Johnson v. State

DEBORAH S. EYLER, Judge. A jury in the Circuit Court for Baltimore City convicted James Johnson, the appellant, of second degree murder, use of a handgun in a felony or crime of violence, and wearing, carrying, or transporting a handgun. He was found not guilty of first degree murder. The court sentenced the appellant to a 30-year prison term for the second degree murder conviction, and to a consecutive term of 20 years in prison, the first five years without the possibility of parole, for the use of a handgun conviction.

The wearing, carrying, or transporting a handgun conviction was merged into the use of a handgun in a felony conviction. On appeal, the appellant presents five questions for review, which we have reordered and rephrased: I. Did the trial court err by denying a defense motion for mistrial or curative instruction made after the trial judge questioned a witness and elicited testimony that, after arrest and before trial, the appellant was trying to reconcile with his estranged wife so she would not elect to testify?

II

Was there sufficient evidence to sustain the convictions?

III

Did the trial court err by admitting into evidence highly prejudicial hearsay testimony?

IV

Did the trial court err by stating that the appellant “may have remained silent” and allowing the jury to consider whether his alleged silence constituted an admission of guilt? V. Did the trial court err in instructing the jury as to second degree murder? ⁶⁹⁹ We answer Questions I and II in the affirmative. On that basis, we shall reverse the appellant’s convictions and remand the case for a new trial. We do not reach the appellant’s other three issues.

FACTS AND PROCEEDINGS On November 4, 2001, at about 4:30 p.m., a man broke into the Baltimore City apartment of Mary Blake Johnson (“Mary”), the appellant’s estranged wife, and shot and killed her boyfriend, Matthew Boyd, in her presence. Mary called 911. She told the police who responded to the scene that “someone had broke in” and shot Boyd. When the shooting happened, three teenaged boys were standing on the street, outside Mary’s apartment building.

All three boys testified at trial that they heard shouting from inside the apartment, and then heard a woman yell, “No, stop!” That was followed by a loud bang. A minute or two later, they saw a man leaving the apartment. Two of the boys testified that the man was holding the waistband of his pants in a manner that suggested he was carrying a weapon under his clothes. All three boys testified that the man got into a very distinctive-looking automobile—a “bright green turquoise” Mercury Sable with dents in the driver’s side door and missing its driver’s side mirror—and drove away.

Within a few minutes, the man returned in the same vehicle and reentered the apartment building. After a few minutes, he left the building for a second time and drove away in the same car. The teenagers did not get a close look at the man’s face. At trial, none of them could positively identify the appellant as the man seen entering and leaving Mary’s apartment building.

Each provided a description of the man’s complexion, height, weight, and build that was consistent with the appellant’s physical appearance, however. Antonio Johnson (“Antonio”), the appellant’s brother, testified at trial that the appellant came over to his house in the early afternoon on November 4, 2001, to help him fix his car. ⁷⁰⁰ The appellant left a few hours later, and did not say where he was going. Later that afternoon, the appellant called him and kept repeating that he was in trouble; he did not say why, though. According to records admitted into evidence, the appellant’s telephone call to Antonio was made by cell phone at 4:51 p.m.

Constance Calloway was the appellant’s long-time girlfriend. She and the appellant were involved in a romantic relationship before he married Mary, and the relationship continued after the marriage and during the estrangement. The appellant had children by both women. Calloway testified that the appellant stayed at her house on the night of November 3, 2001, and left early the next morning.

Sometime between 10 p.m. and 11 p.m. on November 4, the appellant called Calloway and said “he had just done something that may send him to jail for the rest of his life.” The day after the murder, a warrant was issued for the appellant’s arrest. The police could not find the appellant, however, and it appeared that he was in hiding. On December 8, 2001, the appellant’s turquoise green Mercury Sable, which fit the description of the distinctive-looking car seen outside Mary’s apartment building when the murder happened, was found abandoned two blocks from Antonio’s house. Two months later, on February 18, 2002, the appellant voluntarily turned himself in to police.

