*1
v. Maryland. STATE Term, 57, Sept. 1991. No. Maryland. Appeals of
Court 8, 1992. Oct. *3 Defender, Assigned Washing- Public Lyman, Jennifer P. D.C., ton, petitioner. (J. Curran, Jr., Ince, Joseph Asst. Gen.
Mary Atty. Ann Baltimore, Gen., brief), respondent. both Atty. C.J., ELDRIDGE, MURPHY, and Argued before CHASANOW, RODOWSKY, McAULIFFE, KARWACKI BELL, M. and ROBERT JJ.
McAULIFFE, Judge. in jury
Eric Lorenzo Watkins was convicted George’s for Prince of two counts County Circuit Court disable, intent use shooting of a each unlawful violence, of a handgun in the commission crime of and shooting Melvin with a which battery connection Special Ap- Ronald Brown were wounded. Court opinion, holding in an unreported affirmed peals err defense prohibited trial court did not when counsel regarding witnesses either their questioning State’s or the fact that there were criminal status probationary against shootings. them at the time of the charges pending certiorari, affirm. granted and we We
I. grew This case out of an early morning altercation which occurred when the defendant and Marlin Marshall encoun- group consisting Ronald, tered a Melvin, and Kelvin Brown, and Demetrius “Tony” Fultz. The defendant does deny that he shot Melvin and contends, Ronald. He rather, that he shot them in self-defense. According to the defendant, the meeting was called to resolve a dispute over quality drugs which Marshall had delivered to Fultz evening. earlier that All other participants in meeting drugs denied that were in any way involved.
The defendant testified that Fultz called pager Marshall’s at about midnight and that Marshall returned the call. The defendant said that Marshall and Fultz were arguing about quality drugs Marshall had Fultz, delivered to and that at some point during the conversation the defen- dant took the telephone from spoke Marshall and briefly to Fultz and then to one of the Brown brothers. The defen- dant stated that following telephone conversation he and, Marshall went to meet Fultz out, as it turned brothers, Brown to discuss what was to be done. On the to that way meeting, Marshall told the defendant to take a gun from under the floor mat of the vehicle in they riding and to carry it the meeting. The defendant met, said that after the parties he fired his weapon self-defense because the Brown brothers and Fultz, whom he believed to drug be dealers and therefore *4 armed, probably walking him toward after expressing irritation that he had himself interjected into a conversation between Marshall and Fultz.
II. The defendant argues that the trial judge improperly restricted his cross-examination of Fultz and of the Brown Fultz, brothers. With respect the defendant sought to introduce evidence that Fultz had been convicted of unlaw fully carrying handgun 9, 1989, a on March six days before in involved this case. The the incident defendant offered had, of this documentary evidence conviction because Fultz cross-examination, denied that he had a on gun March 9. Although judge initially the trial ruled that the evidence inadmissible, permit he did further cross-examination presence Fultz out of the of the Fultz then jury. in possession handgun admitted he had been of a on March originally concerning that he had been confused stating permitted date. The trial then additional cross- judge in presence examination of Fultz and Fultz jury, again possession handgun day admitted to on the Thus, sought the fact be elicited was ultimate- question. before the and there was no error connec- ly placed jury, ruling concerning tion with the court’s the cross-examina- tion of Fultz. Brown, the cross-examination of Ronald de
During approached fense counsel the bench to seek leave of court concerning pending charge. theft question witness entire discussion of this matter consisted of the follow ing: Honor, I
DEFENSE ATTORNEY: Your have information pending charge that Mr. Brown has a case that’s a theft goes April and he to trial on 3rd.
THE Don’t mention it. COURT: that, The reason I’m I saying DEFENSE ATTORNEY: thinking that I have been may believe have basis I given exchange probation. some consideration happened. to ask the fact this want about Honor, course, exculpato- Your that’s PROSECUTOR: evidence and I would have told ry certainly [defense anybody deals that had made with that is attorney] any testifying. Alright.
THE COURT: you. DEFENSE Thank ATTORNEY: (In court.) open That’s all have.
