Carrero-Vasquez v. State

KRAUSER, C.J. Convicted, after a jury trial in the Circuit Court for Montgomery County, of possession of cocaine with intent to distribute, as well as related weapons and traffic offenses, Juan Carlos Carrero-Vasquez, appellant, presents three issues for review. Reworded, reordered, and redacted of argument, they are: I. Whether the trial court erred in overruling the defense’s objection to the prosecutor’s statement, during closing argument, that jurors should convict if their “gut says I think he’s guilty”; II. Whether the trial court’s order instructing the defense not to cross-examine the State’s key witness, about a potential motive she had to testify falsely, violated appellant’s Confrontation Clause rights under the Sixth Amendment; and III. Whether the trial court erred in overruling the defense’s objection to the jury instruction regarding the “anti-CSI effect.” Because we conclude that the trial court erred in overruling the defense’s objection to the prosecutor’s statement during closing argument, in prohibiting the defense from cross-examining the State’s principal witness about the effect a criminal conviction might have on her immigration status, and in overruling the defense’s objection to the “anti-CSI effect” jury instruction, we reverse and remand for a new trial.

Background Early in the morning of October 17, 2008, appellant, after a late night out with some friends, borrowed a car from one of them, a “Veronica de Luna,” and drove to his mother’s apartment, where he was then living. Later that evening, after leaving that apartment, appellant was pulled over, while driving Ms. Luna’s car, by an Officer Michael Power of the Montgomery County Police Department, for speeding and ⁵⁰⁹ intentionally skidding. Unable to produce a valid driver’s license, appellant handed the officer instead “an I.D. card from Mexico” in the name of “Juan Carlos Artiga-Leiva.” Upon running a license check, the officer found that appellant had never been issued a valid operator’s license. After another police officer arrived as “backup,” appellant was asked by the two officers to step out of the vehicle, whereupon they arrested him for driving without a license.

After placing appellant in handcuffs, the officers searched him. In his right rear pocket, they found a wallet containing an I.D. card, issued by the government of El Salvador, in the name of “Juan Carlos Carrero-Vasquez,” a Social Security card in the name of “Juan Carlos Artiga-Leiva,” and $2,474 in cash. In his left pants pocket, they recovered “a small black grocery bag” containing “approximately 100 small plastic baggies,” nine of which were filled with either cocaine or inositol, a cutting agent. Then, when police searched the vehicle appellant was driving, they found, in the center console, a loaded revolver, which was later determined to have been stolen.

Appellant was thereafter indicted for possession of cocaine with intent to distribute; possession of a regulated firearm after having previously been convicted of a disqualifying crime; sale, transfer, or disposal of a stolen, regulated firearm; wearing, carrying, or transporting a handgun in a vehicle; driving without a license; speeding; and intentionally skidding. Tried by a jury in March 2009, he was convicted of all charges. But those convictions were subsequently vacated by this Court for reasons that are unrelated to this appeal. 1 Carrero-Vasquez v. State, Sept. Term, 2009, No. 907 (Md.Ct. Spec.App. Oct. 6, 2009). On remand, appellant was tried again and convicted of all charges except sale, transfer, or disposal of a stolen, regulated ⁵¹⁰ firearm 2 and was sentenced to a total of fifteen years’ imprisonment. 3 This appeal followed.

Discussion I. We begin with appellant’s claim that the trial court erred in overruling the defense’s objection to the prosecutor’s statement, during rebuttal, that jurors should convict if their “gut says I think he’s guilty.” The State concluded its rebuttal by stating to the jury: The State does have a very high burden and my burden is to convince each and every one of you beyond a reasonable doubt. I am not required to prove guilty beyond all possible doubt or to a mathematical certainty. I am not required to negate every conceivable circumstance of innocence. My burden is high.

I understand that. Reasonable doubt. Trust your gut. If your gut says I think he’s guilty, that’s reasonable.

