Manchame-Guerra v. State

Barbera, C.J. On the night of July 14, 2012, Saul Felipe-Augustine was fatally shot outside an apartment in Langley Park in Prince George's County, Maryland. Rudy Ismael Manchame-Guerra, Petitioner, was later arrested on suspicion of murdering Mr. Felipe-Augustine. Petitioner was charged with first-degree murder and related offenses and in April 2015 was tried before a jury in the Circuit Court for Prince George's County. The jury acquitted Petitioner of first-degree murder and found him guilty of second-degree murder and related charges.

During Petitioner's April 2015 trial, the State called as a witness Edi Felipe, who testified that he had seen Petitioner shoot Mr. Felipe-Augustine. At the time he offered that testimony, Edi Felipe was facing charges of first- and fourth-degree burglary, misdemeanor theft, and carrying a concealed dangerous weapon. Those charges arose out of a 2013 crime-unrelated to the case before us-that occurred in Prince George's County and remained pending. Petitioner sought to cross-examine Edi Felipe as to whether, in return for his testimony, he expected or hoped for a benefit from the State in connection with those pending criminal charges.

The trial court refused to permit Petitioner to pursue that line of questioning. Petitioner contends that, by so ruling, the court committed reversible error. For the reasons that follow, we agree. I. Facts and Procedural History A. The Evidence Offered at Trial On the evening of the fatal shooting in July 2012, Mr. Felipe-Augustine (hereinafter "the victim") went to an apartment in Langley Park where food and drinks were sold.

The victim was accompanied by his friend, Edi Felipe. Mr. Felipe testified as a witness for the State that, while at the apartment, the victim got into an argument with a man unknown to Mr. Felipe (and later identified as Petitioner by another witness). Mr. Felipe and the victim soon decided to leave. Mr. Felipe left the apartment first, walked partway down the staircase directly outside the apartment, then paused and looked back in the direction of the apartment.

He saw the victim walk through the apartment doorway into the hall and Petitioner follow. According to Mr. Felipe, the victim turned around to face Petitioner, who then shot the victim once in the head at close range. Petitioner was developed as a suspect and ultimately arrested in Nassau County, New York on September 5, 2013, in connection with the July 2012 killing. When interviewed by the police, Petitioner did not deny that he was present when the victim was shot; he denied, however, firing the fatal shot.

According to Petitioner, the victim had pushed him, tried to hit him with a fire extinguisher, and drew a weapon, which discharged when Petitioner tried to wrest the gun from the victim's hand. In December 2013, the police contacted Mr. Felipe. When interviewed by Detective Marcos Rodriguez, Mr. Felipe described the shooter as dark-haired and not very tall. Mr. Felipe testified at trial that he had twice viewed a photo array presented to him-once at the December 2013 interview with the police and again within two months of the start of Petitioner's trial.

Mr. Felipe further testified that he did not identify anyone as the shooter. 1 B. Defense Counsel's Attempted Impeachment of Mr. Felipe The State's theory of the case, based in large part on the testimony of Mr. Felipe, was that Petitioner mortally wounded the victim in an "execution style" shooting following their argument inside the apartment. The defense's theory was that the shooting was an accident. Crucial to the success of the defense's theory, therefore, was casting doubt upon the credibility of Mr. Felipe's testimony. Defense counsel sought to do that by questioning Mr. Felipe about criminal charges in an unrelated case that were pending at the time of his testimony at Petitioner's trial.

In particular, defense counsel wanted to ask Mr. Felipe if he expected or hoped to obtain a benefit from the State in connection with those charges, in return for testimony favorable to the prosecution. During a bench conference conducted prior to that attempted cross-examination, defense counsel informed the court that Mr. Felipe was then facing pending charges of first- and fourth-degree burglary, theft of property valued less than $1000, and unlawful carrying of a concealed weapon. Counsel cited Maryland Rule 5-616(a)(4), which allows impeachment through "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." The bench conference included the following, beginning with an exchange between the court and defense counsel: [DEFENSE COUNSEL]: I thought it may be best to address with you, before the jury comes in, this witness, Edi Felipe, has an outstanding warrant for a first degree burglary theft case. I pulled the Statement of Charges.

