Parker v. State

Opinion by MEREDITH, J. A jury in the Circuit Court for Washington County convicted Willie Lee Parker, appellant, of the crime of retaliation against a witness, in violation of Maryland Code (2002, 2005 supp.), Criminal Law Article (“CrL”), § 9-303. Parker raises four issues, which we quote in the order in which we will address them: 1. Is [CrL] § 9-303 unconstitutionally vague? 2. Was the evidence legally sufficient to sustain Appellant’s conviction? 3.

Did the trial court err in refusing to declare a mistrial [after the prosecutor alerted the jury to a prior conviction of the appellant]? 4. Did the trial court err in allowing the prosecutor to ask improper “were they lying” questions? We conclude that the statute is not unconstitutionally vague, and that there was sufficient evidence to sustain appellant’s conviction for threatening to harm another in retaliation for a witness’s testimony. But we conclude that the prosecutor’s reference to appellant’s prior conviction was unduly prejudicial, and that appellant’s request for a mistrial should have been granted.

We vacate the judgment and remand for further proceedings. For the guidance of the trial court, we also agree with the appellant that it was improper for the prosecutor to ask appellant whether other witnesses had been lying when they testified. Factual Background Willie Lee Parker and Wendy Swan were arrested by Detective Todd Dunkle and charged separately with narcotics offenses. Swan had had a romantic relationship with Parker, and is the mother of his child.

The two were prosecuted separately. Swan’s case was tried before a jury in the Circuit Court for Washington County on January 10, 2006. Parker ⁴⁷⁹ attended Swan’s trial, at which Det. Dunkle was a principal witness.

Throughout the day of Swan’s trial, Parker appeared agitated and angry, and he glared at Det. Dunkle and other witnesses. At the end of the day, Swan was convicted. After the conclusion of Swan’s trial, Det.

Dunkle left the courthouse, accompanied by Assistant State’s Attorney Brett Wilson and two or three other police officers who had been involved in the case. When they walked out the front door of the courthouse, Det. Dunkle noticed Parker standing at the top of the steps. Their eyes met, and Det.

Dunkle and his group walked past. Det. Dunkle testified that, when he reached the bottom of the courthouse steps, he heard Parker say to him: “Now that you fucked with my family, I’ll be fucking with yours.” Det. Dunkle turned around and approached Parker.

According to Det. Dunkle, he asked Parker: “What did you just say? Did you just threaten my family?” And he heard Parker respond: “Yes, you ruined my family, so I’ll ruin yours. You made it personal first.” Det.

Dunkle became angry, and he acknowledged that he “had some colorful words to say back” to Parker “because [Parker] made the threat against my children and my wife.” The others accompanying Det. Dunkle persuaded him to calm down and walk away from the confrontation with Parker. Later that day, Det. Dunkle initiated charges against Parker for violating CrL § 9-303(a), which provides: (a) Prohibited.—A person may not intentionally harm another, threaten to harm another, or damage or destroy property with the intent of retaliating against a victim or witness for: (1) giving testimony in an official proceeding; or (2) reporting a crime or delinquent act.

Three days later, on January 13, 2006, Parker went to the District Court of Maryland for Washington County and filed an application for statement of charges against Det. Dunkle, alleging harassment. In the application, Parker recited his version of what was said on the courthouse steps. Parker ⁴⁸⁰ asserted that he was being harassed by Det.

Dunkle on January 10, 2006, and that the officer had a history of harassing Parker. On January 17, 2006, Parker filed a similar application for statement of charges against Officer Robison, one of the officers who was with Det. Dunkle at the courthouse during the confrontation on January 10, 2006. No charges were issued for either police officer as a consequence of Parker’s claims.

Parker was tried on the retaliation charge initiated by Det. Dunkle. At the conclusion of a jury trial in the Circuit Court for Washington County, Parker was convicted and sentenced to seven and one-half years of imprisonment. Parker noted this appeal.

