Forbes v. State

MURPHY, C.J. In the Circuit Court for Baltimore County, a jury convicted Elmer Cleveland Forbes, Jr., appellant, of robbery with a dangerous weapon and use of a handgun in the commission of that felony. Despite his argument to the contrary, 1 we hold that the State’s evidence was sufficient to establish that he committed those offenses on March 20, 2002 at a Royal Farm ⁶³² Store on North Point Boulevard. He also argues that there are two reasons why he is entitled to a new trial: I. THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO QUESTION [APPELLANT] SO AS TO INSINUATE THAT [APPELLANT] AND HIS COUNSEL HAD AGREED AND ATTEMPTED TO SUBORN PERJURY, IN VIOLATION OF THE ATTORNEY-CLIENT PRIVILEGE, AND IN THE ABSENCE OF A GOOD-FAITH BASIS TO ASK SUCH QUESTIONS.

II

THE TRIAL COURT ERRED IN OVERRULING OBJECTIONS TO CLOSING ARGUMENT, AND IN DENYING A MOTION FOR MISTRIAL. For the reasons that follow, we agree with appellant’s first argument, as a result of which appellant’s second argument is hypothetical and moot. We must therefore vacate the judgments and remand for a new trial. Relevant Factual Background The State’s witnesses against appellant included Steven Gessner, who testified as follows.

He and appellant went to the store with the intent to rob a drug dealer they planned to meet behind the store. They entered the store after they could not lure the drug dealer to the location where they intended to commit the robbery. At this point, to Gessner’s surprise, appellant committed the robbery. Gessner’s testimony was corroborated by John Fouts, who reviewed photographs that had been created from the store’s videotape on which the robbery was fílmed, and identified appellant as one of the two robbers.

Appellant’s brief includes the following assertions: [I]n defense, [appellant] adduced evidence that he could not have committed the robbery on March 20, 2002, because he was with family members the entire night. He remembered this, three years later, because Catherine Fouts, the mother of his son, died in March 2002, and the viewing at Connelly’s Funeral Home was on March 20, 2002 from 7:00 ⁶³³ to 9:00 p.m. Ms. Fouts’s family members had warned Mr. Forbes to stay away, but, according to Mr. Forbes and his sister Helen Forbes, she gave him a ride to the funeral home, but he did not go inside to the room where the viewing took place. According to both Mr. and Ms. Forbes, after the viewing, they talked in the parking lot, and then went to their mother’s house, where they spent the night.

Additionally, according to Michael Knighton and Jason Deleidello, Mr. Gessner told them that he had committed the robbery, not with Elmer Forbes but his brother, Sammie Forbes, who closely resembles him. Sammie Forbes appeared before the jury, but did not testify, as he had invoked his Fifth Amendment privilege against self-incrimination. The record shows that the following transpired during appellant’s cross-examination: [THE PROSECUTOR:] Your brother is Sammie? [APPELLANT:] Yes, sir. [THE PROSECUTOR:] Did you ever tell Sammie to lie for you? [APPELLANT:] To lie for me? [THE PROSECUTOR:] Yeah. [APPELLANT:] No. [THE PROSECUTOR:] Did you ever tell him why don’t you come in and testify for you that he did it and that you didn’t? [APPELLANT:] No, sir. [THE PROSECUTOR:] You never told him to do that? [APPELLANT:] No, sir. [THE PROSECUTOR:] To your knowledge, at a prior trial, [Sammie Forbes] was never here ready to take your directions, is that what you’re saying? [APPELLANT:] He was here at the courthouse one time, yes. [THE PROSECUTOR:] He was downstairs, in the lockup, wasn’t he? ⁶³⁴ [APPELLANT:] I don’t know. They don’t put them with us. [THE PROSECUTOR:] I know that.

But you wanted your lawyer to get him here to lie for you, didn’t you? [DEFENSE COUNSEL:] Objection. [APPELLANT:] No, sir. THE COURT: Overruled. [THE PROSECUTOR:] Did you ever tell your lawyer that, Hey, listen, Sammie did it. Sammie will lie. Sammie will tell a story.

Sammie will get up, Sammie will say he did it. Did you ever say anything like that— [APPELLANT:] No, sir. [DEFENSE COUNSEL:] Objection. [THE PROSECUTOR:] to your attorney? [APPELLANT:] No, sir. THE COURT: Overruled. The record also shows that this cross-examination occurred the day before appellant’s brother Sammie appeared before the jury.

Discussion In Haley v. State, 398 Md. 106 , 919 A.2d 1200 (2007), the Court of Appeals recently awarded a new trial to a robbery defendant who was cross-examined about (1) whether he had provided his lawyer with the information he testified to on direct examination, and (2) when he provided that information. 2 In that case, the alleged victim “denied ever having seen [the defendant] prior to the incident.” Id. at 116 , 919 A.2d 1200 . The defendant, however, testified that he and the victim “had been dating off and on for over a year,” and “[i]n an effort to demonstrate an ongoing relationship with [the ⁶³⁵ alleged victim], [the defendant] described ... items inside the [alleged victim’s] residence, and [the alleged victim’s] dog.” Id. at 117-18 , 919 A.2d 1200 . According to the Court of Appeals: Petitioner’s complaint is not solely that he was cross-examined about the facts surrounding his defense; his complaint is also that the State inquired into the timing of when he disclosed certain information to his attorney. In fact, the two issues are linked based on the prosecutor’s phrasing of questions. * * * Haley’s communications to his lawyer, and the timing of when he told the attorney the critical information, fall within the attorney-client privilege.

The purpose and object of the prosecutor’s questions as to the timing of when petitioner told his attorney about his relationship with the victim and the information about the victim’s house was to discredit petitioner’s testimony and to convince the jury that petitioner’s defense was an afterthought or manufactured on the eve of the trial. It was not the proper subject of cross-examination and put the credibility of petitioner in issue based on what and when he told his attorney. Petitioner’s testimony as to the facts of the event at issue did not constitute a waiver of the attorney-client privilege as to what and when he communicated with his attorney as to the incident. The prosecutor’s repeated questions as to when and what petitioner told his attorney went beyond the scope of proper cross-examination and invaded the attorney-client privilege. 398 Md. at 129-31 , 919 A.2d at 1213-14 .

According to the State, Haley is inapplicable to the case at bar because (in the words of its brief): In the instant case, ... [appellant] did not disclose either the content of his communications with his attorney, nor the timing of those communications. In fact, he denied having ⁶³⁶ the communication the State asked him about. Accordingly, no privilege was breached. We disagree with the State’s argument.

We are persuaded that the prosecutor should not have been permitted to ask appellant, in effect, whether, during a confidential communication with his lawyer, appellant (1) confessed that he had committed the robbery, and (2) asked his lawyer to call a defense witness who was prepared to present false testimony. It is of no consequence that appellant denied the accusations contained in the prosecutor’s questions. As this Court pointed out in Gamer v. State, 142 Md.App. 94 , 788 A.2d 219 (2002): Questions alone can impeach. Apart from their mere wording, through voice inflections and other mannerisms of the examiner-things that can not be