Marshall v. State

RAKER, Judge. The issue we must decide in this case is whether the trial judge unduly restricted the cross-examination of the State’s key witness regarding a plea and pending sentence in an unrelated criminal case, where the witness’s testimony against the defendant was a requirement of the witness’s plea. We shall hold that the limitation of the cross-examination was a violation of the Confrontation Clause of the Sixth Amendment ¹⁸⁹ of the United States Constitution and Article 21 of the Maryland Declaration of Rights and that the error was not harmless beyond a reasonable doubt. I. On May 30, 1993, the victim, Nathaniel New, was wounded on a street corner in Prince George’s County; he died as a result of the gunshot wound on November 3, 1993.

At the crime scene, police officers saw several men present, but only one person, a seventeen-year-old named Barry Edwards, remained to speak with them. Edwards, initially identifying himself as Barry Smith, but later providing his correct name, told police that he saw a black car drive up and turn around, that he heard gunshots, and that New was shot in the back while leaving the scene. On June 3, 1993, during Edwards’s second police interview, he told police for the first time that Petitioner, Harold Marshall, was the person who shot Mr. New. He told the police that he initially gave his last name as Smith because he “didn’t want to be bothered” and because he was scared.

In August, 1993, after the shooting and before Petitioner’s trial, Edwards was involved in an unrelated incident and was indicted by a grand jury for either assault with intent to murder or assault with intent to maim. 1 As a result of a plea agreement, Edwards entered an Alford plea to the reduced charge of reckless endangerment. 2 See Maryland Code (1957, 1996 Repl.Vol.) Art. 27, § 12A-2. As a condition of the plea, Edwards agreed to testify on behalf of the State at Petition ¹⁹⁰ er’s trial. At the time of Petitioner’s trial, Edwards had not been sentenced on the reckless endangerment charge. At Petitioner’s trial, Edwards was the State’s sole eyewit-' ness.

Edwards testified that Marshall was the person he saw in the black car, and that he observed Marshall exit the car, approach Mr. New, argue with him, and then pull out a handgun from under his shirt, shoot Mr. New and return to the black car and drive away. The State filed a motion in limine, seeking to preclude defense counsel from questioning Edwards about his guilty plea. The court held a hearing on the motion prior to opening statements. At the hearing, all parties acknowledged that Edwards’s testimony at Petitioner’s trial was a mandatory condition of his plea agreement, although this requirement had not been authorized by the prosecutor in the Marshall case, or even communicated to her.

Defense counsel argued that it was necessary to cross-examine Edwards about his plea agreement with the State to expose his motive for testifying on behalf of the State. 3 The trial court granted the State’s motion in limine on the grounds that first, the plea was not yet a final conviction, 4 and ¹⁹¹ second, that it was inappropriate to inquire into a plea of guilty in an unrelated case. Petitioner was convicted of first degree murder and use of a handgun in the commission of a crime of violence. On the murder conviction, he was sentenced to life imprisonment, and on the handgun conviction, he was sentenced to ten years in prison, to be served concurrent with the murder sentence. Petitioner appealed to the Court of Special Appeals and in an unreported opinion, a divided panel affirmed the convictions.

The intermediate appellate court held that the witness’s plea in an unrelated case was a collateral matter and therefore irrelevant to any issue in Marshall’s case. The court held that the trial judge did not abuse his discretion in limiting defense counsel’s cross-examination. The intermediate appellate court then added that, in any case, “any limitation, to the extent it can be characterized as such, ... was ... harmless.” Chief Judge Joseph F. Murphy, Jr. dissented. He concluded that Petitioner had a constitutional right to inform the jury that Edwards, a key prosecution witness, had a strong motive to falsify because, in an unrelated criminal proceeding, 1) he had entered into a plea agreement which required that he testify against Petitioner in the case sub judice and 2) he was awaiting sentencing in that proceeding at the time of his testimony.

