Pantazes v. State

RAKER, J. Dean James Pantazes, appellant, was convicted in the Circuit Court for Charles County, Maryland, of the crimes of first degree premeditated murder, first degree felony murder, second degree murder, conspiracy to commit murder, two counts of solicitation to commit murder, and use of a handgun in the commission of murder. He was indicted in Prince George’s County, and the State filed a notice of intent to seek the death penalty. Pantazes exercised his constitutional and statutory right by filing a Suggestion of Removal pursuant to Article IV, § 8 1 of the Maryland Constitution and Maryland Rule 4-254(b)(1). 2 As a result, the trial was removed from Prince ⁶⁶⁷ George’s County to Charles County. Pantazes presents the following two issues in this appeal: did the trial court err in denying his second suggestion of removal under the Maryland Constitution, Art. IV § 8(b); and did the trial court abuse its discretion in limiting his cross-examination of Kim Young, a key witness for the State, and excluding extrinsic evidence proffered to challenge the witness’ credibility.

We shall answer both questions in the negative and affirm the judgments of conviction. I. Appellant was tried and convicted on all counts before a jury in Charles County. Prior to sentencing, the State withdrew the notice of intent to seek the death penalty. The trial court sentenced appellant to life without the possibility of parole.

He noted a timely appeal to the Court of Special Appeals. The Court of Special Appeals reversed his conviction and remanded the case for a new trial in the Circuit Court for Charles County. Pantazes v. State, 141 Md.App. 422 , 785 A.2d 865 (2001), cert. denied, 368 Md. 241 , 792 A.2d 1178 (2002). On May 10, 2002, prior to the second trial, appellant filed another Suggestion of Removal.

Appellant argued that because the State was no longer seeking the death penalty, the case should be transferred back to Prince George’s County. Appellant also argued that media coverage of the trial had made it impossible to get an impartial jury and fair trial in Charles County. The court denied the motion, and the case proceeded to trial in the Circuit Court for Charles County on July 30, 2002. 3 At trial, the State sought to prove that appellant hired a prostitute, Jermel Chambers, to murder his wife, Clara Pan-tazes. The State’s key witness was Chambers.

In her testimony, Chambers described the events that preceded the murder of Mrs. Pantazes. Chambers recounted that she first met ⁶⁶⁸ appellant in early 2000 near a 7-Eleven on Eastern Avenue, Washington, D.C., when he picked her up in his green Chevrolet Suburban. Appellant drove her to K Street and paid Chambers for sexual services. Appellant told Chambers that he would become her “regular,” and they exchanged telephone numbers.

Appellant met Chambers approximately twelve times, six or eight times for sexual services. During their second encounter, appellant asked Chambers about hiring her to kill someone. Appellant, who referred to himself as Steve, identified the proposed victim as his boss’ wife. In early January 2000, appellant paid Chambers $5000.00 to commit the murder and promised her an additional $5000.00 for its successful completion.

Chambers testified that appellant told her that he would pick her up, drive her to his boss’ house and provide her with a gun, and that he instructed her to make the crime look like a robbery. Chambers testified that the murder took place on March 30, 2000. That morning, appellant drove Chambers from the 7-Eleven on Eastern Avenue to appellant’s family home in Upper Marlboro, Maryland. Appellant took Chambers into the garage and told her the gun was wrapped in a towel on top of the refrigerator.

Before leaving, appellant instructed Chambers to make the murder look like a robbery by removing several valuable items from the scene. Appellant left Chambers in the garage with the door closed. When Mrs. Pantazes came into the garage, Chambers shot her three times, took her ring, watch and purse, and drove away in her car. Mrs. Pantazes died in the garage.

Chambers then drove back to Washington, D.C., abandoning the car on Benning Road. Chambers eventually agreed to enter a guilty plea to murder and unlawful use of a handgun in a crime of violence and to participate in the trial against appellant in exchange for the State not seeking the death penalty. 4 At trial, the State called Kim Young to corroborate Chambers’ testimony. Young identified appellant as a person pos ⁶⁶⁹ ing as “Steve.” Young, also a prostitute, first met a man named Steve in December 1999 while engaging in prostitution near Paul’s Liquor Store on Eastern Avenue. Young testified that, during this first sexual encounter, Steve talked about an old man he knew who needed to have “this woman” killed.

