Kazadi v. State

Graeff, Beachley, Raymond G. Thieme, Jr. (Senior Judge, Specially Assigned), JJ. Thieme, J. ¹⁶¹ On the evening of August 18, 2015, in an alley behind the 200 block of North Conkling Street in Baltimore, twenty-one-year-old Brandon Smith was fatally shot. The State tried appellant Tshibangu Kazadi, a resident of that street, for Mr. Smith's murder. Critical to that prosecution was eyewitness ¹⁶² testimony by two of appellant's next-door neighbors - a mother and her minor son, whose immigration statuses were the subject of discovery and cross-examination rulings that are challenged in this appeal.

After both witnesses identified appellant as the killer, a jury in the Circuit Court for Baltimore City convicted appellant of second degree murder and using a firearm in a crime of violence. Appellant was sentenced for the murder to thirty years, with all but twenty-five years suspended, consecutive to fifteen years for the weapon offense, the first five of that served without parole, for a total executed time of forty years. Appellant challenges his convictions on three grounds, which we have re-ordered chronologically as follows: ⁶²² 1. Did the circuit court abuse its discretion in refusing to propound Mr. Kazadi's requested voir dire questions? 2.

Did the circuit court abuse its discretion in denying defense counsel's motion to compel discovery and, thereafter, in refusing to allow defense counsel to question the State's two main witnesses regarding their immigration issues? 3. Did the circuit court abuse its discretion in refusing to propound defense counsel's proposed jury instruction on eyewitness identification? Concluding there was no error or abuse of discretion, we shall affirm appellant's convictions. In doing so, we address the limited circumstances in which a criminal defendant is entitled to discovery and cross-examination regarding the immigration status of prosecution witnesses.

FACTS AND LEGAL PROCEEDINGS On August 18, 2015, fifteen-year-old M.L. and his mother S.L.H. had been living in their family home at 208 North Conkling Street, next door to appellant, for more than two years. 1 That evening, S.L.H. asked M.L. to retrieve garbage ¹⁶³ cans from the alley behind their house. While M.L. was doing so, Brandon Smith was shot three times. Although M.L. saw appellant fire at the victim, and both he and S.L.H. saw appellant running from the scene with a handgun, they did not tell police until months later. On January 19, 2016, M.L. and his mother, "afraid of what could happen," told police what they witnessed.

Both made photo identifications of appellant as the person who shot Mr. Smith and ran from the scene. Before trial, the parties litigated disputes over whether the State was required to disclose information and documents pertaining to the immigration status of M.L. and S.L.H. and whether defense counsel could cross-examine both witnesses about immigration matters, including a deportation order that S.L.H. mentioned to police. (See our discussion infra , in Part II.) As detailed in our discussion, the circuit court denied appellant's motion to compel discovery and foreclosed cross-examination regarding the immigration status of both witnesses. At trial, M.L. testified that as he was on his back deck that August evening, he heard a gunshot and looked into the alley.

He saw appellant fire a handgun at the victim two or three times. When his mother came to the back door, they both saw appellant run into the back of his house, still carrying a gun in his hand. S.L.H. recounted that while M.L. was out back collecting their trash cans, she heard gunfire. Stepping out her back door, she saw her son running toward her, saying "that the guy had killed someone." S.L.H. saw appellant "running" and "hiding his weapon," as he fled into his basement with a handgun.

Outside, S.L.H. found a "kid" she did not know, who was "agonizing" with three gunshot wounds. Her scream drew others. S.L.H. and M.L. told members of appellant's family what they had seen, but they did not tell police or other emergency responders, because S.L.H. "was scared" after ¹⁶⁴ appellant's family "realized that [they] had said that [appellant] was the one that had killed him." ⁶²³ S.L.H. and M.L. waited five months, until January 19, 2016, to disclose to police what they saw.

After the trial court foreclosed mention of their immigration status, S.L.H. testified that she did not come forward earlier because she was scared of both "[appellant] or his family" and "something else" that was "not connected to [appellant] or his family." Her disclosure to police occurred after she revealed information to her sons' doctor, who put her in contact with a social worker in the State's Attorney's Office. S.L.H. and M.L. separately met with police, reported what they observed on the night of the shooting, and identified appellant in photo arrays as the person who shot Brandon Smith. We shall add pertinent facts in our discussion of the issues raised by appellant. DISCUSSION I. Voir Dire of Prospective Jurors Appellant contends that the trial court abused its discretion in denying his request for voir dire questions asking whether prospective jurors would comply with the reasonable doubt standard, the presumption of innocence, and the right not to testify.