(Emphasis added.) 4 “The first step in our analysis is to determine whether the prosecutor’s statements, standing alone, were improper.” ⁵¹¹ Si vells v. State, 196 Md.App. 254, 277 , 9 A.3d 123 (2010), cert. dismissed, 421 Md. 659 , 28 A.3d 704 (2011). Contrary to the State’s contention that the prosecutor was only explaining to the jury how it should “assess[] the credibility of the witnesses,” she was clearly urging the jurors to find appellant guilty beyond a reasonable doubt if their “gut” told them that he was. Not only was there utterly nothing in this comment that related this “gut” check to the jurors’ assessment of witness credibility, but the comment plainly reduces proof “beyond a reasonable doubt” to a “gut” feeling. The prosecutor’s remark was clearly improper for the simple reason that it misstates the law as to reasonable doubt, an evidentiary standard that is the cornerstone of a fair criminal trial.

Ruffin v. State, 394 Md. 355, 363 , 906 A.2d 360 (2006) (observing that the “reasonable doubt standard of proof is an essential component in every criminal proceeding”). We turn next to the question whether the comment was harmless error, that is to say, whether we can say that the error “did not contribute to the verdict,” beyond a reasonable doubt. Lee v. State, 405 Md. 148, 174 , 950 A.2d 125 (2008). The Court of Appeals has prescribed three factors to be considered in performing a harmless error evaluation: first, the “severity of the remarks”; second, the measures taken by the trial court to cure any potential prejudice; and ⁵¹² third, the weight of the evidence against the accused.

Id. at 165 , 950 A.2d 125 . As to the first factor — “the severity of the remark”— although the prosecutor made the improper comment only once, the timing of the comment magnified its impact on the jury, as it was made at the conclusion of the State’s rebuttal and was, quite literally, the last explanation the jury heard as to the weight and nature of the State’s evidentiary burden. As to the second factor — the measures taken by the trial court to cure any potential prejudice — the trial court, despite an objection to that comment by the defense, not only took no corrective measures to cure this gravely misleading remark by the State in describing its burden of proof, but overruled that objection, stating, “Closing argument is not evidence.” The prosecutor then exhorted the jury, “Ladies and gentlemen, [appellant] is guilty as charged. Verdict sheet, not guilty/ guilty.

Check the guilty boxes.” And with that, the trial court spoke briefly to the jury as to logistical matters, and then it sent the jury out of the courtroom to deliberate. We disagree with the State’s characterization of the trial court’s response to appellant’s objection as “caution[ary].” Nor are we swayed by the State’s invocation of two instances during the trial when, in its words, “the court instructed the jury that attorneys’ arguments were not evidence and that the jury’s verdict must be based upon the evidence,” as those remarks had nothing to do with the State’s burden of proof and, in any event, were given two days before the error at issue occurred. As the Court of Appeals observed in Lee , for an instruction “to be sufficiently curative, the judge must instruct contemporaneously and specifically to address the issue such that the jury understands that the remarks are improper and are not evidence to be considered in reaching a verdict.” 405 Md. at 177-78 , 950 A.2d 125 . In sum, the unmistakable effect of the trial court’s actions (and inaction) was to suggest to the jury that nothing improper had occurred.

See Wilhelm, v. State, 272 Md. 404, 424 , 326 A.2d 707 (1974) (observing that, “where no such [curative] action was ⁵¹³ taken by the trial court the prejudice found to have existed were grounds for reversal”). As to the third and final factor to be considered in our determination of harmless error — the weight of the evidence against the accused — the State’s case rested largely on the credibility of its witnesses, in particular, Veronica de Luna, the only witness the State had to rebut appellant’s defense that the gun found in the console of the car he was driving belonged to the owner of that vehicle. And as there was no forensic evidence linking appellant to the handgun, we cannot say that the error had no influence on the jury’s verdict. See Lawson v. State, 389 Md. 570, 600-01 , 886 A.2d 876 (2005) (observing that, in a case “based primarily” on witness testimony, “there is a higher probability ... that the prosecutor’s statements had an improper impact” than in a case where “there was physical evidence of the crime along with the testimony of the police officer who witnessed the event”).

