Biggs v. State

⁶⁴² BLOOM, Judge. On November 24, 1981, at approximately 8:30 p.m., Richard Burlingame was shot and seriously injured. He identified appellant, Richard James Biggs, as his assailant. The shooting took place outside the Psyche Delly Restaurant in Bethesda.

Burlingame arrived at the restaurant at approximately 7:00 p.m. Shortly thereafter, his friend Warren Jenkins arrived. The two of them sat together, drank some beer, and discussed their respective jobs. Burlingame and Jenkins both testified that between forty-five minutes and an hour later, at approximately 8:00 p.m., appellant came into the restaurant and joined them.

Eventually the conversation turned to an incident that had occurred a few years earlier when Burlingame, during the course of general horseplay, pushed appellant through a greenhouse window, causing substantial injury to appellant. During the course of their conversation, both Burlingame and appellant raised their voices and appeared to become angry with each other, but after a short period of time the dispute cooled down. Appellant then asked Burlingame to step outside so that they could talk, and Burlingame complied with that request. Burlingame testified that when they stepped outside, appellant began shouting and calling Burlingame a liar.

As Burlingame turned to go back inside, he heard gunshots and felt a sharp pain in his lower back. He turned around and saw appellant standing close by with a .32 caliber pistol in his hand. Appellant ran toward a parking lot and Burlingame re-entered the bar. The police and rescue squad were called, and Burlingame was taken to Suburban Hospital.

Appellant contended that he was not present at the Psyche Delly on the night of the shooting. Instead, he alleges, he was attending an adult education class in electrical wiring at Montgomery Blair High School. The course instructor testified that the class met from 6:00 p.m. until 9:00 p.m. on that evening and that appellant’s name appeared on the attendance sheet for that class. Furthermore, ⁶⁴³ the instructor testified that he called the roll before the class break at 7:30 p.m. and that his records reveal that a response was given to appellant’s name.

The instructor, however, had no independent recollection of appellant being present in class. A co-worker of appellant who was also a student in that class testified that he remembered seeing appellant at the beginning of the class period that evening but could not remember seeing appellant after the 7:30 break. Appellant was charged with the shooting and was tried by a jury in the Circuit Court for Montgomery County. He was acquitted of assault with intent to murder but convicted of assault with intent to maim and use of a handgun in the commission of a crime of violence.

Appellant’s first argument is that the trial court erred in excluding evidence pertaining to the victim’s bias against him. When cross-examined on the subject, Burlingame denied making accusations against appellant in the past. Specifically, Burlingame denied that he had ever accused appellant of sleeping with Burlingame’s wife. He also denied that he had ever accused appellant of telling the police that Burlingame was a drug dealer.

During his case in chief, appellant was questioned by his counsel concerning the alleged accusations. Q. Mr. Biggs, you were here yesterday when Mr. Burlingame testified that you shot him. A. Yes, I was. Q. Has he accused you of things in the past?

MR. WRIGHT [Assistant State’s Attorney]: Objection. THE COURT: Objection sustained. BY MR.

GILL [Appellant’s trial counsel]: Q. Mr. Burlingame testified you and he were friends. Were you friends at one time? A. At one time we were. Q. Did certain events happen that changed that situation?

A. Yes, quite a few. ⁶⁴⁴ Q. Can you explain to the jury over the years what’s happened exactly what he has said and what happened? A. Well, yes, I can. I remember he got out of the military in ’71, ’72. And he was different.

You know, he was into a lot of drugs. MR. WRIGHT: Now, Your Honor, I do object. The question was, what has Mr. Burlingame said or done to cause the rupture of their friendship.

I don’t understand how that answer has anything to do with the question. I move to strike the answer. THE COURT: Well, we can go ahead with it, Mr. Gill, but just answer the question, Mr. Biggs. BY MR.

GILL: Q. Was there a time that Mr. Burlingame complained to you about his wife? A. He accused me of being involved with her. Q. When was that? A. ’72 when they were separated.

Q. Were you involved with her? A. No, I wasn’t. Q. How many times did he accuse you of being involved with her? MR.

WRIGHT: Your Honor, I do object on grounds of relevance. THE COURT: I don’t think this has any relevancy with this matter. As far as criminal charges against him or things of that nature, you can certainly bring that out. BY MR.

GILL: Q. All right. Mr. Biggs, did there come a time you lived with Mr. Burlingame? A. We had a house over on Northbrook Lane in ’75. Q. How long did you live together at that Northbrook Lane address?

A. Just a few months. Q. Was there a particular reason you left? A. Yes. Q. Why? ⁶⁴⁵ A. He was heavily involved in dealing with drugs.

MR. WRIGHT: Your Honor, I object. It’s irrelevant. THE COURT: That has nothing to do with this case, Mr. Gill.

MR. GILL: I think it’s going to, Your Honor. THE COURT: Well it’s not at this point ’cause I’m not going to let him tell us about it. BY MR.

GILL: Q. Okay. After you left, did you have conversations with Mr. Burlingame? A. Yes, I did. Q. Did he accuse you of something?

