecutor's comments "must be considered within the larger context in which DNA evidence is treated and perceived by jurors." Id. at 747. The Court explained that "[t]he public places a great deal of weight on the reliability and accuracy of DNA evidence." Id. The Court further explained that DNA evidence generally involves complex mathematical computations and statistical analysis, which has the potential to confuse the jurors. Id. at 747-48. The Court concluded that the prosecutor had "a responsibility to take extra care in describing DNA evidence, particularly when it comes to statistical probabilities." Id. at 748.
Whack is clearly distinguishable from the instant case. In that case, the prosecutor wrongly asserted that the defendant's DNA was definitely found in the vehicle when the evidence showed only that it may have been in the vehicle. The prosecutor then compounded that error by making the wholly untenable assertion that one in 172 and one in 212 trillion were statistically equivalent, which suggested, quite incorrectly, that the chemist's statistical analysis regarding the DNA found on the armrest somehow supported the prosecutor's argument that the defendant's DNA was definitely found in the vehicle. Finally, the prosecutor's multiple errors were amplified by the inherent complexity of the DNA evidence and the weight jurors generally place on such evidence.
Here, by contrast, the prosecutor did not misstate or mischaracterize any piece of evidence. Ms. Sampson testified that Robinson was the person who shot Mr. Billie outside of the Chick N Littlez on February 2, 2021, at approximately 5:00 p.m. Joint Exhibit 1 established that Robinson's cell phone was not in that area at the time of the shooting. Joint Exhibit 2 showed that, on the day of the murder, Robinson's cell phone made one outgoing call at 3:54 a.m. and received 17 incoming calls between 8:17 a.m. and 9:19 p.m. The exhibit included the notation "MF" next to each one of the incoming calls. The exhibit also included a legend that stated: "MF Denotes Mobile Forwarded."
From that, a reasonable inference could be drawn that the notation "MF" next to the 17 incoming calls meant that all calls placed to Robinson's cell number on the day of the murder were forwarded to another number. In other words, a reasonable inference could be drawn that, at some point prior to 8:17 a.m. on the day of the murder, Robinson had all incoming calls forwarded to another number. Although there was no evidence as to why Robinson would have engaged in such behavior, it was reasonable to assume that Robinson forwarded the calls so that he could still receive calls despite not having physical possession of his phone. Given Ms. Sampson's testimony placing Robinson at the scene of the shooting and the evidence establishing that Robinson's cell phone was not at the scene of the shooting, the prosecutor could cogently argue that Robinson did not have his cell phone on his person when he committed the murder. That inference is reinforced by the fact that Robinson made no outgoing calls after 3:54 a.m. on the day of the murder. In light of the commonly-understood fact that cell phones can provide location information, it was reasonable to assume, as argued by the prosecutor, that Robinson forwarded the incoming calls either to provide an alibi or so that he could commit the murder and still receive calls without having possession of his cell phone, which could be used to locate him. The prosecutor did not argue facts not in evidence and provided the jury with reasonable inferences to consider based on the evidence. We fail to see how the prosecutor's arguments constituted "clear or obvious" legal error as required by plain error analysis.
Robinson also cites to an unreported case from Michigan, People v. Montgomery, No. 321155, 2016 WL 1230125, at *1 (Mich. Ct. App. Mar. 29, 2016), arguing that "it was error for the prosecutor to go beyond the spirit of the stipulation." We remain unpersuaded, as that case is inapposite. In that case, the defendant, on trial for murder, stipulated that his cell phone was not in the area at the time of the murder. Id. at 1. At trial, the prosecutor argued that the stipulation could not rule the defendant out as a suspect because it was possible that the defendant forwarded his calls to another phone or had all calls sent directly to his voice mail. Id. at 3. In holding that those comments were improper, the Court of Appeals of Michigan explained that the comments exceeded the scope of the stipulation because the stipulation "did not address anything about voice mail usage or forwarding of calls to another phone." Id. The Court also noted that, following trial, the defendant had moved for and was granted an evidentiary hearing, at which the defendant presented expert testimony that refuted the prosecutor's remarks. Id. at 2, 4. The Court concluded that, not only did the prosecutor's comments lack factual support, but they were proven to be factually inaccurate. Id. at 4.
The instant case is distinguishable. Here, unlike the stipulation in Montgomery, Joint Exhibit 2 included specific evidence related to the forwarding of incoming calls, namely, the "MF" notation on the cell phone report and the legend stating that "MF Denotes Mobile Forwarded." Unlike the record in Montgomery, there is nothing in this record to suggest that the reference to "MF" required further explanation or that the prosecutor's inferences from the evidence were inaccurate.
For the reasons stated, we decline Robinson's invitation to engage in plain error review.
II.
Robinson next claims that the trial court erred in admitting an extrajudicial statement made by the victim on the day prior to the murder. During her direct testimony, Ms. Sampson testified that the victim, Mr. Billie, was known to "hangout" at "Park Heights and Belv[e]dere," where the shooting occurred. The prosecutor then asked Ms. Sampson if that information was ever relayed to Robinson. Defense counsel objected, and the court sustained the objection.
Later, during cross-examination, defense counsel asked Ms. Sampson a series of questions as to how Robinson would have known that she and Mr. Billie would be outside the Chick N Littlez on the day of the shooting. Ms. Sampson responded that she was unsure how Robinson would have acquired that information.
