Hensen v. State

KRAUSER, Judge. Appellant, Frederick Henry Hensen, Jr., and codefendant, Scott Drysdale Broadfoot, Sr., were convicted by a jury in the Circuit Court for Carroll County of manslaughter by automobile and second degree assault. Appellant presents the following issues for review, which we have rephrased: 1. Whether the trial court erred in failing to take remedial action when the prosecutor purportedly made a threatening remark to a State witness before that witness testified. 2.

Whether the trial court erred in refusing to propound a voir dire question, requested by appellant, concerning pretrial publicity. ¹⁶⁰ 3. Whether the trial court erred “in refusing to instruct the jury that a driver, not involved in a collision with the victim, is guilty of manslaughter by automobile only if the nonstriking driver is involved in a race or speed contest.” 4. Whether the evidence was legally sufficient to sustain appellant’s convictions. For the reasons that follow, we shall affirm.

FACTS At approximately 9:30 p.m. on June 1, 1998, three automobiles sped out of the parking lot of a Burger King restaurant and headed east on Route 140, between Finksburg and Westminster. The drivers were appellant, Mark Eppig, and, appellant’s codefendant, Scott Drysdale Broadfoot, Sr. Traveling at speeds that substantially exceeded the speed limit, the three drivers weaved in and out of traffic as they played a deadly game of follow-the-leader. Five miles later, Eppig’s vehicle spun out of control, crossed the median strip, and collided with a car traveling in the opposite direction, killing its driver, Geraldine Wu, and seriously injuring her daughter, a passenger in that car. Before trial, Eppig pled guilty to manslaughter by automobile.

He received a sentence of 10 years’ imprisonment, with all but three years suspended, and work release in exchange for testifying against appellant and Broadfoot. At trial, Eppig testified that he, Broadfoot, and appellant drove out of the Burger King parking lot and quickly accelerated their vehicles to a speed of 80 miles per hour. He and Broadfoot were in the lead; appellant followed behind. About a half mile later, Eppig entered a U-turn lane to allow appellant and Broadfoot to pass him.

He then sped after them at a speed of 80 to 90 miles per hour. He caught up with them at Sandymount Road, where all three stopped for a red light. When the light turned green, they “took off,” accelerating to a speed of 80 to 90 miles per hour. After crossing Suffolk Road, Eppig’s vehicle reached a speed of 100 miles per hour, passing appel ¹⁶¹ lant and Broadfoot.

Pulling in front of Broadfoot, however, he lost control of his vehicle, crossed the grassy median and collided with Mrs. Wu’s vehicle. Jeffrey Lauer, a Baltimore County Police Officer, was traveling east on Route 140 when he observed three automobiles, moving “at extreme high rates of speed,” traveling “extremely close” together and weaving in and out of traffic. He identified, from photographs, Eppig’s car and Broadfoot’s car and stated that appellant’s vehicle “resemble[d]” and was “similar” to the third of the three vehicles. “They stayed, more or less, as a pack-pack of three vehicles pretty much the entire time I saw them” up to the moment of the collision, he stated. He further testified that the maximum speed reached by the vehicles, before the collision, was “in excess of 90 miles an hour easy.” Trooper First Class John Rose of the Maryland State Police testified that the speed limit on Route 140 was 50 miles per hour at the Burger King and 55 miles per hour at the site of the collision.

Qualified as an expert in accident reconstruction, Trooper Rose testified that Eppig was driving between 102 and 120 miles per hour when he lost control of his car, and was traveling at 82 miles per hour when he struck Mrs. Wu’s vehicle. Traveling eastbound on Route 140, Beth O’Connell observed three vehicles pass her shortly before the accident. The first two were traveling one behind the other at such an extreme rate of speed that it caused her to scream. The third vehicle was only a couple of seconds behind.

It “came up on [me] so fast,” she said. The vehicles passed her somewhere between Sandymount and Suffolk Roads. Two other motorists, James King and James Reiter, as well as Reiter’s wife, Pamela, all of whom were traveling on Route 140 at the time of the collision, gave similar testimony as to the speed of the vehicles and their proximity to one another. Angel Rivera, a passenger in appellant’s car at the time of the accident, testified that, after leaving the Burger King, the three drivers were playing follow-the-leader, switching lanes ¹⁶² and positions, and jumping in front of other cars.

He stated, however, that, at the time of the accident, appellant’s vehicle was going only 65 miles per hour. Appellant testified that he never reached a speed in excess of 75 miles per hour; that Broadfoot and Eppig were racing each other, but he was not involved; and that he was not “leapfrogging” other vehicles. Appellant further stated that his car vibrated at high speeds because of damage to his wheel, and that his car was performing sluggishly because of a timing problem. Charles Pembleton, an expert in accident reconstruction and automotive systems analysis, was called by appellant to testify.

He stated that the condition of appellant’s car would not have permitted him to drive for five miles at a speed of over 85 miles per hour. He further stated that, based on appellant’s testimony that he was traveling only 75 miles per hour and Trooper Rose’s testimony that Eppig was traveling between 102 and 120 miles per hour, appellant’s car was between .18 and .23 miles behind Eppig when Eppig lost control of his vehicle. Wendell Cover, also an expert in accident reconstruction, was called by codefendant Broadfoot to testify. He challenged the methodology used by the State police in calculating the speed of the three vehicles.

He stated that Eppig was traveling at a speed of 77 miles per hour immediately preceding the accident. DISCUSSION I Appellant contends that the trial court erred in failing to take the remedial action requested by appellant when evidence that the prosecutor may have threatened a State witness came to light. Specifically, appellant argues that the trial court should have granted either appellant’s motion to disqualify the threatened witness from testifying or codefendant’s motion for a mistrial. ¹⁶³ Before Angel Rivera, a passenger in appellant’s car at the time of the collision, took the stand to testify for the State, the trial court conducted a hearing outside of the presence of the jury on the question of whether Rivera had been improperly threatened by the prosecutor. At that hearing, Rivera testified as follows: Q: [BY THE COURT:] What did he say?

