Anthony Rodney ARCHER v. STATE of Maryland.
No. 119, Sept. Term, 2003.
Court of Appeals of Maryland.
Oct. 7, 2004.
859 A.2d 210 | 383 Md. 329
Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD, on brief), Baltimore, for Respondent.
Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.
GREENE, Judge.
Appellant, Anthony Rodney Archer (“Archer“), asks this Court to determine the extent to which a trial judge may compel a recalcitrant witness to testify when that witness refuses to testify at trial. We review this matter in the context of Archer‘s appeal from his convictions for felony murder and attempted murder. He poses the following question for our review:
[Did] the trial court err[] by threatening the reluctant State‘s witness Lewis Bailey with prosecution for contempt and by suggestion to Mr. Bailey and his counsel that he could avoid the contempt prosecution by testifying inconsistently with his prior testimony, thereby allowing the State to introduce that prior testimony under Nance.1
We shall hold that a trial court‘s warning to a reluctant witness concerning contempt sanctions or the penalties of perjury is not, per se, a due process violation. In this case,
I.
Archer was convicted by a jury in the Circuit Court for Baltimore City, (Prevas, J. presiding), and sentenced as follows: (1) life imprisonment for felony murder; (2) life imprisonment to be served consecutively for attempted first degree murder; and (3) two sentences of twenty years to be served consecutively for two counts of the use of a handgun in a crime of violence. The remaining convictions were merged for sentencing purposes.
Archer‘s convictions stem from an incident that occurred in the early morning hours of September 12, 1997. Rudolph Lyons (“Lyons“), William Faulkner (“Faulkner“), and Eric Gardner (“Gardner“), were walking near Lexington Market in Baltimore City. They were returning to their car after getting something to eat at Crazy John‘s when they noticed three men approaching. The three men approaching were Archer, Lewis Bailey (“Bailey“), and Keith Edmonds (“Edmonds“). A fight ensued when Archer pulled a gun, placed it to Lyons‘s stom-
At Archer‘s trial, Lyons described the events as follows:
As how we were lined up, they wеre lined up the same way. As if we was playing basketball, was 3 on 3, man on man. It was a man on man situation. And I looked and I see the three people coming towards us. And I noticed one of them had a gun in their pocket, the guy in the middle. I could see that he had a gun in his pocket. And when I saw that, I paused and I, after I paused, I kept walking and then, as we met up, I tried to walk through them. But the guy that was in the middle had gave me a shoulder as if to stop me and the guy that was in front of me had pulled his gun out and stuck it in my stomach and told me you all know what time it is. And while he was sticking the gun in my stomach, he was reaching for my necklace to try to take my necklace off. And so, whereas he was turning my necklace, I grabbed his arm which he was holding the gun at my stomach and moved the gun away from my stomach because I knew they were going to shoot. So, as I got the gun away from my stomach and we got to tussling. And, as soon as that happened, shots just rang out and within the first couple of shots, I got hit and fell to the ground and I busted my head on the concrete. And when I rolled over, I noticed that I was shot in my shoulder. I looked at my shoulder. When I looked up, the guy I was tussling with was standing over the top of me he looked to his left and then he looked to his right, and looked me in my eyes and [] pulled the trigger and shot me in my face. And after he shot me, my head hit the ground and I opened my left eye. I looked at him he ran. After he shot me, he ran in the direction towards Crazy John‘s away from the 7-11, going in that direction.
Lyons was treated at the Shock Trauma Unit at the University of Mаryland Hospital. He identified Archer as the man who shot him in the face. His shoulder injury was later determined to have been caused by Bailey. Gardner died at the scene. Faulkner testified that when he saw a gun he ran away from the scene. Someone “shot after him” but missed.
Shortly after the shooting, the police received a call from Shock Trauma informing them that two men were seeking treatment for gunshot wounds. The police responded to the call and subsequently arrested Edmonds and Bailey. Archer was not arrested at that time.
In 1999, Bailey and Edmonds were tried as co-defendants for the events of September 12, 1997. Before the trial was over, Bailey accepted a plea agreement and pled guilty to the murder and attempted robbery of Gardner. He received a life sentence with all but 15 years suspended in exchange for agreeing to testify against Edmonds and Archer. Edmonds‘s trial continued and he was convicted of felony murder, attempted second degree murder, and related charges. Edmonds v. State, 138 Md.App. 438, 771 A.2d 1094, cert. denied, 365 Md. 474, 781 A.2d 779 (2001).
As part of his plea agreement, Bailey informed the police that while he did not know the full name of the third assailant who participated in the crime with him and Edmonds, he was able to provide the police with a description and a location of where Archer might be found. On December 9, 1999, more than two years after the shooting, both Lyons and Faulkner identified Archer, in a station-house line-up, as the third assailant.
Initially, Archer was tried on February 15, 2001. That trial ended in a mistrial when Bailey refused to testify. His second trial, the one in question here, began on June 24, 2002. At the beginning of the trial, counsel for Bailey informed the trial court that Bailey was unwilling to testify. Bailey alleged that he had been stabbed in prison for having testified against Edmonds and he was afraid to testify against Archer. It is the efforts of the trial court to persuade Bailey to testify that is the basis of this appeal.