Additional details about the trial proceedings will be discussed below. Discussion 1. CrL § 9-303 is not unconstitutionally vague. Parker contends that CrL § 9-303 is unconstitutionally vague on its face.

Appellant maintains that § 9-303(a) is so general in the manner it proscribes threats of harm with the intent to retaliate that it (a) is fatally vague and ambiguous, and (b) does not provide fair notice as to precisely what actions are prohibited by the law. We disagree. As the Court of Appeals explained in Galloway v. State, 365 Md. 599, 610-11 , 781 A.2d 851 (2001) (internal quotation marks and citations omitted), cert. denied, 535 U.S. 990 , 122 S.Ct. 1547 , 152 L.Ed.2d 472 (2002): “In determining the constitutionality of statutes, [t]he basic rule is that there is a presumption that the statute is valid____We are reluctant to find a statute unconstitutional if, by any construction, it can be sustained.” When the challenge to a statute is based on vagueness, “[t]he party attacking the statute has the burden of establishing its unconstitutionality.” Id. at 611 , 781 A.2d 851 . “A penal statute is vague if it violates the cardinal requirement that it be sufficiently explicit to inform those who are subject to it what conduct on their part will render them ⁴⁸¹ liable to its penalties.” Eanes v. State, 318 Md. 436, 459 , 569 A.2d 604 (1990) (citations omitted). A statute may be void for vagueness if it lacks fixed enforcement standards or guidelines.

Id. “The touchstone is whether persons of common intelligence need reasonably guess at its meaning.” Id. (quotation marks and citations omitted). See also Bowers v. State, 283 Md. 115, 125 , 389 A.2d 341 (1978) (a statute is not unconstitutionally vague where the words used “possess a common and generally accepted meaning”). We summarized the principles governing review of a challenge to the vagueness of a statute as follows in Jeandell v. State, 165 Md.App. 26, 33-34 , 884 A.2d 739 (2005), rev’d on other grounds, 395 Md. 556 , 910 A.2d 1141 (2006): In Williams v. State, 329 Md. 1 , 616 A.2d 1275 (1992), the Court of Appeals discussed the void-for-vagueness doctrine, and noted that it “requires that a penal statute ‘be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.’ ” Id. at 8 , 616 A.2d 1275 (quoting Connally v. General Const.

Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127 , 70 L.Ed. 322 (1926)). Quoting from Williams, supra, and Bowers v. State, 283 Md. 115 , 389 A.2d 341 (1978), the Court further elaborated upon the doctrine in Galloway v. State, 365 Md. 599, 615-16 , 781 A.2d 851 (2001): A well grounded principle in federal constitutional law is that, when considering the void-for-vagueness doctrine, courts consistently consider two criteria or rationales. See, e.g., Williams, 329 Md. at 8 , 616 A.2d at 1278 ; Eanes [v. State], 318 Md. [436] at 459, 569 A.2d [604] at 615; Bowers, 283 Md. at 120-21 , 389 A.2d at 345 . The first rationale is the fair notice principle that “persons of ordinary intelligence and experience be afforded a reasonable opportunity to know what is prohibited, so that they may govern their behavior accordingly.” Williams, 329 Md. at 8 , 616 A.2d at 1278 (internal quotation marks omitted) (quoting Bowers, 283 Md. at 121 , 389 A.2d 341 ); see Ferro v. Lewis, 348 Md. 593, 607 , 705 A.2d 311, 318 (1998).

The standard for determining whether a statute provides fair notice is ⁴⁸² “whether persons ‘of common intelligence must necessarily guess at [the statute’s] meaning.’ ” Williams, 329 Md. at 8 , 616 A.2d at 1278 (alteration in original) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 607 , 93 S.Ct. 2908, 2913 , 37 L.Ed.2d 830 (1973)). A statute is not vague under the fair notice principle if the meaning “of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning.” Bowers, 283 Md. at 125 , 389 A.2d at 348 (emphasis added) (citations omitted); see Eanes, 318 Md. at 460 , 569 A.2d at 615-16 . The second criterion of the vagueness doctrine regards enforcement of the statute. This rationale exists “to ensure that criminal statutes provide ‘legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation it is to enforce, apply and administer the penal laws.’ ” Williams, 329 Md. at 8 [-]9, 616 A.2d at 1278 (quoting Bowers, 283 Md. at 121 , 389 A.2d 341 ).

