Martin v. State

RAKER, Judge. Petitioner, a former Baltimore City police officer, appeals from his conviction for theft under the value of $300 and misconduct in office. He complains that the trial court abused its discretion in refusing to permit his attorney to cross-examine the complaining witness as to whether he had hired an attorney to file a lawsuit on his behalf against Baltimore City. We agree with petitioner and shall reverse the judgments of conviction.

We shall hold that the trial court’s denial of cross-examination regarding contemplated civil action was error and that the error was not harmless beyond a reasonable doubt. I. Dorian Martin, petitioner, was indicted by the Grand Jury for Baltimore City for the offenses of robbery, theft and misconduct in office. A jury acquitted him of the robbery, but convicted him of theft under the value of $300 and misconduct in office. ⁶⁹⁶ Petitioner is a former police officer in Baltimore City. Felix Guevera was the complaining witness in the case.

The incident that led to the criminal charges occurred while petitioner was an on-duty police officer. Petitioner’s version of the incident differs markedly from Guevera’s version. At trial, Felix Guevera testified that on the evening of December 28, 1998, while he was walking home from work at about 8:30 p.m., he was approached on a residential street corner by petitioner, who was dressed in full police uniform. Upon request for identification, he handed petitioner his wallet.

Petitioner then searched his pockets, finding $300 in U.S. currency in Guevera’s front pocket. Petitioner took the $300, including a $100 bill, and placed it into his own pocket, then got into his police van and drove away. Through a friend, Guevera reported the incident to the police later that evening. At the end of his shift, petitioner was detained at the police station and questioned about the incident by his superiors.

The officers told him of Guevera’s accusations against him, and he denied all involvement in the incident. In response to the officers’ questions as to whether he had any money on him, he removed $347 from his pocket, including a $100 bill. He said that the money belonged to him and was to be used to pay for day care for his child. Petitioner denied Guevera’s allegations, claiming that the money was his own.

District commander Major George Klein testified that he informed petitioner of his mandatory suspension, advised him of his rights under the Law Enforcement Officers’ Bill of Rights (LEOBR), and contacted counsel for him. Petitioner spoke to an attorney and resigned from the police force immediately following the conclusion of the phone conversation. The State placed his signed resignation form into evidence over defense objection. Petitioner testified on his own behalf at trial.

He stated that he was driving the police van that night when he saw several males standing on the corner, near a bar. He rolled down the window and told the men “we will have to clear this corner.” He noticed that several men walked away, but that ⁶⁹⁷ Guevera did not leave. Martin then got out of the police van and approached Guevera. He told Guevera that he had to leave the area; at that time, Guevera “pulled out a wad of money and put it in my face, waved it in my face, and in broken English said, T can buy and sell you.’ ” Martin testified that he felt “disrespected” and acting “out of poor judgment,” he took the money out of Guevera’s hand.

Martin then received a radio call for a “wagon run,” and he left the area. He testified that, as he pulled away, he said to himself, “Oh shit, I got this guy’s money.” He returned to the area in an attempt to find Guevera, but he was unsuccessful. Petitioner also testified that, when questioned by his superiors, he denied Guevera’s allegations because of his fear that “when a black policeman is in a situation” similar to his, he “would not be given a fair shake in the end.” He testified that Major Klein told him that Guevera refused to press charges. Major Klein also advised him that if he were to resign, “that would pretty much be the end of it, it would not be heard of.” With his resignation, petitioner believed that he “pretty much could go to another police department and possibly get picked up.” Petitioner was convicted of theft under $300 and misconduct in office.

He was sentenced to two concurrent terms of eighteen months imprisonment, all but six months of which were suspended, with one year supervised probation. Petitioner noted a timely appeal to the Court of Special Appeals, which affirmed the judgments of conviction in an unreported opinion. This Court issued a writ of certiorari. See Martin v. State, 362 Md. 359 , 765 A.2d 142 (2001).

II

Petitioner argues that the trial court abused its discretion in prohibiting cross-examination regarding Guevera’s intent to file a civil lawsuit against the city, thereby preventing the defense from exposing to the jury facts from which it might assess the witness’s credibility and to show the jury that the witness was biased and had a motive to fabricate. The State ⁶⁹⁸ argues that no lawsuit had been filed and that mere contemplation of a civil action is not relevant to the witness’s credibility. The Sixth Amendment to the United States Constitution 1 and Article 21 of the Maryland Declaration of Rights 2 guarantee a criminal defendant the right to cross-examine adverse witnesses, including “the right to cross-examine a witness about matters which affect the witness’s bias, interest or motive to testify falsely.” Marshall v. State, 346 Md. 186, 192 , 695 A.2d 184, 187 (1997); see Merzbacher v. State, 346 Md. 391, 411-12 , 697 A.2d 432, 442 (1997); cf. Maryland Rule 5-616(a)(4). The trial court has broad discretion in determining the scope of cross-examination, and we will not disturb the exercise of that discretion in the absence of clear abuse.