DEFENSE ATTORNEY: *5 100 accepted prosecutor’s counsel statement clearly
Defense witness, made with and no “deal” had been ac- that ruling. in the court’s there is Accordingly, no quiesced ruling. appeal from this basis that Melvin attempted The defendant show and grounded were This effort was probation. Brown on Kelvin Alaska, the belief that Davis v. 415 U.S. 94 on solely1 (1974), the admission of compels 39 L.Ed.2d S.Ct. is any that witness any State’s evidence offered the defendant. crime, if that evidence is The not such a painted did Davis with broad judge trial believe brush, neither we. do language in
Concededly, some of of Davis broad support interpretation that scope, appears evi- status of a witness is probationary dence of the State’s admissible. always testimo- accuracy and truthfulness [the witness’s] against petition- elements in the State’s case key
ny sought claim of the defense to devel- er. The bias which afford a basis for an inference of op was admissible to pressure undue because vulnerable [the witness’s] as well as of probationer, status as ... [the witness’s] might be a the investi- suspect concern that possible gation. 317-18, (citation omitted). 415 U.S. 94 S.Ct. 1110-11
Id. at in the Davis, language and other Court’s The facts however, case holding of that suggest, opinion, narrower. Davis, Anchorage showed
In the evidence bar a safe several hundred weighing into and had been broken of the break- had been removed. On afternoon pounds miles the site of the discovered 26 in the safe was testified near the home of Richard Green burglary, Green. he had seen day question noon on the two that at about suggest did that either witness had received The defendant 1. bargain give favorable probation as a result of the State testimony in this case. the safe later found. He identi- near where individuals *6 Although one of those two individuals. there fied Davis as tending may evidence to show that the safe was some Davis, by in a vehicle that had been rented transported been of testimony was critical to the success eyewitness Green’s case. the State’s and at the time of the events
At the time of trial order of court question, probation by juvenile Green was on delinquent burglarizing been a for having adjudicated after trial, at any testimony two cabins. Before was taken prohibit any a order to prosecutor requested protective reference to earlier or the fact that he adjudication Green’s probation. judge granted prosecutor’s on The trial request, citing generally an Alaska statute which barred objected, of Davis con- juvenile adjudications. admission probation burglary that was on tending because Green home, and the safe was found near his Green would have motive to someone else order to divert special identify argued from himself. Davis’ counsel also suspicion being on made more vulnerable to simply probation Green and more police suggestion, obliging State. order, Davis’ counsel neverthe- by protective
Bound
of
time
sought
less
to disclose Green’s state
mind at the
discovered that the stolen safe had been found near
Green
his home.
claimed to be unconcerned that the safe
Green
although
found on his
he admitted it had
property,
been
might
his mind that the
think he had some-
police
crossed
to do with the crime.
In the course of his cross-
thing
Green,
inquired
of
Davis’ counsel also
examination
about
interrogation
During
of Green.
the course of
police
Davis’ counsel asked
“Had
questioning,
that line
Green:
like that
you
questioned
by any
ever been
before
law
replied,
enforcement officers?” Green
“No.”
In holding
deny
right
that it was error to
Davis the
into
inquire
prior adjudication
probationary
Green’s
circumstances,
these
Court said:
Supreme
status under
counsel was
prohibited
making inqui-
Since defense
being
juvenile
as to the witness’
on
under a
ry
protestations
adjudication,
of unconcern
court
Green’s
he
suspicion
might
have had a
possible police
over
burglary
categorical
in the Polar Bar
and his
denial
part
having been the
similar
subject
of ever
law-
interrogation
unchallenged.
went
The ten-
enforcement
right
of confrontation and the State’s
sion between
juvenile
is
protecting
the witness with
record
policy
in the
answer
given by
evident
final
particularly
some
probable
Since it
that Green underwent
witness.
police when was arrested
the bur-
questioning
delinquency
glaries
juvenile adjudication
rested,
regarded
suspect
as
highly
the answer can be
asserting,
effect
very least. The witness was
*7
ruling,
right
give
of the trial court’s
a
to
protection
under
pursu-
truthful answer to a cross-examiner
questionably
a
line of
it is doubtful whether the
inquiry;
a relevant
ing
given by
“No” answer would have been
Green
bold
that he was shielded from traditional
belief
absent
be
conceive
It would
difficult to
of
cross-examination.
the
illustrating
need
cross-
clearly
situation more
examination.
313-14,
Id. 415 U.S. at us, no suggestion there was In the case before had committed offense for any or Kelvin Brown Melvin charged. Rather, the defendant the defendant the had to do meeting parties the of to show that wished distribution, according the bolstering, to drug thereby with of defendant, of fear the Browns. his claim reasonable status the wit probationary that the argues defendant deny any reason to some additional gave nesses them their and thus evidence of status drugs,2 involvement with merit in that admitted. There some should been testimony from Brown that able elicit Ronald 2. The defendant Similarly, drugs. Melvin were known to “hustle” and Marshall Fultz drugs, but he did not Marshall “hustled” that he knew Brown testified did. know whether Fultz contention, judge had the trial exercised his discretion evidence, that would not have constituted error. to allow of this information weighing potential After relevance by jurors misuse of the evidence against potential prior bad acts not otherwise branding the witnesses bearing considering and after credibility, admissible as that any that the would understand witness would be jurors involvement illegal drug reluctant to admit because involvement, for such danger being prosecuted potential problems after collateral assessing explain- for the convictions that resulted in ing underlying bases length suspended and the sentences so as probations witnesses, fairly judge probable upon effect determined, did, judge trial could as well have as he of this case probative under the circumstances the limited outweighed by appropriate value of the evidence was other Accordingly, judge considerations. trial did not abuse by excluding his discretion this case evidence that the probation. Brown twins were on
III. excluding error evidence that Alternatively, witnesses had with a charged State’s been crime were on was harmless beyond a reasonable doubt. The sole defense advanced this defendant was self- *8 if defense. Even the defendant had been to prove able the meeting drug-related, and that the events occurred did, as he just they generated said he would not have an issue of self-defense consideration jury.