Steve offered $10,000.00 to commit the murder. Young gave him a telephone number in the event he wanted another “date.” At a second meeting, appellant provided Young with details of the proposed murder, stating that the garage door would be left open and that Young should come to the house between 9:00 and 9:30 a.m., when the intended victim would be leaving for work. Appellant assured Young that he would provide the gun. According to Young, Steve gave the witness a scrap of yellow paper containing his home address, directions to his house and his garage door code, providing access to the house to enable Young to find his home and to kill his wife.

Appellant instructed Young to take the victim’s purse, watch and car to make it look like a robbery. At various meetings over the next few months, Steve drove either his green Suburban or a Jeep Cherokee. Young did not agree to do the killing, but told Steve “I find somebody to do it for you.” In response to the State’s question as to whether Young ever got someone to do the murder, Young testified “No.” According to the testimony, Young learned about the murder of Mrs. Pantazes on the local television news. Recognizing the similarities between the murder and the crime proposed by Steve, Young relayed the information to a police officer.

Young went to the officer, anticipating questioning by the police because Steve had called Young’s residence multiple times and Young “didn’t want to be involved in that mess.” That evening, Young was interviewed by a Prince George’s County police detective. Young gave a written statement and identified appellant as the man known as Steve. Prior to appellant’s cross-examination of Young, he moved in limine to inquire about, and introduce before the jury evidence of, alleged prior conduct that did not result in a conviction. The trial judge excused the jury to hear the parties’ arguments.

Appellant then explained his theory of ⁶⁷⁰ the crime — that Chambers and Young murdered Mrs. Pan-tazes during a botched robbery and that they sought to shift blame for the murder onto him. Relying on Rules 5-608(b) and 5 — 616(b)(2) 5 and (b)(3), appellant sought to establish Young’s involvement in an incident in which Young allegedly arranged a robbery that led to murder which Young then blamed an innocent man to disguise Young’s involvement. Appellant told the court that he could produce testimony to show that Young confessed to participating in the 1995 murder of a District of Columbia police officer and misidentified the killer. The trial judge arranged for a hearing on the matter the following Monday.

The judge asked appellant to provide at that hearing factual support for his proffer: “THE COURT: Well, I wanted to see something besides your mere allegations. You have three or four people. “[DEFENSE COUNSEL]: You want us to have them with us is what you are asking? Or documentation? “THE COURT: You have to — In other words you have to show me that there is [an] actual predicate for this testimony.” During the hearing outside the presence of the jury, appellant contended that his proposed questions regarding Young’s pri- or misconduct were permissible under Maryland Rule 5-608(b) to impeach the witness’ veracity and that extrinsic evidence was admissible under Rules 5-616(b)(2) or 616(b)(3) because it showed the witness’ bias and motive to lie. ⁶⁷¹ In support of his motion, appellant submitted affidavits from two individuals: James Bradley, an officer assigned to investigate the 1995 incident, and Trevor Hewick, appellant’s private investigator. According to defense counsel, the affidavits established that Young was engaged in prostitution with an off-duty D.C. police officer on January 12, 1995.

During their encounter, Young exited the officer’s vehicle and made a dancing motion, whereupon two men approached the car and attempted to rob him. When the officer resisted, he was shot and killed. Young identified Brian Hargrove as the assailant. The government filed criminal charges against Hargrove, but these charges were eventually dropped. 6 The defense argued that the affidavits provided a reasonable factual basis for asserting that Young’s alleged 1995 misconduct occurred but also conceded that he expected the witness to deny any wrongdoing.

Counsel told the court: “I have the right to press hard and get an answer to questions. And if she denies it, which I expect her to. I would expect her to tell the truth, but I understand the process, and she would probably not tell the truth. And then we need to prove this through extrinsic evidence.” The State argued that the affidavits did not constitute a reasonable basis for questions about the 1995 incident.