Furthermore, the State’s contention that there was nothing improper about the prosecutor’s comments, because a juror’s intuition or “gut” may reasonably be relied upon in assessing the credibility of witnesses and in resolving conflicting testimony, while perhaps true as to witness credibility, has nothing to do with the case before us, where the prosecutor suggested to the jury that it could rely on its “gut” feeling, not to resolve issues of credibility, but to decide whether there was proof beyond a reasonable doubt that appellant was guilty of the crimes charged. And, finally, the State’s reliance on People v. Barnett, 17 Cal.4th 1044 , 74 Cal.Rptr.2d 121 , 954 P.2d 384 (1998), is misplaced. Barnett was charged with murder, robbery, assault with a firearm, and kidnapping. During the guilt phase of his capital trial on those charges, the jury was given a pattern reasonable doubt instruction “which contained references to the terms ‘moral evidence’ and ‘moral certainty.’ ” Barnett, 74 Cal.Rptr.2d 121 , 954 P.2d at 456.

During closing argument, the prosecutor told the jury: ⁵¹⁴ “If you have that feeling, that conviction, that gut feeling that says yes, this man is guilty, he’s guilty of these crimes and guilty of the robbery and guilty of the special circumstances, that’s beyond a reasonable doubt.” Id. at 457. After Barnett was convicted of those charges and sentenced to death, he appealed, contending, among other things, that the “moral certainty” language in the pattern jury instruction, when considered in combination with the prosecutor’s argument that guilt could be based on a “gut feeling,” made it “reasonably likely that the jury would have misunderstood the instruction as allowing for a finding of guilt on a standard lower than proof beyond a reasonable doubt.” Id. The Supreme Court of California acknowledged that both it and the United States Supreme Court have expressed “reservations” about the “moral certainty” instruction but that instruction had nonetheless been upheld by both courts. Id. at 457. 5 It then noted that Barnett had not preserved the issue for appellate review, as he had neither raised a contemporaneous objection nor requested that the trial court give the jury “an admonition on the point.” Id.

Yet, it briefly addressed the merits of Barnett’s claim, stating: When considered as a whole, the prosecutor’s argument could not have misled the jury regarding the appropriate standard of proof. The prosecutor was not purporting to define “moral certainty” as having a “gut feeling”; rather, he was directing the jurors to trust their gut feelings in assessing the credibility of witnesses and resolving the conflicts in the testimony. Shortly after making the “gut feeling” reference, the prosecutor clarified that jurors should “look beyond the mere words that have been testified to,” “examine closely the various witnesses, their demeanor, their attitude,” and “apply sometimes a certain intuitive ⁵¹⁵ reasoning to who has reasons to lie, who has not. And who to believe.” Id.

The California Supreme Court was further convinced that the jury had not been misled as to the prosecution’s burden of proof “by the fact that the trial court had repeatedly admonished the jurors, both at the outset of trial and after closing arguments, that they were required to follow the law and base their decision solely on the law and instructions as given to them by the court.” Id. The court concluded that Barnett had presented “no basis for reversal” and affirmed his convictions and death sentence. Id. at 457, 475. Barnett is distinguishable from the instant case in three significant ways, rendering it of little value as analogy.

First, unlike in Barnett, the defense, in the instant case, made a contemporaneous objection and thus there is no preservation issue. Second, unlike in Barnett, the State, in the instant case, made no clarifying remarks after it conflated the burden of proof with the jurors’ “gut” feelings; indeed, as previously noted, the prosecutor concluded her argument after making the improper comments and the jury was sent out to deliberate. And third, unlike in Barnett, the trial court, in the instant case, did not instruct the jurors, after closing argument, 6 that they were required to follow the law, as instructed by the court, and that they were further required to base their verdict solely upon the law and the evidence. The circumstances of the instant case thus required the trial court to sustain appellant’s objection to the prosecutor’s improper remarks, to instruct the jury to disregard those remarks, and to re-instruct it as to the State’s burden of proof.

