Dontae PRESTON v. STATE of Maryland
No. 80, Sept. Term, 2014
Court of Appeals of Maryland
July 27, 2015
118 A.3d 902
Gary E. O‘Connor, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent/Cross-Petitioner.
Argued before: BARBERA, C.J., * HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, JJ.
HARRELL, J.
Witnesses in criminal trials have typically a variety of interactions with the State prior to testifying under oath before a judge and/or jury. Usually, a witness is interviewed initially by a police officer or detective after the commission of a crime. Witnesses might be offered a monetary reward in exchange for coming forward with information pertaining to a
I. STATEMENT OF FACTS AND PROCEDURAL HISTORY
On the evening of 14 March 2009, Dontae Preston (“Preston“), Keon Barnes (“Barnes“), and Katrina Harrell (“Harrell“) (no kin to the author of this opinion) attended an ill-fated co-ed “pajama party” at the home of Nichelle Payton (“Payton“) at 1907 N. Pulaski Street in Baltimore City.1 Shortly after the party got underway, Barnes was shot and killed on the premises. Seven shell casings were recovered from the scene. Sandra Bohlen, called at trial by the State as an expert in ballistics and firearms identification, testified that the bullets from all seven casings were fired from the same gun. Dr. Carol Allen, a medical examiner called also by the prosecution, testified that Barnes died from multiple gunshot wounds. No gun was recovered. None of the casings tested positive for fingerprints. Preston was charged with murder in the first degree, use of a handgun in the commission of a felony and crime of violence, and illegally carrying a handgun.
Payton was the second eyewitness (of a sort) to testify at Preston‘s trial. Payton heard gunshots while she was inside her home preparing for the party. As she walked downstairs, she heard initially “a pop.” Payton assumed that one of the balloons she had inflated for the party popped, until she heard more “pops” and realized that they were gunshots. She ran upstairs,3 screaming, and looked out her bedroom window.
Defense counsel attempted to establish through cross-examination that Payton cooperated fully with the State only because the police agreed to move her to free, protective housing for several months prior to trial, although she testified that her experience in temporary protective housing “d[id] not cause [her] to come in here and say something [she] otherwise wouldn‘t.” Much time was spent determining what information she volunteered to investigating detectives prior to trial and when it was volunteered. It was learned that, on the night of the murder, Payton accompanied homicide detectives to the police station, but told them simply that she hosted the party and named the guests in attendance. No written statement was sought or taken from Payton that night or shortly thereafter as she claimed not to have seen the shooting. Payton was interviewed a second time, one or two days later, but no additional substantive information was given or obtained.
Payton testified that, some number of days after the murder, Preston came to her house and knocked on the door. She was home, looked out the window, and saw Preston, but did not answer the door because she was scared. Preston did not threaten her verbally or communicate with her in any way, other than knocking on her door. Sometime after this event,4 Payton called Detective Michael Moran, told him that she “was scared to stay there,” and asked to be moved.
Payton identified Preston on 8 April 2009 in a photo array as having attended her party that night. She reported that
[Defense Counsel]: And, in fact, you didn‘t cooperate or talk to the police or tell them anything about anything until after the point in time in which you say [Preston] came and knocked on your door? Is that correct?
[Payton]: Correct.
[Defense Counsel]: And that‘s when you then went and called the detectives and said I want to be moved, correct?
[Payton]: He came to my house again.
[Defense Counsel]: And you said that you wanted to be moved?
[Payton]: Right.
[Defense Counsel]: And on that day when they came to your house, you didn‘t give them a statement saying anything about anybody going across thе street, did you?
[Payton]: No.
[Defense Counsel]: It wasn‘t until after you got assurances that they were going to move you, put you up and pay for you that you then gave a taped statement, isn‘t that correct?
[Payton]: Correct. No.5
Detective Moran testified at trial that he spoke to Payton several times during the course of his investigation because she was scared and volunteered only small amounts of information at each interview. The detective explained that, on 3
Defense counsel questioned Detective Moran as follows:
[Defense Counsel]: So, Detective, when you first got this phone call talking about how scared she was, why wouldn‘t you make the request then?
Detective Moran: At that time, she was not completely honest as to what she saw. She was still really scared. She knows—
[Defense Counsel]: So it was not until she gave you—
COURT: Counsel.
[Defense Counsel]:—that you asked for it then?
COURT: Counsel. Counsel. I‘m not saying it again, okay? Continue answering your question.
Detective Moran: Could you repeat the question, sir?
[Defense Counsel]: I‘ll rephrase the question. How come you waited until after she did a photographic array to put in that request to have her moved when she indicated that she was scared on April 3rd?
Detective Moran: I actually believe it was under her request. It‘s a lot for someone to move their life. You know, you got kids. She has a grandmother who was sick in the house. That‘s her neighborhood. That‘s her life. And that‘s a lot to move somebody. So I think it was under her request that she finally said, ok, I‘m ready now.