The trial judge disallowed questions about the 1995 incident and excluded the extrinsic evidence, stating that there was no basis for the questions and that there were “no reasonable allegations that Young had any bias, prejudice, or motive to testify falsely in this case.” Later, during Young’s cross-examination, defense counsel posed questions about the witness’ involvement in the murder of Mrs. Pantazes as follows: “Q: Isn’t it true that you were involved in Mrs. Pantazes’ death? “A: No. ⁶⁷² “Q: Isn’t it true, ma'am, that you conspired with Jermel Chambers to burglarize the Pantazes home? “A: No. “Q: You had the directions to his home, correct? “A: Correct. “Q: And you even had the garage code, correct? “A: Correct. “Q: It wouldn’t be beyond you to plan to burglarize or rob somebody, would it? “A: No. “Q: It would or would not be beyond you? “A: No, it wouldn’t. I wouldn’t do that. “Q: I am sorry? “A: I would not do that. “Q: You don’t do that? “A: No. “Q: You don’t plan robberies of people? “A: No. “Q: You don’t plan burglaries of people? “A: No. “Q: And you wouldn’t frame someone? You wouldn’t do that? “A: No. “Q: And you wouldn’t set anyone up at all? You just wouldn’t do that? “A: No.” Appellant then renewed his motion to question Young about the 1995 incident and to introduce extrinsic evidence.

The trial judge again denied the motion, stating: “I have already ruled. I don’t think the basis for the questions and the cross examination is sufficient.” The trial continued, and the jury convicted appellant on all counts. The court sentenced him to life without the possibility of parole on the murder count. Appellant noted a timely appeal to the Court of Special Appeals.

This Court granted certiorari prior to consideration by that court to consider the removal and evidentiary issues. See Pantazes v. State, 374 Md. 81 , 821 A.2d 369 (2003). We ⁶⁷³ affirm and hold that the trial court correctly denied the Suggestion of Removal and did not abuse its discretion in limiting the cross-examination and impeachment evidence. II We first address appellant’s removal argument.

Before this Court, appellant argues that the Circuit Court erred by denying his second Suggestion of Removal. Appellant argues that, in non-capital cases, the Maryland Constitution guarantees a defendant the right to be tried in his home jurisdiction absent an evidentiary showing that he or she would be unable to procure a fair and impartial jury in that jurisdiction. He argues that he has been deprived of this right because the trial court denied his suggestion of removal back to his home county — Prince George’s County. He states that “removal of the possibility of imposition of the death penalty ... should cause the parties and the case to revert to status quo ante,” in this instance, Prince George’s County.

He maintains that any other result would grant the State greater power than a defendant, in violation of state and federal due process and equal protection guarantees, and would allow prosecutors to abuse the system by forcing removal without genuinely intending to seek the death penalty. The State contends that the trial court properly denied appellant’s removal motion because, once the trial court granted appellant’s initial Suggestion of Removal, the action proceeded as if originally filed in the Circuit Court for Charles County. Under no circumstances was appellant entitled to a removal back to Prince George’s County. Removal to any other locale could be granted only upon a showing, under Maryland Rule 4 — 254(b)(2), that he could not receive a fair and impartial trial in Charles County.

Appellant does not argue that he can meet that standard. Article IV, § 8 of the Maryland Constitution provides for the removal of cases. Section 8(b) governs removal for offenses punishable by death and reads as follows: “In all cases of presentments or indictments for offenses that are punishable by death, on suggestion in writing under ⁶⁷⁴ oath of either of the parties to the proceedings that the party cannot have a fair and impartial trial in the court in which the proceedings may be pending, the court shall order and direct the record of proceedings in the presentment or indictment to be transmitted to some other court having jurisdiction in such case for trial.” The right of removal for cases punishable by death is automatic, but neither party is required to exercise the right. See Redman v. State, 363 Md. 298, 313 , 768 A.2d 656, 664 (2001).