In addition, Chief Judge Murphy concluded that the error was not harmless. Marshall filed a petition for writ of certiorari, which this Court granted. Marshall v. State, 343 Md. 566 , 683 A.2d 178 (1996). In the interim, this Court decided the case of Ebb v. State, 341 Md. 578 , 671 A.2d 974 (1996), wherein we considered whether the trial court abused its discretion by precluding cross-examination of a State’s witness concerning pending criminal charges.

Because there was no offer of leniency and ¹⁹² no basis to infer an expectation of leniency, we held in Ebb that the trial court did not abuse its discretion in precluding cross-examination on the pending criminal charges. Id. at 591 , 671 A.2d at 980 . We summarily vacated the judgment of the Court of Special Appeals in Marshall v. State, 341 Md. 605 , 671 A.2d 987 (1996), with directions for that court to reconsider the case in light of Ebb . On remand, the Court of Special Appeals, in a unanimous opinion, affirmed.

Marshall again filed a petition for writ of certiorari, which we granted to consider whether denying a defendant the opportunity to cross-examine a State witness regarding a plea and pending sentencing in an unrelated criminal case, where the witness’s testimony is a condition of the witness’s plea agreement, is violative of the Confrontation Clause of the Sixth Amendment and Article 21 of the Maryland Declaration of Rights.

II

The Confrontation Clause of the Sixth Amendment guarantees an accused in a criminal proceeding the right “to be confronted with the witnesses against him.” Delaware v. Van Arsdall, 475 U.S. 673, 678 , 106 S.Ct. 1431, 1435 , 89 L.Ed.2d 674, 683 (1986). This right means more than simply confronting the witness physically. Davis v. Alaska, 415 U.S. 308, 315 , 94 S.Ct. 1105, 1110 , 39 L.Ed.2d 347, 353 (1974). This same right is guaranteed to a criminal defendant by Article 21 of the Maryland Declaration of Rights.

Simmons v. State, 333 Md. 547, 555-56 , 636 A.2d 463, 467 , cert. denied, 513 U.S. 815 , 115 S.Ct. 70 , 130 L.Ed.2d 26 (1994). The constitutional right of confrontation includes the right to cross-examine a witness about matters which affect the witness’s bias, interest or motive to testify falsely. Ebb, 341 Md. at 587 , 671 A.2d at 978 . An attack on the witness’s credibility “is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.” Davis, 415 U.S. at 316 , 94 S.Ct. at 1110 , 39 L.Ed.2d at 354 .

The Supreme Court recognized in Davis that “the exposure of a witness’ motivation in testifying is a proper and ¹⁹³ important function of the constitutionally protected right of cross-examination.” Id. at 316-17 , 94 S.Ct. at 1110 , 39 L.Ed.2d at 354 ; see Smallwood v. State, 320 Md. 300, 306 , 577 A.2d 356, 359 (1990). Commenting on the importance of cross-examination concerning motive to falsify, Chief Judge Joseph F. Murphy, Jr., in his treatise Maryland Evidence Handbook, observed that “[t]his is the most important impeachment technique because ‘even an untruthful man will not usually lie without a motive.’” J. Murphy, Maryland Evidence Handbook § 1302(E), at 662 (2d ed.1993) (quoting Gates v. Kelley, 15 N.D. 639 , 110 N.W. 770, 773 (1907)). The right to cross-examination, however, is not without limits. Delaware v. Van Arsdall, 475 U.S. 673, 679 , 106 S.Ct. 1431, 1435 , 89 L.Ed.2d 674, 683 (1986); Smallwood, 320 Md. at 307 , 577 A.2d at 359 .