We shall recite additional facts as pertinent to our discussion of the issues. DISCUSSION I. The State’s theory of prosecution was that, when Mary became romantically involved with Matthew Boyd, after years of putting up with the appellant’s infidelities, most notably with Calloway, the appellant became jealous, and decided he and Mary should reunite. Mary chose Boyd over him, though, and the appellant retaliated by killing Boyd. The defense’s ⁷⁰¹ theory of the case was that the appellant was not the shooter and was not motivated to harm Boyd, as the State contended, because he had not been trying to reunite with Mary.

Before trial, Mary invoked her spousal privilege not to testify, under Md.Code (1974, 2002 RepLVol.), section 9-106 of the Courts and Judicial Proceedings article (“CJ”). Without Mary’s testimony, the State’s evidence that the appellant was the shooter was entirely circumstantial. In her opening statement, the prosecutor told the jury that Mary would not be testifying at trial, because she was “unavailable.” Constance Calloway was a “double-edged” sword of a witness. Her testimony that the appellant called her on the night of the murder and said he had done something that might “send him to jail for the rest of his life” was an important piece in the State’s puzzle of circumstantial evidence.

The defense tried to impeach her on this testimony by showing that she had been spurned by the appellant, and so was motivated to invent damaging testimony about him. That line of attack had drawbacks for the defense, however, because it tended to support the State’s theory that Mary was the appellant’s primary love interest. On the other hand, Callo-way’s testimony was helpful to the defense because she was protective of her relationship with the appellant, and made it plain that their romantic involvement never waned and he did not chose Mary over her. The first question presented concerns testimony elicited from Calloway by the trial judge, on redirect examination.

On direct, the prosecutor questioned Calloway about any contact she had had with the appellant after the day of the murder. Apparently, the questions were asked in an effort to show that, after the arrest warrant was issued, the appellant cut off his usual contact with friends and family to hide from police. Calloway testified that, on November 7 and 8, she spoke to the appellant on his cell phone and that he asked her during the conversations not to call him at that number again. She further testified that she did not see him or speak to him thereafter, which was “unusual.” ⁷⁰² On cross-examination, defense counsel sought to elicit that Calloway was upset that the appellant did not contact her for several months after the murder, i.e., that she felt rejected by him.

In response to questions by defense counsel, Calloway testified that, after the appellant turned himself in to the police, she tried to visit him in prison three times, once with success. Defense counsel had Calloway read to the jury a letter she had sent to the appellant while he was in prison awaiting trial, in which she wrote, “we can’t see each other.” Then, in what seems to have been an attempt to impeach Calloway by pointing out the discrepancy in her testimony as to whether or not she had seen the appellant after his arrest, defense counsel asked the following question, and the following response was elicited: [DEFENSE COUNSEL]: Now, I’m particularly interested in your comment there [in the letter] we can’t see each other. Didn’t you just tell the members of our jury that you had been over there three times and saw him[?] CALLOWAY: Yes, I did and when I was there he asked me not to come back to see him because it would mess things up with him and Mary as far as her testifying. (Emphasis added.) Defense counsel chose not to pursue any follow-up questions.

On redirect, the following colloquy took place: [PROSECUTOR]: You also indicated on cross-examination that you purposefully kept your distance from the defendant and didn’t visit "with him unless and until he asked you because you didn’t want to mess things up between him and Mary, or words to that effect, do you recall that? CALLOWAY: That’s correct. [PROSECUTOR]: Do you recall exactly what you said? CALLOWAY: I don’t recall exactly what I said but [the appellant] did, you know, inform me during the time that when I went to see go see him that he didn’t want Mary and I to bump heads because during the time that I was there that’s around the time that she usually would, you know, get there or she gets there around about twelve- ⁷⁰³ thirty or whatever time as I was leaving, however that went and, you know that was it. [PROSECUTOR]: Well, did he tell you why he was attempting to reconcile with his wife at that point? CALLOWAY: I didn’t even ask him the question.