During redirect, the prosecutor asked Ms. Sampson about the altercation between Robinson and Mr. Billie that occurred at Ms. Sampson's father's house the day before the murder. Specifically, the prosecutor asked if, during that altercation, Robinson and Mr. Billie had "words." After Ms. Sampson responded in the affirmative, defense counsel objected and requested a bench conference. At that bench conference, defense counsel indicated that the prosecutor was attempting to introduce into evidence a statement made by the victim during the altercation, which defense counsel claimed was inadmissible hearsay. When the court asked about the substance of the testimony, the prosecutor proffered that the victim had told Robinson during their altercation: "You can find me at Park Heights and Belv[e]dere." The prosecutor argued that defense counsel had opened the door to the evidence by asking Ms. Sampson to speculate as to how Robinson would have known that she and Mr. Billie would have been outside the Chick N Littlez. The prosecutor also argued that the statement was not hearsay because it was not being offered for the truth of the matter asserted but rather was being offered to show its effect on Robinson. Ultimately, the court agreed with the prosecutor and admitted the testimony. Ms. Sampson thereafter testified as follows:
[STATE]: The evening prior to the murder, February 1st, 2021, what, if anything, did Mr. Terrell Billie say to the Defendant in your presence regarding Park Heights and Belv[e]dere?
[WITNESS]: "You know where to find me, Park Heights and Belv[e]dere."
[STATE]: That's what Mr. Billie said to the Defendant?
[WITNESS]: Yes.
Parties' contentions
Robinson argues that the trial court erred in permitting Ms. Sampson to testify that the victim, Mr. Billie, told Robinson: "You know where to find me, Park Heights and Belv[e]dere." Robinson argues that the victim's statement constituted inadmissible hearsay, which is not subject to the "open the door" doctrine. Robinson argues further that, even if the statement was admissible, its probative value was substantially outweighed by the danger of unfair prejudice because there was a danger the jury would misuse the statement as evidence that Robinson could find and confront Mr. Billie at Park Heights and Belvedere.
The State argues that the statement was not hearsay because it was not offered for the truth of the matter asserted but rather to show its effect on Robinson. The State contends that Robinson's "unfair prejudice" argument was unpreserved because it was not raised in the trial court. The State contends further that, even if Robinson's argument were preserved, the court did not abuse its discretion in admitting the statement. Finally, the State argues that any error the court may have made in admitting the statement was harmless because the statement "was cumulative of other evidence and insignificant in the broader context of the trial."
Analysis
"Determinations regarding the admissibility of evidence are generally left to the sound discretion of the trial court." Baker v. State, 223 Md.App. 750, 759-60 (2015) (quoting Donati v. State, 215 Md.App. 686, 708 (2014)). Where, however, an evidentiary determination involves whether evidence is hearsay and whether it is admissible under a hearsay exception, we review that determination de novo. Gordon v. State, 431 Md. 527, 538 (2013). If the court renders any factual findings in making a hearsay determination, those findings will not be disturbed absent clear error. Id.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Md. Rule 5-801(c). Hearsay is generally inadmissible. Md. Rule 5-802. An out-of-court statement is not hearsay, and thus may be admitted, if it is being offered for a purpose other than to prove the truth of the matter asserted. In re Matthew S., 199 Md.App. 436, 463 (2011). For instance, "an out-of-court statement is admissible as non-hearsay if it is offered for the purpose of showing that a person relied and acted upon the statement, rather than for the purpose of showing that the facts elicited in the statement are true." Morales v. State, 219 Md.App. 1, 11 (2014) (citing Purvis v. State, 27 Md.App. 713, 716 (1975)).
We hold that the trial court did not err in admitting Mr. Billie's statement as nonhearsay. The statement-"You know where to find me, Park Heights and Belv[e]dere"- was not being offered to prove the truth of the matter asserted, i.e., to show that Mr. Billie would, in fact, be at Park Heights and Belvedere at some future time. It is irrelevant whether the statement was truthful or untruthful-it was offered to show that Robinson heard the statement and then acted upon it by showing up at Park Heights and Belvedere the following day to confront Mr. Billie. Moreover, the jury could reasonably conclude that Robinson heard and acted upon the statement based on Robinson's own statement that he made as he was reaching into the vehicle immediately prior to the murder, when he uttered, "Park Heights and Belv[e]dere. Remember bitch." Accordingly, the admitted statement was not hearsay.
As for Robinson's prejudice argument, we agree with the State that that argument was unpreserved. At trial, Robinson objected solely on the ground that the statement was inadmissible hearsay. At no time did Robinson argue that the statement should be excluded because its probative value was outweighed by the danger of unfair prejudice. That argument is therefore not preserved for our review. See Rainey v. State, 252 Md.App. 578, 589 (2021) (when a party offers specific grounds for an objection, that party is ordinarily precluded from raising any other grounds on appeal (citing Klauenberg v. State, 355 Md. 528, 541 (1999))).
Even if the objection had been preserved, we fail to see how the jury might misuse the statement-it was simply being offered to explain why Robinson might have been at Park Heights and Belvedere.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
[**] At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland. The name change took effect on December 14, 2022.
[*] This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B).