SALISBURY — A Maryland appeals court last week ruled a Salisbury man’s jailhouse messages sent through family members to his nephew, instructing him to eliminate a witness expected to testify against him, did not violate his Sixth Amendment protections against hearsay.
In December 2011, Marcus Smiley, 54, was convicted of attempted first-degree murder and other charges for shooting and attempting to kill Travis Green, also of Salisbury, in an apparent drug deal gone wrong. Another man and acquaintance of both Smiley and Green, Elmer Duffy, witnessed the confrontation outside a house in Salisbury and provided an oral and written statement to investigators and was prepared to testify against Smiley at trial.
However, Duffy never had a chance to testify against Smiley in the attempted murder case as he was shot and killed about two months later by Smiley’s nephew, who had allegedly received his marching orders from his uncle from behind bars. According to court records, Smiley contacted his mother and a another female via phone from jail and gave them explicit instructions to pass along to his nephew, Keith Parker, 26, of Salisbury, to “get Duffy out of the picture” and prevent him from testifying.
On Feb. 20, 2012, Duffy was shot and killed in Salisbury. When it came to light Smiley had instructed Parker to eliminate Duffy and keep him from testifying against Smiley, Parker was charged with first-degree murder and conspiracy to commit murder. In January, Parker was convicted of second-degree murder and was sentenced to 25 years.
Smiley, who is serving life plus 10 years in prison for the shooting attack on Green, appealed to the Court of Special Appeals late last year in attempt to block the evidence against him that he essentially ordered the hit against Duffy carried out by Parker. Smiley argued the recorded phone messages captured from jail of him instructing his mother and another female to pass along to Parker to eliminate Duffy were hearsay and their admission as evidence violated his Sixth Amendment rights. The trial court contended from the beginning the admission of the recorded phone messages calling for the elimination of Duffy constituted a cause of making the witness unavailable to testify. The Court of Special Appeals last week concurred.
“In this case, there was sufficient evidence for the hearing judge to find, by a clear and convincing standard, that Smiley ardently and insistently sent word to his nephew to get rid of Elmer Duffy, that Elmer Duffy was subsequently murdered, that Smiley jubilantly reacted to the news of the murder,” the high court’s opinion read.