See State v. Hawkins, 326 Md. 270, 277 , 604 A.2d 489, 493 (1992). Nonetheless, the discretion is not unlimited, and “a cross-examiner must be given wide latitude in attempting to establish a witness’ bias or motivation to testify falsely.” Merzbacher, 346 Md. at 413 , 697 A.2d at 443 . The appropriate test to determine abuse of discretion in limiting cross-examination is whether, under the particular circumstances of the case, the limitation inhibited the ability of the defendant to receive a fair trial. See Ebb v. State, 341 Md. 578, 587-88 , 671 A.2d 974, 978 (1996).

In assessing whether the trial court abused its discretion in limiting the cross-examination of the attorney who wished to show bias or motives to fabricate, we look to see whether the jury had sufficient information to make a discriminating assessment of the particular witness’s possible ⁶⁹⁹ motives for testifying falsely in favor of the State. See Marshall, 346 Md. at 194 , 695 A.2d at 188 . At trial, defense counsel asked Guevera, the sole witness to the incident, whether he had hired a lawyer to sue Baltimore City. The State objected to the inquiry.

Defense counsel argued that, even though no lawsuit against the city had yet been filed, 3 the fact that the victim had hired a lawyer to sue the city was evidence of motive to lie. The trial court sustained the objection on the ground that, in the absence of the actual filing of a civil suit, intent to sue was not relevant to the bias or motivations of the witness. The general rule is that evidence of a pending lawsuit by a witness in a criminal prosecution against the accused, 4 arising from the same set of circumstances as the instant criminal prosecution, may reveal a potential source of bias, interest in the outcome of the proceedings, or motive to testify falsely. See Merzbacher, 346 Md. at 414 , 697 A.2d at 443 ; see also Villaroman v. United States, 184 F.2d 261, 262 (D.C.Cir.1950); Malone v. State, 358 So.2d 490, 492 (Ala.Crim.App.1978); Wooten v. State, 464 So.2d 640, 641 (Fla.Dist.Ct.App.1985); State v. Kellogg, 350 So.2d 656, 657-58 (La.1977); State v. Whitman, 429 A.2d 203, 205 (Me.1981); Commonwealth v. Marcellino, 271 Mass. 325 , 171 N.E. 451 , 452 (1930); People v. Drolet, 157 Mich. 90 , 121 N.W. 291, 291-92 (1909); State v. ⁷⁰⁰ Williams, 16 N.J.Super. 372, 84 A.2d 756, 760 (App.Div.1951); Cox v. State, 523 S.W.2d 695, 700 (Tex.Crim.App.1975); 3A John H. Wigmore, Evidence § 949, at 788 (Chadbourn rev. 1970); W. Foster, Annot., Criminal Law — Evidence—Pend ing Civil Suit, 98 A.L.R.3d 1060 (1980 & Supp.2000).

The State argues that because the lawsuit in this case was at best only a contemplated action, the trial court did not abuse its discretion in refusing to permit defense counsel to question the prosecuting witness about whether he intended to file a lawsuit. While we have not previously commented on whether contemplated civil lawsuits are relevant in examining witness bias, the majority view in this country is that questions on cross-examination to a witness regarding a contemplated civil action should be permitted. See State v. Arlington, 265 Mont. 127 , 875 P.2d 307, 316 (1994) (adopting majority view that cross-examination as to contemplated civil lawsuits against the defendant is allowed on cross-examination). We find no meaningful distinction between contemplated and commenced lawsuits for cross-examination purposes.

See Wooten, 464 So.2d at 642 (stating that, although litigation was merely contemplated, it is a distinction without a difference); People v. Richmond, 35 Mich.App. 115 , 192 N.W.2d 372, 375 (1971) (stating that, “[e]ven in the absence of precedents dealing with contemplated suits, the rationale is the same as commenced suits”). Just as the formal commencement of a civil lawsuit may establish witness bias, action taken in contemplation of the commencement of a civil lawsuit against a criminal defendant by a prosecuting witness is relevant to the witness’s credibility and may be evidence that a witness has an interest in the outcome of the trial. See People v. Bruno, 77 A.D.2d 922 , 431 N.Y.S.2d 106, 107 (1980). This includes evidence of consultation with, or hiring of, an attorney.