A party may exercise the automatic removal right only once. See Johnson v. State, 303 Md. 487, 506 , 495 A.2d 1, 10 (1985). We have explained the exercise of the right as follows: “[W]here a defendant in a criminal case is subject to the death penalty, his [or her] right to remove a case is, in the first instance, absolute. Johnson v. State, 258 Md. 597, 600-01 , 267 A.2d 152, 154 (1970).

Further removal, we have stated, requires the party seeking the change to make a showing that there were reasonable grounds to believe he could not secure a fair trial. Id. See also, Veney v. State, 251 Md. 182, 191 , 246 A.2d 568, 573 (1968), cert. denied, 394 U.S. 948 , 89 S.Ct. 1284 , 22 L.Ed.2d 482 (1969) (‘the absolute right of removal can be exercised only once’); Lee v. State, 164 Md. 550, 552 , 165 A. 614, 615 , cert. denied, 290 U.S. 639 , 54 S.Ct. 56 , 78 L.Ed. 555 (1933) (and cases cited therein) (‘the right [of removal] had been and can only be exercised once’).” Id., 495 A.2d at 10 . Although the right of removal is automatic in capital cases, it is discretionary in all other non-capital cases and in civil cases.

See Md. Const, art. TV, § 8(c); Redman , 363 at 305 n. 7, 768 A.2d at 660 n. 7. Article IV, § 8(c) provides as follows: “In all other cases of presentment or indictment, and in all suits or actions at law or issues from the Orphans’ Court pending in any of the courts of law in this State which have jurisdiction over the cause or case, in addition to the suggestion in writing of either of the parties to the cause or case ⁶⁷⁵ that the party cannot have a fair and impartial trial in the court in which the cause or case may be pending, it shall be necessary for the party making the suggestion to make it satisfactorily appear to the court that the suggestion is true, or that there is reasonable ground for the same; and thereupon the court shall order and direct the record of the proceedings in the cause or case to be transmitted to some other court, having jurisdiction in the cause or case, for trial. The right of removal also shall exist on suggestion in a cause or case in which all the judges of the court may be disqualified under the provisions of this Constitution to sit.

The court to which the record of proceedings in such suit or action, issue, presentment or indictment is transmitted, shall hear and determine that cause or case in the same manner as if it had been originally instituted in that Court. The General Assembly shall modify the existing law as may be necessary to regulate and give force to this provision.” In a non-capital case, the party seeking removal bears the burden of showing that a fair and impartial trial cannot be obtained. See Md. Const, art. IV, § 8(c).

Whether a case should be removed is a decision that rests within the sound discretion of the trial court. Shreffler v. Morris, 262 Md. 161, 165 , 277 A.2d 62, 64 (1971). The power of the court to grant a change of venue has been recognized as a critical means of promoting justice and fairness by eliminating local prejudices. See Heslop v. State, 202 Md. 123, 126 , 95 A.2d 880, 881 (1953).

The Heslop Court noted that the right of removal has been considered so essential to the administration of justice that it has been incorporated into the organic law of Maryland for two centuries. See id., 95 A.2d at 881 . In Redman , we summarized the history detailed in Heslop : “In January 1805, the Legislature passed an Act proposing an Amendment to the Constitution of 1776 that, inter alia, gave courts discretion to remove criminal cases where any party suggested in writing that a fair and impartial trial could not be had in the court in which the case was pending. The Act was later confirmed, and a discretionary right of ⁶⁷⁶ removal in all criminal cases became part of the Maryland Constitution.

The Constitutional Convention of 1851 revised this provision by eliminating the discretionary aspect . and gave the right of removal to the defendant in every criminal case. Reports of gross abuse of the unlimited removal right led the Constitutional Convention of 1864 to return the power of removal to the court’s discretion, and the Constitution was amended to so provide. The rule was again changed by the Constitutional Convention of 1867, removing once more the court’s discretion and making the right automatic. In 1874, the Legislature, again hearing reports of abuse of the unlimited removal right, proposed an Amendment to the 1867 Constitution to provide automatic removal only in those cases where the crime was punishable by death.