Its failure to take these steps constituted reversible error. ⁵¹⁶ II. Appellant contends that the trial court’s order, preventing the defense from cross-examining a State’s witness about her immigration status and the effect that a gun conviction would have on that status, violated his right under the Sixth Amendment and Article 21 of the Maryland Declaration of Rights to confront the witnesses against him. At appellant’s first trial, Ms. Luna, the owner of the car appellant was driving when he was arrested, was called as a State’s witness. During cross-examination, she testified, over the State’s objection, that she was in the United States illegally and that, if she were convicted of possessing a stolen handgun, she would be eligible for deportation.

Before his second trial, appellant moved to prohibit the State from inquiring into his immigration status. The State responded by requesting that the defense, in turn, be prohibited from inquiring into Ms. Luna’s immigration status. Indicating that it was inclined to grant both requests, the court stated that “if the one isn’t going to mention it, neither is the other one,” but it deferred ruling on the matter after the parties agreed that neither would mention the “immigration issue” in opening statements. The following day, after two of the State’s witnesses had testified, the court recessed, and Ms. Luna, an immigrant from El Salvador, who was then illegally in this country, was brought before the court.

Out of the presence of the jury, she was informed by the trial court of her privilege against compelled self-incrimination and asked, through an interpreter, whether she would answer questions about her immigration status. She responded that she would not. The court granted the State’s motion to prohibit the defense from questioning her about her immigration status, stating: Okay. Well, I think the argument has been exhausted--And the facts in [Calloway v. State, 414 Md. 616 , 996 A.2d 869 (2010), and Martinez v. State, 416 Md. 418 , 7 A.3d 56 (2010),] are clearly different from the facts in this case. ⁵¹⁷ And I don’t think, I think it would be a stretch to try to apply the reasoning of Calloway and Martinez by analogy in this case, particularly, in light of, and the issue of Ms. Luna’s immigration status, I find to be a collateral issue that is irrelevant.

And there’s no factual basis in this case to suggest that that’s something that should be opened up. I think the problems created by doing that far exceed any probative evidence that, that causes her to be biased. On the other hand, the handgun issue in the car, counsel can do what he can do under the rules of that, but I’m not going to allow testimony about an individual’s immigration status in this case. And I want to be very clear about that, because these issues have a tendency to reemerge in other forums.

And so I’m just simply not going to allow that.” The trial court continued: And I think that, I think that this would be a dangerous road to go down, given the diversity of the population that we have in the county and in the state today. The idea that there will be events that occur, and that sometimes, perhaps even oftentimes, depending on the locale, witnesses who are called to court to testify may even have some immigration issues, personal immigration issues, the notion that a witness comes to court and without any other factual basis for getting into that, that a witness would get on the stand and his or her immigration status would become the subject of examination, I think, is inappropriate, and I think there are some serious constitutional matters associated with that. And I think that’s a bad road to start down. And this case is not going to be the first step down that road.

Thereafter, Ms. Luna testified and denied owning the handgun, which was found in her car, and further asserted that she had “[njever seen her children’s father,” who also had access to and drove the car, with the handgun. Although prohibited by the court from asking any questions about her immigration status, counsel was permitted to elicit Ms. Luna’s admission that she was aware that she might “face serious conse ⁵¹⁸ quences” if she were convicted of possessing a stolen firearm or of transporting a loaded firearm. Subsequently, during the hearing held to consider appellant’s motion for new trial, the circuit court once again defended its ruling disallowing any inquiry by the defense into Ms. Luna’s immigration status, stating to defense counsel: And you think it’s error if the Court stops one from impinging on someone’s constitutional right when clearly the issue being raised has absolutely nothing to do with the subject matter, whether— Defense counsel responded in part: It’s not an infringement on the Fifth Amendment rights to ask a question. It’s infringement to be forced to answer that question.