The following colloquy occurred prior to opening statements in Archer‘s trial:
The Court: Before we make opening statements, we wanted to resolve the issue of Mr. Bailey.
The State: That‘s correct.
The Court: Howard Cardin, who represents Mr. Bailey and who negotiated a plea agreement, is present. Mr. Cardin, you want to indicate on Mr. Bailey‘s behalf what he intends to do?
Mr. Cardin: Good morning, your honor, Howard Cardin. I do represent Mr. Bailey. I did have the opportunity of speaking to Mr. Bailey in the lineup[sic]. It is my understanding that Mr. Bailey refuses to testify because of fear for his life. He‘s incarcerated and has been stabbed and he believes that—
The Court: He understands he has no privilege against self-incrimination? He understands that, correct?
Mr. Cardin: 1 explained that to him, there might be a question as to the right against self-incrimination in the event his testimony is varied from the testimony from the previous trial. There might be a possibility of perjury.
The Court: I don‘t think you can assert self-incrimination for perjury under the Troy case. He‘s immune from anything other than perjury and contempt. Is that correct, Ms. Handy?
The State: That‘s my understanding, your honor.
The Court: All right. If he refuses to testify, then I‘ll immediately have you and Mr. Bailey taken before Judge Themelis. Ms. Grunwell will be the prosecutor and we‘ll try him for contempt.
The State: Actually, I had spoken with Mr. Cohen about it.
The Court: Mr. Cohen will prosecute him before Judge Themelis and Judge Themelis will give him the longest possible sentence the law allows him to give and then maybe he‘ll change his mind about refusing to testify. Otherwise, all he has to do is get on the stand and answer the questions. If they are favorable to the defendant, then Ms. Handy will just cross-examine him with anything he said unfavorable in the past. So, consult with
* * * *
Mr. Cardin: Mr. Bailey has asked me to ask the Court to explain the term, giving him the most time that is possible.
The Court: There is no statutory maximum for contempt and, obviously, Judge Themelis is not going to take a court trial and limit him to six months. He‘s going to give him, if the jury convicts him, a sentence---I guess the only limitation is anything that is not cruel and unusual punishment. So theoretically, Judge Themelis could give him a life sentence for contempt. Whether the Court of Appeals would allow it to stand is another story, but, theoretically, that is the longest sentence he can probably get.
Whereupon, there was a pause in the proceedings.
The Court: What is Mr. Bailey prepared to do?
Mr. Cardin: Mr. Bailey believes he will not testify. He believes it is in his best interest. That is his decision.
The Court: Let me have the phone.
Whereupon Judge Prevas called Judge Themelis on the phone, in open court and on the record. Because the convеrsation took place over the phone, the transcript only indicates one half of the conversation.
The Court: John, sorry to bother you. Can you, in the next day or so, interrupt what you‘re doing and try a contempt jury for me? Okay. Okay. Basically, Mark Cohen will prosecute for the State and Howard Cardin represents the defendant. The defendant made a plea agreement in 1997 to testify against a third co-defendant in a murder case and got his time, life, serve the first 15, something like that. Now it‘s a couple of years later, he‘s been stabbed in prison and he doesn‘t want to testify. So I‘m going to start my opening statements in my trial and if
Whereupon there was another pause in the proceedings. The court continued:
The Court: Even so, take that and do this first and do that second. Yeah. Also, to get background on this case, look at Edmonds v. State, [138 Md.App. 438, 771 A.2d 1094 (2001)] That‘s a co-defendant that didn‘t plead and that will give you the whole factual history of the case, okay? I‘ll send them over, thank you.
Mr. Cardin then informed the court:
Mr. Cardin: Your honor, with all due respect, I will ask Judge Themelis for the opportunity to prepare a defense.
The Court: He‘s got to weigh that against the fact that I need to start this trial. And the only time that the contempt had been effective is if, in fact, if he‘s convicted and sent[enced], he may change his mind before sentencing or after sentencing, to testify.
Mr. Cardin: I understand that, but since he is facing a significant sentence, he has a right to prepare a defense in his case. The question also might be whether or not I had been a witness in that particular case as opposed to counsel.
The Court: You can litigate all of that before Judge Themelis.
Mr. Cardin: I will be glad to take it up before Judge Themelis, I don‘t want your honor to think we‘re coming up with something.
The Court: Let me advise him of one last thing that saves him and you all this trouble. You‘ve read Chief Judge Murphy‘s pocket part on Nance-Hardy and the turn-coat witness. Basically, if he testifies favorably to the defendant, there is nothing anybody can do to punish him for that and the State still can cross-examine him about
Mr. Durkin2: At this point, Judge, I have to object.
The Court: The basis?
Mr. Durkin: Basically, you are trying to coach this defendant to say something that‘s not true.
The Court: I don‘t know what‘s true and not true.
Mr. Durkin: I would object, your honor.
The Court: He made a plea agreement. He swore under oath that a certain set of facts were true and the mechanism for getting him to repeat those facts at this point, is to sentence him for contempt. What I‘m saying is, if his fear is that he doesn‘t want to offend you, then he may be able to avoid the contempt by doing something more favorable to you. So, if thаt coaching is illegal, then I‘ll take the opinion. I‘m only in doubt as to what five judges of the Court of Appeals will say. I know Bell and Eldridge will say it is. But, I think that they‘ll probably be overruled in a 5 to 2 majority. And if it says you can‘t do that, then I‘ll just put it over the head stand of my bed, and when I wake up in the morning, I‘ll genuflect before it.