The defendant’s version of the facts is that Marshall Fultz, supplied drugs to who sold them for Marshall’s evening Earlier in the of the shooting, benefit. Fultz and argued Marshall had about the quality crack cocaine just drugs Marshall had delivered to Fultz —Fultz said the were “bad” and that he had no intention of for them. paying himself interjected telephone The defendant into a conversa- two, thereby irritating tion Fultz and one of between ended, conversation phone When Brown brothers. him to visit accompany the defendant asked Marshall Marshall Fultz owed money to collect Fultz, apparently He carried a 38-caliber drove. drugs. Marshall for the belt, they defendant saw. When in his handgun drugs, “hustled” Fultz neighborhood where arrived himself with a 32- to arm told the defendant Marshall floor find under the that would weapon automatic caliber said Marshall side of vehicle. passenger on the mat too.” The defendant “might guns have people and his Fultz in his Marshall pocket. weapon placed retrieved in search and went then left the vehicle the defendant Fultz, company in the found he was they When of Fultz. began and Fultz Marshall three Brown brothers. In drugs. response for the payment discussion about counsel, the suc- the defendant described his questions by as follows: ceeding events happened? Sir, then? What
Q: happened what I think I in and then that’s when butted A: That’s when said I didn’t have in and then Melvin that butted that was I right, I and then you’re this. said nothing to do with know, to test but, get somebody can you you said I the fuck do Demetrius said what That’s when drugs. I Then he nothing. it. I said said—then to do with said, say? I said—what did He drugs. give the man back why you I said don’t thing to fucking a mother said, I don’t have you you told it. do with said that?
Q: Who coming all started they That’s when A: Demetrius. say toup Marlin his hands put me. That’s when towards steps back couple action. took a up, stop hold coming. still They Marlin. were behind back, hap- what couple steps took Q: you When pened? me. still approaching they
A: That’s when sir? Q: they, Who Melvin, Kelvin, and Demetrius. Ronald
A: *9 time, at that sir? Q: you thinking What were going A: was to hurt me. They did do? Q: you What I received from and my pocket gun
A: That’s when shooting. started gun said he aimed the at one of the four
The defendant men, once, trigger and fired five shots. He pulled at them. explained why he shot Now, sir, gun? did fire the
Q: why you they going A: Because felt to hurt me. feel to hurt Q: Why you they going you? did A: Because Marlin told me hustled at they that’s where experience people they and know from when hustle that weapons and stuff. normally carry Q: Had ever seen of those other you persons weapons? Kelvin,
A: No. That first time my seeing Ronald and Melvin. weapon defendant stated that he seen Fultz with a occasion,
on one
Fultz
prior
gave
weapon
when
Marshall. The defendant admitted he
any guns
did not see
night
except
on the
those carried
question,
by Marshall
the defendant.
Faulkner,
In
State v.
485-86,
301 Md.
(1) The accused must grounds have had reasonable in apparent believe himself imminent or immediate dan- of death serious ger bodily or harm from his assailant or assailant; potential
(2) The accused must have in fact believed himself this danger;
(3) claiming right The accused of self defense must conflict; the aggressor provoked have been
(4) The force used must have not been unreasonable and excessive, is, the force must not have been more exigency force than the demanded.
The defendant’s of events is simply version insufficient to at the time he fired his he weapon show that had reasonable apparent himself in grounds believe imminent immedi- harm, ate of serious or that the danger bodily deadly force excessive, employed he was not but was reasonable under the circumstances. necessary The defendant said he was afraid that the Brown broth- ers, him, him walking going who were toward were to hurt a because had butted into conversation that felt was they none of his business. No threats were made to the defen- dant, Marshall, weapons produced. and no Indeed armed, apparently who was also did not feel it necessary Nevertheless, his weapon. immediately draw defendant Brown, pulled gun and fired at Melvin him in striking side, the stomach or fired two shots into the of back Ronald attempting Brown as he to run away, and fired addi- law, tional not anyone. shots which did hit As a matter of self-defense, i.e., this a justifiable action exonerat- ing the defendant from criminal liability.
