Dickson v. State

DEBORAH S. EYLER, J. A jury in the Circuit Court for Baltimore City convicted Anthony Dickson, a/k/a Robert Louis Dixon, the appellant, of first-degree murder and carrying a weapon with intent to injure in the shooting death of 16-year-old Robert “Butch” Martin. The court imposed a life sentence for the murder conviction and a consecutive sentence of three years for the weapon conviction. The appellant raises two questions for review, which we quote: I. Was it error to deny the motion for mistrial, after witness Christina Thomas was improperly coerced by the court, in front of the jury, into testifying for the State, in violation of Appellant’s due process rights?

II

Did the trial court err in proceeding with a portion of the trial, during the illness of Appellant’s counsel? ⁴⁹⁴ For the following reasons, we shall answer Question I affirmatively, reverse the judgments of conviction, and remand for further proceedings. As Question II is unlikely to resurface on remand, we shall not address it. FACTS AND PROCEEDINGS On the evening of January 1, 2006, Butch Martin was killed by a shotgun blast to the head as he was sitting in the back seat of a white Dodge Intrepid owned by Christina Thomas, his girlfriend. The car was parked with the key in the ignition in front of 2600 Marbourne Avenue, in Baltimore City.

Martin was alone when he was shot. He was sitting in the back seat because the front seat doors to the car were broken. When he was shot, Martin was talking on a cell phone to his mother, Roberta Martin. According to Mrs. Martin, her son called her because he was upset that she had not let her friend lend him a gun.

He said on the phone that “Bobby” was coming up the street and that it looked like “Bobby” had a gun. Mrs. Martin “fussed,” telling her son to “just walk away,” and then she heard a loud sound, like a shot fired. Her son would not respond and he did not answer when she called back. She then got a call from Thomas, who was screaming and crying, and another woman got on the phone and told her that her son had been shot.

The day after the murder, on January 2, 2006, and again on January 25, 2006, Thomas gave audiotaped statements to the police. Two men were arrested and charged in Martin’s murder: Michael McFadden and the appellant, nicknamed “Bobby.” McFadden and the appellant were tried separately, with McFadden’s trial taking place in June 2007 and the appellant’s trial taking place about four months later, in late September/early October of the same year. McFadden was convicted by a jury of second-degree murder and carrying a concealed dangerous weapon. The court imposed a 30-year prison term for the murder and a consecutive three-year prison term for the weapon conviction.

On appeal, this Court reversed ⁴⁹⁵ McFadden’s weapon conviction. 1 McFadden v. State, 186 Md.App. 738 (2009). In the McFadden trial, Thomas testified for the State. 2 She said she and Martin had spent most of January 1, 2006, “riding around” in her car. She was driving. Sometime in the evening, she decided to visit her best friend Amber, 3 who was living at 2600 Marbourne Avenue.

After she parked her car in front of Amber’s house, she and Martin sat and talked for about four minutes. Then Thomas saw a man she identified as “Bobby” drive by in a red Cadillac. She did not see anyone else in the Cadillac at that time. She got out of her car and entered Amber’s house.

About two minutes later, Thomas heard a gunshot. She ran outside and saw a “big hole” in the rear driver’s side window of her car, and saw the same red Cadillac speeding down the street with “Bobby and Mike” inside. She did not see their faces, but claimed she could identify them from the backs of their heads. “Bobby” was the appellant and “Mike” was McFadden. Thomas tried to get inside the car to check on Martin but the doors would not open because they were locked and the key was in the ignition.

Several of her friends arrived and used a hammer to break the rear passenger side window and found Martin dead from a gunshot to the head. Also in her McFadden trial testimony, portions of the taped statements Thomas had given the police were read into evidence. In one part of her January 2, 2006 statement, she said that Martin and the appellant had been involved in an altercation in December 2005, during which the appellant had threatened to kill Martin. She also described seeing the appellant shoot a large green gun in an alley in the “New Orland” area of Baltimore City on New Year’s Eve, the night before the murder.

In one part of her January 25, 2006 statement that ⁴⁹⁶ was read into the record, Thomas admitted that part of her January 2 statement, in which she said she was looking out the window and saw the shooting as it occurred, including the red Cadillac, was not true. In her McFadden testimony, Thomas repeated that she had not told the truth about that point in her January 2, 2006 statement, but that everything else she had said in her statements to the police was true. At the trial in the case at bar, defense counsel in opening statement told the jurors they would hear evidence that would lead them to conclude that Thomas committed the murder by orchestrating a “hit” and that the appellant was uninvolved. The prosecution called police officer witnesses who testified that, on January 1, 2006, at about 9:50 p.m., they responded to 2600 Marbourne Avenue where they found a white Dodge Intrepid with its motor running and both back windows broken out.