Mr. Durkin: What I‘m saying, Judge, I don‘t think that advice is proper coming from the bench.
The Court: Let the Court of Appeals decide it. I think they‘ll decide it 5 to 2 against you. I‘ve given you the practical solution, and if it is unconstitutional, let‘s see how far we dig into the Magna Carta to think up the reason why it is.
Bailey refused to testify and was told by the court to “report to Judge Themelis and report back here if he changes
Prior to Bailey taking the stand, counsel for Archer again objected to the earlier colloquy regarding Bailey‘s options. The court reiterated that it believed the colloquy was within its authority and cited extensively from case law to support its position.4 The court concluded that,
as long as you have the right to confront the witness under the confrontation clause and cross-examine him, then whether I compel him by advising him he has no self-incrimination privilege or by giving him immunity or by trying him for contempt or by telling him the рenalties of contempt that can be given by another judge after a full hearing on contempt, it seems to me that no due process is violated and no right of yours is implicated in any way.
The court overruled Archer‘s objections and denied the motion for a mistrial.
Bailey then took the stand and testified inconsistently with his testimony in Edmonds‘s trial. The most notable distinction was his testimony in Archer‘s trial that it was Edmonds‘s idea to rob people that night, whereas in Edmonds‘s trial he stated that it was Archer‘s idea. On appeal, the Court of Special Appeals held that the trial court‘s comments “were intemperate” and “may have been inartful, and capable of being misunderstood out of context,” however, because the court correctly identified the law regarding Bailey‘s options,
II.
We begin by noting that Bailey was a compellable witness because no appeal or sentence review was pending and the time for appeal and sentence review had expired. Ellison v. State, 310 Md. 244, 259, 528 A.2d 1271, 1278 (1987) (holding that “under the
In State v. Roll and Scholl, 267 Md. 714, 298 A.2d 867 (1973), we characterized contempt proceedings as “[o]ne weapon in the court‘s arsenal useful in defending its dignity....” Roll and Scholl, 267 Md. at 717, 298 A.2d at 870. Contempt proceedings are classified as either criminal or civil, although the two categories are not mutually exclusive. Roll and Scholl, 267 Md. at 727, 298 A.2d at 875. There are two forms of contempt, direct and constructive. “Direct contempt is committed in the presence of the trial judge or so near him or her as to interrupt the court‘s proceedings, while constructive contempt is any other form of contempt.” Smith v. State, 382 Md. 329, 338, 855 A.2d 339, 344 (2004) (internal citations omitted) (holding that it was not error for the trial judge to find the same individual in direct contempt multiple times during the course of a single, continuous proceeding). Civil contempt proceedings were “intended to preserve and enforce the right of private parties to a suit and to compel obedience to orders and decrees primarily made to benefit such parties.” Roll and Scholl, 267 Md. at 728, 298 A.2d at 876. Criminal contempt, historically, constituted “positive acts which offended the dignity or process of the court. Holding an offending party in contempt of court was designed to vindicate the authority and power of the court and punish disobedience to its orders.” Roll and Scholl, 267 Md. at 727, 298 A.2d at 875. See Ashford v. State, 358 Md. 552, 750 A.2d 35 (2000) (discussing the nature of criminal contempt proceedings and the right to a jury trial). Whereas civil contempt must contain a purge provision, (Roll and Scholl, 267 Md. at 728, 298 A.2d at 876), the only limit on the sentence for criminal contempt is that the sentence “be within the reasonable discretion of the trial judge and not cruel and unusual punishment.” Gardner, 10 Md.App. at 693, 272 A.2d at 411 (quoting Lynch v. State, 2 Md.App. 546, 564, 236 A.2d 45, 56 (1967); Lloyd v. State, 219 Md. 343, 353, 149 A.2d 369, 375 (1959) (stating that there is no statutory limitation on the sentence for common law offenses beyond the requirement that they not constitute cruel and unusual punishment)).
The second option, according to the trial judge, for the witness to avoid offending Archer and the State, was for Bailey to take the stand and testify “favorably to [Archer],” thereby, subjecting him to cross-examination “about anything he might have said unfavorably in the past” including his prior testimony from Edmonds‘s trial. This suggestion, apparently, is based on our holding in Nance. In our view, the trial judge
We originally characterized the Nance case as “the classic evidentiary problеm of the turncoat witness.” Nance, 331 Md. at 552, 629 A.2d at 635. Two witnesses who had previously given statements to police regarding a murder, recanted their stories when called to testify at the murder trial. We held:
[T]he factual portion of an inconsistent out-of-court statement is sufficiently trustworthy to be offered as substantive evidence of guilt when the statement is based on the declarant‘s own knowledge of the facts, is reduced to writing and signed or otherwise adopted by him, and he is subject to cross-examination at the trial where the prior statement is introduced.
Nance, 331 Md. at 569, 629 A.2d at 643. This holding has since been codified in
The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (a) A statement that is inconsistent with the declarant‘s testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing or other proceeding or in a deposition; (2) reduced to writing and signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the state-ment....