Defense counsel requested that
You may consider the testimony of a witness who [testifies] [has provided evidence] for the State as a result of [a plea agreement] [a promise that he will not be prosecuted] [a financial benefit] [a benefit] [an expectation of a benefit].10 However, you should consider such testimony with caution, because the testimony may have been influenced by a desire to gain [leniency] [freedom] [a financial benefit] [a bеnefit] by testifying against the defendant.
Defense counsel proposed initially, before Payton testified, that the court read Jury Instruction 3:13 to the jury at the end
I‘m going to say no right now, but depending upon how she testifies and what she says and whatever the other officers may say, I may revisit it.
But based on what you‘ve proffered, I don‘t believe it‘s appropriate. I believe it would be a situation where every time a witness is relocated or something along those lines, we‘d need to read this. I don‘t think that‘s what this is for.
The trial judge told defense counsel, however, that he had “a right to ask about free housing, because that‘s what she received,” including the $400 given for moving expenses.11
After Payton‘s testimony, during a break in the trial when the court and parties discussed jury instructions, defense сounsel objected to the omission of the “Witness Promised Benefit” instruction. The court denied the requested instruction, ruling as follows:
All right. I have, again, I don‘t know what else is going to come out but, based on what has been presented so far, I still do not believe that it is an appropriate instruction given the fact that it was housing and I‘m not sure, at least at this point, that it was an exchange for—let‘s see.
This Court is not satisfied that the testimony or evidence was [“]as a result of.[...“] So for those reasons, your request for that is denied over your objection.
Before closing arguments, the trial judge gave the jury the following instruction regarding the credibility of non-expert witnesses:
Now, you are the sole judge of whether a witness should be believed. In making this decision, you may apply your own common sense and everyday experiences. In determining whether a witness should be believed, you should carefully judge all of the testimony and evidence and the circumstances under which the witness testified.
You should consider such factors as the witness’ [s] behavior on the stand and manner of testifying, did the witness appear to be telling the truth, the witness‘[s] opportunity to see or hear the things about which testimony was given, the accuracy of the witness‘[s] memory, does the witness have a motive to not tell the truth, does the witness have an interest in the outcome of the case, was a witness‘[s] testimony consistent, was a witness‘[s] testimony supported or contradicted by evidence that you believe and whether and the extent to which the witness‘[s] testimony in the court differed from the statements made by the witness on any previous occasion.12
You need not believe any witness, even if the testimony is uncontradicted. You may believe all, part, or none of the testimony of any witness.
...
The jury convicted Preston of first-degree murder, use of a handgun in the commission of a crime of violence, and wearing, carrying, and transporting a handgun. The court sentenced Preston to incarceration for life (for the murder), with a consecutive term of incarceration for twenty years (for the use of the handgun) and a concurrent term of incarceration for three years (for the carrying conviction).
Preston appealed to the Court of Special Appeals, which affirmed. Preston v. State, 218 Md. App. 60, 96 A.3d 800 (2014). The intermediate appellate court considered whether the trial court abused its discretion in declining to give thе “Witness Promised Benefit” jury instruction, concluding that it did not. Preston, 218 Md. App. at 62, 96 A.3d at 801-02. That court began by recognizing that “the decision whether to give the jury a particularized credibility instruction is left to the sound discretion of the trial judge.” Preston, 218 Md. App. at 73-74, 96 A.3d at 808. Although the jury could have inferred, based on the unclear testimony adduced at trial, that Payton may have cooperated with the police because she expected to receive rent-free protective housing, the trial judge did not abuse his discretion in declining to give Jury Instruction 3:13 because the standard credibility instructions covered concerns regarding Payton‘s testimony, defense counsel cross-examined fully Payton regarding the protective housing, and defense counsel was free to argue in closing that Payton‘s credibility was questionable (though defense counsel chose not to). Preston, 218 Md. App. at 75, 96 A.3d at 809. The Court of Special Appeals concluded alternately that, even if the trial court abused its discretion, the error was harmless as Payton‘s testimony was corroborated by the testimony of Harrell, who “saw everything [Payton] did, and more.” Preston, 218 Md. App. at 76, 96 A.3d at 810. Finally, in a footnote, the intermediate appellate court declined to address the State‘s alternative argument that Payton‘s receipt of protec-
Preston and the State filed petitions for writ of certiorari, which we granted, to consider the following consolidated and re-ordered questions13:
- Is protective housing provided to a witness in a first degree murder case the type of “benefit” contemplated by the “witness promised benefit” pattern instruction?