Originally, he was charged with fourth degree burglary, theft over a thousand dollars, [and] making a false statement to police for not providing the correct name upon his arrest. 2 A warrant, or an indictment, came down October 31st, 2013. A bench warrant issued November 1st, 2013. That is still outstanding. I am seeking to ask Mr. Felipe questions about that, ... under [ Rule] 5-616(a)(4), to the-for the jury to make a judgment as to whether Mr. Felipe imagines for himself any positive result or benefit as a result of his testimony here ....

The particular reason, Judge, that I thought this was relevant in this case is because, I think the testimony of Detective Rodriguez will bear out, Detective Rodriguez was the first detective to interview Mr. Felipe, and that occurred December 19th, 2013. So the bench warrant was already outstanding. The indictment already existed prior to Mr. Felipe ever giving a statement to the police about what he knew of the events of July 14th, 2012. There is also a note in [the] detective notes from Detective Rodriguez that he was aware as of December 10th, 2013, that Mr. Felipe had this outstanding indictment.

Mr. Felipe, for the Court's knowledge, was arrested, taken to jail. The incident stems from June 2013. He posted a bond and was released at the District Court level, but about five months later, the case was indicted. Defense counsel also presented an exhibit composed of five documents relating to the then-pending charges against Mr. Felipe: (1) a District Court Statement of Charges dated June 15, 2013; (2) a statement of probable cause accompanying the District Court Statement of Charges; (3) proof of the issuance of a District Court bail bond for $20,000 set on June 20, 2013; (4) an October 31, 2013, circuit court indictment listing charges of first-degree burglary, fourth-degree burglary, theft of property valued less than $1000, and concealing a dangerous weapon; and (5) an arrest warrant issued on November 1, 2013, for Mr. Felipe in connection with the burglary case. 3 Defense counsel's proffer aimed to show that Mr. Felipe was biased by a motive to testify falsely due to his own pending charges in the same jurisdiction in which Petitioner was being tried.

Counsel emphasized that Detective Rodriguez, who first spoke with Mr. Felipe in December 2013, knew about his pending charges; the first conversation happened roughly a year and a half after the murder; and those charges remained pending at the time of Petitioner's trial in April 2015. The State responded that Detective Rodriguez had spoken to Mr. Felipe only about Petitioner's case, the State did not make any kind of deal or discuss any benefit to Mr. Felipe, and the pending charges against him were irrelevant: [PROSECUTOR]: What I can say for certainty is that no deal has ever been made. And actually, [Mr. Felipe] never made conversation about receiving a deal. And all discussions that he's had with Detective Rodriguez and the State's Attorney's Office [have] solely been in relation to what he observed on July 14th of 2012.

Defense counsel replied: [DEFENSE COUNSEL]: [I]t is for the jury to determine based on Mr. Felipe's answers whether or not he perceives that there may be a benefit to him from participating here as a witness for the State. And I would cite to the Calloway case ... which indicates that the defense should be given wide latitude to cross-examine a witness on their anticipation of benefit in their own pending matters and that that is a matter for the jury to determine. The court sustained the State's objection to defense counsel's request to question Mr. Felipe pursuant to Rule 5-616(a)(4). The court explained: "The Court is not going to allow any impeachment that doesn't-that hasn't resulted in a conviction.

There is no factual basis in the record at this time that the conduct alleged by this witness has actually occurred." The jury returned a verdict of "not guilty" as to first-degree murder, "guilty" as to second-degree murder, and "guilty" as to use of a handgun in the commission of a felony. The court sentenced Petitioner to twenty-five years of incarceration for second-degree murder and a consecutive ten years of incarceration for use of a handgun. C. The Appeal Petitioner noted an appeal to the Court of Special Appeals, which affirmed the judgment of the circuit court in an unreported opinion. Manchame-Guerra v. State , No. 899, 2017 WL 193159 , at ⁶ (Md. Ct. Spec.

App. Jan. 18, 2017). One of Petitioner's claims before that court 4 was that the trial court erroneously prevented defense counsel from questioning Mr. Felipe regarding his pending charges. Id. at ⁴-5. The Court of Special Appeals rejected the claim, holding that defense counsel had not proffered a sufficient factual basis to permit the question under Rule 5-616(a)(4).