A broken hammer and a spent shotgun shell were on the ground next to the car. Martin’s body was in the back seat, on the driver’s side. He was dead with a large shotgun wound to the head. He was holding a cell phone in his right hand.

He had an unloaded .38 caliber handgun in his right, front pants pocket. People at the scene reported that, after hearing the gunshot and seeing the hole in the car window, they had used the hammer to break into the car. Thomas was at the scene and was “extremely distraught.” The police witnesses further testified that, in response to information obtained in their investigation, they went to the 2700 block of Norland Road, also in Baltimore City, and found five spent shotgun shells in the alley. The shells were similar to each other and to the shell found next to Thomas’s car.

Upon obtaining a search warrant for a residence at 3903 Edmondson Avenue, the police recovered a loaded shotgun in the backyard, near the steps to the basement. Parked in front of that address was a maroon Cadillac with a large Christmas bow on the front grill. The appellant’s fingerprints were found on a CD inside the Cadillac. As we shall explain, infra, Thomas was called as a State’s witness in the trial in the case at bar.

Initially, she refused to ⁴⁹⁷ be sworn; then, after being sworn, she recanted most of her prior testimony. Her prior recorded testimony in the McFadden trial was played for the jury in the appellant’s trial. Also at the trial in the case at bar, Thomas’s full taped statements to the police of January 2 and January 25, 2006, were played for the jury. In the January 25 statement, she told the police that not long after the murder she was detained on unrelated charges at the Baltimore City Central Booking and Intake Facility (“Central Booking”), where she was approached by a correctional officer whom she recognized as the appellant’s mother.

The appellant’s mother told her she “better not go to court,” which scared her. On the day of Thomas’s testimony in the case at bar, the appellant’s mother was a spectator in the courtroom. When asked on cross-examination whether she saw the appellant’s mother in the courtroom, Thomas said she did not. The appellant’s mother was identified when defense counsel asked her to stand up.

The trial judge did not know that the appellant’s mother was present in the courtroom during Thomas’s testimony. We shall include additional facts as pertinent to our discussion of the issues. DISCUSSION I. (a) On October 1, 2007, the State called Thomas as a witness in the appellant’s trial.

At that time, she was incarcerated at the Baltimore City Detention Center. She was brought in on a writ of habeas corpus ad testificandum,. The jurors did not know any of that background information. When the clerk attempted to administer the oath to Thomas, she refused to be sworn.

The following exchange then took place in front of the jury: THE WITNESS: I wish to remain silent. I’m not saying nothing. ⁴⁹⁸ THE COURT: Okay____ [M]a’am, I’m ordering you to take the oath and testify—do you understand that—under penalty of contempt? THE WITNESS: [4] I have a right not to testify. THE COURT: You have no rights, ma’am.

THE WITNESS: Yes, I do have rights. THE COURT: You have those rights that I give you. You have no Constitutional right not to answer. THE WITNESS: Yes, I do.

I have a right to remain silent. THE COURT: Okay. THE WITNESS: Yes, I do. THE COURT: Okay.

Take this jury back in the jury room for a moment please. After the jurors were escorted out, the following colloquy took place: THE WITNESS: I want to get me an attorney please. THE COURT: Ma’am, on what basis do you believe you have a Fifth Amendment Right not to testify. THE WITNESS: That’s why I need to get me a lawyer.

THE COURT: Okay. THE WITNESS: Because I wish—I know I have the right to remain silent. THE COURT: Okay. Ma’am, I’m ordering you now not having been unable [sic] to articulate a Fifth Amendment Right not to testify,—and I know of none based on what I’ve heard—every time you refuse to testify I’m going to cite you [for] contempt and impose a six month sentence and that sentence will be served consecutively to any sentence you are now serving.

Every time you refuse to answer a question, send this jury out and I’m going to impose another six months ⁴⁹⁹ consecutive. You could very well wind up doing decades because of your refusal to testify. Do you understand that? Do you understand that?

THE WITNESS: No. THE COURT: In other words, you refuse to answer a question I’m going to send this jury out and I’na going to give you six months, holding you in contempt. Each time you refuse to answer a question I’m going to ask you again—order you to answer and I’m going to send this jury out and I’m going to give you another six months. THE WITNESS: Okay. What about my right for me being threatened and everything?