Judge Moylan, writing for the Court of Special Appeals in a post-Nance case, Stewart v. State, 104 Md.App. 273, 655 A.2d 1345 (1995), affirmed 342 Md. 230, 674 A.2d 944 (1996), described the state of the law following the Nance case. He wrote:
Post-Nance, it is no longer true that a party, anticipating that a prospective witness has already turned coat, will, thereby, be guilty of impermissibly calling a witness “who it
knows will contribute nothing to its case.” (Internal citation omitted.) Provided that Nance‘s express prerequisites have been satisfied, a party may call a witness, fully anticipating (indeed, even hoping for) a miserable testimonial performance, for the exclusive purpose of using that performance, or non-performance, as the launching pad for the introduction of 1) evidence of a prior identification by that witness, 2) the witness‘s prior inconsistent statement to the police, 3) the witness‘s grand jury testimony, or 4) any combination of the foregoing. It is no longer true that such a witness “contributes nothing to the case.” Under Nance, even a perjurious witness may now, simply by serving as a vehicle or a medium for the introduction of other evidence, contribute a great deal to the case.
Stewart, 104 Md.App. at 284-85, 655 A.2d at 1351.
Based on the case law discussed above, we find that the trial court correctly identified Bailey‘s options: he could refuse to testify and be subject to contempt proceedings or he could testify and be subject to cross-examination. The trial judge, however, went beyond simply informing the witness, in a neutral manner, of his obligation to testify and the consequences of his refusal to testify. We disapprove of the manner in which the trial judge transferred Bailey to Judge Themelis for contempt proceedings, as well as the judge‘s suggestions to Judge Themelis on how to proceed with the contempt case. Furthermore, we reject the trial judge‘s decision to advise Bailey about how he could avoid contempt by testifying favorably to the defense and the State. The trial judge departed from a neutral judicial role and acted as an advocate in expressing an opinion to Bailey about how he could testify. Ultimately the trial judge‘s efforts to compel Bailey to testify were improper in that they influenced Bailey‘s decision to testify inconsistently. If Bailey had remained steadfast in his refusal to testify, his former testimony would not have been admitted and the State would not have been able to introduce Bailey‘s prior statements as substantive evidence. See Nance, 331 Md. at 569, 629 A.2d 633.
In Tyler v. State, 342 Md. 766, 775, 679 A.2d 1127, 1131 (1996), we held that a compellable witness who refused to answer any questions when called by the State on direct examination was not subject to cross-examination, and therefore was “unavailable” because he refused to testify. Under those circumstances, we reasoned that the witness‘s prior testimony could not be admitted under the applicable hearsay exception because the defendant, Tyler, had no opportunity to cross-examine the witness “when the prior testimony was elicited at [the witness‘s] separate trial in 1993.” Recently, the United States Supreme Court reaffirmed this principle in holding that the confrontation clause bars admission by the State of a witness‘s out-of-court, testimonial statement, unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
We further held in Tyler that neither Nance nor
during [Bailey‘s] prior testimony, you found out he gave additional information, information that led the police to Anthony Archer. And that once Anthony Archer‘s identification was determined, you know Lewis Bailey was shown a
photo array and he, in fact, identified Anthony Archer as the third person who was involved in the crime back when he was trying to cooperate.
* * * *
Well if it hadn‘t been for Lewis Bailey telling us who this third person was, we would never have found out who the person was who shot Rudolph Lyons in the eye. And that person would have forever been free, running the streets and not been brought to justice for what he did on September 12, 1997. That‘s why those kinds of deals sometimes have to be made. And that‘s why Judge Prevas made that оffer of life suspend all but fifteen years to Lewis Bailey.
* * * *
[T]here seems to be some reason that [Bailey] can‘t admit his full involvement in this crime. But you did hear his prior testimony from the other trial and you heard what he said at the other trial.
Thus, it is clear that the State placed substantial reliance upon Bailey‘s in-court testimony, as well as his prior statements, in presenting its case against Archer.
III.