Id. at ⁶. The Court of Special Appeals relied on Peterson v. State , 444 Md. 105 , 118 A.3d 925 (2015), for the propositions that " '[p]ending charges are not ... impeachment evidence,' and 'the existence of pending charges alone is not a sufficient predicate for [a question about bias or motive].' " Id. at ⁵ (quoting Peterson , 444 Md. at 135 , 118 A.3d 925 ). The Court of Special Appeals did not detect in this case the "factual foundation" present in other cases where, for example, evidence was proffered that a witness had in fact already received a benefit. Id. at ⁵-6 (citing Calloway v. State , 414 Md. 616 , 638, 996 A.2d 869 (2010) ).

The Court of Special Appeals therefore concluded that the trial court had not abused its discretion in precluding the inquiry. Id. at ⁶. Petitioner filed a petition for writ of certiorari, which we granted, Manchame-Guerra v. State , 453 Md. 31 , 160 A.3d 558 (2017), to consider two questions: 1. Did this Court's decision in Peterson v. State , 444 Md. 105 , 118 A.3d 925 (2015), alter the threshold a factual proffer must satisfy to permit questioning of a witness's subjective expectation of a benefit under Md. Rule 5-616(a)(4) ? 2.

Did the trial court err in prohibiting defense counsel from questioning the State's main witness about whether he subjectively expected a benefit in exchange for his statements and testimony in this case, where defense counsel proffered, inter alia , that the witness faced pending charges when he first spoke with police about the present case at the end of 2013, that the police investigating Petitioner's case also knew about the witness's pending charges as of December 2013, and that those charges were still pending at the time of trial in this case in April 2015?

II

The Constitutional Right of Confrontation and Pertinent Maryland Rules on Witness Examination The Supreme Court of the United States, this Court, and other courts throughout the country have observed that cross-examination is the "greatest legal engine ever invented for the discovery of truth." 5 The right of a defendant in a criminal case to cross-examine a witness for the prosecution is grounded in the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights. Delaware v. Van Arsdall , 475 U.S. 673 , 678, 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986) ; Peterson , 444 Md. at 122 n.4, 118 A.3d 925 . Compliance with our federal and state constitutions requires the trial judge to allow the defense a "threshold level of inquiry" that puts before the jury "facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Martinez v. State , 416 Md. 418 , 428, 7 A.3d 56 (2010) (quoting Davis v. Alaska , 415 U.S. 308 , 318, 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974) ). To ensure the right of confrontation, defense counsel must be afforded "wide latitude to cross-examine a witness as to bias or prejudices." Martinez v. State , 416 Md. at 428 , 7 A.3d 56 (quoting Smallwood , 320 Md. at 307-08, 577 A.2d 356 ).

Only when the constitutional threshold has been met may trial courts limit the scope of cross-examination "when necessary for witness safety or to prevent harassment, prejudice, confusion of the issues, and inquiry that is repetitive or only marginally relevant." Peterson , 444 Md. at 122 -23 , 118 A.3d 925 (quoting Martinez , 416 Md. at 428 , 7 A.3d 56 ); see Van Arsdall , 475 U.S. at 679 , 106 S.Ct. 1431 ; see also Smallwood v. State , 320 Md. 300 , 307-08, 577 A.2d 356 (1990) (stating that a trial court may limit cross-examination that "obscure[s] the trial issues and lead[s] to the factfinder's confusion"). Maryland Rules 5-616 and 5-611 are relevant to this subject. Rule 5-616 addresses witness impeachment and, relevant here, specifically authorizes an attack upon the credibility of a witness through questions designed to prove that the witness "has a motive to testify falsely": (a) Impeachment by inquiry of the witness. The credibility of a witness may be attacked through questions asked of the witness, including questions that are directed at: * * * (4) Proving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely[.] Rule 5-611 authorizes the trial judge to "exercise reasonable control over the mode and order of interrogating witnesses" and provides: (a) Control by court.

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of cross-examination. (1) Except as provided in subsection (b)(2), cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. Except for the cross-examination of an accused who testifies on a preliminary matter, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(2) An accused who testifies on a non-preliminary matter may be cross-examined on any matter relevant to any issue in the action.

III

The Standard of Review We addressed in Peterson the standard by which an appellate court is to assess the propriety of a trial judge's restriction of a defendant's attempt to cross-examine a government witness about that witness's motive to testify falsely. The standard of review takes into account both the defendant's constitutional right of confrontation and the discretionary authority of the trial judge to assert "control over the mode and order of interrogating witnesses and presenting evidence": In controlling the course of examination of a witness, a trial court may make a variety of judgment calls under Maryland Rule 5-611 as to whether particular questions are repetitive, probative, harassing, confusing, or the like. The trial court may also restrict cross-examination based on its understanding of the legal rules that may limit particular questions or areas of inquiry. Given that the trial court has its finger on the pulse of the trial while an appellate court does not, decisions of the first type should be reviewed for abuse of discretion.

