Leeks v. State

⁵⁴⁷ MURPHY, Judge. Hope and a longing for reward for one’s efforts lie at the heart of the human condition. Knox et al. v. Lanham et al., 895 F.Supp. 750, 758 (D.Md.1995). [E]ven an untruthful man will not usually lie without a motive. Gates v. Kelley, 15 N.D. 639 , 110 N.W. 770, 773 (1906).

These insightful observations, the first by the Honorable J. Frederick Motz of the United States District Court for the District of Maryland, and the second by the Honorable Edward Engerud of the North Dakota Supreme Court, explain why every litigant must be afforded a full and fair opportunity to establish “the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.” United States v. Abel, 469 U.S. 45, 52 , 105 S.Ct. 465, 469 , 83 L.Ed.2d 450 (1984). Md.Rule 5-616(a)(4) grants each party an opportunity to question a witness about facts that are of consequence to the issue of whether “the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely.” This appeal from the Circuit Court for Prince George’s County presents the question of whether Anthony Lamont Leeks, appellant, was unfairly denied such an opportunity. 1 BACKGROUND The following evidence was sufficient to persuade a Prince George’s County jury that on the night of May 11, ⁵⁴⁸ 1993, appellant committed a second degree (“depraved heart”) murder and used a handgun in the commission of that felony. Appellant was in a group of persons near an apartment complex in Landover where the victim was shot. Appellant said something that a man named “Cliff’ considered offensive.

After an argument and about two minutes of fighting, both appellant and “Cliff’ went to their respective cars. Appellant then rejoined the group, looking for “Cliff.” Now, however, appellant was holding a small automatic pistol. As appellant began waving the gun in the air, the gun fired and a bystander was shot. At this point someone tried to wrestle appellant to the ground.

In the ensuing struggle, the gun fired again and yet another bystander was shot. The murder victim was shot in the head. Fortunately, the other bystander was merely grazed. THE ISSUE Donzell Thompson was, in the words of the prosecutor, the State’s “main witness.” On June 15, 1994, Thompson had entered a plea of guilty to the crime of assault that had allegedly occurred in 1991.

In that same case, however, he had also been charged with armed robbery and felony theft. On December 12, 1994, Thompson had entered a plea of guilty to the crime of disorderly conduct. In that same case, however, he had also been charged with theft and assault. On March 16, 1995, the State nol prossed a controlled dangerous substance charge then pending against him.

All of these cases were handled by the Office of the State’s Attorney for Prince George’s County. 2 Before opening statements the following occurred: PROSECUTOR: Before you bring in the jury, I want to make a motion on the couple of items I think [Defense Counsel] might be inclined to mention.in his opening. ⁵⁴⁹ [Defense Counsel] had mentioned to me around lunch time that—words to the effect of Dansel [sic] Thompson, and this is my main witness, has a really bad record, and I thought well, gee, maybe I better run his record and see what it has [sic]. At first blush he’s been charged with robbery and theft, but it appears although it says they were either nolle prossed or plead down to misdemeanors such as assault and battery, disorderly conduct, and those types of things, the State believes that he does not have any crimes which would be admissible as impeachable offenses. DEFENSE COUNSEL: Your Honor, as far as Mr. Thompson’s recordings [sic], there is a number of cases that I’m interested in, but one in particular is CT 91-1857A. He was charged armed robbery, and a number of other related offenses including theft over and under, and things like that.

At least theft over. Also he has an AKA of Reginald Alphonso Thompson. His name that the States [sic] has got him for in this case is Dansel [sic] Nathaniel Thompson. In that situation, an armed robbery allegedly occurred August 6th of 1991 at 1:25 a.m., and one of the victim’s [sic] was a man named Oscar Mitchell.

That case was around the courthouse for a long, long time. ... Their whole case is based on testimony of Dansel [sic] Nathaniel Thompson. That has been known for quite some time. On June 15th of 94, Dansel [sic] Thompson plead guilty not to an armed robbery, not to a theft, not to anything that could be a crime of moral turpitude.

Seems to be very carefully placed that they made it an assault, and, I think that was very unusual, based on my experience as a prosecutor and defense attorney that that is what happened. THE COURT: What I will do is, I will let you voir dire the witness out of the presence of the jury first, to determine ⁵⁵⁰ whether or not there’s any symptoms of a deal that has been made.... [Defense counsel], I’m going to ask the State to bring this witness in, and put him on the stand. You are restricted to inquiring as to whether or not there have been any deals made between the defense—I’m sorry, between the witness and the State with respect to this witness. DEFENSE COUNSEL: Thank you, Your Honor.

I would ask one other area to inquire of him, and that is his D.C. record. THE COURT: No sir. DEFENSE COUNSEL: Let me put on the record— THE COURT: I don’t care what your reason is. The answer is no, I am bringing this man in under Court order.

You will be restricted to whether or not there has been any deal made between this person and the State with respect to this case. I don’t care sir. You’ll not inquire as to his [D.C.] record, is that clear? DEFENSE COUNSEL: Very well, Your Honor.