We agree with the State that the court correctly followed Court of Appeals precedent and did not abuse its discretion in declining to ask about prospective jurors' "willingness to follow points of law covered in the court's jury instructions." A. Trial Record Defense counsel's written request for voir dire questions included the following queries: 17. The Court will instruct you that the State has the burden of proving the Defendant guilty of the offenses charged beyond a reasonable doubt. Are there any of you ¹⁶⁵ who would be unable to follow and apply the Court's instructions on reasonable doubt in this case? 18. Is there any member of the prospective jury panel who would hesitate to render a verdict of not guilty if you had a hunch that the Defendant had committed the alleged crime, but were not convinced of that fact beyond a reasonable doubt? 19.

The Court will instruct you that the Defendant is presumed to be innocent of the offenses charged throughout the trial unless and until the Defendant is proven guilty beyond a reasonable doubt. Is there any member of the jury panel who would be unable to give the Defendant the benefit of the presumption of innocence? 20. Under the law the Defendant has an absolute right to remain silent and to refuse to testify. No adverse inference or inference of guilty may be drawn from the refusal to testify.

Does any prospective juror believe that the Defendant has a duty or responsibility to testify or that the Defendant must be guilty merely because the Defendant may refuse to testify? The trial court declined to include these questions in its voir dire, ruling that the legal principles addressed in them would be "covered adequately in the instruction portion of the case" and by "other questions" that it planned to ask. Instead, the court used questions taken from the pattern voir dire approved for criminal trials. See Maryland State Bar Ass'n, Model Jury Selection Questions for Criminal Trials , http://www.msba.org/uploadedFiles/MSBA/Member_Groups/Committees/Publications/Criminal%20Voir%20Dire%20Model%20Questions%20(2).pdf[https://perma.cc/D5LY-AZ6B] (last visited December 10, 2018). ⁶²⁴ B. Standards Governing Voir Dire of Prospective Jurors "Voir dire is critical to assure that the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantees to a fair and impartial jury will be honored." Stewart v. State , 399 Md. 146 , 158, 923 A.2d 44 (2007).

Under Maryland law, "the sole ¹⁶⁶ purpose of voir dire is to ensure a fair and impartial jury by determining the existence of cause for disqualification, and not as in many other states, to include the intelligent exercise of peremptory challenges." Collins v. State , 452 Md. 614 , 622, 158 A.3d 553 (2017) (citation and quotation marks omitted). Although trial courts have "significant latitude in the process of conducting voir dire and the scope and form of questions presented to the venire[,]" we are mindful that [u]ndergirding the voir dire procedure and, hence, informing the trial court's exercise of discretion regarding the conduct of the voir dire, is a single, primary, and overriding principle or purpose: to ascertain the existence of cause for disqualification. [W]e do not require perfection in its exercise. The trial court reaches the limits of its discretion only when the voir dire method employed by the court fails to probe juror biases effectively. Id. at 622-23 , 158 A.3d 553 (citations and quotation marks omitted).

Appellate courts "review a judge's conduct of voir dire for abuse of discretion and, when a judge's approach provides reasonable assurance that prejudice will be discovered, the judge has acted within his or her discretion." Id. at 628 , 158 A.3d 553 . The Court of Appeals has held that, to accomplish that objective, certain substantive elements [must] be incorporated. If relevant to the case and requested by one of the parties, we have held that it is reversible error for a trial court not to question the venire regarding racial, ethnic, cultural or religious bias; whether more or less credence would be given to a police officer simply because of that officer's position; and whether the venire harbors an unwillingness to convict a defendant of a capital crime. Yet, even for these mandatory subjects of inquiry, generally, neither a specific form of question nor procedure is required.