To survive analysis, a statute must “eschew arbitrary enforcement in addition to being intelligible to the reasonable person.” Williams, 329 Md. at 9 , 616 A.2d at 1279 . In Bowers , we determined that, as to this standard, a statute is not unconstitutionally vague merely because it allows for the exercise of some discretion on the part of law enforcement and judicial officials. It is only where a statute is so broad as to be susceptible to irrational and selective patterns of enforcement that it will be held unconstitutional under this second arm of the vagueness principle. 283 Md. at 122 , 389 A.2d at 346 ; see Eanes, 318 Md. at 464 , 569 A.2d at 617 . As a general rule, the application of the void-for-vagueness doctrine is based on the application of the statute to the “facts at hand.” Bowers, 283 Md. at 122 , 389 A.2d at 346 (citations omitted). ⁴⁸³ The Galloway Court further observed that “it will usually be immaterial that the statute is of questionable applicability in foreseeable marginal situations, if a contested provision clearly applies to the conduct of the defendant in a specific case.” 365 Md. at 616 , 781 A.2d 851 (quoting Bowers, 283 Md. at 122 , 389 A.2d 341 (citing United States v. Petrillo, 332 U.S. 1, 7 , 67 S.Ct. 1538 , 91 L.Ed. 1877 (1947))).

The Court noted, however, that a statute that potentially infringes upon the freedom of expression guaranteed by the First Amendment may be challenged as vague on its face. Galloway, 365 Md. at 617 , 781 A.2d 851 . As the Court of Appeals explained in Bowers, 283 Md. at 122-23 , 389 A.2d 341 : A different rule governs, however, where the statute in question appears to intrude upon fundamental constitutional liberties, particularly the First Amendment guarantees of free speech and assembly. In such cases, not only may the two vices of inadequate notice and insufficient adjudicative guidelines be present, but in addition the indefiniteness of the statute itself may inhibit the exercise of protected freedoms.

Winters v. New York, 333 U.S. at 509, 68 S.Ct. 665 ; United States v. National Dairy Corp., 372 U.S. at 36, 83 S.Ct. 594 . “[T]here is [in these cases] the danger that the state will get away with more inhibitory regulation than it has a constitutional right to impose, because persons at the fringes of amenability to regulation will rather obey than run the risk of erroneous constitutional judgment.” Note, 109 U. Pa. L.Rev. at 80. On account of this “chilling effect” which vagueness can exert on First Amendment liberties, the Supreme Court has stated that whenever a criminal statute may, because of imprecise draftsmanship, impact upon free speech rights, the void-for-vagueness doctrine “demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. at 573, 94 S.Ct. 1242 ; accord, Hynes v. Mayor of Oradell, 425 U.S. at 620, 96 S.Ct. 1755 ; cf. Coates v. City of Cincinnati, 402 U.S. 611, 614 , 91 S.Ct. 1686 , 29 L.Ed.2d 214 (1971) (ordinance held unconstitutionally vague because it ⁴⁸⁴ conditioned exercise of right of assembly upon unascertainable standard). Translated, this principle of strict specificity means that where First Amendment values are at least potentially involved, the statute is to be tested for vagueness on its face.

Smith v. Goguen, 415 U.S. at 573 , 94 S.Ct. 1242 ; Winters v. New York, 333 U.S. at 509 , 68 S.Ct. 665 . So considered, the principle is essentially a rule of standing, permitting a defendant to challenge the validity of a statute as applied to marginal cases, even though the acts for which he has been charged may be squarely within the coverage of the statute. Note, 109 U. Pa. L.Rev. at 97.

