Brown v. State

FISCHER, Judge. After a jury trial in the Circuit Court for Baltimore City, Tonya Brown was convicted of assault with intent to murder, attempted first degree murder, use of a handgun in the commission of a felony or crime of violence, and conspiracy to commit first degree murder. On the attempted murder and conspiracy counts, the appellant was sentenced to concurrent life terms with all but five years suspended in favor of five years probation commencing upon release. For the handgun violation, appellant was committed to the Division of Correction for five years, concurrent to the life sentences.

With respect to the assault with intent to murder ¹⁹⁰ conviction, appellant received five years imprisonment, consecutive to the above-mentioned terms. The consecutive sentence was suspended, however, in favor of a five year probationary period commencing immediately. As a condition of probation, appellant was to give a full account of the events surrounding these crimes until she passed a polygraph test, at which time she must recount her story in court. This condition was required to be satisfied between eighteen and thirty months from the November 2, 1988 sentencing date.

Appellant poses five allegations of error for our review. First, she claims the court improperly called two individuals as its witnesses. Appellant next contends that the trial judge’s intervention during the questioning of the witnesses effected a denial of due process. Third, Brown challenges the admissibility of a police officer’s testimony regarding alleged threats received by a witness and the witness’ family.

Appellant’s fourth assignment of error concerns the court’s refusal to merge the convictions for attempted murder and assault with intent to murder. Last, Brown claims the polygraph requirement was an illegal condition of probation. This drama unfolded on the evening of October 21, 1987 as Charles Massey spoke with the appellant outside his girlfriend’s Dallas Street home. Massey inquired about the condition of appellant’s brother who was shot the previous day and attempted to dispel the rumors linking him to the shooting.

During this conversation, Massey was himself shot by an unidentified gunman. As a result, Massey is unable to walk. In statements to the police, Massey said that just before he was shot, appellant pointed to him, stepped aside, and said, “Bust him,” meaning “shoot him.” Massey also indicated that appellant and the gunman ran off together. At trial, however, Massey recanted this version, claiming that after more thought he realized appellant would not have “set [him] up” as retaliation for her brother’s injury. ¹⁹¹ I. COURT’S WITNESSES Appellant claims the judge improperly called Massey and his girlfriend, Tijuana Cook, as court witnesses.

Like Massey, Cook originally told police that appellant pointed to Massey just before he was shot and that, afterward, appellant and the gunman ran into an alley together. Cook subsequently testified that appellant was merely gesturing as she spoke with Massey and that appellant and the gunman ran in the same direction, but not together. When neither the prosecution nor the defense can vouch for the veracity of an individual who appears to possess material evidence, it is within the sound discretion of the trial judge to call that person as the court’s witness. Patterson v. State, 275 Md. 563 , 342 A.2d 660 (1975). 1 Before so doing, several factors are considered: (1) the prosecutor’s inability to vouch for the veracity or integrity of the witness, (2) the close relationship between the witness and the defendant; (3) the existence of contradictory or inconsistent statements by the witness; (4) the hostility of the witness; and (5) the necessity for the testimony; i.e., where the witness possesses material evidence.

Scarborough v. State, 50 Md.App. 276, 282 , 437 A.2d 672 (1981), cert. denied, 292 Md. 639 (1982). Appellant contends that the court inadequately considered these factors. We disagree. The State requested the judge to call three persons as court’s witnesses: Massey, Cook, and Toni Kavanaugh, a friend of Cook’s.

These individuals, the State argued, possessed relevant and material information but made inconsistent statements. The judge agreed to call Massey, the victim, and Cook, an ¹⁹² eyewitness, as court’s witnesses because both could provide material testimony. He declined, however, to call Kavanaugh. As Kavanaugh did not observe the shooting, her testimony was not necessary to avoid a miscarriage of justice.

We perceive no abuse of discretion. The court was satisfied that Massey and Cook were hostile witnesses with essential information. Despite appellant’s contention, the fact that these witnesses were not closely related to the appellant is of no consequence. The relationship between the witnesses and the appellant is only one factor to be considered and is not necessarily dispositive of this issue.

We therefore decline to disturb the trial judge’s ruling.