- Does the record show that there was a “promise” or “testimony” that was “as a result of” a promise?14
- Is the “witness promised benefit” jury instruction part of a special class of instructions, as the Court of Special Appeals held, such that it remains always discretionary even when it is supported by some evidence?14
- If so, did the trial court abuse its discretion in declining to give the instruction in this case, where an eye witness provided “some evidence” that she exchanged her cooperation with the State for free, protective housing?14
- If not, did the court err as a matter of law in declining to instruct the jury as defense counsel requested?14
Preston v. State, 440 Md. 461, 103 A.3d 593 (2014). Because of our answer to the first question, we do not reach the others.
The State argues that, considering the context, the protective housing Payton received was not a “benefit” within the meaning of Jury Instruction 3:13. The State reasons that the “evident purpose” of the jury instruction implies a “fairly high threshold for what constitutes a ‘benefit‘“; to view it otherwise, the results could become absurd. Because protective housing is not akin to a plea agreement or a large cash payment, it should not be considered a benefit. The State highlights several points of contrast between a direct cash payment and protective housing valued in a similar amount: (1) Payton did not know the dollar value of the housing until trial, whereas paid informants know in advance the bargained-for value of their testimony; (2) the purpose of protective housing is to keep a witness safe, whereas the purpose of a cash payment is to reward or pay a fee; (3) witnesses who
Moreover, the State argues that Jury Instruction 3:13 is designed to address testimony from “jailhouse informants and persons from the criminal milieu” whose testimony should be viewed justifiably with some degree of suspicion, not citizens who are afrаid of retaliation. The State references jury instructions from federal and other state jurisdictions and various cases discussing those instructions, which we will address below. Finally, the State concludes that any error committed by the trial court in not giving Jury Instruction 3:13 was harmless in light of defense counsel‘s relatively thorough cross-examination of Payton and his foregoing the opportunity to argue Payton‘s credibility during closing arguments.
II. DISCUSSION
The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.
The general purposes of jury instructions include: aiding the jury in understanding clearly the case, providing guidance for the jury‘s deliberations, and helping the jury to arrive at a correct verdict. See General v. State, 367 Md. 475, 485, 789 A.2d 102, 108 (2002). “Jury instructions direct the jury‘s attention to the legal principles that apply to the facts of the case.” Id.
At Preston‘s trial, defense counsel requested that the trial judge give Jury Instruction 3:13, which we reproduce again for ease of reference:
You may consider the testimony of a witness who [testifies] [has provided evidence] for the State as a result of [a plea agreement] [a promise that he will not be prosecuted] [a financial benefit] [a benefit] [an expectation of a benefit].17 However, you should consider such testimony with caution, because the testimony may have been influenced by a desire to gain [leniency] [freedom] [a financial benefit] [a benefit] by testifying against the defendant.
We agree with the trial judge that reasonable protective housing does not constitute a “benefit” within the meaning of Jury Instruction 3:13.
Instructions, such as Jury Instruction 3:13, are premised on the supposition that undercover agents, jailhouse informants, accomplices, and other witnesses who testify for pay, immunity, or other forms of personal advantage may be motivated to lie or exaggerate in order to obtain a particular “benefit,” and that, accordingly, their testimony might be viewed with a degree of skepticism. It is relatively easy to identify a plea agreement, a promise not tо prosecute, or a financial benefit such as a reward.18 The meaning of the term “benefit,” however, is less clear.
Jury Instruction 3:13 does not define the term “benefit,” nor is there any legislative history (or its equivalent) of which to speak.19 Nonetheless, to determine the meaning of a term in the context of a non-legislative jury instruction, we import and apply common and well-established principles of statutory interpretation:
We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory. If the language of the statute is clear and
Moore v. State, 424 Md. 118, 127-28, 34 A.3d 513, 518 (2011) (quoting Ray v. State, 410 Md. 384, 404-05, 978 A.2d 736, 747-48 (2009) (internal citations and quotations omitted)).
When conducting a “plain meaning analysis,” dictionary definitions ““provide a useful starting point for discerning what the legislature could have meant in using a particular term.“” Moore, 424 Md. at 129, 34 A.3d at 519 (quoting Ishola v. State, 404 Md. 155, 161, 945 A.2d 1273, 1276 (2008)). Black‘s Law Dictionary defines the word “benefit” as “[t]he advantage or privilege something gives; the helpful or useful effect something has” or “[p]rofit or gain; esp., the consideration that moves to the promisee.” Black‘s Law Dictionary 178 (10th ed. 2014). For its part, Webster‘s Dictionary defines the word “benefit” as “an act of kindness“; “something that promotes well-being“; or a “useful aid.” Webster‘s Tenth Collegiate Dictionary 106 (1993); see Benefit, Google, http://google.com (search “benefit definition“) (“an advantage or profit gained from something“). These definitions are of little help to us here. To understand the meaning of the term “benefit” in the relevant pattern instruction as defined in these two dictionaries would lead quickly to absurd results. Such an understanding would be overbroad: if the prosecution paid for a witness‘s lunch, gave him or her a ham sandwich on the day of trial, or gave a witness a ride to the courthouse, such actions might be argued to warrant the giving of Jury Instruction 3:13, as meals or rides are “useful aid[s]” in the strictest sense of the term. Similarly, if the conscience of a witness would become unburdened by testifying truthfully at trial, would Jury Instruction 3:13 be warranted because of the “helpful or useful effect” the act of testifying would have for such a troubled witness?