The trial judge interjected at that point: THE COURT: Did [the appellant] indicate to you whether or not he had a specific reason not to get on [Mary’s] bad side while he was incarcerated? CALLOWAY: He did in so many words. It was—how did he say it? He said hmm— THE COURT: What was the gist of what he said?

CALLOWAY: These are not the words that he said but however it went, it was so that she did not end up testifying against him that he committed this crime, but those were not the words that he used, but somewhere around in there like that. (Emphasis added.) Defense counsel immediately moved for a mistrial, which the trial court denied, and then requested a curative instruction to the jury to disregard Calloway’s response to the court’s question. The trial judge denied the request, saying that on cross-examination Calloway had alluded to the appellant’s reconciling with his wife so she would be willing to invoke her spousal privilege not to testify, and that the court’s questions were posed merely as a means to have Calloway clarify that testimony. At the close of the evidence, the trial court instructed the jurors that Mary had not been available to testify at trial and they were not to speculate about what she would have testified to had she been available.

On appeal, the appellant contends the trial court abused its discretion in denying his motion for mistrial and, alternatively, his request for a curative instruction. He maintains that the trial judge’s stated premise for questioning Calloway as he did, that the issue of the appellant’s motive for trying to be on ⁷⁰⁴ Mary’s “good side” before trial had been raised on cross-examination, was in error, and that the judge exceeded the exercise of sound discretion by questioning Calloway on the issue. He further argues that the judge’s questions elicited prejudicial testimony about the reason that Mary was not testifying at trial. The State’s response is two-fold: first, the issue of whether the appellant was trying to stay out of trouble with Mary so she would not testify against him was raised on cross-examination by defense counsel, and therefore was not preserved for review; second, the trial judge acted within his discretion in questioning Calloway to clarify her testimony, and therefore did not abuse his discretion by denying the mistrial motion or request for curative instruction.

There is no merit to the State’s non-preservation argument. To be sure, Calloway first made mention of “Mary’s testifying” in answer to the question, posed on cross-examination, whether she just had testified, on direct, that she in fact saw the appellant after he was arrested, in prison. Her answer was not responsive to the question posed, however, and could not have been anticipated by defense counsel, who changed the topic of inquiry immediately. Therefore, it cannot be argued that defense counsel raised the issue on cross-examination, and thereby failed to preserve the issue for appeal.

See Brown v. State, 373 Md. 234, 238 , 817 A.2d 241 (2003) (restating the long-held principle that “ ‘a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted’ ”)(quoting Ohler v. United States, 529 U.S. 753, 755 , 120 S.Ct. 1851 , 146 L.Ed.2d 826 (2000)); Mills v. State, 310 Md. 33, 69 , 527 A.2d 3 (1987), judgment vacated on other grounds, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988) (holding that a defendant could not later complain of the inadmissibility of evidence that he had introduced on direct examination). Moreover, the focus of the appellant’s contention on appeal is that the trial judge abused his discretion by eliciting improper and prejudicial testimony from Calloway, something that occurred later during the ⁷⁰⁵ State’s redirect examination of Calloway, and to which the appellant immediately reacted by moving for a mistrial. Before addressing the substance of the issue raised by the appellant, and the State’s response, we shall review the governing legal principles. “Whether to order a mistrial rests in the discretion of the trial judge, and appellate review of the denial of the motion is limited to whether there has been an abuse of discretion. The question is one of prejudice.” Med.

Mut. Liab. Ins. Soc’y of Md. v. Evans, 330 Md. 1, 19 , 622 A.2d 103 (1993) (citations omitted).

See also Lai v. Sagle, 373 Md. 306 , 818 A.2d 237 (2003); Klauenberg v. State, 355 Md. 528, 555 , 735 A.2d 1061 (1999). In a jury trial, when a mistrial was requested on the basis that improper evidence was put before the jury, and the motion was denied, “we must determine ‘whether the evidence was so prejudicial that it denied the defendant a fair trial.’ ” Evans, supra, at 330 Md. at 19 , 622 A.2d 103 (quoting Rainville v. State, 328 Md. 398, 408 , 614 A.2d 949 (1992)). When the court denied the motion but gave a curative instruction, the question of prejudice becomes whether “ ‘the damage in the form of prejudice to the defendant transcended the curative effect of the instruction.’ ” Id. A judge presiding over a jury trial may interrogate the testifying witnesses in an effort to clarify the issues in the case.