This Amendment was ratified by the Maryland voters in 1875____” Redman, 363 Md. at 306-07 , 768 A.2d at 660-61 (citations and footnote omitted). The right reached its current form following the 1874 constitutional amendment ratified by Maryland voters in 1875. The varying breadth of the right of removal in Maryland history demonstrates a “shifting concern between having a broad right of removal and having a very limited right because of the abuse associated with requests for removal.” Johnson v. State, 271 Md. 189, 194 , 315 A.2d 524, 527-28 (1974). The present language, arising from a desire to narrow the right and to curb the abuse resulting from numerous removal requests, authorizes automatic removal only in criminal cases where the penalty may be death.

See Redman, 363 Md. at 307 , 768 A.2d at 661 ; Johnson, 303 Md. at 506 , 495 A.2d at 10 . To be sure, in this State, a criminal trial must be held in the county (or in Baltimore City) in which the crime was committed unless the defendant requests a change of venue. The short answer to appellant’s argument that he had the right to be tried in his home jurisdiction is that he was never denied that right — he was indicted in Prince George’s County, his home county, and would have been tried there but for his request to have the case removed from that county. ⁶⁷⁷ Once a party exercises the right of removal, “further removal” requires a showing that there are reasonable grounds to believe that the party could not receive a fair and impartial trial. See Md. Const. art.IV, § 8(c); Md. Rule 4-254(b)(2).

The Constitution provides that upon removal, the “court to which the record of proceedings in such suit or action, issue, presentment or indictment is transmitted, shall hear and determine that cause or case in the same manner as if it had been originally instituted in that court.” Md. Const. art.IV, § 8(c). Appellant exercised his right of automatic removal and, in doing so, venue for the trial was proper in the Circuit Court for Charles County, not in the Circuit Court for Prince George’s County. The case then properly proceeded as if it had been instituted originally in Charles County. Once a case is removed properly from one jurisdiction, a nolle prosequi or reversal and remand for a new trial does not reinvest jurisdiction in the transferor court.

In Smith v. State, 31 Md.App. 106, 112 , 355 A.2d 527, 531 (1976), the Court of Special Appeals cogently noted as follows: “As a general rule, the effect of a change of venue in a criminal case is to remove the cause absolutely from the jurisdiction of the court granting the change, except for curing irregularities or omissions in the record. Further, the court to which the indictment has been transferred is not divested of jurisdiction by dismissal, nolle prosequi or mistrial, and it retains exclusive jurisdiction to try the case after a new indictment for the same offense has been returned.” The court held that, once a defendant removed a case, the place of venue became proper in the new county for the original indictment and for all subsequent indictments. Id. at 112-13 , 355 A.2d at 531-32 ; cf. Vogel v. Grant, 300 Md. 690 , 698 n. 6, 481 A.2d 186 , 190 n. 6 (1984) (noting that “where a party in the District Court is entitled to a jury trial, demands a jury trial thereby vesting jurisdiction in the circuit court, and thereafter some event occurs which, if it had occurred earlier while the case had been in the District Court, would ⁶⁷⁸ have rendered the case inappropriate for a jury trial .... the circuit court should not remand the case to the District Court; instead the circuit court’s jurisdiction over the case continues”). In the instant case, after the initial removal, venue was proper in Charles County, not Prince George’s.

The State’s withdrawal of intent to seek the death penalty did not reinvest jurisdiction in the Circuit Court for Prince George’s County. There is nothing pending in the Circuit Court for Prince George’s County, and to gain additional removal, appellant was required to demonstrate that he could not receive a fair and impartial trial in Charles County. As a result of the change of venue, the Circuit Court for Charles County is vested with complete control and authority over the criminal case and its jurisdiction is not destroyed by the withdrawal of the death notice by the State. The dismissal of the death notice cannot reinvest jurisdiction in the Circuit Court for Prince George’s County because, by appellant’s exercise of his automatic right of removal and the subsequent change of venue, that court was divested of its jurisdiction.

Appellant was outside the constitutional automatic removal provision and solely within the discretionary provision requiring that he establish that he could not receive a fair and impartial trial in Charles County. Even if he had met that burden, which he does not contend that he did, the right of removal does not include the right to choose the new venue. Choice of venue lies within the sound discretion of the trial court. See Lee v. State, 161 Md. 430, 441-43 , 157 A. 723, 727-28 (1931).