After argument as to the motion for new trial had concluded, the trial court stated what it regarded as an additional justification for its ruling: With respect to the issue with Ms. Luna, the Court ruled— the Court did not allow counsel to probe into her immigration status for a lot of reasons, only one of which was the one counsel focused on, and that is, if people, witnesses in this very diverse community that we have that have various, various types of visas, various ways that they can remain here in the United States, if we open up that can of worms and allow counsel to probe into those issues when they haven’t been properly generated, when it’s not, not relevant at all, certainly is not error, and I don’t think that any, any appellate court — if they open up that can of worms, particularly in a place like Montgomery County or Prince George’s County or Washington, the Washington, D.C. area, we’re going to have to open up another appellate court to deal ■with all of those issues that are going to come up. Characterizing Ms. Luna as merely “a witness who happens to be an immigrant,” the circuit court denied appellant’s new trial motion. ⁵¹⁹ The Sixth Amendment guarantees that, in “all criminal prosecutions,” the accused shall enjoy the right to be “confronted with the witnesses against him,” as does Article 21 of the Maryland Declaration of Rights. “ ‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination, ... which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.’ ” Davis v. Alaska, 415 U.S. 308, 315-16 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974) (quoting 5 J. Wigmore, Evidence § 1395, at 123 (3d ed. 1940) (emphasis in original)). “The constitutional right of confrontation includes the right to cross-examine a witness about matters which affect the witness’s bias, interest or motive to testify falsely.” Marshall v. State, 346 Md. 186, 192 , 695 A.2d 184 (1997). “The right to cross-examine is not without limits, however, and ‘trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’ ” Smallwood v. State, 320 Md. 300, 307 , 577 A.2d 356 (1990) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986)). But a trial court “must allow a defendant wide latitude to cross-examine a witness as to bias or prejudices.” Id. at 307-08, 577 A.2d 356 . In fact, the Supreme Court has instructed that the “partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ ” Davis, 415 U.S. at 316 , 94 S.Ct. 1105 (quoting 3A J. Wigmore, Evidence § 940, at 775 (Chadbourn rev. 1970)).

Appellant, relying upon Davis and Olden v. Kentucky, 488 U.S. 227 , 109 S.Ct. 480 , 102 L.Ed.2d 513 (1988) (per curiam), as well as two Maryland decisions, Calloway v. State, 414 Md. 616 , 996 A.2d 869 (2010), and Martinez v. State, 416 Md. 418 , 7 A.3d 56 (2010), contends that his right of confrontation was violated by the trial court’s ruling, which had the ⁵²⁰ effect of preventing him from cross-examining Ms. Luna as to a motive that she had to testify falsely. We agree. In Davis , the Polar Bar, an Anchorage drinking establishment, was burglarized, and a safe was taken from its premises. Less than a day later, Alaska State Troopers were notified that a safe had been found about twenty-six miles from the scene of the burglary, near a home where a juvenile, Richard Green, lived with his family.

Davis, 415 U.S. at 309 , 94 S.Ct. 1105 . Upon questioning by police, Green implicated Davis in the crimes. He told police that, on the day of the burglary, he had “seen and spoken with” two African-American men standing beside a car, parked along a road near his home, at the place where the safe was discovered; and that one of the men, later identified as “Davis,” was holding “something like a crowbar.” Id. at 309-10 , 94 S.Ct. 1105 . Green had previously been adjudicated delinquent for committing two unrelated burglaries and was, at the time Davis was charged, on probation.

Id. at 311 , 94 S.Ct. 1105 . At trial, the prosecution moved for a protective order, before Green testified, “to prevent any reference to Green’s juvenile record by the defense in the course of cross-examination.” Id. at 310 , 94 S.Ct. 1105 . Although Davis’s counsel “made it clear” that “Green’s record would be revealed only as necessary to probe Green for bias and prejudice and not generally to call Green’s good character into question,” the trial court granted the prosecution’s motion for a protective order, relying upon a court rule and a statute, both of which restricted the use of a delinquency adjudication in subsequent proceedings. Id. at 311 , 94 S.Ct. 1105 .