Marshall v. State, 291 Md. 205, 213 , 434 A.2d 555 (1981). It is not improper “ ‘for a trial judge presiding at a jury trial to examine a witness on matters admissible in evidence ... ’ where ... the prior testimony is unclear, evasive or equivocal.” Lane v. State, 60 Md.App. 412, 429 , 483 A.2d 369 (1984) (quoting Sim-Kee Coup. v. Hewitt, 13 Md.App. 296, 299 , 282 A.2d 525 (1971)). This is so even when the examination produces evidence that is damaging to the defendant. See Lane, supra, 60 Md.App. at 429-30 , 483 A.2d 369 .

A judge should exercise the prerogative to question witnesses “sparingly,” however, Marshall, supra, 291 Md. at 213 , 434 A.2d 555 , so as to avoid the risk of appearing partial, ⁷⁰⁶ and thereby prejudicing the rights of the parties to a fair trial, that is, one before a neutral arbiter. In Leak v. State, 84 Md.App. 353, 362 , 579 A.2d 788 (1990), in which this Court held that the judge presiding over a jury trial “assumed a prosecutorial role by questioning a key defense witness in such a manner as to display disbelief in that witness’s testimony,” so that a mistrial was mandated, we explained: The extent to which a trial judge should or may intervene to question a witness ... involves the drawing of a fíne line between assisting the jury by bringing out facts and “sharpening the issues,” which is permissible, and influencing the jury’s assessment of facts or of a witness’s credibility by indicating his own opinions, which is not permissible. Id. at 363-64 , 579 A.2d 788 . In criminal cases, Maryland law recognizes a spousal adverse testimony privilege.

The privilege is set forth in CJ section 9-106, which states that, with some exceptions not pertinent here, “[t]he spouse of a person on trial for a crime may not be compelled to testify as an adverse witness[.]” The purpose of the privilege is to maintain and foster the marital relationship. McLain, Maryland Evidence, § 505:1, at 149 (2001). To that end, the privilege is held “by the potential witness who is called to testify for the state in a criminal prosecution of his or her present spouse.” Murphy, Maryland Evidence Handbook, § 903, at 374 (1999). See also Ashford v. State, 147 Md.App. 1, 60 , 807 A.2d 732 (2002); Hagez v. State, 110 Md.App. 194, 207 , 676 A.2d 992 (1996).

The privilege belongs to the witness spouse, not the defendant spouse, because its purpose only is furthered when the witness spouse is willing to invoke it; if a spouse is willing to testify against the other spouse in a criminal case, there is no viable marital relationship worth protecting. McLain, supra, § 505:1, at 149. A claim of privilege by a witness is not a permissible basis on which to infer the answer the witness would have given. United States v. Maloney, 262 F.2d 535, 537 (2d Cir.1959) (Hand, J.).

In some circumstances, a witness’s ⁷⁰⁷ invocation of a privilege in a criminal jury trial will give rise, naturally, to an inference by the jurors that, had the witness testified, his testimony would have been adverse to the defendant. Somers v. State, 156 Md.App. 279, 298-99 , 846 A.2d 1065 (2004). Our Court of Appeals has held, in the context of the federal constitutional privilege against compelled self-incrimination that, ordinarily, when the prosecutor knows the witness will invoke the Fifth Amendment when called, it is improper for the State to call the witness before the jury to invoke the privilege so as to take advantage of the adverse inference the jury naturally will draw from the assertion. Allen v. State, 318 Md. 166, 179-80 , 567 A.2d 118 (1989).

See also Adkins v. State, 316 Md. 1, 14-15 , 557 A.2d 203 (1989) (finding prejudicial error when the State called an accomplice in a murder case against the defendant, knowing he would invoke his Fifth Amendment privilege, ostensibly to establish his