What about my rights? THE COURT: I’m telling you you must answer. THE WITNESS: What about my rights? THE COURT: Ma’am, next time you interrupt me I’m giving you six months consecutive.

I don’t know what other judges you’ve been in front of, but you’re in front of [this Judge] now. I don’t play. Bring this jury out. Next time I pause and you interfere with these proceedings I’m giving you six months just like I said.

THE WITNESS: Well, don’t I have a right to get a lawyer or an attorney? THE COURT: The answer is no. At that point, defense counsel sought permission to approach the bench, but the court refused. The judge asked counsel, “Do you know of any Constitutional right of her not testifying?” The prosecutor said, “No, Your Honor.

She is not a suspect in this case.” Defense counsel asked “to put a motion on the record” but was told he could “do it later.” The jurors were brought back into the courtroom and the clerk administered the oath to Thomas. When asked to swear that she would speak truthfully, Thomas said, “I guess so.” The trial judge directed her to answer yes or no. She then said, “Yeah, I will tell the truth.” On direct examination, Thomas testified that she did not remember anything about January 1, 2006; she did not have ⁵⁰⁰ occasion to talk to the police that night or the following day; and she did not give any statements to the police. The prosecutor asked for and was granted permission to play the recording of Thomas’s January 2, 2006 statement.

As the tape was about to be played, Thomas yelled out, “Can I say something? The detectives forced me to say everything that’s on that tape.” The trial judge commented, “Ma’am, I thought you just said you didn’t give a statement?” Thomas replied, “They forced me ...” The tape started to play, but had to be stopped because of a technical problem. During the pause, defense counsel again asked to approach, and the following ensued: [DEFENSE COUNSEL]: Your Honor, first of all, I move for a mistrial. The reason I move for a mistrial [is] because the State knew all along that that’s what this witness was going to do.

This could have been resolved out of the presence of the jury. THE COURT: Quite the contrary. This is a Nance situation. [5] [DEFENSE COUNSEL]: Right. THE COURT: And she just admitted sue sponte [sic] without a question that the police made her say what was on that tape.

She converted it into [court takes brief telephone call]. [DEFENSE COUNSEL]: I’m making two motions, Your Honor, very brief. One is a mistrial. Had the State alerted the court to have a hostile witness—she [the prosecutor] knew that all along as recently as 30 seconds before the witness took the stand. To have her get on the stand and go through this circus before the jury, very prejudicial to my client.

The jury is obviously going to think that she’s trying to cover up to help him. I think Your Honor’s position could have brought home to her out of the presence of the jury and (inaudible) would not ⁵⁰¹ have been subjected to this spin-off of this conduct of this witness on the stand. And that’s my motion for a mistrial. The court inquired whether counsel had known in advance that Thomas was going to refuse to testify.

Defense counsel said he had not. The prosecutor said that Thomas had told her that day that she was not going to testify. When the prosecutor then told her she had to do so, Thomas “shook her head.” The prosecutor explained that, because Thomas had been a cooperative witness up to that point, having testified willingly in the McFadden trial, she thought, “I’ll give her a minute maybe, you know, she recognizes she needs to testify.” The court interjected at that point that Thomas had no choice in the matter because she had no right not to testify. Defense counsel argued that Thomas could have such a right because of possible perjury in her McFadden testimony, or a possible charge of giving a false statement to the police, and said he was moving for a mistrial on that second ground as well.

The court denied the mistrial motion on both grounds. The technical problem was cured and the tape recording was played and moved into evidence. Thereafter, Thomas testified that it was not her voice on the tape recording and that she did not speak to the police on January 2, 2006. That concluded her direct examination.

On cross-examination, defense counsel elicited prior convictions for first-degree assault and drug distribution, and questioned Thomas as to whether she understood that she was under oath and had to tell the truth. She said she understood. She testified that she had nothing to do with the murder; that she had not gone to Amber’s house on the night of January 1, 2006; that Martin was not locked in the back seat of her car; that he was not in her car at all; that she remembered nothing about going to Amber’s house that night; that she did not tell the police that she went to Amber’s house that night; that she “didn’t see no Cadillac”; that she had never seen the Cadillac in question before; that there was no prior altercation between the appellant and Martin; and that she had not told the police there was a prior altercation. After acknowl ⁵⁰² edging that Martin was her boyfriend and she had been pregnant by him at the time of his death, Thomas agreed that she would “jump at the chance to nail” the person who had killed him.