At trial, Davis’s counsel “did his best to expose Green’s state of mind at the time Green discovered that a stolen safe had been discovered near his home,” but, because of the court’s protective order, the defense was unable to challenge Green’s “protestations of unconcern over possible police suspicion that he might have had a part in the Polar Bar burglary and his categorical denial of ever having been the subject of ⁵²¹ any similar law-enforcement interrogation.” Id. at 313-14 , 94 S.Ct. 1105 . Davis was convicted, and that conviction was affirmed on appeal. The United States Supreme Court took a different view, however. After pointing out that it was “probable” that Green had undergone “some questioning” by police when he was arrested for the burglaries for which he had been adjudicated delinquent and that his denial, during cross-examination at Davis’s trial, of ever having been the subject of “any similar law-enforcement interrogation” was therefore “highly suspect at the very least,” the Court noted that Green “was in effect asserting, under protection of the trial court’s ruling, a right to give a questionably truthful answer to a cross-examiner pursuing a relevant line of inquiry.” Id. at 314 , 94 S.Ct. 1105 .

It “would be difficult,” opined the Court, “to conceive of a situation more clearly illustrating the need for cross-examination.” Id. at 314 , 94 S.Ct. 1105 . Then, rejecting the claim that the State’s interest in securing the confidentiality of juvenile records outweighed Davis’s constitutional right to confront his accuser, the Court avowed that: “Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record — if the prosecution insisted on using him to make its case — is outweighed by [Davis’s] right to probe into the influence of possible bias in the testimony of a crucial identification witness.” Id. at 319 , 94 S.Ct. 1105 . 7 In ⁵²² short, Davis’s right of confrontation under the Sixth Amendment had been unconstitutionally impaired by the lower court’s protective order. In the case before us, as in Davis , the defense was not permitted to explore an obvious reason that an important witness for the prosecution might have to testify falsely. Keeping in mind the Supreme Court’s admonition that the “partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony,” Davis, 415 U.S. at 316 , 94 S.Ct. 1105 (internal citation and quotation omitted), we reject the State’s contention that Ms. Luna’s immigration status was merely “a collateral issue, likely to confuse and mislead the jury.” Simply because appellant’s counsel was permitted to inquire into some reasons but not all material reasons why she may have been motivated to lie under oath left appellant with, at best, an unconstitutionally restricted right of confrontation.

A case lending even stronger support to appellant’s position is Olden v. Kentucky, 488 U.S. 227 , 109 S.Ct. 480 , 102 L.Ed.2d 513 , supra. There, the right of confrontation was compromised to avoid racial prejudice that might be elicited if the rape victim’s choice of boyfriend was disclosed. James Olden, an African-American, was charged with kidnapping, rape, and forcible sodomy of a white victim. Olden’s defense was that the victim had consented to having sex with him but that she was afraid that her relationship with her live-in boyfriend, who was also African-American, would be jeopardized if it were disclosed that she had consented to having sex with Olden, so she had lied about the circumstances of their sexual contact, suggesting it was part of an assault on her by Olden.

But the trial court granted the prosecution’s motion in limine to exclude any reference to the victim’s living arrangement, and it sustained the prosecution’s objection when defense counsel sought to cross-examine her on the matter after she had testified on direct that she had been living with her mother. Id. at 228-30, 109 S.Ct. 480 . Olden was thereafter ⁵²³ convicted of forcible sodomy, and the Kentucky Court of Appeals affirmed, holding that because there were “undisputed facts of race,” admitting evidence of the victim’s purported cohabitation with an African-American might “have created extreme prejudice against” her. Id. at 231 , 109 S.Ct. 480 .

In summarily reversing the Kentucky appellate court, the Supreme Court observed that “[sjpeculation as to the effect of jurors’ racial biases cannot justify exclusion of cross-examination with such strong potential to demonstrate the falsity of’ the victim’s testimony. Id. at 232 , 109 S.Ct. 480 . The Court found that the exclusion of relevant impeachment evidence, under the circumstances, went “beyond reason,” id.; that Olden’s Sixth Amendment right of confrontation had been violated; and that the error was not harmless. Id. at 233 , 109 S.Ct. 480 .

If speculation as to the effects of jurors’ racial and ethnic biases is a wholly inadequate grounds for precluding the defense from pursuing a legitimate line of inquiry on cross-examination of a State’s witness where there was a substantial motive for her to