A. Yes, he did. MR. WRIGHT: I object. I don’t mind the answer “Yes” or “No,” but I do object.

THE COURT: Okay. I’m not going to get into that. If he filed all those criminal charges against him, things of that nature, certainly bring that out. MR.

GILL: This is very much akin to that, Your Honor. THE COURT: Well, if it’s a criminal charge, fine. If it’s not, then forget it. MR.

GILL: Could I make a proffer at the bench? THE COURT: I don’t need a proffer about it, Mr. Gill. I told you what I think you can do with it. While a witness generally may be cross-examined on any matter concerning his or her credibility, 1 the use of extrinsic evidence to impeach a witness is subject to greater restriction.

Extrinsic evidence may not be used to impeach a witness on a solely collateral or irrelevant matter. Smith v. State, 273 Md. 152, 157 , 328 A.2d 274 (1974). Matters which affect the interest, bias, hostility, or motives of a ⁶⁴⁶ witness, however, are always relevant; and, therefore, extrinsic evidence is admissible in order to impeach a witness on these grounds. See Robinson v. State, 47 Md.App. 558, 572 , 425 A.2d 211 (1981); United States v. Frankenthal, 582 F.2d 1102, 1106 (7th Cir.1978); McCormick, The Law of Evidence, § 40 (2d ed. 1972).

While evidence of a witness’ bias is perfectly competent to indicate that the witness has a strong motivation to lie, “it must be rigorously guarded against that a witness be diminished in the eyes of a jury simply by a showing that he is ‘a bad man.’ ” Godwin v. State, 38 Md.App. 716, 728 , 382 A.2d 596 (1978). 2 It is important for the trial judge to distinguish an attack upon a witness’ general credit (evidence of specific bad acts, inadmissible) from an attack upon a witness’ credit in the particular case (evidence of an interest in the litigation or bias against a party, admissible). 3A Wigmore, Evidence § 943 (Chadbourn rev. 1970) quoting McHugh v. State, 31 Ala. 317, 320 (1858). Here, it appears that appellant was trying to bring out specific bad acts of Burlingame under the guise of showing bias on his part. In answering a question dealing with what had happened to his relationship with Burlingame, appellant said, “He was into a lot of drugs.” Later, in answering why he had stopped living with Burlingame, appellant stated, “He was heavily involved in dealing with drugs.” In determining the extent to which independent evidence will be allowed to establish a witness’ hostility, the trial judge is obligated to exercise his sound discretion. United States v. Harvey, 547 F.2d 720, 723 (2d Cir.1976). “In any case, however, no more of the facts and circumstances should be admitted than are necessary to give a fairly intelligent understanding of the cause, nature, and extent of the ill feeling.” 81 Am.Jur.2d Witnesses § 549 ⁶⁴⁷ (1976) (footnote omitted).

Here, by virtue of the pattern of questioning by appellant’s counsel and the nature of the answers of appellant, the trial judge apparently perceived that appellant was attempting to discredit Burlingame by revealing to the jury specific bad acts of Burlingame. This concern of the trial judge is further supported by the staleness of the circumstances which give rise to the purported hostility of Burlingame toward appellant. Although no proffer was allowed to be made at trial, appellant included a proffer in his motion for a new trial. From that proffer, along with appellant’s brief and the trial transcript, we have ascertained that the two accusations made by Burlingame, which supposedly show that Burlingame is currently biased against appellant, were made in 1972 and 1975 respectively.

The fact that the hostility arose a considerable period prior to the date of the trial would appear to be no reason for the exclusion of the evidence if the hostility and prejudice had continued. But it would seem to be necessary to make it appear either that the hostility exists at the time of trial, or that it arose so recently that it can be assumed to continue. 81 Am.Jur.2d, supra (footnote omitted); see also, 98 C.J.S., Witnesses § 557 (1957). Appellant’s proffer does not allege the existence of recent circumstances which would indicate that Burlingame is prejudiced against appellant. Nor does the proffer contain any showing that the incidents of eight and ten years ago continue to cause Burlingame to be hostile toward appellant. “The hostility with which the law is concerned is that as of the time the witness is testifying.” Eye v. Kafer, Inc., 202 Cal.App.2d 449, 457 , 20 Cal.Rptr. 841, 846 (1962).

Here, appellant only shows that, at most, Burlingame was biased against appellant eight years ago. Since there is no showing that such bias continued and existed at the time of Burlingame’s testimony, the trial judge did not err in excluding the evidence. ⁶⁴⁸ Appellant’s second argument is that the trial court erred in refusing to instruct the jury that voluntary intoxication can be a defense to the offense of use of a handgun in the commission of a crime of violence. When a defendant is charged with a crime which requires a specific intent, the defendant’s voluntary intoxication will serve as a defense if he was so drunk that he was unable to formulate the necessary mens rea. State v. Gover, 267 Md. 602, 606 , 298 A.2d 378 (1973).

Thus, if a defendant is charged with a specific intent crime and there is evidence that he was intoxicated at the time of its commission, he is entitled to a jury instruction that his intoxication may serve as a defense.