Decisions based on a legal determination should be reviewed under a less deferential standard. Finally, when an appellant alleges a violation of the Confrontation Clause, an appellate court must consider whether the cumulative result of those decisions, some of which are judgment calls and some of which are legal decisions, denied the appellant the opportunity to reach the "threshold level of inquiry" required by the Confrontation Clause. Peterson v. State , 444 Md. 105 , 124, 118 A.3d 925 (2015). We bear this standard in mind as we determine whether, in the present case, the trial judge erred in denying Petitioner the right to cross-examine Mr. Felipe as to whether he had a motive to testify falsely during direct examination.

First, though, we examine previous applications of the principles we have so far discussed. In doing so, we answer the first question posed by Petitioner, which is whether our decision in Peterson "alter[ed] the threshold a factual proffer must satisfy to permit questioning of a witness's subjective expectation of a benefit under Md. Rule 5-616(a)(4) [.]" IV. Criminal Case Law Applications of Rule 5-616(a)(4) Our cases demonstrate that questioning under Rule 5-616(a)(4) is not to be readily prohibited when the Confrontation Clause is at issue. To the contrary, [w]hen the trier of fact is a jury, questions permitted by Rule 5-616(a)(4) should be prohibited only if (1) there is no factual foundation for such an inquiry in the presence of the jury, or (2) the probative value of such an inquiry is substantially outweighed by the danger of undue prejudice or confusion.

Calloway v. State , 414 Md. 616 , 638, 996 A.2d 869 (2010) (quoting Leeks v. State , 110 Md. App. 543 , 557-58, 678 A.2d 80 (1996) ). In Calloway , the defendant was convicted of second-degree assault upon his infant son. The State moved in limine to prevent Calloway's cross-examination of a State's witness-Calloway's former cell-mate, Watson. Watson, still incarcerated at the time, had contacted the State's Attorney's Office and volunteered to testify about inculpatory statements Calloway had made to him.

Id. at 637 , 996 A.2d 869 . At the in limine hearing, the defense sought to ask Watson if he expected a benefit from the State in return for his testimony. Id. at 625-30 , 996 A.2d 869 . The defense proffered that, before Calloway's trial, Watson was released from incarceration, unrelated pending charges were nol prossed , and Watson did not face a violation of probation charge despite unequivocal evidence that he had violated probation in another case.

Id. at 637 , 996 A.2d 869 . Watson testified at the in limine hearing that he did not expect a benefit in return for his testimony. Id. at 624-25 , 996 A.2d 869 . The trial court disallowed the requested cross-examination.

Id. at 632-33 , 996 A.2d 869 . We held that the trial court committed reversible error. We explained "that the issues of whether Watson placed the January 8, 2007 phone call in the hope of being released from detention, and whether he was testifying at trial in the hope of avoiding a violation of probation charge, should have been decided by the jury rather than by the Circuit Court." Id. at 637 , 996 A.2d 869 . We added: Because the issue is whether Watson had a hope that he would benefit from volunteering to testify against Petitioner, it is of no consequence that the State had not offered to make "any deal or bargain with Watson regarding his charges and testimony in [Petitioner's] case." It is also of no consequence that Watson's testimony before the jury would be consistent with his testimony at the in limine hearing.

Id. We determined that Calloway's proffer provided "a solid factual foundation for an inquiry into Watson's self interest." Id. at 639 , 996 A.2d 869 . We further determined that "the circumstantial evidence of Watson's self interest was not outweighed- substantially or otherwise-by the danger of confusion and/or unfair prejudice to the State." Id. We said in that regard: While it is clear that the trial judge is not obligated to allow cross-examination about every charge pending against a State's witness, Md. Rule 5-616(a)(4) grants the criminal defendant the right to question a State's 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." Circumstantial evidence of a witness's self interest is admissible because, as the Supreme Court of North Dakota has stated, "even an untruthful man will not usually lie without a motive." Id. at 633 , 996 A.2d 869 (quoting Gates v. Kelley , 15 N.D. 639 , 110 N.W. 770 , 773 (1906) ).

We further noted in Calloway : The