Perhaps
of his
recognizing
weakness
case for
self-defense,
“perfect”
suggests
the defendant
that he at
“imperfect” self-defense. See
generated
least
question
Faulkner,
supra,
State v.
486-503,
301 Md.
JUDGMENT AFFIRMED, WITH COSTS. J.,
RODOWSKY, opinion I and III of the joins Parts in the Court. judgment and concurs BELL, dissenting. Judge, M. ROBERT of Special affirms the Court majority judgment *11 Eric Watkins’ had affirmed Lorenzo which earlier Appeals a in Prince charges shooting out of arising convictions trial court we are told that the George’s County. Initially, the cross- its when limited did not abuse discretion their regarding of various examination State’s witnesses them charges pending against or criminal probation status shootings majority the Alternatively, when the occurred. erred, a beyond if the court it was harmless says, even ruling with exception doubt. With the the reasonable Fultz,1 I agree, with to victim Demetrius regard and, thus, dissent. respectfully on both counts disagree however, I am Because, reading opinion, after the majority that were recognize the issues as the ones not sure that address, in the points I’ll addition to argued, briefed and argued. the parties the issues that majority, made cross-examination, only was Fultz not denied that he 1. On Demetrius shootings, he carried time of the but he also denied that armed at the days charged gun carrying with one six a or had been arrested and attempted docu- When defense to show the witness earlier. counsel carrying indicating charged been with a witness had ments pled guilty, jury excused handgun, which the had was witness was voir The voir dire confirmed that Fultz dired. and the witness had, indeed, guilty handgun charge placed pled under to a been Thereafter, again supervision. permitted to defense counsel was court handgun days prior to the possessed whether he a six ask Fultz had Fultz shooting. This time Fultz in the affirmative. Because answered adult, juvenile, apparently been was but had convicted as an charging petitioner introduce docu- refused to allow the court denial, Thus, petitioner despite into evidence. the initial ment sought. permitted to elicit he the admission
I. There were four victims actually of the shootings even though two were only actually shot. The State’s case against the petitioner consisted of the testimony of each victim, as well as testimony Marshall, Marlin friend, petitioner’s occasional co-defendant, roommate and negotiated plea who favorable agreement State.
The shootings during occurred an early morning encoun- between, hand, ter on the one the petitioner and Marlin Marshall, and, other, Brown, on the Ronald twins Melvin Brown, and Kelvin Fultz, Demetrius “Tony” the victims petitioner’s acts. assaultive The State’s theory of the case, witnesses, as developed through its was that encounter was a chance one. Because the victims denied drugs in any incident, involved inway only actions, conceivable basis for the petitioner’s it sur- mised, was his belief that one the Brown brothers had been “talking trash” about him during an earlier telephone conversation between Marshall and Fultz. testified,
The petitioner hand, on the other that the meet- called, ing planned. said, It was dispute resolve a *12 drugs over the he quality and Marshall had delivered to evening. Fultz earlier that He claimed that he in acted self- defense.2
According
petitioner,
Fultz “beeped” Marshall
and,
around
in
midnight
response, Marshall
him.
telephoned
that,
argument,
petitioner suggested
2. At oral
the
even if his actions
self-defense,
"perfect"
were not such as to make out a case of
the
inquiry
status,
pending
into the victims’
criminal cases and/or
“imper-
was relevant to the determination whether he acted in
Faulkner,
482,
fect" self-defense. See State v.
301 Md.
After Each shooting. him as to the cause cross-examined Also, during drug-related. that was cross- denied victim, sought inquire petitioner of each examination charges against pending were criminal into there whether each probation. he was on On witness whether State, occasion, the court disallowed upon by objection inquiry. pend- that Brown had a proffered Ronald petitioner than a was set for trial less ing charge theft court not instructed trial Having month. been concerning charge, petitioner him that cross-examine may thinking “I basis added: believe exchange proba- given some consideration have been Honor, of “Your tion,” prosecutor responded: to which the and I would course, certainly evidence exculpatory deals that Mr. have told Roberts counsel] [defense *13 The court testifying.” that is anybody had made with as be- representation prosecutor’s apparently accepted ing dispositive. cross
During petitioner proffered examination that on probation Melvin Brown was when the oc- shooting He asked to permission curred. cross-examine him on that Notwithstanding an subject. apparent reference to Davis Alaska, 415 U.S. 94 S.Ct. v. L.Ed.2d 347 (1974), the court refused.