Id. at 624 , 158 A.3d 553 (citations, quotation marks, and footnote omitted). ¹⁶⁷ Long ago, in Twining v. State , 234 Md. 97 , 100, 198 A.2d 291 (1964), the Court of Appeals decided that a trial court does not abuse its discretion by refusing to ask whether prospective jurors "would give the accused the benefit of the presumption of innocence and the burden of proof." The Twining Court stated that "[i]t is generally recognized that it is inappropriate to instruct on the law at this stage of the case, or to question the jury as to whether or not they would be disposed to follow or apply stated rules of law." Id. C. Appellant's Challenge Acknowledging that his voir dire challenge is foreclosed under Twining , appellant tests that precedent, arguing that [i]n the fifty-three years since Twining was decided, ... two advances in the law have made the opinion an artifact of its time: First, Twining is simply inconsistent with subsequent Court of Appeals decisions that emphasize that "it is the venire person's state of mind, in particular, whether there is some bias, prejudice, or preconception, that is the proper focus of voir dire." Accordingly, these decisions recognize a defendant's right to a voir dire question if the area of inquiry "entail[s] potential biases or ⁶²⁵ predispositions that prospective jurors may hold which, if present, would hinder their ability to objectively resolve the matter before them." [ State v. Thomas , 369 Md. 202 , 211-12 [ 798 A.2d 566 ] (2002) ]. Second, the holding in Twining rests on the premise that the court's instructions to the jury on the law, including instructions on the presumption of innocence and the burden of proof, are "only advisory." [ Twining ,] 234 Md. at 100 [ 198 A.2d 291 ]. Since 1964, when Twining was decided, the Court has made clear that jury instructions are not advisory only.

In support of the latter point, appellant cites Stevenson v. State , 289 Md. 167 , 188, 423 A.2d 558 (1980), and Montgomery v. State , 292 Md. 84 , 91, 437 A.2d 654 (1981), which hold "that instructions on the presumption of innocence and burden of proof are 'binding' on the jury and are 'not advisory.' " See also Unger v. State , 427 Md. 383 , 411, 48 A.3d 242 (2012) ("the ¹⁶⁸ Stevenson and Montgomery opinions set forth a new interpretation of Article 23 and established a new state constitutional standard"). Appellant maintains that, because the trial court must excuse for cause "[p]rospective jurors who would be unable to apply the presumption of innocence and proof beyond a reasonable doubt standards, and jurors who believe that a defendant has a duty or responsibility to testify and that if he refuses to testify he must be guilty," the trial court's "refusal to ask defense Questions 17 through 20" denied him "the opportunity to discover and challenge such jurors for cause." We conclude that Twining is still controlling. Contrary to appellant's contention, the Court of Appeals has affirmed the continuing vitality of Twining in decisions issued long after Montgomery and Stevenson . For example, twenty-five years after jury instructions were declared binding in Montgomery , the Court, in State v. Logan , 394 Md. 378 , 398-99, 906 A.2d 374 (2006) (some internal citations omitted), invoked Twining in holding that a voir dire question proposed by the defense was not a proper voir dire question because it asked prospective jurors whether they would apply the rules of law as instructed by the trial court.

We agree that Question 7a amounts to a solicitation of whether prospective jurors would follow the court's instructions on the law. This practice is generally disfavored in Maryland, and we find no abuse of discretion on this point. See Twining v. State , 234 Md. 97 , 100 [ 198 A.2d 291 ] (1964) (stating it is "generally recognized that it is inappropriate ... to question the jury as to whether or not they would be disposed to follow or apply stated rules of law"). Similarly, in Stewart v. State , 399 Md. 146 , 162-63, 923 A.2d 44 (2007), the Court continued to follow the policy and practice established in Twining , stating that, "[a]s we noted in Logan , questions asking whether prospective jurors would follow the court's instructions on the law are disfavored in Maryland and a court does not abuse its discretion in refusing to ask them." ¹⁶⁹ The Court of Appeals mandate on this question is clear.

Consequently, any challenge to such binding precedent must be pursued in that Court. We do not address the out-of-state cases cited by appellant for the proposition "that a defendant has a right to voir dire questioning aimed at identifying prospective jurors who are unable or unwilling to apply the presumption of innocence." 2 Even if the Court of Appeals ⁶²⁶ had not foreclosed consideration of such extra-jurisdictional decisions, they are inapposite to the extent those jurisdictions do not share Maryland's limitations on the scope of voir dire.