We noted in Moore, 424 Md. at 139, 34 A.3d at 525, that a word or phrase can have different meanings based on the context where it appears:
Id. (quoting Henry C. Black, Handbook on the Construction and Interpretation of the Laws 171-72 (2d ed. 1911)); see Price v. State, 378 Md. 378, 388, 835 A.2d 1221, 1227 (2003) (“We do not read the statute divorced from its textual context, for adherence to the meaning of words does not require or permit isolation of words from their context.” (internal quotations omitted)). As the term “benefit” appears at the end of a list of possible variants in Jury Instruction 3:13, we consider those variants as an aid in seeking the appropriate meaning of the term. Jury Instruction 3:13 applies when a witness testifies as a result of “[a plea agreement] [a promise that he will not be prosecuted] [a financial benefit] [a benefit] [an expectation of a benefit].”20 We interpret the word “benefit,” in the context of Jury Instruction 3:13, to mean something akin to a plea agreement, a promise that a witness will not be prosecuted, or a monetary reward or other form of direct, quid pro quo compensation or inducement. Reasonable protective services, such as those received by Payton, do not constitute a “benefit” within the meaning of Jury Instruction 3:13.
In the MPJI-Cr, most (if not all) of the pattern jury instructions are accompanied by “Comments” meant to explain or give context to individual instructions. The Comment to Jury Instruction 3:13 is quite short, and reads:
Evidence that the State entered into an understanding or agreement with a testifying witness must be disclosed to the
Neither case referenced in the Comment is helpful for present purposes. In both Ware and Harris, the primary arguments of the petitioners were that the suppression or withholding of certain evidence violated the State‘s constitutional obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and deprived them of fair trials. Harris, 407 Md. at 506, 966 A.2d at 927; Ware, 348 Md. at 24, 702 A.2d at 701. In both cases, testifying witnesses received the benefit of favorable plea deals and/or expected reductions in sentences at modification hearings in exchange for their testimony, but, in both cases, the prosecution did not disclose to defense counsel the full extent of the benefits before or during trial. Harris, 407 Md. at 522, 966 A.2d at 936; Ware, 348 Md. at 36-37, 702 A.2d at 707. These cases are inapposite because, in the case at bar, the jury was informed fully of Payton‘s receipt of reasonable protective housing; the question is whether the jury should have been given also Jury Instruction 3:13.21
There is a dearth of Maryland case law discussing Jury Instruction 3:13, despite the fact that some form of the instruction has been included in the Maryland Criminal Pat-
tern Jury Instructions since at least 2001, see MPJI-Cr (1st ed.1986, 2001 Supp.), if not before. See Stouffer v. State, 118 Md.App. 590, 630, 703 A.2d 861, 880 (1997) (referring to a “witness promised leniency” jury instruction with similar wording to Jury Instruction 3:13), aff‘d in part & rev‘d in part, State v. Stouffer, 352 Md. 97, 721 A.2d 207 (1998). The few reported appellate Maryland cases in which Jury Instruction 3:13 (or a similar instruction) was given did not involve protective housing or protective services. See Dickey v. State, 404 Md. 187, 192, 194 n. 3, 946 A.2d 444, 447, 448 n. 3 (2008) (giving Jury Instruction 3:13 wherе the witness testified as part of a deal to avoid charges following an arrest for possession of controlled dangerous substances); Riggins v. State, 155 Md.App. 181, 196, 198 n. 16, 843 A.2d 115, 123, 124 n. 16 (2004) (giving Jury Instruction 3:13 where the witness received, in exchange for testimony, assistance in obtaining a bond review, $200 to pay bills, and a ride to a halfway house).
In Stouffer, 118 Md.App. at 595-96, 703 A.2d at 863-64, a defendant (convicted by a jury of first degree felony murder and kidnapping) argued, among other things, that the trial judge erred in refusing to give to the jury an instruction very similar to Jury Instruction 3:13. At the time a witness gave her statement to the police, they promised her that they would give her $200 for rent. Stouffer, 118 Md.App. at 603, 703 A.2d at 867. A detective testified that the $200 was given to the witness approximately a month or so after her statement was made, because she called and said that she was having trouble making her rent payment. Id. According to the detective, the money was not given in exchange for her statement. Id. The defendant requested a “witness promised leniency” instruction, which would have instructed the jury that it:
may consider the testimony of a witness who testifies for the State as a result of a financial benefit. However, [they] should consider such testimony with caution, because the testimony may have been colored by a desire to gain a financial benefit by testifying against [the defendant].