When the was released for jury day, further discus- respect ensued with propriety sion inquiry make petitioner sought concerning to Melvin Brown’s pro- status. After he bationary was told court that State inquire should whether it had made any “deals” regard the witness to status, with with probationary following occurred: Roberts,
The Court: Mr. told you State when you up came a question respect asked with to Ronald Brown that if State had made deals with any its witnesses would they you prior have told to If trial. you care to ask the State on the record at this time whether or not it made with any deals Melvin Brown that probation, so, would affect ... his you may do but that, other you’re than then have to going accept to what already the State has told you general. But I no problems with your asking whatever State whether or not any arrangements have made been with the State respect to man may whether not this have been on probation particular at that time. Well,
Mr. Right. Roberts: I ask the to would State if any arrangement. disclose there is didn’t think there one, but did have reason believe he probation and under Davis versus Alaska I thought that would be relevant credibility. No, Court: that not a That is blanket. not—that
case does not stand that. If reason there’s to believe think person this this person would then that testify, might be revoked for some reason and would be to some they subject subsequent thing. that’s But penalty, one there’s nothing testifying — or not doesn't testifying do that.
Ill a I Alaska held that think Davis versus Mr. Roberts: to the truth with may want conceal probation on person get any so he wouldn’t present offense to regard if probation, boys and these trouble with further selling, would be drug dealing drug and that involved tell the full truth. he not want to why would reason him something, you Let ask did ask you me The Court: drugs? not he had sold or whether denied that. Mr. Roberts: He if he drugs If he sold He denied it. had The Court: had, subject he to a told he then would be you You could nothing probation. has to do with charge. It But, in but, sir, confession. him it would be a for try down. Unless case, straight up he has denied it that, you’re to then stuck challenge have some reason you answer. with the request petitioner’s its denial of the
The court thus restated concerning probationary Melvin Brown to cross-examine status. to into the status attempt inquire probationary
The the met the response Kelvin Brown was same to show petitioner When asked to be allowed court. that the gave deny the witness a motive to status deal,3 trial shooting drug again, was a once cause request.4 denied the petitioner’s court argument petitioner’s precise was: 3. The made counsel Honor, I this witness on at the time Your believe yesterday. I believe offense the same reasons enunciated this credibility, show he had a be relevant to his tends to it would incident, regard complete tell truth with to this motive not to drugs, divulge was all particularly to—not to the fact it over this case. think critical to 4. prosecutor suggested representa- that she did not know if had told her about were accurate since none of witnesses tions counsel, convictions, arrests, probations. The defense prior hand, knowledge was Brown proffered that his basis of other brothers. concerning pending charges
Evidence against Mar- agreement and the plea covering presented shall them was albeit, some jury, without As difficulty. indicat- ed, Marshall initially charged petitioner’s as the co- trial, however, agreed defendant. Prior to testify for against petitioner. the State and He a plea entered accessory after the fact guilty which, shooting, *15 trial, at the time of awaiting sentencing. was Notwith- standing contention, the expressed during State’s opening throughout statement and its direct examination of Mar- shall, that Marshall “was no given sentencing deals by State,” the the counsel petitioner’s was able to demonstrate that, fact, to the court there a plea agreement the between State Marshall. He letter produced a prosecutor counsel, the trial to Marshall’s which set out the terms the agreement: co-defendant, Watkins,
The Mr. is the most certainly I culpable, and to insure his conviction propose the follow- plea plead 19, ing offer: to count accessory after the fact to a malicious shooting with the intent to disable. Order PSI. against The Defendant shall testify Mr. Watkins. shall prepare He meet me to this case trial. before exchange In for his cooperation and truthful testimony nol pros will all remaining counts. Also will recommend guidelines, a sentence within whatever they may be. The amount of suspended time and are to be within the Court’s discretion. thereafter, petitioner permitted, to cross-examine whether, concerning
Marshall under his plea agreement State, with the expected Marshall a shorter sentence.5 errors, Although assign petitioner 5. he does them as was not at happy handling all with the court’s of his cross-examination of this complains petitioner witness. He that the court refused to allow the concerning possible to cross-examine Marshall sentence he could addition, plea agreement. have received had there been no In petitioner prosecutor’s opening point makes that the court never struck either the plea agreement statement there was no Marshall’s initial denial that there was one.
113
II.
Amend-
the Sixth
guaranteed, by
defendant is
A criminal
“
Constitution,
right
‘to be
United States
ment
”
him.’
v.
against
Davis
witnesses
confronted with
353;
315,
1110, L.Ed.2d at
94
at
39
Alaska, 415 U.S.
S.Ct.
1431,
673, 678, 106
Arsdall, 475 U.S.
S.Ct
Delaware v. Van
674,
(1986). A criminal defendant
1435, 89 L.Ed.2d
682-83
right by
the same
guaranteed
proceedings
in state court
of Rights.
21 of
Declaration
Maryland
virtue Article
43,
991,
State,
55, 427 A.2d
997
Md.
v.