II

Immigration Issues Appellant next argues that "the [trial] court abused its discretion in denying defense counsel's motion to compel discovery and, thereafter, in refusing to allow defense counsel to question the State's two main witnesses regarding their immigration issues." In his view, "[t]he court's denial of the motion to compel discovery regarding the [witnesses'] immigrations issues and deportation order and the foreclosure of cross-examination on these issues combined to deprive [appellant] of his right to confrontation guaranteed by the Sixth Amendment ¹⁷⁰ to the United States Constitution and Article 21 of the Maryland Declaration of Rights." After reviewing the relevant record, we shall address the discovery and cross-examination rulings in turn, explaining why neither warrants appellate relief. A. Relevant Record Before trial, appellant moved to compel the State to disclose information regarding the immigration status of S.L.H. In support, defense counsel proffered that in her statement to police, S.L.H. said "that she was hesitant to come forward with information because she was worried about an outstanding deportation order." Defense counsel asked the court to order the State to disclose information regarding S.L.H.'s immigration status, including her Alien Number ("A Number") and a copy of any deportation order, on the ground that testifying in the criminal case would make S.L.H. and her minor son, M.L., "eligible for relief from the deportation order." In addition, counsel argued that both witnesses' "efforts to avoid compliance with the deportation order involved conduct that reflects upon a character for untruthfulness 'under [Md.] Rule 5-608.' " The State opposed the motion, arguing that S.L.H.'s immigration status was "neither relevant nor discoverable," under Brady v. Maryland , 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and Md. Rule 4-263, which require disclosure of impeachment material, including "the witness's prior conduct that would show untruthful character pursuant to [Md.] Rule 5-608(b)" and "any relationship between the State and the witness that may constitute an inducement to cooperate or testify on behalf of the State." The prosecutor maintained that no disclosure was required because "the State has not represented to [S.L.H.] that she would receive special treatment for her cooperation in this case." ⁶²⁷ Moreover, the prosecutor continued, "defense counsel has proffered no evidence to show that [S.L.H.] is actively attempting to evade her outstanding deportation order[,]" and "speculation should not serve as a basis for a fishing expedition into the immigration status of a ¹⁷¹ witness." Accompanying its response, the State proffered an executive order from the Mayor of Baltimore, "encourag[ing] any and all residents of Baltimore to report crimes to law enforcement, regardless of race, ethnicity, or immigration status." The State also moved in limine to restrict cross-examination of S.L.H. and M.L., citing case law that "[i]mmigration status alone does not reflect upon an individual's character and is thus not admissible for impeachment purposes." Ayala v. Lee , 215 Md. App. 457 , 480, 81 A.3d 584 (2013). The State distinguished S.L.H. from the witnesses who were subject to cross-examination in Carrero-Vasquez v. State , 210 Md. App. 504 , 63 A.3d 647 (2013), and United States v. Blanco , 392 F.3d 382 (9th Cir. 2004), on the ground that she "has no connection to the crimes," no special immigration status based on a relationship with the government, and no other motive to testify falsely. Nor had she been "promised or induced ... to provide any information that she has already given, or which may be elicited during trial testimony." In a memorandum opinion, the motion court denied appellant's discovery request, reasoning that [u]nlike United States v. Blanco , where the witness at issue was a paid federal informant who had been granted special immigration status based on his cooperation with the government, [appellant] does not identify any specific promise or inducement extended by the State to either witness in connection with the witness's immigration status.

See Briggs v. Hedgpeth , 2013 WL 245190 at ⁶-10 (N.D. Cal. Jan. 22, 2013) (denying habeas relief based on alleged Brady violation despite certain statements made to victim by police that they could help him with immigration matter). [Appellant] apparently simply wants to confirm the information stated by [S.L.H.], with some hope that it might be developed into a credibility issue. The only case cited by [appellant], Carrero-Vasquez v. State , did not involve any discovery issue. Without a showing by [ appellant ] of some special relationship between the witness and the State relating to immigration or some promise or inducement or benefit extended by ¹⁷² the State concerning immigration, [ appellant ] has failed to show a basis to compel any further disclosure.