Stouffer, 118 Md.App. at 630, 703 A.2d at 880. The Court of Special Appeals held that the requested jury instruction was
B. Use and Interpretation of Similar Jury Instructions in Other Jurisdictions
Given the sparse, on-point authorities in Maryland, we turn to the decisions of our sister states and federal courts to inform our consideration of whether reasonable protective housing should be seen as a “benefit” within the meaning of Jury Instruction 3:13. Jury instructions similar to Jury Instruction 3:13 are found in jury instruction manuals and handbooks in state and federal jurisdictions nationwide. Despite the ubiquity of these instructions, wе found no reported case dealing squarely with the question of whether reasonable protective housing—and nothing more—constituted a benefit that warranted the giving of a particularized credibility instruction.22
In California v. Ali, No. D058357, 2013 WL 452901, at *1 (Cal.Ct.App. Feb. 7, 2013), Ali was convicted by a jury of murder, attempted murder, shooting at an inhabited structure or vehicle, being a convicted felon in possession of a firearm, and unlawfully possessing a firearm. Ali argued that reversal of the judgment in his case was warranted for a number of reasons, the most relevant of which for present purposes was the trial judge‘s refusal to give a requested jury instruction on “benefits provided” to certain witnesses. Ali, 2013 WL 452901, at *15. Ali requested the jury instruction with regards to the testimony of four witnesses. Id. The jury heard evidence that the first witness received threats and was relocated by the district attorney to a different state, and received monthly payments for his living expenses. Id. The second witness (who was deceased at the time of trial) was relocated also to another state and received “benefits” totaling $2,409 before his death. Id. The final two witnesses were a boy and his mother, who received assistance from an investigator in the district attorney‘s office when that individual “check[ed] on the status of a police investigation” concerning an immediate family member of the two. Id.
As California pattern jury instructions did not contain a specific instruction addressing how the jury might view witnesses who receive “benefits” from the prosecution, Ali requested that the trial judge give an instruction based on a model instruction from the federal Ninth Circuit Court of Appeals. Id. The requested jury instruction stated:
You have heard testimony that [the witness] has received benefits, compensation, favored treatment, from the government in connection with this case. You should examine [the witness‘s] testimony with greater caution than that of other witnesses. In evaluating that testimony, you should consider the extent to which it may have been influenced by the receipt of benefits from the government.
Id. The trial judge declined to give the requested instruction, explaining that the substance of the requested instruction was covered fairly by other instructions, and as to the mother and son duo, there was no evidence of any “benefit” received. Id. The jury received the following general credibility instruction:
In evaluating a witnesses [sic] testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors you may consider are: . . . Was the witness‘s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided.
The California Court of Appeal agreed with the trial judge that there was no evidence that the mother and son received any benefits, as the distriсt attorney investigator provided merely information about the status of an investigation, but did not influence the investigation in any way. Id. That reviewing court determined that the general credibility instruction “sufficiently instructed the jury to consider a witness‘s bias and allowed defense counsel to argue that the witnesses were biased because of benefits they received from the prosecution.” Id.
All evidence of a witness whose self-interest is shown from either benefits received, whether they be received in money, in protective custody afforded by the Government or any other benefit, or any detriments suffered, threats or promises made, or any attitude of the witness which might tend to prompt testimony either favorable or unfavorable to the accused should be considered with caution and weighed with care.
The Attorney General of the United States is authorized by law to provide for the security of Government witnesses, potential Government witnesses, and the families of Government witnesses and potential witnesses. The Attorney General is likewise authorized by law to provide for the health, safety and welfare of witnesses and their families. This
may include the payment of money, providing a new identity and securing a job to minimize the physical and economic harm to the witnesses and their families.
Partin, 552 F.2d at 644. Defense counsel did not object to the instruction as given, and requested an additional instruction that the instruction recounted above did not imply “the Court‘s acceptance or rejection of [the witness‘s] expressed fear.” Id. The judge rejected the additional instruction. Id. On appeal, the Court of Appeals for the Fifth Circuit began by noting the uncontested point that the defense had a right to put on evidence that the witness participated in the protection program. Partin, 552 F.2d at 645 (“The defense has a right to show that a witness, while in the [witness protection] program, has received substantial benefits. . . .“). The court mused that the first paragraph of the given jury instruction “tends to cast doubt on [the witness‘s] credibility because of his participation in the witness security program.” Partin, 552 F.2d at 645 n. 31. Nonetheless, that court concluded that the instruction as given did not imply that the trial judge believed or disbelieved the witness and so “the additional instruction was proрerly refused.” Partin, 552 F.2d at 645.