290
See Tichnell
21
(for
protects
Article
(1981)
purposes,
confrontation
amendment);
State,
the sixth
v.
right
same
as
Crawford
1097,
(1978);
211,
v.
Md.
383 A.2d
1098
State
282
(1972).
70, 75,
A.2d
166
Collins,
Md.
288
the Confrontation Clause is
right
A
secured
primary
Alabama,
v.
right
Douglas
cross-examination.
1074, 1076,
934, 937
415, 418,
13 L.Ed.2d
85 S.Ct.
U.S.
“
Indeed,
purpose of con-
(1965).
main and essential
‘[t]he
opponent
opportunity
frontation is
secure
”
315-16,
Davis,
weight his testimony.’ Id. 3A (quoting J. Wigmore, Evidence 940, (Chadboum 775 p. 1970)). Thus, rev. “a § criminal defendant states a violation of the Confrontation Clause by showing that was prohibited from engaging appropriate otherwise designed cross-examination to show a form of bias on prototypical part witness, thereby expose ‘to to the jury the facts from jurors appropriately ... could draw inferences relating to the ” Arsdall, Van reliability 680, witness.’ 475 U.S. at Davis, 1436, 106 S.Ct. at 89 L.Ed.2d 684 (quoting at 415 318, 1111, U.S. at 94 at 355). all, S.Ct. 39 L.Ed.2d at After “jurors to entitled have the benefit the defense [are] theory they before them so that make an informed [can] weight judgment place as on testi- [the witness’] mony which ‘a link in provide[s] proof crucial ... ” Davis, act.’ petitioner’s 317, 1111, 415 at 94 U.S. S.Ct. at Alabama, 39 v. L.Ed.2d at 354 (quoting Douglas at 380 U.S. 419, 1077, 85 13 937).6 S.Ct. L.Ed.2d at
This is with permitting consistent a cross-examiner to question “in the witness order to determine the reasons acts or statements referred to on direct examination.” State, Smallwood v. 300, 307, 356, 320 Md. 577 A.2d 359 (1990)(citing Cumberland and Westernport Transit Co. v. Metz, denied, 424, 4, Md. reargument 158 149 A. 158 Md. nom, 424, 565, appeal dismissed sub 149 A. American Oil Metz, v. Company 282 U.S. S.Ct. L.Ed. 720 (1930)). bias, like, not, however, Cross-examination and the is “ recognized restriction.
without We have ‘trial judges retain wide latitude insofar as the Confrontation Clause impose concerned limits reasonable on ... cross-examina- about, among things, tion based concerns other harass- *17 ment, issues, of prejudice, confusion the witness’ safety, repetitive that is or rele- interrogation only marginally 647, State, 645, 279, (1965), 6. In Franklin v. 239 Md. 212 A.2d 281 this cross-examination, general, Court noted is an inherent element right. of the confrontation
115
”
307,
Davis and Smallwood
Davis,
issue was whether a defendant
In
principles.
witness concern-
important
an
State’s
could cross-examine
as a
delin-
juvenile
status
probationary
ing that witness’
reflect,
to allow
might
it
when
bias
for whatever
quent
the State’s inter-
conflicted with
on that basis
impeachment
juvenile adjudica-
confidentiality
preserving
est
link in the
important
an
There,
provided
the witness
tions.
defendant,
defendant;
placed
against
case
State’s
”
“
crowbar,’ and his
Chevro-
like a
blue
‘something
holding
recovered.
a stolen safe was
where
sedan at the location
let
at 350.
39 L.Ed.2d
Davis,
possible probation revocation. juvenile’s] record [The would revealed only probe be as to necessary [him] prejudice bias and call generally to good [his] question. character into
Davis,
311,
1108,
415
at
94
at
U.S.
S.Ct.
Reversing
Supreme
which had affirmed
cross-examination,
the trial court’s restriction of
the Su-
of
preme Court
the United
possible
States noted two
bases
for the defendant’s claim of bias: the juvenile’s probation
status
“a
an
provided
basis for
inference
undue pres-
sure”
juvenile
testify
on the
to
avoid revocation and
possible
part
juvenile
concern
that he might be
suspect
318,
in the investigation.
[W]hile [the biased, er he was counsel was unable to make a record to argue might which been why have biased or [he] lacked that degree impartiality expected otherwise of a trial. witness at On the of the limited basis cross-exami- permitted, might nation that was the jury well have thought that defense counsel was in a engaged specula- tive and line of attack on baseless of an credibility or, prosecutor’s blameless witness as the apparently ob- it, jection prior a “rehash” of put cross-examination. On it these facts seems clear to us make any that to such effective, inquiry defense counsel per- should been expose mitted to to the the facts jury from which jurors, as the triers of sole fact and could credibility, appropriate- ly relating draw inferences reliability the wit- ness.
Davis,
94
at
U.S.