Thomas went on to testify that she was in bed asleep on the evening in question and that she has never been to Amber’s house. When questioned about excerpts from her testimony in the McFadden trial, she acknowledged the truth of her “I don’t know” or “I’m not sure” answers, and recanted everything else, saying she did not remember any of what she had testified about. She further testified that whatever she may have told the police was not the truth; she only communicated with them because they had threatened to charge her with murder. On redirect examination, Thomas recanted her January 25, 2006 taped statement to the police, saying she never was threatened by the appellant’s mother.

That tape then was moved into evidence and played for the jury. Thomas denied that it was her voice on the tape. On recross, defense counsel established that Thomas would recognize the appellant’s mother if she saw her, and then asked whether she saw the appellant’s mother in the courtroom. Thomas said she did not.

Defense counsel then turned to the appellant’s mother, who was seated in the courtroom, and asked her to stand and identify herself, which she did. The following day, at the request of the State, the videotape of Thomas’s testimony in the McFadden case was played for the jury. Before Thomas was called to testify, the trial judge already knew, from reviewing the arraignment sheet for the case and from discussions with counsel, that McFadden had been tried and convicted of charges arising out of the same shooting death and that Thomas had been the key witness against him. The judge also knew that the appellant’s mother had threatened Thomas that “she better not come to court,” and had been charged with witness intimidation.

As we previously noted, the judge did not know that the appellant’s mother was ⁵⁰³ present in the courtroom that day. He also did not know that Thomas was going to recant her prior testimony. 6 (b) In his first contention, the appellant maintains that the trial court erred when, in front of the jury, it “coerced” Thomas into testifying and when, with the jury not present, it continued to “coerce” her by threatening her with “decades” of contempt sentences; and that the court’s doing so amounted to a violation of his due process right to a fair trial. In particular, he asserts that Thomas was not a “compellable” witness because, if she were to testify consistent with the defense theory of the case, as forecasted to the jurors in opening statement, that she “set Martin up” to be killed, she would be implicating herself in a murder; there was evidence that the police had threatened to charge her with Martin’s murder if she did not cooperate with them; and there was no proffer of a plea bargain or any immunity agreement between the State and Thomas. The appellant further asserts that, even if Thomas was a “compellable witness,” the trial court’s advisement about contempt was not neutral and objective.

Ultimately, Thomas’s inconsistent testimony resulted in her recorded statements to the police and her prior testimony in the McFadden case being played for the jury. He points out that this case was close, factually, as after two and one-half days of testimony, the jurors deliberated for two full days before reaching a ⁵⁰⁴ verdict; therefore, it cannot be said that any error by the court was harmless. The State counters that the issue of “coercion” by the trial judge was not raised below and therefore was not preserved for review on appeal. It maintains that the issue lacks substantive merit, moreover, because Thomas indeed was a “compellable witness”; the trial judge’s explanation to her about the consequences of refusing to testify was accurate; and the court did nothing that reasonably could have influenced the substance of the testimony Thomas in fact gave.

(c) We first address the State’s non-preservation argument. According to the State, in the appellant’s mistrial motion, he challenged 1) the trial court’s response, in front of the jury, to Thomas’s initial refusal to testify; and 2) the trial court’s ruling that Thomas did not have a Fifth Amendment claim of privilege as a witness in the appellant’s trial. The State asserts that, on appeal, the appellant is arguing that the trial court’s conduct in responding to Thomas’s attempt to invoke her Fifth Amendment privilege amounted to “coercing” her to testify by threatening to hold her in contempt every time she did not answer a question posed to her. To be sure, Maryland law is clear that, when a challenge is made to a circuit court’s ruling on appeal, it must be made on the same ground as was presented below.

A party may not for the first time on appeal attack a court’s ruling upon a ground the party did not put before the court below. See Anderson v. Litzenberg, 115 Md.App. 549, 569 , 694 A.2d 150 (1997) (“If counsel provides the trial judge with specific grounds for an objection, the litigant may raise on appeal only those grounds actually presented to the trial judge. All other grounds for the objection, including those appearing for the first time in a party’s appellate brief, are deemed waived.”). See also Md. Rule 4-323 (method of making objections); Md. Rule 8-131 (a) (“Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have ⁵⁰⁵ been raised in or decided by the trial court.... ”).

We disagree, however, with the State’s argument to that effect in the case at bar. During a pause at the start of Thomas’s testimony, defense counsel moved for a mistrial, arguing that the prosecutor had called Thomas to the stand with the knowledge that she would not testify, and that the ensuing “circus” prejudiced the appellant by suggesting to the jury that Thomas was covering up for him. 7 Defense counsel further protested that the situation could have been avoided if “[the trial judge’s] position ... ha[d] [been] brought home to [the witness] outside the presence of the jury.” Before ruling on the motion, while questioning counsel, the trial judge remarked that Thomas had no Fifth Amendment right to refuse to testify. Defense counsel disagreed, noting that if she testified truthfully in the case at bar she could be prosecuted for perjury or giving false statements based on her testimony in the McFadden trial and prior statements to police, respectively, and moved for a mistrial on that ground as well. The court denied the mistrial motions.

We think these arguments were sufficient to preserve for review the entirety of the trial court’s decision-making respecting Thomas’s refusal to testify. Although the appellant frames the issue on appeal as whether the trial court “improperly coerced” Thomas into testifying, his arguments are essentially that (1) Thomas properly invoked her Fifth Amendment right to remain silent, and therefore should not have been compelled to testify by threats of contempt; and (2) the trial judge’s overly harsh treatment of Thomas before the jury was prejudicial to him. These arguments, although not matching in every detail, are substantially similar to the arguments made by the appellant before the trial court, and thus are preserved for review. ⁵⁰⁶ (d) Among other things, the Fifth Amendment protects a person from being “compelled in any criminal case to be a witness against himself.” 8 U.S. Const, amend. V. In a jury trial, when a witness invokes his Fifth Amendment right against self-incrimination, or it is known that he will do so, the court must determine whether the witness’s invocation of that right is proper, i.e., whether the witness is “compellable.” 9 See Hoffman v. United States, 341 U.S. 479, 487-88 , 71 S.Ct. 814 , 95 L.Ed. 1118 (1951) (reversing contempt conviction of witness who invoked the Fifth Amendment during grand jury racketeering investigation proceedings, on the ground that court should have accepted the invocation); Simmons v. State, 392 Md. 279, 297 , 896 A.2d 1023 (2006) (“It is the duty of the trial judge to determine whether the witness can properly assert the privilege against self-incrimination and whether the witness’s silence is justified.”).

See also Smith v. State, 394 Md. 184, 211 , 905 A.2d 315 (2006); Bhagwat v. State, 338 Md. 263, 271-72 , 658 A.2d 244 (1995). The substantive standard guiding the court’s inquiry is whether there is reasonable cause for the witness to fear self-incrimination from a direct answer to the question posed, or from an explanation of the failure to answer, and whether the danger of self-incrimination is evident from the nature of the question and the circumstances of the case. See Choi v. State, 316 Md. 529, 536-37 , 560 A.2d 1108 (1989). The Court of ⁵⁰⁷ Appeals has noted its consistent adherence to this standard, which it derived from Hoffman, supra: We have consistently applied the [Hoffman standard], that a witness is entitled to invoke the privilege against self-incrimination if “the witness has reasonable cause to apprehend danger from a direct answer” and that “[t]o sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Id.

(quoting Hoffman, 341 U.S. at 486-87 , 71 S.Ct. 814 ) (internal citations omitted). See also Richardson v. State, 285 Md. 261, 267 , 401 A.2d 1021 (1979) (“[The] continued vitality [of the Hoffman standard] has been recognized both by the Supreme Court of the United States, and the courts of this State.” (citations omitted)). Although attributed to the Court in Hoffman , this test, in similar form, dates as far back as the treason trial of Aaron Burr, in which Chief Justice Marshall explained: It is the province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony, which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction.

In such a case the witness must himself judge what his answer will be; and if he say, on oath, that he cannot answer without accusing himself, he cannot be compelled to answer. United States v. Burr, 25 F. Cas. 38, 40-41 (C.C.D.Va.1807). Much more recently, the Court of Appeals has framed the test as a two-part inquiry: “The test of the witness’s entitlement to invoke the privilege against self-incrimination [is] (1) whether there is a reasonable basis for the invocation of the privilege; and (2) whether the privilege is invoked in good faith[.]” Bhagwat, 338 Md. at 272 , 658 A.2d 244 . See also ⁵⁰⁸ Simmons, 392 Md. at 298 , 896 A.2d 1023 ; Gray v. State, 368 Md. 529, 553 , 796 A.2d 697 (2002).

The mere fact that the witness is asserting that he or she would be incriminated by answering the question does not excuse the witness from doing so. Simmons, 392 Md. at 297 , 896 A.2d 1023 . “It is for the court to say whether [the witness’s] silence is justified, and to require [the witness] to answer if ‘it clearly appears to the court that he is mistaken.’ ” Hoffman, 341 U.S. at 486 , 71 S.Ct. 814 (quoting Temple v. Commonwealth, 75