II

JUDICIAL CONDUCT Appellant’s second assignment of error concerns the judge’s conduct. Appellant argues that the judge’s questioning of certain witnesses was improper and that there were “a number of occasions where the trial judge’s inquiry went beyond impartiality, assisted the prosecution directly and demonstrated prejudicial unfairness to appellant.” In Madison v. State, 200 Md. 1 , 87 A.2d 593 (1952), the Court of Appeals affirmed the right of the trial judge to intervene in the questioning of witnesses. This is to ensure that the facts necessary for a just decision are fully developed. King v. State, 14 Md.App. 385, 393 , 287 A.2d 52 (1972); Jefferies v. State, 5 Md.App. 630, 632 , 248 A.2d 807 (1969).

After reviewing the record, we are convinced that Judge Moylan’s statements in Pearlstein v. State, 76 Md.App. 507, 515 , 547 A.2d 645 (1988), apply equally in the case sub judice: [The court] did not, as in Vandegrift [v. State, 237 Md. 305 , 206 A.2d 250 (1965) ], warn the witness of the penalties of pejury or, as in Brown v. State, 220 Md. 29 [ 150 A.2d 895 ] (1959), phrase his questions in a sarcastic fashion. The questioning rather strikes us as a legit ¹⁹³ imate effort to sharpen the issues and clarify difficult points for the jury. Here, the court sought to elicit essential information. Certainly, the most probing questions are always the most difficult.

No doubt, appellant would prefer that some go unasked. Appellant’s objection focuses on the testimony of Toni Kavanaugh. Kavanaugh, as the court observed, appeared hostile to the prosecutor, and, in such cases, it is more likely that the witness will respond to the questions of a neutral party, i.e., the judge. In this regard, the court succeeded by eliciting some important information from Kavanaugh.

Appellant also claims the court improperly admonished defense counsel. After reviewing the record, we conclude that the judge’s comments were intended to maintain control of the proceedings. In highly emotional settings, this is often difficult. While the judge may have employed another approach, we do not believe his few comments to counsel were wrought with prejudicial unfairness.

III

EVIDENCE OF THREATS Appellant next contends that the court erroneously admitted evidence of threats received by Tijuana Cook. Officer Susan Young described a change in Cook’s attitude and statements. She noted that Cook initially gave clear, definitive statements, but, as the trial approached, Cook became hostile, uncooperative and unsure. This was especially evident in their conversation prior to Cook’s testimony.

Regarding this conversation, the State inquired: Q. What if anything did [Cook] indicate to you was her reason for being unsure? A. She was afraid of possible reprisal. She — her son had been blocked— [Defense Counsel]: Objection. The Court: Overruled. ¹⁹⁴ [Officer Young]: Her son had been stopped from walking up the street by the defendant’s brother after this incident. [Defense Counsel]: Objection, move to strike.

The Court: Overruled. [Officer Young]: Her windows in the back of her house had been broken out. Something had been thrown through the windows. [Defense Counsel]: Objection. The Court: Overruled. As the Court of Appeals noted in Washington v. State, 293 Md. 465 , 468 n. 1, 445 A.2d 684 (1982): Evidence of threats to a witness, or attempts to induce a witness not to testify or to testify falsely, is generally admissible as substantive evidence of guilt when the threats or attempts can be linked to the defendant and not admissible as substantive evidence absent such linkage. [Citations omitted.] That issue is distinct from the one currently before us.

We are asked to determine the admissibility of evidence of threats as it relates to a witness’ credibility. To answer this question, we again turn to Washington, 293 Md. at 470 , 445 A.2d 684 , which states: Pursuant to the rule permitting explanations of prior inconsistent statements, it is generally held that evidence of threats to a witness or fear on the part of a witness, in order to explain an inconsistency, is admissible in criminal cases for credibility rehabilitation purposes even if the threats or fear have not been linked to the defendant. [Citations omitted.] We conclude, therefore, that the trial judge properly admitted evidence regarding the threats received by Cook. This information was admitted not to show appellant’s guilt, but for its effect on Cook’s state of mind. The court correctly ruled that this evidence was not hearsay, as it was not offered for the truth of the matter asserted therein.

For these reasons, the testimony regarding threats against ¹⁹⁵ Cook and her family was admissible for the limited purpose of explaining Cook’s prior inconsistent statements in an effort to rehabilitate her credibility.

IV

MERGER Despite the holding in State v. Holmes, 310 Md. 260 , 528 A.2d 1279 (1987), appellant claims her convictions for attempted murder in the first degree and assault with intent to murder merge under the required evidence test. This is true, appellant argues, because her role in these offenses was that of a