Archer contends in this appeal that Judge Prevas improperly persuaded Bailey to testify and erred in admitting into evidence Bailey‘s prior recorded testimony. He asserts that the trial judge‘s comments were an effort to overwhelm and reverse Bailey‘s decision not to testify. Further, he contends by analogy, primarily in reliance on State v. Stanley, 351 Md. 733, 720 A.2d 323 (1998), that the judge went beyond a general warning to the witness about the consequences of perjury and, in effect, encouraged Bailey to commit perjury. Moreover, Archer suggests that it is possible that Bailey testified falsely at the Edmonds trial. Thus, Archer concludes that the trial judge‘s advisement in this case aided Bailey in committing a second perjury and made it clear to him that he could continue to falsely implicate Archer with impunity.5
We find that the trial judge‘s efforts to persuade the witness to testify went too far. If Bailey persisted in his refusal to testify, Judge Prevas had the option of either initiating direct contempt proceedings or constructive contempt proceedings. See
Similarly, it was unnecessary and excessive to instruct Bailey on how he could testify in the Archer case.6 Bailey was
Furthermore, we disagree with the intermediate appellate court that the trial judge did not coerce Bailey to testify with threats. Threatening comments must rise to the level of “a threat over and above what the record indicate[s] was necessary, and appropriate.” United States v. Jackson, 935 F.2d 832, 847 (7th Cir. 1991) (alterations in the original)
From our review of the record, we are persuaded that Judge Prevas‘s remarks and conduct likely caused Bailey to change his testimony to reflect the judge‘s opinion that he could testify “favorably to the defendant” and that “there is nothing anybody can do to punish him for that.” The trial judge appeared neutral in expressing his opinion that, “I don‘t know what‘s true and not true.... He made a plea agreement. He swore under oath that a certain set of facts were true and the mechanism for getting him to repeat those facts at this point, is to sentence him for contempt.” Nonetheless, the trial judge‘s limited and neutral comments must be considered in the context of his excessive efforts to compel Bailey to testify, the tenor of the warnings given, and the likely effect of the court‘s admonition on the witness‘s intended testimony. Here, Bailey refused to testify for the State in Archer‘s prior trial even though he had agreed to testify as part of his plea bargain. After several warnings in the present case, Bailey again refused to testify. Thus, it can fairly be inferred that the judge‘s conduct and remarks caused Bailey to change his decision not to testify and to testify differently. See North Carolina v. Locklear, 309 N.C. 428, 306 S.E.2d 774, 779 (1983) (holding that the trial judge‘s admonishments to the State‘s principal witness about lying invaded the province of the jury because it probably caused the witness to change her testimony).8
Further, in Stanley we discussed the seminal case of Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972). In Webb, the United States Supreme Court held that the trial judge‘s threatening remarks to refrain from lying, directed only at the sole witness for the defense, effectively drove that
thе judge did not stop at warning the witness of his right to refuse to testify and of the necessity to tell the truth. Instead, the judge implied that he expected [the witness] to lie, and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury, that the sentence for that conviction would be added on to his present sentence, an that the result would be to impair his chances for parole. At least some of these threats may have been beyond the power of the judge to carry out. Yet, in light of the great disparity between the posture of the presiding judge and that of a witness in these circumstances, the unnecessarily strong terms used by the judge could well have exerted such duress on the witness‘s mind as to preclude him from making a free and voluntary choice whether or not to testify.
Webb, 409 U.S. at 97-98, 93 S. Ct. at 353, 34 L. Ed. 2d at 333.
Stanley, although factually distinguishable from the present case, is relevant because it reaffirms the proposition that warnings to witnesses about the consequences of perjury must be general and not intimidating or coercive. Likewise, Webb is instructive because it illustrates the due process limitations on judicial intimidation of a witness. Although neither Stanley nor Webb involved a compellable witness‘s refusal to testify, we find that to be a difference without a distinction. Here there is no question that the witness had no legal right or privilege to refuse to testify. Bailey‘s only choice was to testify or refuse to testify and face the sanction of contempt. Nonetheless, he had a right to make a free and voluntary choice whether or not to testify. He had the right to choose, free from judicial intimidation and improper advisements, whether to testify or face the consequences of his failure to testify. The difference here is that the trial judge‘s admonition and conduct was so excessive that it likely caused Bailey to alter testimony in violation of Archer‘s right to due process.
It has often been said that a defendant‘s due process right to a fair trial, minimally, means a fair and impartial judge. A criminal defendant has a Sixth Amendment right,
to confront a witness for the prosecution for the purpose of cross-examination or to present his own witnesses to establish a defense. Both rights are fundamental elements of due process of law, and a violation of either could hamper the free presentation of legitimate testimony.... If a defendant‘s attorney is intimidated by a trial judge‘s unwarranted or unduly harsh attack on a witness or the attorney himself, then the defendant‘s constitutional right to effective representation guaranteed by the Sixth Amendment is impinged.... A final interest of a criminal defendant that may be affected by a trial judge‘s manner of warning a witness is the defendant‘s due process right to trial before an impartial tribunal. A fair jury in jury cases and an impartial judge in all cases are prime prerequisites of due process. It is a maxim that [e]very litigant, including the State in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge....
North Carolina v. Rhodes, 290 N.C. 16, 224 S.E.2d 631, 636-38 (1976) (internal citations and quotes omitted).
In Jackson v. State, 364 Md. 192, 772 A.2d 273 (2001), we reviewed the appropriateness of a trial court‘s comments during a judicial hearing. In that case, this Court held that a trial court‘s comments at sentencing exceeded the outer limits of a judge‘s broad discretion in sentencing when
In Jackson we were concerned that the language used by the sentencing judge when sentencing the defendant could lead a reasonable person to draw an inference that race was factored into the sentence imposed. We were most concerned with the sentencing judge‘s failure to perceive that his comments would lead a reasonable person to conclude that he took into consideration not only the race of the defendant but also the defendant‘s place of residence and origin. Clearly, none of those factors constitute permissible sentencing criteria. In the present case, no such reasonable inference (the judge‘s consideration of the defendant‘s race, residence, or origin) could be drawn. The reasonable inference one could draw from the facts of this case, however, is that it did not matter to the trial judge what facts (true or false) were elicited from
We find, under the circumstances of this case, that the trial court strayed from the role of impartiality through its sustained efforts to force Bailey to testify. As a result of the trial judge‘s remarks to the witness and his conduct, the judge caused Bailey to give testimony inconsistent with his previous testimony and interfered with Archer‘s right to a fair trial. In an effort to promote fair and impartial judicial proceedings, we affirm and adopt the following guidelines established by the Supreme Courts of Florida and North Carolina, and we recommend that trial judges follow the guidelines when confronted with a reluctant witness:
When faced with a reluctant witness, the trial judge should avoid comments that resort to “unnecessarily strong terms.” Faced with a recalcitrant witness who indicates a concern over testifying because of fear of safety or reprisal, the court could properly advise the witness of the legal consequences of the failure to testify. The trial court could explain that the witness is under subpoena and refusal to testify could subject the witness to being held in contempt of court, which could include the coercive sanction of incarceration. However, such reminders, if given, must be administered in a neutral and objective manner.