The trial judge retains discretion to impose reasonable limits on cross-examination to protect witness safety or to prevent harassment, prejudice, confusion of the issues, or inquiry that is repetitive or marginally relevant. Van Arsdall, 475 U.S. at 679 , 106 S.Ct. at 1435 , 89 L.Ed.2d at 683 ; Smallwood, 320 Md. at 307 , 577 A.2d at 359 . Although the scope of cross-examination is within the discretion of the trial judge, that discretion may not be exercised “until the constitutionally required threshold level of inquiry has been afforded the defendant” to satisfy the Sixth Amendment. Brown v. State, 74 Md.App. 414, 419 , 538 A.2d 317, 319 (1988); see Smallwood, 320 Md. at 307 , 577 A.2d at 359 ; United States v. Landerman, 109 F.3d 1053, 1061 (5th Cir. 1997); United States v. Restivo, 8 F.3d 274, 278 (5th Cir.1993), cert. denied, 513 U.S. 807 , 115 S.Ct. 54 , 130 L.Ed.2d 13 (1994); United States v. Christian, 786 F.2d 203, 213 (6th Cir.1986); Hoover v. Maryland, 714 F.2d 301, 305 (4th Cir.1983); United States v. Tracey, 675 F.2d 433, 437 (1st Cir.1982). “The Confrontation Clause of the Sixth Amendment is satisfied where defense counsel has been ‘permitted to expose to the jury the facts from which jurors, as the sole triers of fact and of credibility, could appropriately draw inferences relating to the reliability of the witness.’ ” Restivo, 8 F.3d at 278 (quoting Davis v. Alaska, 415 U.S. 308, 318 , 94 S.Ct. 1105, 1111 , 39 ¹⁹⁴ L.Ed.2d 347, 355 (1974)).

The trial court’s discretion to limit cross-examination is not boundless. It has no discretion to limit cross-examination to such an extent as to deprive the accused of a fair trial. See State v. Cox, 298 Md. 173, 183 , 468 A.2d 319, 324 (1983). In assessing whether the trial court has abused its discretion in the limitation of cross-examination of a State’s witness, the test is whether the jury was already in possession of sufficient information to make a discriminating appraisal of the particular witness’s possible motives for testifying falsely in favor of the government.

United States v. Christian, 786 F.2d 203, 213 (6th Cir.1986) (quoting United States v. Singh, 628 F.2d 758, 763 (2d Cir.), cert. denied, 449 U.S. 1034 , 101 S.Ct. 609 , 66 L.Ed.2d 496 (1980)). In Smallwood v. State, 320 Md. 300 , 577 A.2d 356 (1990), we had occasion to consider the trial judge’s limitation on cross-examination regarding the outcome of unrelated charges lodged by the witness against the defendant. We held that the trial court committed reversible error in prohibiting cross-examination on this point because the proposed questions were intended to uncover prejudice and bias on the part of the witness. The defendant in that case was attempting to demonstrate to the jury that the witness’s motivation for her testimony in the case before the court stemmed from her failure to obtain convictions in the previous cases she had brought against the defendant.

The defendant claimed that it was the witness’s vindictiveness which caused her to testify against him and that he had a right to demonstrate this prejudice to the jury in order for the jury to assess her testimony accurately. Id. at 304 , 577 A.2d at 358 . Judge Cole, writing for this Court, observed that, following the Supreme Court decisions of Delaware v. Van Arsdall, 475 U.S. 673 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986), and Davis v. Alaska, 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974), “there has evolved a standard analytical framework for Maryland courts to follow when confronted with this situation.” ¹⁹⁵ Smallwood, 320 Md. at 306 , 577 A.2d at 359 . Judge Cole wrote: The right to cross-examine is not without limits, however, and “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such 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 relevant.” Limitation of cross-examination should not occur, however, until after the defendant has reached his “constitutionally required threshold level of inquiry.” Stated another way, although the scope of cross-examination is generally limited to the subjects raised on direct examination, within that limit a defendant should be free to cross-examine in order to elucidate, modify, explain, contradict, or rebut testimony given in chief.

It is also proper to cross-examine as to facts or circumstances inconsistent with testimony and to bring out the relevant remainder or whole of any