In both capital and non-capital cases, Rule 4-254 provides that “[t]he Circuit Administrative Judge of the court ordering removal shall designate the county to which the case is to be removed.” We hold that the trial court did not abuse its discretion in denying appellant’s motion for further removal.

III

A. Maryland Rule 5-608(b) We next consider whether the trial court properly limited the cross-examination of Kim Young. Appellant relies ⁶⁷⁹ primarily on Rule 5-608(b) as support for his argument that the trial court erred in denying his motion in limine to question Young about the 1995 incident. That Rule provides as follows: “Impeachment by examination regarding witness’s own prior conduct not resulting in convictions. 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.” Appellant contends that the trial court improperly limited his cross-examination of Young because the questions were relevant to the character trait for truth and veracity and because he provided, through affidavits, a reasonable factual basis that the alleged conduct occurred. The State argues that the trial court properly precluded the inquiry into the 1995 incident because appellant did not satisfy the reasonable factual basis requirement of Rule 5-608(b). The State maintains that appellant’s affidavits did not establish Young’s involvement in the 1995 robbery or that Young intentionally misidentified the killer.

Appellant did not, the State argues, establish a reasonable factual basis that Young’s conduct actually occurred. During a hearing outside the presence of the jury, appellant sought to question the State’s witness, Kim Young, about a 1995 incident in which the witness allegedly participated in a robbery that led to murder and blamed the murder on an innocent man to cover any involvement. The trial court denied the motion because appellant had not met his burden to show that there was a reasonable factual basis that the alleged misconduct occurred. We conclude that the trial court did not abuse its discretion by limiting cross-examination in the absence of a reasonable factual basis for the alleged misconduct. ⁶⁸⁰ The Confrontation Clause of the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee a criminal defendant the right to confront the witnesses against him or her.

See Merzbacher v. State, 346 Md. 391, 411-12 , 697 A.2d 432, 442 (1997). Central to that right is the opportunity to cross-examine witnesses. One of the most effective means of attacking the credibility of a witness is through cross-examination. See Davis v. Alaska, 415 U.S. 308, 316 , 94 S.Ct. 1105, 1110 , 39 L.Ed.2d 347 (1974) (noting that “[c]ross examination is the principal means by which the believability of a witness and the truth of his testimony are tested”).

Thus, the defendant’s right to cross-examine witnesses includes the right to impeach credibility, to establish bias, interest or expose a motive to testify falsely. See, e.g., Marshall v. State, 346 Md. 186, 192 , 695 A.2d 184, 187 (1997); Ebb v. State, 341 Md. 578, 587 , 671 A.2d 974, 978 (1996). It has long been recognized that “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Davis, 415 U.S. at 316-17 , 94 S.Ct. at 1110 . Nevertheless, a defendant’s constitutional right to cross-examine witnesses is not boundless.

The Confrontation Clause does not prevent a trial judge from imposing limits on cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679 , 106 S.Ct. 1431, 1435 , 89 L.Ed.2d 674 (1986); Ebb, 341 Md. at 587 , 671 A.2d at 978 . 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 relevant. See Van Arsdall, 475 U.S. at 679 , 106 S.Ct. at 1435 , 89 L.Ed.2d 674 ; see Merzbacher, 346 Md. at 413 , 697 A.2d at 443 (noting that the Court has “said on numerous occasions that trial courts retain wide latitude in determining what evidence is material and relevant, and to that end, may limit, in their discretion, the extent to which a witness may be cross-examined for the ⁶⁸¹ purpose of showing bias”).

The Supreme Court has observed as follows: “A defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. A defendant’s interest in presenting such evidence may thus ‘bow to accommodate other legitimate interests in the criminal trial process.’ As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ Moreover, we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.” United States v. Scheffer, 523 U.S. 303, 308 , 118 S.Ct. 1261, 1264 , 140 L.Ed.2d 413 (1998) (citations and footnote omitted). The scope of cross-examination lies within the sound discretion