The following transpired during this voir dire proceeding: Q: Mr. Thompson, your full name is Donzell Nathaniel Thompson, is that correct? A: Correct.' Q: Your date of birth? THE COURT: You may inquire. I told you what [you] could inquire about, sir.

DEFENSE COUNSEL: I want to make sure— THE COURT: I don’t care. I told you what you are restricted to, sir. Q: Okay. Now, all three of these cases that I have just mentioned, there is CDS possession, petty theft and armed robbery, were disposed of after May of 1993, when this murder took place, isn’t that correct? ⁵⁵¹ A: Yes, I guess.

Q: Well, [the victim] was killed in May of 1993, isn’t that right? A: If it was May, I guess it was. It is so many years ago I don’t recall which month it was. Q: Do you remember what year?

A: No, I do not. Q: From the beginning of [the victim’s] case, you were a State’s witness, isn’t that right? A: Correct. Q: Okay.

And, has the State offered you anything in exchange for your testimony? A: No they haven’t. Q: Are you in jail right now? A: Yes, I am.

Q: What are you in jail for right now? THE COURT: Don’t answer that. Do not answer that. Q: Has the State told you they are going to get you out of jail?

A: No, they haven’t. Q: Okay. Have they told you that—well let me put it this way. Have they told you things would go better for you if you cooperated with them?

A: No, they haven’t. Q: Are you telling me that you had a charge of armed robbery back in 1991, disposed of last year, 1994, as an assault, no theft, no robbery count, just as assault, and it was no deal with the State? A: No, it was not. Q: Okay.

Now when was the last time you talked to ... th[e] prosecutor in this case? THE STATE: Objection. THE COURT: Sustained. ⁵⁵² Q: Have you talked to any other State’s Attorney besides [this one]? THE COURT: You mean about this case?

DEFENSE COUNSEL: About this case or any of the other cases. THE COURT: No, about this case. I have no problem. Have you talked to any other State’s Attorney about this case? ■ THE WITNESS: No, I have not.

Q: Now, Mr. Thompson, have you ever informed any— either by yourself or through counsel have you informed anybody or State’s Attorney that you are the Donzell Thompson to testify in this case? A: No, I have not. Q: What is your explanation for why you plead guilty to disorderly conduct, rather than petty theft in December of—' THE COURT: No, sir. Q: Mr. Thompson, have you ever gone by the name of Reginald Alphonso Thompson?

A: That’s my brother. Q: That’s your brother. Were you arrested in an armed robbery case in 1991, when you gave the name Reginald Alphonso Thompson, isn’t that correct? A: No, that’s not.

Q: Why on your case jacket— THE COURT: That’s enough of this. That’s enough of this. Any other questions? DEFENSE COUNSEL: Well, Your Honor I’m restricted to ask questions that I need to ask— THE COURT: Do you have another question, sir?

DEFENSE COUNSEL: No, Your Honor. ⁵⁵³ After defense counsel finished questioning Thompson, the judge granted the State’s motion and stated to defense counsel: Your motion is denied, The Court has now ruled. I will [not hear] another word about it. During the trial, appellant’s trial counsel made no effort to circumvent that ruling. 3 During his closing argument, the prosecutor made the following comments about Mr. Thompson’s credibility. ... Donzell Thompson was a credible witness.

Donzell Thompson told you, I was out there that night. This is what happened, and again, I’m going to ask you when you are deliberating, and if you have any questions about his credibility, to think about the times he would close his eyes, and he would take a minute, and he would do something with his hand, and you could see him re-playing the events in his mind, so that he would give you a correct answer. Recall also that this event is two years old, and that people’s memories are not as fresh, as if we had had the trial the week after it happened. There’s a lot of reasons why cases get old, and that’s not something you should speculate on or wonder about, but when Donzell was directed to his statement or other things to help refresh his memory, then he would stop, and he would think about it, and then he would say oh, yes, this is what happened.

ANALYSIS As is shown by the above argument, the State was given the opportunity to present Thompson as a believable witness. Unfortunately, defense counsel was never given an adequate opportunity to establish the existence of evidence that would support a contrary conclusion. We are persuaded that the trial judge should not have restricted the efforts of appellant’s ⁵⁵⁴ trial counsel to establish a factual predicate for the introduction of evidence that Thompson’s testimony was slanted in favor of the State. “It is well settled law in this State that exploratory questions on cross-examination are proper when they are designed to affect a witness’ credibility, test his memory or exhibit bias.” Kruszewski v. Holz, 265 Md. 434, 440, 290 A.2d 534 (1972); see also State v. Cox, 298 Md. 173, 178 , 468 A.2d 319 (1983). The Sixth Amendment right of confrontation includes the right to cross-examine about matters that affect a witness’s bias, interest, or motive to lie.

Brown v. State, 74 Md.App. 414, 418 , 538 A.2d 317 (1988) (citations omitted). It is true, of course, that the right to