We assign little persuasive weight to Partin for several reasons. First, based on our review of pattern jury instructions both in the federal Fifth Circuit and nationwide, the given instruction does not appear to have an origin in any compilation of pattern instructions we were able to find and we cannot discern its origin.23 It appears that jury instructions like the one administered in Partin are not given commonly, despite the frequency with which federal and state witnesses alike participate in various forms of witness protection programs. Second, the propriety of the jury instruction as given was not under review by the Fifth Circuit, as the federal Court of Appeals considered only whether the trial
We turn now to a recent case from one of our sister states. In Massachusetts, the Commonwealth‘s highest court considered in dicta whether certain questions addressed by the judge to prospective jurors during voir dire necessitated a new trial. Massachusetts v. Connor, 392 Mass. 838, 467 N.E.2d 1340 (1984). Two witnesses in Connor‘s trial were participants in the Federal witness protection program and “received substantial financial and other benefits thereunder” (although the opinion does not detail what specific “benefits” were received). Connor, 467 N.E.2d at 1348. One of those witnesses was a participant, who became an informer, in the criminal activities for which Connor was being tried; the other had criminal charges pending in an unrelаted matter. Connor, 467 N.E.2d at 1344. The judge asked the prospective jurors whether the fact that a witness had received “benefits” under the witness protection program would affect their assessment of the witness‘s credibility.25 Connor, 467 N.E.2d at 1348.
The Supreme Judicial Court of Massachusetts concluded that such questioning “improperly invaded the province of the jury.” Id. Because a witness‘s “receipt of benefits under the witness protection program” is “highly relevant to his credibility and entirely appropriate for the jury‘s consideration,” the questioning improperly “conveyed a message to the jury that they should not consider matters that they were entitled to consider.” Id. The problem was “compounded” (according to that court) when the prosecutor misstated the law during closing arguments by telling the jury that they had sworn to treat the testimony of the witnesses “equally.” Id. Based on the particular circumstances of the case,26 the Massachusetts high court concluded that the error probably did not necessitate reversal in light of the trial judge‘s “arguably . . . curative” instructions. Connor, 467 N.E.2d at 1349. The trial judge‘s credibility instructions were as follows:
Now, you may consider and give such weight, if any you see fit, that certain witnesses have received protection and financial and other benefits under the federal government‘s Witness Protection Program. You‘ve heard a considerable mass of evidence in regard to that. It‘s for you to determine what effect, if any, what weight, if any, you will give to that situation in regard to any particular witnеss.
. . .
You remember in my early, early discussions with you over in the church hall and here in the court, we had what I thought was a rather extensive discussion over there about jury duty, and then an extensive voir dire when I asked you questions here. It may be that in going into certain matters, such as the Witness Protection Program, that I emphasized one thing more than another. . . . [Y]ou will take the law in regard to these cases as I have just given it to you, and not discuss or be concerned with any questions that I asked you in regard to your qualifications to sit on the case or those preliminary instructions.
Id. n. 9. The defendant requested a further instruction that the testimony of a witness who testifies “for personal advantage” must be received “with great caution,” but the trial judge declined to give that instruction. Id.
Curious procedural posture aside, this case we find unhelpful largely for many of the same reasons we eschew Partin. Just as in Partin, the provenance of the trial judge‘s “arguably . . . curative” instructions are unknown. At the time, the Massachusetts District Court Criminal Model Jury Instructions (1979, 1985 ed.) Instruction 2.07, “Credibility of Witnesses” [“Massachusetts 2.07“] contained that state‘s general credibility pattern instruction, which states that jurors may consider, among other things, a witness‘s “motive for testifying,” “any bias he has shown in his or her testimony,” and “the interest or lack of interest the witness may have in the outcome of the case.”27 The instruction contains several “Supplemental Instructions,” including one on “Interested witnesses,” which provided, “[t]he fact that a witness may have some interest in the outcome of this case doesn‘t mean that the witness isn‘t trying to tell you the truth. . . . But the witness‘s interest is a factor that you may consider along with
In another case from Massachusetts, a defendant was convicted of murder in the first degree of a clerk in a convenience store. Massachusetts v. McGee, 467 Mass. 141, 4 N.E.3d 256, 259 (2014). On appeal, McGee argued (among other things) that the trial judge erred in denying his request for a particularized credibility instruction for a witness that the defendant argued was paid to testify. McGee, 4 N.E.3d at 266. When the witness came forward with information that the defendant confessed his role in the murder to her, the prosecutor agreed to pay the cost of hotel accommodations for her and her children. Id. The prosecutor assisted the witness in obtaining a “Section 8” housing certificate, and, when an apartment was located, paid the witness‘s first month‘s rent, security deposit, and broker‘s fee. McGee, 4 N.E.3d at 266-67. The total cost of assistance was nearly $4,000. McGee, 4 N.E.3d at 267. The witness testified that she was aware that the convenience store employer of the victim offered a $25,000 reward for information leading to the arrest and conviction of the shooter, but denied having any expectation of collecting the reward. Id. n. 12.