Muhammad v. Florida, 782 So. 2d 343, 358 (Fla. 2001) (internal citations omitted).
The presiding judge is given large discretionary power as to the conduct of a trial. Generally, in the absence of controlling statutory provisions or established rules, all matters relating to the orderly conduct of the trial or which involve the proper administration of justice in the court, are within his discretion.... Thus a trial judge may, if the necessity exists because of some statement or action of the witness, excuse the jurors and, in a judicious manner, caution the witness to testify truthfully, pointing out to him generally the consequences of perjury....
Whether Judicial or prosecutorial admonitions to defense or prosecution witnesses violate a defendant‘s right to due process rests ultimately on the facts of each case. Such admonitions should be administered, if at all, judiciously and cautiously.... Witnesses should not be discouraged from testifying freely nor intimidated into altering their testimony....
North Carolina v. Melvin, 326 N.C. 173, 388 S.E.2d 72, 79 (1990).
In all these kinds of cases the reviewing court should examine the circumstances under which a perjury or other similar admonition was made to a witness, the tenor of the warning given, and its likely effect on the witness‘s intended testimony. If the admonition likely precluded a witness “from making a free and voluntary choice whether or not to testify,” or changed the witness‘s testimony to coincide with the judge‘s or prosecutor‘s view of the facts, then a defendant‘s right to due process may have been violated. On the other hand, a warning to a witness made judiciously under the circumstances that reasonably indicate a need for it and which has the effect of merely preventing testimony that otherwise would likely have been perjured does not violate a defendant‘s right to due process. Defendants have no due process or other constitutional right to present perjured testimony.
Melvin, 388 S.E.2d at 79-80 (quoting Webb, 409 U.S. at 98, 93 S. Ct. at 353, 34 L. Ed. 2d at 333) (other internal citations omitted).
Even though the judicial statements and conduct calculated to compel Bailеy‘s testimony occurred under circumstances in which the witness had no right or privilege not to testify, we find the judge‘s overall conduct “unnecessarily strong,” “threatening,” and prejudicial to the defendant. The tenor of the warnings to Bailey were not judicious in that the warnings were not neutral. The trial judge instructed a colleague to try
For the foregoing reasons, we hold that Judge Prevas‘s warnings and conduct directed towards the State‘s witness were prejudicial to Archer and denied him a fair trial. We base our holding not only on Mr. Archer‘s constitutional right to due process but also upon our inherent supervisory authority over the administration of justice in Maryland courts. See United States v. Hasting, 461 U.S. 499, 505, 103 S. Ct. 1974, 1978, 76 L. Ed. 2d 96 (1983) (discussing the purposes underlying the use of the supervisory authority of the Court. They are: to implement a remedy for violations of recognized rights, to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury, as a remedy designed to deter illegal conduct); State v. Ubaldi, 190 Conn. 559, 462 A.2d 1001, 1008 (1983) (exercising the appellate court‘s “inherent supervisory authority over the administration of justice in the trial courts below” to reverse a criminal conviction because of prosecutorial misconduct). Moreover, we conclude that under the circumstances of this case, as a matter of Maryland nonconstitutional criminal procedure, the trial judge‘s improper use of judicial authority compels that we reverse and remand for a new trial. See Mitchell v. State, 320 Md. 756, 769, 580 A.2d 196, 203 (1990) (holding in a summary contempt proceeding, under Maryland nonconstitutional criminal law, in the interest of justice the defendant was entitled to “at least a brief opportunity for allocution before imposing sentence“).
In conclusion, because the trial judge‘s admonitions and conduct contributed to Archer‘s convictions, we cannot say
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT FOR BALTIMORE CITY AND REMAND THE CASE TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR A NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.
RAKER, J., and WILNER, J., concur.
HARRELL, J., dissents.
RAKER Judge, concurring, in which WILNER, J., joins:
I concur in the judgment of the Court that reverses the judgment of the Circuit Court. I agree with the majority that the trial judge acted in a wholly inappropriate manner, and I do not believe, on this record, that the error can be regarded as harmless beyond a reasonable doubt. I write separately to
I do not believe, as the Court seems to hold, that the harmful error as to Archer consisted in Bailey‘s being coerced by the trial judge to testify, when he desired not to do so. Bailey was a recalcitrant witness.2 The State, as well as the defendant, is entitled to have the admissible testimony of competent witnesses, absent just cause. Bailey was a competent and compellable witness who was properly ordered to testify and whose refusal to do so legitimately subjected him to all the penalties allowable for contempt of court. It is not error for a judge to threaten a recalcitrant witness such as Bailey with contempt, or to cause contempt proceedings to be initiated against the witness.