A: He said, “if you get on the stand and if ’ ... Can I say this word? Q: You—you[.] A: ...—if I fuck him over on the stand, that I’ll pay for something—or, I don’t know, something along those terms. Q: So, you don’t remember exactly what he said?

A: No, but it sounded like a threat. Q: “If you get on the stand ... and you fuck with me[.]” A: That’s what he said. Q: [W]hat—-what next[?] A: I wasn’t even trying to even listen to the rest, I was walkin’ away as he was saying that. Q: And, what did he say about going on the stand and telling the truth?

A: Nothing. That’s all he said was that comment, and then, as he was walking away, he said, “Don’t fuck with me.” Q: [BY DEFENSE COUNSEL:] Mr. Rivera, did you feel threatened by this remark? A: Only about the aspect that he’s way higher authority than I am in his position. Q: Do you feel that if you testify in this case, you will be testifying, at least partly out of concern for whether you will be prosecuted for anything that you say?

A: No. ¹⁶⁴ Q: Based upon what’s been said to you, do you believe that your ability to testify as a witness fairly and impartially and based solely on the facts as you know them, has been harmed or injured or impaired in any way? A: No. The prosecutor then addressed the court: THE PROSECUTOR: I would like to clarify what I said. DEFENSE COUNSEL: I have no objection to a proffer. THE COURT: Pie—please clarify what you—you said?

THE PROSECUTOR: What I said—my exact words to him was, “Mr. Rivera, if you fuck with me, you’ll be sorry. All I want is the truth.” And, he said, ‘You’ll get the truth,” and then we both walked away, and I asked for the truth, and that’s all, and that’s the extent of it, and he was walking— and he walked away and I walked away. THE COURT: Do you recall whether you said a second time, “Don’t f_with me,” or not? THE PROSECUTOR: I—I might have said it a second time, it’s very possible, but it wasn’t—we were parting, we were walking separate ways.

After defense counsel declined the court’s invitation to question the prosecutor further, the court denied defense counsel’s motion to disqualify Rivera as a prosecution witness, stating: [Bjased upon the inquiry that I have made, the fact that all of this has taken place out of the presence of the Jury, persuades me that this will have no bearing on the process and based upon what Mr. Rivera has testified under oath and what [the prosecutor], as an officer of the Court has stated to me, I see no basis to, quote, “disqualify him as a witness,” so the Motion to Disqualify him as a witness is denied. However raw, crude, and unfortunate the prosecutor’s remarks, they appear to have been intended to warn Rivera to tell the truth or face unspecified consequences. Admonitions to witnesses to tell the truth do not necessarily violate a ¹⁶⁵ defendant’s right to due process of law. Indeed, “the determination of whether prosecutorial admonitions violated the defendant’s due process will depend on the facts in each case.” State v. Stanley, 351 Md. 733, 747-48 , 720 A.2d 323 (1998).

As Rivera was not a defense witness but a State’s witness, the prosecutor’s threat was clearly not intended to “directly intimidate or coerce a witness into silence,” a factor that the Court of Appeals, in Stanley , stressed was important in determining the propriety of such prosecutorial admonitions. Id. at 748 , 720 A.2d 323 . Indeed, there is no evidence that it was anything other than an unnecessarily crude warning to tell the truth. Moreover, Rivera testified that he did not feel any pressure to testify, that he did not fear prosecution based on his testimony, and that he believed that the prosecutor’s statement had not affected his ability to testify fairly and impartially.

The trial court thereupon concluded that there was “no basis to ... disqualify him as a witness” and properly denied appellant’s motion to disqualify and codefendant’s motion for a mistrial. Parenthetically, we note that the trial court’s denial of the motion for mistrial is not properly before us because appellant neither moved for a mistrial himself nor joined in Broadfoot’s motion for a mistrial. See Erman v. State, 49 Md.App. 605, 612 , 434 A.2d 1030 (1981). II Because of the amount of pretrial publicity that attended this case, appellant requested that the trial court ask prospective jurors “whether anyone knows anything about this case and, if so, what?” While declining to ask that specific question on voir dire, the trial court propounded the following question regarding pretrial publicity: Have any of you members of the jury, based on any discussions you’ve had around the-the dining room table or kitchen table, based upon any discussions you’ve had at work, based upon watching any television programs which may have reported about this case, or read any articles in the local or Baltimore paper about this case, formed an opinion which would affect your ability to sit as a juror, ¹⁶⁶ recognizing that your duty as a juror is to be fair and impartial and to decide the case on the evidence?

Appellant argues that the trial court erred by failing to ask the question requested and by propounding a question which was, according to appellant, both “compound” and “complicated.” We disagree. Initially, we note that “the scope of voir dire and the form of the questions propounded rests firmly within the discretion of the trial judge.” Davis v. State, 333 Md. 27, 34 , 633 A.2d 867 (1993) (citing Casey v. Roman Catholic Archbishop, 217 Md. 595, 605 , 143 A.2d 627 (1958)). Moreover, “the trial judge’s discretion regarding the scope of a proposed avenue of voir dire is governed by one primary principle: the purpose of ‘the inquiry is to ascertain “the existence of cause for disqualification and for no other purpose.” ’ ” Davis, 333 Md. at 34 , 633 A.2d 867 , (quoting McGee v. State, 219 Md. 53, 58 , 146 A.2d 194 (1959)) (quoting Adams v. State, 200 Md. 133, 140 , 88 A.2d 556 (1952) (citations omitted)). In the instant case, the trial judge did not abuse his