The testimony of a cooperating witness who provides evidence against a Defendant to escape punishment or receive leniency from law enforcement authorities for his or her own misdeeds or crimes, or for other personal reason or advantage, must be examined and weighed by the jury with greater care and caution than the testimony of an ordinary witness.
You, the jury, must determine whether a cooperating witness‘s testimony has been affected by self-interest, or by an agreement, implicit or explicit, he or she has with the government, or his or her own interest in the outcome of the case, or by prejudice or bias against the Defendant and his family.
McGee, 4 N.E.3d at 267. The trial judge declined to give the requested instruction, but gave instead an instruction that the jury should consider, among other things, whether a witness “had a bias or motive which would have influenced [his or her] testimony,” “has any interest in the trial or any interest in its outcome,” or “has been influenced by any promises, rewards or any other inducements to testify.” Id. At trial, defense counsel cross-examined the witness about the “inducements,” and argued in closing that the witness was motivated to lie by money and revengе. Id. He argued that she “was bought and paid for by the Commonwealth. She is a witness who had a motive to lie[;] she is a witness who was well rewarded for her lies.” Id.
On appeal, the Massachusetts high court, without much explanation, concluded that the defendant was not entitled to the requested instruction as the trial judge‘s instructions “adequately conveyed to the jury how they were to evaluate witness credibility, particularly in light of the fact that defense counsel vigorously cross-examined [the witness] and vigorously argued to [the] jury her lack of credibility.”29 Id. (internal
quotations omitted). Although the impetus for the services provided to the witness in McGee is distinguishable from that of the services provided here to Payton, the modality of the services provided are somewhat similar. McGee, 4 N.E.3d at 266-67. Just as the relocation and housing services in McGee did not constitute a “personal reason or advantage” sufficient to justify a particularized credibility instruction, so the reasonable protective housing offered to Payton do not constitute a “benefit” within the meaning of Jury Instruction 3:13.
An Illinois case of passing similarity was resolved along similar lines. In Illinois v. McInnis, 88 Ill.App.3d 555, 44 Ill.Dec. 120, 411 N.E.2d 26, 39 (1980), a witness testified that, in exchange for his testimony, he: (1) was “housed in witness quarters” while the case was pending; (2) received assistance from the state in relocating from his former neighborhood; (3) received rent payments in his new building paid by the State; and, (4) hoped to collect a $5,000 reward. The witness admitted also that the State prosecutor promised to try to get his probation extended at an upcoming violation of probation hearing. Id. The jury received the following credibility instruction:
You are the sole judges of the credibility of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias or prejudice he may have, and the reasonableness of his testimony considered in light of all the evidence in the case.
The testimony of a witness who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the witness‘[s] testimony has been affected by interest, or by prejudice against the defendant.
McInnis, 411 N.E.2d at 39. The intermediate appellate court of Illinois determined that the instructions as given covered adequately potential bias and prejudice concerns, and the trial court did not err in declining to give the particularized instruction sought by McInnis. McInnis, 411 N.E.2d at 40. We are sympathetic to the conclusion reached by the trial and appellate courts in McInnis, just as in McGee, that the protective services provided to the witness did not constitute a “personal advantage or vindication” so as to warrant a particularized credibility instruction.30
In considered dicta, the United States Court of Appeals for the Sixth Circuit considered the value of particularized credibility instructions for informants and participants in the federal witness protection program. United States v. Adamo, 742 F.2d 927, 944 (6th Cir.1984). That court observed that participation in a witness protection program may have mixed implications for a witness‘s credibility: “[i]nformation that a witness is a participant in [the Witness Protection Program], and therefore is being paid and protected by the federal government, simultaneously enhances and undermines a witness‘[s] credibility.” Id. The court drew a distinction in
A distinction must be made between government witnesses who are merely paid informants and those which are participants in the Witness Protection Program. References to a witness being a paid informant undermine the credibility of the government‘s witness without raising any negative inferences against a defendant. . . . A totally different concern arises when the government‘s witness is protected, for this may in some cases raise negative inferences against the defendant if great care is not employed.
Adamo, 742 F.2d at 945 n. 25. That court encouraged lower courts to instruct testifying witnesses not to refer to their participation in witness protection programs at all when testifying before a jury, Adamo, 742 F.2d at 945, and if the program must be referenced, attorneys should use the term “relocation” in lieu of “protection,” so as to avoid potential negative implications. Id. n. 25. The court concluded by supposing that, in some situations:
The better course is probably for counsel to ask the trial judge to contemporaneously instruct the jury that the protection afforded by the witness should neither enhance that witness‘[s] credibility nor necessarily be construed to mean that the defendant has threatened the witness. Jurors are quite capable of understanding that government informants are the objects of hostility of any general prison population and the “at large” criminal community. . . . On the other hand, unless abuse by the prosecutor is shown, we do not require the Court to handle the matter of protected witnesses itself.