Before a person may be held in contempt, civil or criminal, the person must have fair notice of the court‘s commands before being punished for failing to comply. Thus, the court has an obligation to make the order of the court clear to the individual. What a judge may not do, however, is to suggest to a witness that, if the witness testifies in a certain way, that witness may avoid contempt proceedings. That is error in any situation; a judge should never suggest or propose to a witness how that witness safely may, or ought to, testify.
When a witness is instructed by the judge as to how that witness might testify, the witness‘s credibility is called into question. Here, possibly because of the trial judge‘s instruc-
The State argues, and Judge Harrell believes, that the error was harmless in that the testimony Bailey actually gave from the witness stand was more favorable to Archer than the testimony he was expected by the State to give, and had he testified consistently with his earlier testimony, the jury would have heard the same story. I disagree, for several reasons, the most cogent of which is that, as a result of the changе in his story, prompted by the judge, Bailey‘s previous testimony was admitted as substantive evidence and his more favorable testimony from the witness stand was thereby discredited. What the trial judge thus may have done was to suggest testimony favorable to Archer that the jury, once apprised of Bailey‘s earlier testimony, likely would find incredible and disregard, to Archer‘s obvious detriment. In these circumstances, there was demonstrable prejudice to Archer.
In the case before us, there was not simply a passing suggestion for Bailey to consider, which would have been bad enough. The trial judge offered that suggestion as a way out of an immediate trial for criminal contempt, to be followed by the most severe sentence that the law allows. The specter of the trial judge sitting on the bench, in front of Bailey, arranging with Judge Themelis over the telephone to immediately try, and even before any trial commenced, to convict and sentence Bailey, followed by a suggestion that Bailey could escape that prospect by testifying inconsistently with his previous testimony is something which, due process considerations aside, this Court cannot tolerate.
Judge WILNER has authorized me to state that he joins in this concurring opinion.
HARRELL, Judge, dissenting.
Petitioner, Anthony Rodney Archer, was convicted of felony murder, attempted first degree murder, and two counts of the use of a handgun in a crime of violence. We granted certiorari to determine whether Archer should receive a new trial because the trial judge erred when he threatened a reluctant State‘s witness, Lewis Bailey, with possible contempt and imprisonment, and advised the witness that he, contrary to his prior testimony in a co-defendant‘s trial and before the Grand Jury that indicted Petitioner, could testify in favor of the Petitioner, thus permitting the State to introduce any earlier inconsistent statements as substantive evidence of Archer‘s culpability. The Majority and Concurring opinions here hold that Archer‘s due process rights were offended by one or more aspects of the trial judge‘s injudicious and excessive comments. Though I agree there was error, the error was harmless on this record. Thus, I respectfully dissent. I would affirm the judgment of the Court of Special Appeals.
What About the Other Evidence?
The testimony of Lewis Bailey, the reluctant witness, was not the only inculpatory evidence presented to the jury at Archer‘s trial. The State also presented eyewitness testimony from the two surviving victims of the robbery-homicide, Rudolph Lyons and William Faulkner. Lyons was adamant in his identification of Archer as the man with whom he first struggled, and who subsequently shot him in the eye as he lay on the sidewalk:
[Prosecutor:] Now, the person that you said approached you and put the gun in your stomach and tussled with you, that‘s the same person that stood over you and shot you in the face?
[Lyons:] Yes. [Prosecutor:] Is that person in the courtroom today?
[Lyons:] Yes.
[Prosecutor:] Where is that person seated?
[Lyons:] Right there. That‘s the person that shot me in my eye and tried to kill me. He thought he killed me but he didn‘t. You just took my eye. That‘s all you did. And you scarred me for life.
[Prosecutor:] Indicating the defendant for the record.
* * *
[Prosecutor:] How many times did you actually see his face?
[Lyons:] When he got up on me and he—when he put the gun in my stomach, I‘m looking him right in his eyes. And he grabbed for my chain. That had to take a few seconds. I got the gun away from him and when we got to tussling, I‘m still looking at him. And then when I get shot in my shoulder and I fall and turned around, this is the same person standing over the top of me looking me dead in my eye and pulled the trigger.
The apparent certainty of Lyons’ identification was unshaken during cross-examination.
The second victim, William Faulkner, also testified that he recognized Archer as one of the three men involved in the robbery-homicide. Although Faulkner saw Archer‘s face only after he ran across the street once the shooting began, he positively identified Archer at trial. Additionally, two years prior to Archer‘s trial on 9 December 1999, both Lyons and Faulkner independently picked out Archer in a live police line-up.
What to Make of the Evidence Adduced Through Bailey?
A.
I agree that the trial judge in Archer‘s case, Judge Prevas, made unduly heavy-handed comments to Bailey and his lawyer in an effort to induce Bailey to testify at Archer‘s trial, as Bailey had promised to do in his earlier plea agreement with
I am not convinced, on this record, that Judge Prеvas‘s comments at Archer‘s trial necessarily were the clear, procuring cause of Bailey‘s decision to testify.1 Although inappropriate in context, the judge‘s threat of life imprisonment for contempt was moderated more than Petitioner would have us believe.2 More importantly, even after these dire admonitions, Bailey nonetheless refused to testify, choosing instead to take his chances in a contempt trial before Judge Themelis.
There is no credible record of what transpired before Judge Themelis. It is a fact, however, that only after appearing before him did Bailey agree to testify in Archer‘s trial. When asked directly during Archer‘s trial what occurred in Judge Themelis‘s courtroom, Bailey testified, “The only thing I heard him say was that if I don‘t testify, it will be 20 years. I don‘t know if I would get the 20 years but if the jury found me guilty.” (emphasis added). Bailey‘s ultimate decision to testify, therefore, was not based necessarily on the prospect of a summary conviction for contempt with a punishment of life imprisonment as supposedly theorized by Judge Prevas, but
Petitioner further contends that Bailey‘s testimony also was procured by Judge Prevas effectively granting Bailey a “liсense to commit perjury.” I am not convinced that the inappropriate suggestion to Bailey that he may choose to testify more favorably (or at least “friendlier“) to Archer than in his prior testimony was a determinative factor in Bailey‘s election to testify. Bailey‘s stated reason for his reluctance to testify stemmed from a jailhouse assault upon him, which he attributed to retribution for his earlier testimony at the co-defendant‘s trial and inferentially as a warning regarding further testimony about the crimes. Yet, at Archer‘s trial, Bailey, supposedly freed by Judge Prevas of any fear of a perjury charge, nonetheless provided substantial and relevant inculpating testimony against Archer, stating that Archer joined in the conspiracy to commit robbery; that he armed himself for that purpose; and, that he participated in the attempted robbery and shooting. These elements of his testimony at Archer‘s trial were consistent with his earlier testimony at Edmonds‘s trial.
Let us consider for a moment the asserted “inconsistencies” between Bailey‘s testimony at the co-defendant‘s prior trial and that given at Archer‘s trial. First, at the prior trial, when asked by the State how he and the co-defendants reached the decision to commit robbery, Bailey testified, “[Archer] seen some nice chains that he wanted so he told us, we got to go out the way to get some guns to come back down here and get some chains....” But at Archer‘s trial, when asked whose idea it was to commit thе robbery, Bailey testified, “It was Keith [Edmonds] out there.” When confronted by the State about this inconsistency, Bailey testified, “We all said that [we should commit robbery], so that ain‘t nothing.” The second “inconsistency” was premised on, at the prior trial, Bailey
B.
Even if Bailey‘s testimony in Archer‘s trial was procured solely or was caused proximately by Judge Prevas‘s comments, the errors committed by Judge Prevas were harmless.*
The oft-repeated test for sufficiency is whether, “after viewing the evidence in the light most favorable the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830, 842 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). In the present case, Lyons provided strong and unshaken eyewitness testimony that he got several good looks at Archer‘s face during the robbery-homicide. Lyons positively identified Archer as the man who shot him on the night of 11 September 1997. In addition to Lyons‘s testimony, the jury also heard from a second eyewitness, Faulkner. Faulkner testified that he too recognized Archer‘s face from the robbery-homicide, albeit he saw Archer‘s face only when running from the scene; thus, his testimony may have commanded somewhat less persuasive force than that of Lyons. In considering the sufficiency of evidence, however, it is not the role of the appellate court to re-weigh evidence or determine the credibility of a witness. See, e.g., Jones v. State, 343 Md. 448, 465, 682 A.2d 248, 257 (1996) (citing State v. Raines, 326 Md. 582, 590, 606 A.2d 265, 268 (1992); Wilson v. State, 319 Md. 530 at 535, 573 A.2d 831, 833-34 (1990)). Rather, due regard must be given to the jury‘s findings of fact and its opportunity to observe and assess the credibility of
Notes
You‘ve heard testimony from Lewis Bailey who was an accomplice. An accomplice is one who knowingly and voluntarily cooperated with, aided, advised or encouraged another person in the commission of a crime. You must first decide whether the testimony of Lewis Bailey was corroborated before you may consider it. The defendant cannot be convicted solely on the uncorroborated testimony of an accomplice. However, only slight corroboration is required. This means there must be some evidence in addition to the testimony of Lewis Bailey tending to show, either one, defendant committed the crime charged.
Or, two, the defendant was with others who committed the crime at the time and place the crime was committed.
If you find the testimony of Lewis Bailey has been corroborated, it should be considered with caution and given such weight as you believe it deserves.
If you find the testimony of Lewis Bailey has not been corroborated, you must disregard it and may not consider it as evidence against the defendant. Remember, the defendant cannot be convicted solely on uncorroborated testimony of an accomplice.
You also heard testimony that Mr. Bailey has pleaded guilty to a crime arising out of the same events for which the defendant is now on trial. The guilty plea of this witness must not be considered as evidence of guilt against the defendant. You may consider the guilt of the witness in deciding whether the witness is telling the truth, but for no other purpose.
You may consider the testimony of a witness who testifies or has provided evidence for the state as a result of a plea agreement, or a promise that he will not be prosecuted, or a financial benefit, or a benefit. However, you should consider such testimony with caution because the testimony may have been influenced by a desire to gain leniency or freedom or financial benefits or a benefit by testifying against the defendant.