(Emphasis added; some citations omitted.) The motion court reserved the ruling on the State's motion in limine , for decision by the trial court. At a suppression hearing conducted on the eve of trial, S.L.H. explained that she waited to tell police that she saw appellant run from the alley with a gun in hand, because she was afraid of appellant, who was living next door, and of "the weapons that they had in there." Outside the presence of the jury, S.L.H. explained that after disclosing to appellant's family members that she saw appellant at the murder scene, she believed "[t]he life of [her] family was in danger." Afterward, appellant and his friends "would be in front of [her] house," staying there whenever she opened the door. They warned that she "should not be outside with [her] sons" because "something could happen." After she and M.L. identified appellant to police, the family received relocation assistance, which included payment of rent. But S.L.H. did not receive or ask for any other benefits.

Nor did she expect any benefits for testifying. ⁶²⁸ The trial court accepted that testimony, pointing out that it had "not heard anything from this family indicating to me that there is an immigration issue that would have been a factor in them testifying." The court also expressed "significant concern" about "how this jury's going to react[,]" pointing out that there is some level of hostility in some circles in our society to people who are perceived as being here illegally. Whether that is valid or not valid, I don't want to be in a situation where we prejudice a jury by raising an issue which may not be germane to the case. Obviously if it is germane to the case, if they've been promised to stay in the U.S. indefinitely ... in exchange for testimony[,] that obviously is a very valid factor and in which case the prejudice is something that would not be outweighed. ¹⁷³ When the court pressed defense counsel for any "indication ... that there's a quid pro quo for immigration status[,]" defense counsel responded: [DEFENSE COUNSEL]: Well, I would argue that one of the reasons she decided to come forward was because she was informed apparently by the social worker that the police wouldn't enforce the deportation order. And I think non-enforcement of a deportation order is a benefit. [PROSECUTOR]: We've heard no testimony to that effect.

THE COURT: I haven't heard any testimony to that. Who is the social worker, by the way? [DEFENSE COUNSEL]: It's the one from the doctor. THE COURT: Well, that's not official conduct .... Now, there is Evelyn, who I take it is a member of the [State's Attorney's] staff ....

And so the question is, did the State's Attorney's Office provide her quid pro quo. Now in federal court they have these ... detailed contracts that ... you can put into the record and I don't know that the State's-I've never seen one- [PROSECUTOR]: No. THE COURT: -that the State's Attorney's Office has. And if she were placed in a new house and the new house was ... some mansion in Ruxton or something, that's one thing. I kind of suspect that's not what she got .... [U]nless you have something more concrete about her immigration status I am really concerned about putting into the record possibly that this lady is an illegal immigrant-an undocumented alien ... or that her son is given the fact that there is, as I say, among circles in our society a strong bias, prejudice, in fact, ... against people who are undocumented aliens .... [I]t's legitimate to pursue areas of legitimate inquiry on cross examination ....

But by the same token I don't want to get into areas that I think are going to shed more heat than light. This is one. So unless you can make a proffer to me, let's say tomorrow when she comes on to testify that you've got something that would constitute ... a quid pro ¹⁷⁴ quo on the immigration status[,] I'm uncomfortable with letting that in. The trial court also rejected defense counsel's contention that failing to comply with a deportation order was impeachable "evidence of deceit" because it was "analogous to the way that the Court of Appeals has said drug dealers necessarily are surreptitious[.]" The court explained that it did not "buy the notion that a family who comes to America to try to make something of themselves and get their kids in school is equivalent to a drug dealer." Ruling that "we're not going to do an immigration ⁶²⁹ trial here in this court as part of this criminal case[,]" the court explained that "this is one of those circumstances in which the equities I think really militate against allowing that particular thing to become an issue in the case." Unless defense counsel could "come up with something that makes it more than a speculation that there's a quid pro quo," presented "out of the hearing of the jury[,] ... it would be unfairly prejudicial to the witness." Defense counsel, attempting to keep the door open, pointed out that he had been unable to conduct any search for evidence relating to S.L.H. because the prosecutor "thwarted" his efforts to obtain the "immigration A number" by which all immigration information must be accessed.

When the court asked the prosecutor why, she responded: [PROSECUTOR]: I don't have the information, Your Honor, and obviously Baltimore is a sanctuary city .... As a City employee I don't think it's my job to inquire into her immigration status. I have never asked her what it is .... Again, there's been no relationship here between the State or any government agency saying, if you come in and you testify then ... we're going to make you a United States citizen ....