S.Ct.
The issue in
involved
Smallwood
the extent to which an
important State’s witness could be cross-examined regard-
ing the outcome of
charges
previously
witness had
lodged against
witness,
defendant. The
the defendant’s
girlfriend,
charged
former
the defendant with assault
and,
occasion, the defendant
on each
prior occasions
on two
her
was that was
theory
The defendant’s
acquitted.
testify against
caused the witness to
vindictiveness
question
him
permitted
judge
While the trial
him.
question
*19
charges,
the
he was not allowed
witness about
The defen-
prior charges.
the
the
disposition
her about
him from
prevented
judge’s ruling
the
claimed that
dant
the
Ms.
to
prejudice
full measure of
Lomax’s
revealing the
accurately weigh the wit-
could
jurors
“so that
jury
304,
at
We
Petitioner bias to the Petitioner expose jury. to the witness’s order on two that Ms. Lomax had failed attempted to illustrate convicted, and she have Petitioner that occasions to other him what punish for using opportunity finally this was against her wrongs committed unpunished she felt were light, Petitioner Viewed this we believe past. in the ques- further given opportunity should have been tion the witness. 309, at We concluded
Smallwood,
III. seen, the defense was self-de- petitioner’s As we have for upon precipitating That cause premised fense. was drug-related. petitioner maintains shootings being pulled gun when he Marshall reasonably acted he drugs fired. He had earlier given to him and delivered “bad,” Fultz claimed were met with which Fultz turf, aware morning, in the on Fultz’s early associates dealers and their associates are notorious drug that only for his weapons, safety and became concerned carrying converge and Fultz started to the Brown brothers when him and Marshall.
Although suggested might be the case with respect to Ronald Brown’s testimony, petitioner’s major premise was not that the State coerced the victims to testify it, but that it their connection criminal i.e., justice system, the pending charges probation status, and the risks of revocation or treatment, unfavorable for their lack of accounted candor regarding the cause of shootings. Accordingly, the focus of his inquiry, petitioner asserts, was for the purpose putting before the jury information on the basis of which the jury could infer that the victims’ testimony lacked credibility or should be discounted.
I believe the trial court should permitted the peti- tioner to cross-examine Ronald Brown about his pending charge and Melvin and Kelvin Brown about their probation status. That cross-examination would have placed before jury information on the basis of which it could have *20 accurately and, assessed those witnesses’ testimony there- fore, determined whether it was worthy of belief. Because in neither case petitioner was the permitted to make any into the inquiry pending charge nor the probation status, his constitutional threshold was never Therefore, reached. I believe the court erred.
Concerning
Brown,
Ronald
cross-examination pertaining
pending
charge
theft
and
received,
whether he
or
receive,
to
expected
any consideration from the State with
respect to that
for his
charge
cooperation
prosecu-
with its
believe,
tion of the
petitioner,
were certainly relevant to
the credibility
witness;
it had a tendency
prove
to
that the witness
in
was biased
favor of the State because he
hoped to receive favorable consideration as a result of his
Thus,
cooperation.
proper
it was a
subject of cross-exami-
nation. By permitting the
the
inquiry,
possible motivation
for
testimony
the
presented.
is,
would have been
It
after
all, the witness’ state of mind which is the crux of the
Smallwood,
relevant inquiry.
309,
See
Similarly, i.e., in credibility, to their bias relevant their Brown was to tendency lies in its Its relevance favor of the State. assess, in the light opportunity jury afford be interposed, proper weight given defense of their Had the been aware testimony. jury witnesses’ status, able to petitioner would have been probationary lied at the time of and Kelvin Brown both argue that Melvin in protect probation- at trial order to their shooting told jury why This could have witnesses ary status. of the State. than not biased favor likely were more accepted counsel says that defense majority had not made a “deal” that the prosecutor’s statement State ruling. acquiesced the court’s with Ronald Brown State, petitioner’s response That the agree. do not concerning pend- Brown effort to cross-examine Ronald the court that would informed ing charge, advised no provides there a “deal” petitioner been basis right to cross-examine for bias. foreclosing petitioner’s *21 case, fact, is trier of in the place, jury, In the first it the this must judge, not or the trial that determine prosecutor is or attempt an to show bias either sufficient whether Second, more perhaps significantly, that insufficient. offer the witness to is testify, made an to induce State prove a witness is biased. See only not the to way 360; A.2d at Smallwood, Md. at 577 v. Jorgensen 320 595, 604, (1989). State, A.2d 375 It 565 Md.App. here, that, attempted may by showing as was proven, be given theory, the defense the witnesses suffer may some they to be completely Moreover, detriment were candid. is the of mind of the state witness —what the witness hopes gain or to result of expects cooperation as a his with the State —not whether there was an deal explicit on the dispositive. table that is acquiescence
Nor does the record reflect the ruling. ruled, nothing Once the court had there was more for accept counsel to do but it. not Maryland require law does counsel to more preserve do than to an object objection. Thus, See Rule 4-323. is Maryland where there an objec- interposed evidence, tion timely does party not ac- quiesce ruling to a unless the record clearly indicates that he has. of an explicit effect, Short statement to that it is imagine difficult to a scenario that reflect would such acquiescence. The statement made here is certainly not sufficient. argument State’s this Court was that: “Watkins solely shooting accused offenses was not
charged Thus, any drug offenses. any cross-examina- tion of the regarding witnesses of drugs existence or drug-related activities would relate directly issues at hand in the case.” State, Aside the fact like the reads too majority, Davis narrowly pertaining —as only regarding concerns identification participation witness in on trial —it activity misapprehends the thrust of petitioner’s point. The petitioner does not complain that cross-examination of the witnesses about drugs or drug-related offenses was curtailed. He acknowl- edges permitted Rather, that he was to do that. the peti- complaint tioner’s is that his attempts question pending charges witnesses about or probation status in light of petitioner’s contention that the shootings were drug-related thwarted; offshoot of activity were it is effect, words, in other pending charges or proba- tionary status the witnesses’ tell willingness to the truth about their illegal involvement an activity that critical.
121 therefore, indistinguishable is sense, the issue In that favor in in the defendant’s Davis. resolved charge the that the answers State’s foregoing also cross-examination was proposed subject petitioner’s tried, thus, requiring the court being issue to the ancillary matters which to avoid collateral its discretion to exercise issues, fact finder’s perhaps the trial would obscure event, the Moreover, in balanc- any performing confusion. Smallwood, of cross-exami- by limitation ing prescribed test constitutionally appropriately occur until nation cannot 320 been reached. required inquiry threshold level has case, A.2d 359. In this the court refused Md. at permit concerning pending cross-examination any or status of the Brown brothers. Conse- charges level of never reached the threshold quently, petitioner however, never point, inquiry More to inquiry. confusing, point being harassing, prejudicial, reached relevant. repetitive, only marginally
IV. made, must be but analysis that a harmless error agree Not not one made even the State majority. sufficiently gen- issue was not argues that the self-defense question. argu- Its first jury erated to have constituted a and, in the drug really ment issue was not case was that hence, to was harmless. restricting cross-examination as argued It also responded argument. I have already that he committed the shoot- petitioner’s that the admission re- to constitute cross-examination ings enough regard, in that harmless error. That will address striction considering majority’s position. after
A. appellate It of an court to find facts. province is That, however, in this precisely majority what the does gun, had when he fired the petitioner, case. Whether danger an honest belief that he was imminent of serious harm, bodily reasonable, whether that belief was or wheth excessive, er the force he used was are issues the jury. *23 State, 206, 224, Md. 1251, v. 319 Dykes 571 A.2d 1260-61 (1990); State, 203, 214, v. 309 522 1338, 1341 Gore Md. A.2d (1987); State, 551, 566, v. 261 Md. 214, Wilson 276 A.2d 221 (1971); State, 650, 648, Jacobs v. 238 Md. 722, 210 A.2d 723- (1965); State, 540, 24 542, v. 225 Md. 245, Ouzts 171 A.2d (1961). makes, 247 The determination majority i.e. what evidence to believe and what to weight given it, be are which, precisely those on proper instructions, the trier of facts, case, in this jury, expected to make. That the of may trier facts reach ultimately the same conclusion that does majority point. is beside the It must to be allowed make the determination in the first instance. I cannot agree with treatment majority’s of issues fact if as law, they are issues of usurping once again the jury’s State, function. 552, v. Md. 596-97, See Rubin 325 602 677, (1992) (Bell, J., A.2d 698-99 dissenting).
B.
A
to
decision
limit
cross-examination
an
wit-
adverse
ness, or to
deny
altogether, “does not fit within the
limited category of constitutional errors that are deemed
prejudicial in every
Arsdall,
682,
case.” Van
The State asserts testified, he shootings committing er when admitted that the evidence possibility there was no reasonable allowed, if erroneously even cross-examination would excluded, finding of guilty. may have contributed not shootings committed the does end that he The admission defense was that he acted inquiry. petitioner’s his self-defense, depended upon the establishment drug-related. The court showing shootings lied or ability to show that the victim witnesses limited fact; permit- that critical shaded truth about concerning the attention evidence bring jury’s ted to precipitating cause that the denying witnesses’ reasons fact, which, drug-related. It was shootings given the petitioner's defense, was most and, relevant deed, pivotal, not the shootings themselves.
ELDRIDGE, J., joins in the views expressed herein.