Id. n. 27. We find this dicta from the Sixth Circuit unhelpful, as, based on the above-quoted text, it seems clear that that court has a different perspective on the impact of witness protection on the course of a trial than we do. We see no reason to instruct testifying witnesses not to refer to their participation in such programs and are accordingly not inclined to follow that court‘s suggestion that jurors receive a particularized jury instruction that encourages neutrality.
Other courts havе discussed the intersection between witness credibility and witness protection programs, but with no exploration of the appropriateness of jury instructions pertaining to credibility. At least one state appellate court concluded that services (including protective housing and food) provided to a witness pursuant to a witness protection programs do not constitute a “fee” paid to a witness. California v. Jenkins, 22 Cal.4th 900, 95 Cal.Rptr.2d 377, 997 P.2d 1044, 1121 (2000), as
Still others refer to services received pursuant to witness protection programs as “benefits,” but not in the context of whether particularized credibility jury instructions (or jury instructions at all, for that matter) are warranted. See, e.g., Gonzalez v. Wong, 667 F.3d 965, 1007 (9th Cir.2011) (discussing an investigation into abuses of a “benefits” program for jailhouse informants, where “benefits” included transfers to сells with a television and/or coffeepot, being taken outside of the jail for lunch, witness protection program money being paid to an informant‘s wife, and having a girlfriend released with no bond while her trial was pending); Talley, 164 F.3d at 1003; Caliendo, 910 F.2d at 436 n. 5; Tarantino, 846 F.2d at 1407; Connecticut v. McClain, 154 Conn.App. 281, 105 A.3d 924, 926-29 (2014) (referring to the “benefits derived from the witness protection program” and the amount of time he was “receiving benefits from the State, and how much money he had received“); see also United States v. Pandozzi, 878 F.2d 1526, 1530 (1st Cir.1989) (using the term “promises” to refer to a witness‘s agreement to accept participation in a witness protection program, “favorable testimony” on his behalf at the witness‘s sentence reduction and parole hearings, transfer to a different prison, and “use” immunity, in exchange for testimony).
In many cases, witnesses received a variety of discrete benefits in exchange for their testimony, and courts oftentimes used the term “benefits” to refer to an entire package, which include oftentimes some combination of witness protection, a
For example, in United States v. Holmes, 229 F.3d 782, 784 (9th Cir.2000), a witness testified against a defendant in an armed bank robbery case. Prior to the robbery, the witness had met Holmes, a friend of her husband, on a number of occasions. Id. Approximately six weeks after the robbery, the witness approached the police “ask[ing] them about the possibility of getting money in exchange for the information.” Id. She identified Holmes as one of the robbers, but testified that, at the time she provided the information to police, she did not know “one way or the other” if she would receive compensation. Id. After a meeting with the FBI, she received $1,500. Id. After that point, the FBI placed her in its “informant
You have heard testimony that ________, a witness, has received [benefits, compensation, favored treatment, etc.] from the government in connection with this case. You should examine ________‘s testimony with greater caution than that of ordinary witnesses. In evaluating that testimony, you should consider the extent to which it may have been influenced by the receipt of [e.g., benefits] from the government.
Holmes, 229 F.3d at 785. Instead, the trial judge told the jury:
In considering the testimony of a witness, you may take into account: . . . (4) the witness‘[s] interest in the outcome of the case and any bias, prejudice, and whether the witness received money or benefits from the Government in connection with the case; . . . and (7) any other factors that bear on believability.
Holmes, 229 F.3d at 787 (emphasis in original). The United States Court of Appeals for the Ninth Circuit determined that the trial judge did not err in declining to give the particularized jury instruction in light of the more general instruction given, and, based on the witness‘s testimony about the “circumstances surrounding her compensation,” the jury‘s attention was drawn already to the fact that she was a “paid informant.” Holmes, 229 F.3d at 788. In that case, it is unclear whether the witnеss received protective services at all, or just a reward and seed money to start a new life away from her husband.
C. Final Considerations
We leave for future reviewing courts to discern the outer boundaries of what else constitutes the contours of what fits
III. CONCLUSION
Payton‘s experience with the State‘s protective services is hardly the “financial windfall” that Preston claims it to be. As Detective Moran observed at trial,
It‘s a lot for someone to move their life. You know, you got kids. She has a grandmother who was sick in the house. That‘s her neighborhood. That‘s her life. And that‘s a lot to move somebody.
Reasonable protective housing (such as the services provided to Payton) does not constitute a “benefit” within the meaning of Jury Instruction 3:13.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONER.