Eiler v. State

ROBERT M. BELL, Judge. After a jury trial in the Circuit Court for Baltimore County, 1 Rickey Eiler, appellant, was convicted of felony murder. He was sentenced to life imprisonment, of which all but thirty years was suspended. Appellant presents the following questions on this appeal. 1.

Did the trial court commit prejudicial error in refusing to permit testimony by Dr. Michael Spodak ⁴⁴³ regarding the State’s key witness’ psychological history? 2. Did the trial court commit prejudicial error when it refused to permit appellant the right to present evidence and/or cross-examine the State’s witness regarding pending criminal charges to show bias, prejudice or coercion? 3. Did the trial court commit prejudicial error by permitting the State to cross-examine the appellant about certain derogatory remarks made in the first trial? 1. Dorothy Pirotte, an important State’s witness and appellant’s accomplice, testified at trial that she and appellant had planned to rob the victim, Harris Smuckler, of his money and jewelry. 2 The plan, conceived by appellant, was that Pirotte would lure Smuckler into her bedroom to engage in sex and appellant would hit him with a stick and then overcome him.

When appellant struck Smuckler as planned, Smuckler fought back, which resulted in appellant’s repeatedly striking him, causing his death. The victim’s body was placed in the trunk of the victim’s car, along with several bloody items from Pirotte’s bedroom, and driven to a wooded area, where the bloody items were discarded. The car, with Smuckler’s body still in the trunk, was left in Dundee Village. Appellant and Pirotte returned by taxi to Pirotte’s home and finished cleaning the murder scene.

Pirotte and appellant divided money taken from Smuckler and appellant appropriated a pouch containing diamond rings, also taken from Smuckler. Significant during her testimony, on both direct and cross-examination, ⁴⁴⁴ was Pirotte’s frequent inability to remember specific incidents, details and conversations. On cross-examination, although testified to on direct, appellant delved into Pirotte’s use of cocaine on the day of the murder, her plea agreement with the State, 3 and the fact that she had been convicted of second degree murder, in connection with Smuckler’s death, at the time that she testified. It was also brought out that she was under medication — Mellaril, 50 miligrams per day and Elavil — prescribed by a psychiatrist, 4 whom she saw once per week.

Appellant sought to offer the testimony of Dr. Spodak as to Pirotte’s mental history. Because Dr. Spodak had not personally examined her, it was proposed that he testify, not from her conversations with her psychiatrists, but from the records compiled at the County Detention Center while Pirotte was detained there; specifically, it was proffered that he would testify as to Pirotte’s psychological diagnosis and the dosage and type of medication prescribed for her. 5 Appellant contended at trial, as he does now, that Dr. Spodak’s testimony would have revealed that the disorders suffered by Pirotte “could have altered her perception in such a manner so as to discredit her testimony”. He further urged, as he does now, relying on Reese v. State, 54 ⁴⁴⁵ Md.App. 281, 458 A.2d 492 (1983), that this testimony was admissible despite the psychiatrist/patient privilege. 6 The State countered with a motion in limine in which it requested that the testimony be prohibited. The State complained then, as it does now, that because the testimony would rely on records and reports compiled by psychiatrists, and which contained statements made by Pirotte to those psychiatrists, the records are privileged.

On appeal, the State additionally contends that the admissibility of Spodak’s testimony has not been preserved for appellate review, appellant having failed to offer the testimony after its motion in limine was granted. 7 A motion in limine is not a ruling on the evidence. It is a “procedural step prior to the offer of evidence”, which serves the purpose of pointing out, before trial, certain evidentiary rulings that the court may be called upon to make. Funkhouser v. State, 51 Md.App. 16 , 440 A.2d 1114 (1982). Neither the grant nor the denial of such a motion constitutes reversible error.

Id., Offutt v. State, 44 Md.App. 670 , 410 A.2d 611 (1980). If the admission of evidence is foreclosed by the ruling on the motion, an attempt to introduce the evidence at trial must be made by the way of proffer, Funkhouser v. State, supra, or an objection must be interposed: ⁴⁴⁶ There is no exception to the ... rule, which requires the recording of an objection in the trial below, where the question of admissibility of evidence has previously been raised in a pre-trial motion in limine. Lapelosa v. Cruze, 44 Md.App. 202, 207 , 407 A.2d 786 (1979), cert. denied, 287 Md. 754 (1980). After the trial judge’s ruling on the motion in limine, the following colloquy occurred between appellant’s counsel and the court.

MR. WHITE: May I say something just for the record? THE COURT: Yeah, you certainly may, and you may obviously proffer your testimony of Dr. Spodak. MR.

WHITE: Number one, I would proffer that it would be a conflict of interest for Mr. Steigerwald and Mr. Moore to be representing the witness, Dorothy Pirotte. Their interest doesn’t necessarily coincide with her interest in this matter; their interest being to simply win their case. 8 Number two, I would proffer that Dr. Spodak could give testimony based on facts other than communications between Dorothy Pirotte and her psychiatrists, and could give expert testimony in that regard without going into any communications between Dr. Rinn or the other psychiatrist and Dorothy Pirotte, which would not violate the statute, (footnote added) THE COURT: Okay. Do you want to put anything else on the record, Mr. White, with regard to what Dr. Spodak’s testimony would be, unless very possibly by agreement — and I am just suggesting — that need not be — that between you and the State you could proffer that his testimony would be as it was in the prior trial and in the transcript. I don’t know.

The State may not be agreeable, and you may not be agreeable; and ⁴⁴⁷ you can give further consideration to it, or you can put on the record, if you so desire for preservation of the record what you would proffer would be Dr. Spodak’s testimony. MR. WHITE: Well I would proffer — one thing would be his testimony that he would describe what the drug Mellaril is used for; and the doses that Dorothy received, is used for psychosis. He could describe what psychosis is, number one.

He could further — after review of the records he could describe that Dorothy Pirotte has been found by a psychiatrist at the County Jail to be suffering from psychosis, schizophrenia, paranoia, that she was suicidal; and I think he could do that without going into any communications between her and her doctor. I think the relative importance of this testimony certainly outweighs any other considerations in the case. That would be it. The colloquy clearly demonstrates that following the court’s ruling on the motion in limine, appellant made a proffer of Dr. Spodak’s testimony. 9 Moreover, that proffer was adequate: ... a proffer to permit an initial questioning regarding credibility needs but minimal support.

Apparently it need be little more than an “articulable suspicion”, or at most “probable cause” to believe that the facts elicited will be relevant to credibility. (Citation omitted) Reese v. State, 54 Md.App. 281, 288 , 458 A.2d 492 (1983). In Reese we faced, in a somewhat different context, the very issue which is here presented. The defendant there was charged with armed robbery.

He sought to cross-examine the victim as to his psychiatric history, proffering that the victim had been a patient receiving treatment at ⁴⁴⁸ Springfield State Hospital. The court sought additional psychiatric information from the Medical Administrator of the Supreme Bench of Baltimore, which resulted in the further proffer that the victim had a substantial psychiatric history, including a contemporary instability which affected his contact with reality. Despite this proffer and the fact that the major issue in the case was the credibility of the victim, the trial court refused to allow the defendant to cross-examine the victim regarding his psychiatric history. We were thus called upon to determine "... at what point the judge’s discretion totally to restrict credibility cross-examination of a witness begins and ends.” Id. at 285, 458 A.2d 492 .

We began our inquiry by noting the role that cross-examination plays in insuring that a defendant is afforded a fair trial. 10 We next sought to determine the proper balance between the right of the defendant to cross-examine his accusers and the “broad discretion” of the trial judge to determine the scope of cross-examination. We concluded that: What is referred to as a “broad discretion” of the trial judge, upon examination, becomes a narrow one. The right to discredit an accuser being of constitutional dimension ... can be but limitedly circumscribed. Id. at 286, 458 A.2d 492 .

And further that: The “discretion” then, between the defendant’s right to discredit testimony and the trial judge’s duty to protect a witness is solely one of relevance of the questions to the witness’s credibility. The relevancy test at this juncture does not regard the elucidation of one of the main issues ⁴⁴⁹ at trial, it is whether the answer elicited will be a useful aid to the court or jury in appraising the credibility (not necessarily the veracity) of the witness and in assessing the probative value of his direct testimony. (Citations omitted) Id. at 287, 458 A.2d 492 . Recognizing that the parameters of relevance are vague when credibility is at issue, that cross-examination is often exploratory, and that too tight a rein on cross-examination may defeat its purpose and effectiveness, we particularly pointed out that exploratory questions should be liberally, but carefully, allowed when the matter inquired into is subject to statutory protection.

Recognizing that discretion must still be exercised in determining if a particular psychiatric disorder affects credibility, 11 we endorsed its careful exercise so as to maintain a balance between the need to control cross-examination and the value of exploratory questioning. Having found, in light of the proffer, that cross-examination had been unduly restricted, we reversed. Proceeding to a consideration of the case sub judice, we note at the outset that appellant’s chief argument relates to the trial court’s refusal to permit the testimony of Dr. Spodak. Notwithstanding this difference, he argues that Reese is apposite and mandates reversal.

The State responds on several fronts. First, it contends that the court properly could have construed Dr. Spodak’s testimony as involving “communications relating to diagnosis or treatment of the patient’s mental or emotional disorder” and therefore privileged. Second, it argues that because Dr. Spodak did not examine Pirotte, “the trial court properly determined that Dr. Spodak should not be allowed to testify”. Finally, the State questions the adequacy of the proffer, suggesting that it did not provide a nexus between Pirotte’s condition and how that condition could have affect ⁴⁵⁰ ed her credibility. 12 We think the testimony of Dr. Spodak should have been allowed.

We will explain. We find Reese to be particularly apposite. As in Reese, the court had before it evidence, by way of testimony and proffer, that a key State’s witness had a psychiatric history and a current mental condition which required her to take two medications prescribed by psychiatrists, whom she saw once a week. In