Once it is determined, however, that a strict specificity standard ought to apply in any given case, the criteria for measuring the validity of a statute under the vagueness doctrine are the same as in a non-First Amendment context: fair warning and adequate guidelines. The statute challenged in the case before us is sufficiently clear that there is no need to look beyond its language to understand its meaning. Grandison v. State, 390 Md. 412, 445 , 889 A.2d 366 (2005). The words “threaten to harm” are unambiguous in the context of CrL § 9-303.

The purpose of the law is plain: to enable individuals to report criminal activity or participate in official proceedings without fear that they will be retaliated against for doing so. The statute’s purpose clause states in pertinent part: FOR the purpose of prohibiting a person from harming another, threatening to harm another, or damaging or destroying property with the intent to induce a victim or witness not to report the existence of facts relating to a crime or delinquent act; ... prohibiting a person from threatening to harm another with the intent of retaliating against a victim or witness for giving testimony in an official proceeding or for reporting a crime or delinquent act____ 2005 Md. Laws, Chapter 461. The statute is “ ‘sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.’ ” Williams, supra, 329 Md. at 8 , 616 A.2d ⁴⁸⁵ 1275 (quoting Connally v. General Const. Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127 , 70 L.Ed. 322 (1926)).

And the operative phrase “threaten to harm another” has “a common and generally accepted meaning,” Bowers, supra, 283 Md. at 125 , 389 A.2d 341 , such that “‘persons of ordinary intelligence and experience [are] afforded a reasonable opportunity to know what is prohibited, so that they may govern their behavior accordingly.’ ” Williams, supra, 329 Md. at 8 , 616 A.2d 1275 (quoting Bowers, supra, 283 Md. at 121 , 389 A.2d 341 ). The law clearly applies to the facts alleged in this case. When viewed in a light most favorable to the State, the evidence showed that a police officer who investigated a crime and testified in a trial that led to a conviction was told by an associate of the convicted person, in an angry voice, “now that you fucked with my family, I’ll be fucking with yours.... Yes, you ruined my family, so I’ll ruin yours.” This comment was made directly outside the courthouse, within minutes after the jury’s verdict had been returned.

There can be no question that the words “I’ll be fucking with your[ family]” would be perceived by a witness as a retaliatory threat of harm. Section 9-303 is intended to prevent persons from tampering with testimonial proceedings by threatening, intimidating, or retaliating against witnesses. Any person of ordinary intelligence would know that approaching a witness and expressing an intent to “fuck with” or “ruin” the witness’s family would be viewed as conduct threatening harm in retaliation for the witness’s participation in the proceeding. The statute is adequately clear to inform members of the public that such conduct is prohibited.

The circuit court was correct in ruling that this law is not unconstitutionally vague. 2. The evidence was legally sufficient to sustain the conviction. Parker contends that the State’s evidence was legally insufficient to sustain his conviction under CrL § 9-303(a) for intentionally threatening to harm Det. Dunkle’s family in retaliation for Det.

Dunkle’s testimony in Swan’s January 2006 trial. A jury’s verdict will not be disturbed on appeal if, “after ⁴⁸⁶ viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)(emphasis in original); see Harrison v. State, 382 Md. 477, 487-88 , 855 A.2d 1220 (2004); Moye v. State, 369 Md. 2, 12-13 , 796 A.2d 821 (2002). Parker contends that the statute requires proof that Parker intended to cause physical or bodily harm to Det. Dunkle at the time Parker made his comments, and that there was insufficient evidence that Parker so intended.

According to Parker, “[t]he issue is whether there was sufficient evidence to find that Appellant intentionally threatened to physically harm Officer Dunkle with the intent to retaliate for his testimony.” Parker argues that the evidence showed that Parker filed an application for statement of charges against Det. Dunkle in the District Court three days after the confrontation at the courthouse, and that the pursuit of such legal action was what he was alluding to when he exchanged words with Det. Dunkle on the day of Swan’s trial. Parker asserts: “There is no evidence that Appellant ever intended to inflict bodily harm....