These are just folks who had the unfortunate luck of living next door to somebody ... who killed someone. The trial court granted the State's motion in limine , subject to reconsideration if defense counsel "discover[s] something that is relevant and that is concrete[.]" ¹⁷⁵ The next day, after S.L.H. completed her direct examination, the prosecutor noted that "no additional evidence has been presented ... with regards to the immigration issue[.]" Defense counsel disagreed, arguing "quite the opposite" based on S.L.H.'s testimony that she did not come forward initially because she was afraid of appellant. Counsel maintained her trial testimony was inconsistent with her recorded statement to police that she was afraid to come forward because of the deportation order. Defense counsel argued that this was an impeachable inconsistency regarding her "motivation for not coming forward." The trial court denied defense counsel's request to impeach S.L.H. with her statement that she did not come forward earlier because she was afraid of being deported, because that was not necessarily inconsistent with her testimony that she also was afraid of appellant.

In turn, because defense counsel still had not proffered any evidence that S.L.H. received an immigration benefit in return for her testimony, and her immigration status was not probative of credibility, the court restricted defense counsel to asking whether she had given police an "inconsistent reason" for not coming forward. On cross-examination, defense counsel asked S.L.H. about her statement to police: [DEFENSE COUNSEL]: Now, the police, when you talked to them in January, they asked you why you didn't come forward initially. [S.L.H.]: Because I was scared. [DEFENSE COUNSEL]: Okay. And I'm going to ask you this question very carefully. But at the time you didn't tell the police that you were scared of Mr. Kazadi or his family, you told them you were scared of something else, correct? [S.L.H.]: Yes. [DEFENSE COUNSEL]: Okay.

And that is something not connected to Mr. Kazadi or his family? [S.L.H]: Can you repeat the question please? ⁶³⁰ [DEFENSE COUNSEL]: Sure. The other thing that you're scared of is not connected to Mr. Kazadi or his family? ¹⁷⁶ [S.L.H.]: I said - I said both. I said why I was worried. When defense counsel refreshed her recollection with a transcript of her recorded interview with police, S.L.H. responded: "I repeat again, I spoke about both.

I was afraid of his family and something else." After concluding his cross-examination of S.L.H., defense counsel proffered for the record that he would have asked her about her immigration status, including questions about the deportation order. Likewise, during M.L.'s cross-examination, defense counsel proffered that, but for the prior ruling, he would have asked immigration-related questions. The court reiterated that "the questions are ruled out as far as the immigration question." B. The Parties' Contentions Appellant contends that the "court abused its discretion in denying defense counsel's written motion to compel the State to produce [S.L.H.'s] Alien Number and a copy of the deportation order[,]" because "[d]efense counsel had an obligation to investigate the credibility of the two eyewitnesses who testified that Mr. Kazadi shot another man in the alley behind their house." In his view, he established "a good faith basis to believe that the requested discovery materials would reveal information relevant to the credibility of [S.L.H.] and her son." Once S.L.H. "stated to police that she had an outstanding deportation order[,]" appellant maintains, such "information was discoverable" under Md. Rule 4-263, because "a number of courts have concluded that unlawful entry into the United States, the commission of an immigration-related offense, and false representations made in an effort to get into or remain in the United States reflect on credibility." 3 ¹⁷⁷ Linking his disclosure and confrontation complaints, appellant also argues that the court's discovery ruling "placed [defense counsel] in an impossible situation[,]" because "[h]e was not able to discover the basis for the deportation order, which very well may have been relevant to the witness's ⁶³¹ credibility[,]" perhaps revealing "evidence of illegal entry or use of falsehoods to enter or remain in the country." According to appellant, "[t]he trial judge exacerbated the problem by refusing to permit defense counsel to ask the witnesses any questions whatsoever about their immigration issues, particularly the deportation order and whether they expected any immigration benefit in return for testifying for the State." The State counters that the circuit court properly exercised its discretion in limiting both discovery and cross-examination, because [t]he police statement that formed the basis for the defense's motion to compel establishes only that [S.L.H.] was in the United States illegally, and that she, her two children, and her husband were the subject of a deportation order.