See Wooten, 464 So.2d at 642 ; State v. McLemore, 99 Kan. 777 , 164 P. 161, 163 (1917); State v. Doughty, 399 A.2d 1319, 1324 (Me.1979); People v. Richmond, 35 Mich.App. 115 , 192 N.W.2d 372, 374 (1971); State v. Decker, 161 Mo.App. 396 , 143 S.W. 544, 544-45 (1912); ⁷⁰¹ State v. White, 286 N.C. 395 , 211 S.E.2d 445, 451 (1975); State v. Ferguson, 5 Ohio St.3d 160 , 450 N.E.2d 265, 269-71 (1983). Written notice of intent to sue, when required by statute as a prerequisite to filing suit, may also be sufficient to establish evidence of a contemplated lawsuit. See Cunningham v. State, 240 Ga.App. 92 , 522 S.E.2d 684, 687-88 (1999). We adopt the majority view in this country and hold that the proper approach is to allow cross-examination of whether a witness has contemplated a civil action against the defendant.

In State v. Doughty, 399 A.2d 1319 (Me.1979), the Supreme Court of Maine observed that the rale that the pendency of a civil action filed by a witness in a criminal case against the accused includes the case “where no civil action has been commenced, but such a suit is or may be contemplated, as in the case of consultation with, or hiring of, an attorney.” Id. at 1323 . The court explained: The intent of a person to realize a monetary gain out of an incident which has become the subject of litigation, as may be evidenced by pendency of a civil action for damages or by anticipatory preparation therefor through lawyer consultation or hiring, is an individualized fact having a logical tendency to show bias against the other party to the reference litigation, hostility to his cause and an interest adverse to him in the outcome of the legal dispute. Facts showing that the State’s prosecuting witness may have been actuated by personal considerations instead of altruistic interest generated solely from motives in the public interest to bring a criminal to justice ... may be viewed as having some probative value in proof not only of such bias and hostility, but also of a motive to give false testimony. Id. at 1324 (emphasis added).

This proposition finds wide support among other jurisdictions. See, e.g., Villaroman, 184 F.2d at 261-62 ; People v. Morton, 213 Mich.App. 331 , 539 N.W.2d 771, 773 (1995); Arlington, 875 P.2d at 315-16 ; State v. McFarlane, 279 S.C. 327 , 306 S.E.2d 611, 613 (1983); Ferguson Seed Farms v. McMillan, 18 S.W.2d 595 , 598-99 ⁷⁰² (Tex.Comm’n App.1929, holding approved). 5 The question posed by defense counsel here was whether the witness had hired an attorney to file a civil lawsuit against petitioner, arising from the same set of circumstances as the criminal prosecution in which the witness was testifying. We hold that the trial court erred in refusing to permit defense counsel to attempt to impeach the credibility of the prosecuting witness by eliciting testimony regarding a contemplated lawsuit. The State contends that any error is harmless.

While conceding that Guevera’s testimony was important to the prosecution’s case, the State argues that the testimony was “almost entirely undisputed” and, moreover, corroborated by the admissions of petitioner. The State further argues that defense counsel was permitted to cross-examine the witness at length and that the case against petitioner was strong overall. To find that the error was harmless, we must be “ ‘satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.’ ” Smallwood v. State, 320 Md. 300, 308 , 577 A.2d 356, 360 (1990) (quoting Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665, 678 (1976)). We are not persuaded beyond a ⁷⁰³ reasonable doubt that the jury would have reached the same verdict had the defense been permitted to undermine the credibility of the witness, Guevara.

The jury had to decide whether to accept petitioner’s version of the events or Guevera’s version. Thus, credibility was a central issue in the case. Since Guevera’s retaining a lawyer to bring a civil lawsuit was relevant to his credibility, it was error to preclude defense counsel from cross-examining him about it. Guevera testified that petitioner simply took $800 from the Guevera’s pocket, placed it in his own pocket, and left.

Petitioner’s version of events, however, is that Guevera taunted him verbally and waved the money in his face, that he then took the money from Guevera’s hand in anger, and that he forgot momentarily that he had the money when he responded to a call to duty. These versions of the incident differ significantly, and the jury’s assessment of who was telling the truth was critical. Petitioner was denied the opportunity to establish the bias or pecuniary interest of the witness. Thus, the complete denial to petitioner of an opportunity to impeach the witness’s credibility was not harmless error.

III

Petitioner raised a