No rational trier of fact could have found that he intended to inflict bodily harm beyond a reasonable doubt.” We reject Parker’s interpretation of what the State must prove to support a conviction under CrL § 9-303(a). The portion of the statute that is pertinent to the communication between Parker and Det. Dunkle provides that “[a] person may not intentionally ... threaten to harm another ... with the intent of retaliating against a ... witness for: (1) giving testimony in an official proceeding; or (2) reporting a crime or delinquent act.” The essential elements of the statutory offense that was charged in this case are: (1) that the defendant made an intentional threat to harm another person; and (2) that the defendant made the threat with the intent of retaliating against a witness who had testified in an official proceeding. Those elements were proved by the evidence presented in this case. ⁴⁸⁷ Contrary to Parker’s argument, the statute does not require a threat of physical harm.

Nor does the statute require that the threatened harm be directed at the witness (as opposed to the witness’s family members or others). Nor does the statute require proof that the party making the threat had an actual intent to commit the harm to another. The critical element is the threat of harm, intentionally communicated to the witness for the purpose of retaliating against the witness. If the jury viewed all of the evidence in a light most favorable to the prosecution, the jury could have found that Det.

Dunkle was a witness who had testified in an official proceeding against Swan, who was the mother of Parker’s child. Because the outcome of the official proceeding against Swan was not in accordance with Parker’s wishes, the jury could have properly inferred from the evidence that Parker had a motive to retaliate against Det. Dunkle, and further, that Parker had the intent to retaliate against Det. Dunkle when Parker uttered the threatening words on the courthouse steps.

And the jury could have reasonably found that Parker said to Det. Dunkle: “Now that you fucked with my family, I’ll be fucking with yours.” Additionally, the jury could have found that Parker confirmed that his statement was intended to be a threat when the detective asked him directly, “Did you just threaten my family?” Parker responded: “Yes, you ruined my family, so I’ll ruin yours. You made it personal first.” Those statements supported a finding that Parker, acting in retaliation for a witness’s testimony, had intentionally threatened to harm another. As noted above, the test for evidentiary sufficiency is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson, supra, 443 U.S. at 319 , 99 S.Ct. 2781 ; see State v. Stanley, 351 Md. 733, 750 , 720 A.2d 323 (1998). When the evidence in this case is viewed in that light, the evidence was legally sufficient to support the conviction for a violation of CrL § 9-303. ⁴⁸⁸ 3. The court erred in denying the motion for mistrial. Prior to the start of the trial, defense counsel alerted the court to his concern that, in the retaliation case, the jury might be prejudiced by the fact that the alleged retaliation involved a witness in a drug prosecution.

The court agreed that, subject to the court’s further ruling, there should be no references to the underlying facts of other cases. The discussion on Parker’s motion in limine was as follows: [DEFENSE COUNSEL]: ... [I]t’s kind of an odd issue in the sense that Officer Dunkle just testified at my client’s ex-girlfriend’s trial. It was a drug distribution trial. The charges here today have to do with her trial [that] was concluded, it’s retaliatory in nature, and I believe letting this jury hear that it was a drug distribution trial or that Mr. Parker was still facing that [sic] would prejudice this jury against my client____I don’t think the jury should be polluted with knowing that it was a drug distribution trial ____So I’d ask the Court to instruct the witnesses not to mention his ex-girlfriend’s criminal conduct or his that were past or present that day. [PROSECUTOR]: Your Honor, I think we’re talking about two separate trials here.

There was a trial that took place on January 10th, in this building, that involved Wendy Swan. That’s the alleged facts that this case is involved in, the defendant’s alleged girlfriend. There was then a trial approximately two months later, March the 9th, where the Defendant himself was convicted. If [Defense Counsel] is arguing that that proceeding is not relevant to this proceeding, the State’s not necessarily going to disagree----What happened with Wendy Swan is very relevant and