This information was not relevant to the witnesses' credibility, ¹⁷⁸ and should not, without more, serve as the basis for [a] State-assisted fishing expedition into the immigration records of a witness. After the State's Attorney "presumably fulfilled" the State's obligation to disclose "prior criminal convictions, pending charges, or probationary status that may be used to impeach the witness," Md. Rule 4-263(d)(6)(C), the State contends that appellant "was not entitled to more simply because the State's witnesses were in the United States illegally." "[F]or similar reasons," the State continues, the court appropriately limited cross-examination on the ground that defense counsel's "proposed inquiry into the witnesses' immigration status lacked probative value" and "posed a substantial danger of unfairly prejudicing the jury against the witnesses." C. Maryland Law Maryland Rule 4-263(d)(6)(A), governing the State's discovery obligations in a criminal case, provides that, "[w]ithout the necessity of a request, the State's Attorney shall provide to the defense ... [a]ll material or information in any form, whether or not admissible, that tends to impeach a State's witness, including ... evidence of prior conduct to show the character of the witness for untruthfulness pursuant to Rule 5-608(b)[.]" "A criminal defendant's right to confront witnesses is guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights." Ashton v. State , 185 Md. App. 607 , 621, 971 A.2d 965 (2009). See Pantazes v. State , 376 Md. 661 , 680, 831 A.2d 432 (2003). " 'Central to that right is the opportunity to cross-examine witnesses.' " Ashton , 185 Md. App. at 621 , 971 A.2d 965 (quoting Pantazes , 376 Md. at 680 , 831 A.2d 432 ).

Yet a defendant's right to cross-examine is not limitless, as judges "have wide latitude to establish reasonable limits on cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally ¹⁷⁹ relevant." Pantazes , 376 Md. at 680 , 831 A.2d 432 . "Thus, the scope of the cross-examination lies largely within the discretion of the trial judge." Ashton , 185 Md. App. at 621 , 971 A.2d 965 . "An abuse of discretion occurs when the trial judge imposes limitations on cross-examination that 'inhibit ... the ability of the defendant to receive a fair trial.' " Gupta v. State , 227 Md. App. 718 , 745, 135 A.3d 926 (2016) (quoting Pantazes , 376 Md. at 681 -82 , 831 A.2d 432 ), aff'd , 452 Md. 103 , 156 A.3d 785 , cert. denied , --- U.S. ----, 138 S.Ct. 201 , 199 L.Ed.2d 115 (2017). Implementing these constitutional guarantees, Md. Rule 5-616(a)(4) authorizes impeachment "through questions asked of ⁶³² the witness, including questions that are directed at ... [p]roving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely[.]" Among the cross-examination tools available to defendants is Md. Rule 5-608(b), authorizing impeachment based on a witness's prior conduct.

That rule provides: The court may permit any witness to be examined regarding the witness's own prior conduct that did not result in a conviction but that the court finds probative of a character trait of untruthfulness. Upon objection, however, the court may permit the inquiry only if the questioner, outside the hearing of the jury, establishes a reasonable factual basis for asserting that the conduct of the witness occurred. The conduct may not be proved by extrinsic evidence. There is no Maryland precedent addressing a criminal defendant's right to discover immigration-related information about prosecution witnesses.

Yet two Maryland cases provide some guidance on the right to cross-examine witnesses about immigration matters. We review both as background for our discussion below. In Ayala v. Lee , 215 Md. App. 457 , 463-66, 480, 81 A.3d 584 (2013), the trial court did not err or abuse its discretion in foreclosing cross-examination of the plaintiffs about immigration-related information, including their illegal status, use of illegally acquired Social Security numbers, and ¹⁸⁰ misrepresentation of their immigration status on employment documents. Although this was a personal injury action rather than a criminal case, we observed in that context that "[i]mmigration status alone does not reflect upon an individual's character and is thus not admissible for impeachment purposes." Id. at 480 , 81 A.3d 584 (citing Figeroa v. U.S. I.N.S. , 886 F.2d 76 , 79 (4th Cir.1989) ("An individual's status as an alien, legal or otherwise, however does not entitle the [government] to brand him a liar."); Galaviz-Zamora v. Brady Farms, Inc. , 230 F.R.D. 499 , 502 (W.D. Mich. 2005) (finding no connection between immigration status and witness credibility); Mischalski v. Ford Motor Co. , 935 F.Supp. 203 , 207-08 (E.D.N.Y.1996) (finding no support for "the conclusion that the status of being an illegal alien impugns one's credibility") ).

Moreover, we recognized that "[i]mmigration violations that involve false statements, such as false employment papers, are more likely to be relevant, but are still subject to an intensive inquiry into the likelihood of prejudice[.]" Id. at 481, 81 A.3d 584 . For that reason, the "relevance of an immigration-related false statement, standing on its own, is limited if the party against whom it is offered is not charged with an immigration-related crime." Id. In Carrero-Vasquez v. State , 210 Md. App. 504 , 516, 63 A.3d 647 (2013), a firearm possession case, the defense sought to establish that a stolen gun found in a borrowed vehicle driven by the defendant belonged to the owner of the vehicle. Because the vehicle owner admitted that "she was both illegally in the United States and aware of the potential deportation consequences if she were convicted of possessing the stolen handgun at issue[,]" this Court concluded that the defense had established a sufficient foundation to justify cross-examining the witness about the consequences of a firearm conviction on her immigration status.

Id. at 527 , 63 A.3d 647 . This Court held that the trial court erred in foreclosing impeachment cross-examination, reasoning that the witness's immigration status was not "merely a collateral issue, likely to confuse and mislead the jury," but rather "an obvious reason that an important witness for the prosecution might have to testify ¹⁸¹ falsely." ⁶³³ Id. at 508, 522 , 63 A.3d 647 . In addition, we concluded that "evidence that [the witness] had a motive to testify falsely was not outweighed at all, much less substantially so, by the danger of confusion to the jury or unfair prejudice to the State." Id. at 527 , 63 A.3d 647 (citations and quotations marks omitted). D. Analytical Framework Neither Ayala nor Carrero-Vasquez addresses the questions presented here.

Indeed, neither case presents an immigration-related discovery issue, and both present distinguishable confrontation questions. Because Ayala is a civil case, that decision does not consider the rights of a criminal defendant to discovery and cross-examination. Moreover, appellant concedes that although Carrero-Vasquez is a criminal case, it "is only marginally helpful" because, unlike S.L.H., the prosecution witness in that case had an immigration-related motive to falsely accuse the defendant, in order to protect herself from being convicted on the weapon charge, then deported as a result of that conviction. In contrast, as appellant admits, "there was no suggestion that [S.L.H.] or her son could have been charged with any crime related to the shooting." Although neither Ayala nor Carrero-Vasquez controls our decision in this case, we apply two important lessons from those decisions: (1) that the immigration status of a witness generally does not impeach that witness's credibility regarding a non-immigration matter, and (2) that the disclosure of a witness's immigration status may inject unfair prejudice into the case.

In our view, these cases teach that immigration-related information about a prosecution witness should not be disclosed, whether to defense counsel in discovery or to the jury during cross-examination, unless such information is sufficiently probative of the witness's credibility in the matter before the court, such as in the case of a witness who receives an immigration-related benefit for testifying or a witness who avoids an immigration-related detriment as a result of such testimony. Even in those circumstances, a court may restrict ¹⁸² discovery or cross-examination to avoid unfair prejudice to the witness or the proceedings. Both the motion court and the trial court concluded that the immigration status of these key prosecution witnesses was not probative of their credibility concerning the murder of Brandon Smith and that cross-examination regarding their immigration-related matters would be unfairly prejudicial. For the reasons that follow, we find no legal error or abuse of discretion in those rulings.

E. Discovery The motion court found there was no evidence of a quid pro quo that called into question the credibility of these witnesses regarding what they saw on August 18, 2015. The record supports that determination. As detailed in our review of the motion record, defense counsel maintained that immigration information concerning S.L.H. and M.L. should be disclosed because those witnesses may have belatedly identified appellant as Brandon Smith's killer in order to protect their family from deportation. The prosecutor counter-proffered that the State had not given S.L.H. or M.L. any immigration-related benefit for identifying appellant or for testifying against him.

S.L.H. corroborated that proffer, testifying outside the presence of the jury that the only benefit the family received was relocation assistance. Appellant was permitted to cross-examine her about that assistance. ⁶³⁴ The State points out that if the prosecutor "had reason to believe that the witness[es] ha[d] a criminal record," she was obligated to disclose any "prior criminal convictions, pending charges, or probationary status that may be used to impeach the witness[.]" See Md. Rule 4-263(d)(6)(C). We agree