Jorgensen v. State

STATEMENT OF THE CASE BISHOP, Judge. On March 25, 1988, appellant, Leland Ronald Jorgensen, and his brother, Paul, were charged in the District Court for Frederick County with assault and battery. Appellant requested a jury trial, and his case was transferred to the Circuit Court for Frederick County. The appellant filed a Motion to Dismiss claiming collateral estoppel based on his brother’s acquittal in the District Court.

The motion was denied. A jury convicted appellant of battery and he was sentenced to ninety days incarceration, all of which was suspended in favor of two years supervised probation. Appellant’s Motion for New Trial was denied and this appeal followed. ISSUES Appellant presents the following issues for review: Whether the trial judge abused his discretion by restricting the cross-examination and impeachment of the chief prosecution witness; Whether the defendant’s conviction should be set aside because the state failed to disclose the existence of a prior statement by the main prosecution witness; Whether the trial judge abused his discretion by failing to grant a new trial based on newly discovered evidence; and, Whether the trial court erred in denying defendant’s Motion to Dismiss based on grounds of collateral estoppel. ⁵⁹⁸ Since our disposition of this case is based on the first issue, we will not address the other issues.

STATEMENT OF FACTS Shortly after 1:00 p.m. on March 24, 1988, Deputy Jay Godlove (Godlove) of the Frederick County Sheriffs Department attempted to serve process on Leland Ronald Jorgensen (Ron). Godlove, with the permission of his supervisor, contacted the law office shared by Ron and his brother, Paul, and arranged for an appointment as a prospective client. On the day of the appointment, Godlove appeared at the law office in plain clothes, posing as a potential client. Upon being escorted into a private office, Godlove identified himself, served the papers on Ron, and then left.

Shortly after Godlove left the law office, Ron and Paul pursued the Deputy on the street. It is at this point the stories diverge. The Jorgensens testified that they neither touched Godlove nor gave him reason to feel threatened. Godlove testified that as he was walking up the street he turned and saw Ron and his brother running toward him.

Godlove further testified that Ron grabbed the Deputy’s right arm and Paul grabbed his left arm. Ron then grabbed Godlove’s briefcase from under his arm. Godlove testified that he identified himself a second time and grabbed back his briefcase. Godlove then removed his handgun from its holster, brought it up, and told the brother’s “get back or I’ll shoot.” At this time Godlove produced his badge, and then he and Ron walked up the street to Godlove’s cruiser.

Godlove drove away without arresting Ron or Paul. Ron told a different story. He testified that when he walked up to Godlove and asked for identification, Godlove pulled out a revolver. Additionally, Ron stated “go ahead and shoot me” at which time Paul arrived and tried to “calm the situation.” Miriam Rice, a neighbor of the Jorgensen’s, testified that she heard a commotion and looked outside of her house.

She stated that she did not see Godlove’s briefcase being taken but did see Ron push or shove the officer. ⁵⁹⁹ Ron contends here, as he argued in opening statement, that immediately after the incident his brother, Paul, called the Sheriffs Department to verify Godlove’s employment. After learning that Godlove was a Deputy, Paul discussed with Captain Doxzen the possibility of filing a complaint. On March 25, 1988, the next day, Paul called Corporal Breed, Godlove’s immediate supervisor, and made plans to visit the Sheriffs office to file the complaint. Later in the day, Godlove, assisted by Corporal Breed, swore out warrants for the arrest of Paul and Ron. 1 The court did not permit Ron’s foregoing contentions to be admitted into evidence.

At Ron’s trial, defense counsel was prohibited from either cross-examining or impeaching Godlove based upon the alleged bias. In addition, Ron’s defense counsel was not provided with a transcribed statement by Godlove made at the Sheriff’s Department regarding the alleged assault and battery. DISCUSSION The appellant argues that the trial court committed reversible error by restricting defense counsel’s cross-examination and impeachment of the main prosecution witness, Jay Godlove. The State contends that the issue concerning the trial court’s refusal to allow the cross-examination and impeachment was not properly preserved for appeal because no proffer was made at trial.

The State further posits that even if the issue were properly preserved, the evidence which the defense counsel tried to elicit from the main prosecution witness was not relevant to the assault and battery charges. In any case, the State argues, the error was harmless because the evidence was put before the jury anyway, in opening statements and from a comment made by a defense witness while testifying. ⁶⁰⁰ “ ‘It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.’ ” Smith v. Illinois, 390 U.S. 129, 131 , 88 S.Ct. 748, 749 , 19 L.Ed.2d 956 (1968) quoting from Pointer v. Texas, 380 U.S. 400, 404 , 85 S.Ct. 1065, 1068 , 13 L.Ed.2d 923 (1965). Unduly restricting cross-examination is an abuse of discretion and warrants reversal of a conviction and remand the case for a new trial. Brown v. State, 74 Md.App. 414, 421-22 , 538 A.2d 317, 320-21 (1988).

However, Maryland courts have consistently held that the exclusion of evidence is ordinarily not preserved for appellate review absent a formal proffer of what the contents and relevance of the excluded testimony would have been. Grandison v. State, 305 Md. 685 , 506 A.2d 580 , cert. denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 (1986). The Court in Grandison held: In the absence of a proffer, we are unable to determine whether this ruling prejudiced Grandison’s case. As Judge Eldridge pointed out in his concurring opinion in Johnson v. State, 303 Md. 487 , 495 A.2d 1 , cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1985): “Nevertheless, assuming that the issue can be preserved by a pre-trial motion, it is settled that whenever one is complaining about a trial court’s refusal to admit certain testimony, it is necessary that there be a proffer of what the evidence would have been.

Mack v. State, 300 Md. 583, 603 , 479 A.2d 1344 (1984); Hooton v. Kenneth B. Mumaw P. & H. Co., 271 Md. 565, 571 , 318 A.2d 514 (1974); Keys v. Keys, 251 Md. 247, 250 , 247 A.2d 282 (1968).” 305 Md. at 742 , 506 A.2d 580 . This rule insures that on appeal, a trial judge’s exercise of discretion can be fairly and acurately assessed. Waldron v. State, 62 Md.App. 686, 698 , 491 A.2d 595 , cert. denied, 304 Md. 97 , 497 A.2d 819 (1985). Proffer is not absolutely required.

In Waldron we said: ⁶⁰¹ Ordinarily, the thrust of the inquiry will be revealed by the question, however, although not required, it may be supplied by proffer. When no proffer is made, the questions must clearly generate the issue-what the examiner is trying to accomplish must be obvious. Thus, in the absence of a proffer, the clarity with which the issue is generated will determine whether the court’s restriction of cross-examination constitutes an abuse of discretion. (Footnote omitted.) 62 Md.App. at 698 , 491 A.2d 595 .

In the case sub judice, the trial court curtailed any probing by the defense counsel into the fact that the warrants for arrest were not issued until after an administrative complaint had been lodged against Godlove. Although defense counsel did not proffer any evidence to show the relevance of the inquiry, we hold that no such proffer was necessary. The questions to which objections were sustained, clearly generated the issue — what the examiner was trying to accomplish was obvious. The following colloquy took place during the cross-examination of Godlove: “Q: Isn’t it true that you didn’t decide to get a warrant against this defendant until the next____ Ms. Hershey: Objection.

Q: Can I finish? The Court: Let her finish the question. Q: ... until the next day after you learned that Paul was filing a complaint against____ Ms. Hershey: Objection. The Court: Objection sustained.

Strike the question. Q: At what point did you decide to get this warrant? Ms. Hershey: Objection. The Court: Objection sustained.” In addition, during the direct examination of