Peterson v. State

McDonald, J. The underlying facts of this case are not complicated. The setting was a pre-arranged drug deal in Prince George’s County. The two purchasers intended to steal the drugs without paying for them. The seller came with fake pills.

As the ill-fated transaction proceeded inside a car, things went awry. A gun appeared and the seller was fatally shot in the driver’s seat. The question at trial was whether Petitioner Jerrod M. Peterson, one of the purchasers, had pulled the trigger. The prosecution presented the testimony of several eye witnesses — a man who had accompanied the deceased seller, the other purchaser who accompanied Mr. Peterson, the intermediary who introduced Mr. Peterson to the seller, and the intermediary’s sister who was nearby when the incident took place — to prove that Mr. Peterson was the assailant.

The defense attempted to create doubt about Mr. Peterson’s guilt by cross-examining those witnesses about their perception and memory of the event, and their potential biases. While the trial court allowed the defense to pursue various lines of inquiry, it prohibited defense counsel from asking certain questions. Mr. Peterson was convicted of first degree felony murder and related charges. He seeks reversal of those convictions on the ground that the trial judge unduly restricted his cross-examination of two prosecution witnesses.

He asserts that the limits placed on his counsel’s cross-examination not only exceeded the discretion normally accorded to trial judges, but also amounted to a violation of his right under the federal and ¹¹⁴ State constitutions to confront the witnesses against him. As an additional ground for reversal, he asserts that the trial court erred when it declined, on the basis of attorney-client privilege, to allow his counsel to call to the stand the Assistant Public Defender who represented his co-defendant (who had become a prosecution -witness under a plea agreement) and question that attorney about a proffer session that her client had with the Assistant State’s Attorney and police prior to entering into the plea agreement. We hold that the limitations placed on counsel’s cross-examination — to the extent that Mr. Peterson preserved an objection to them — were within the discretion of the trial judge and did not violate Mr. Peterson’s constitutional right of confrontation. While the attorney-client privilege did not apply to the discussion at the proffer session, the court properly refused to allow the testimony that counsel sought to adduce as it was of minimal relevance, cumulative, and the potential for straying into privileged areas outweighed any probative value.

I Background A. Facts In mid-March 2009, about one week before the shooting that is the subject of this case, Mr. Peterson was introduced to Domonique Gordon by Calvin Rose at the home of Mr. Rose’s mother (where Mr. Rose resided) in Landover, Maryland. Mr. Gordon and Mr. Peterson arranged to meet at the same place during the following week in order for Mr. Peterson to purchase ecstasy pills 1 from Mr. Gordon. ¹¹⁵ On the appointed date, late on the evening of March 27, 2009, Mr. Gordon and his friend James McLaurin drove from Washington, D.C., to Mr. Rose’s neighborhood with a bag of imitation ecstasy pills. Mr. Gordon parked in front of Mr. Rose’s house and sat in the driver’s seat while Mr. McLaurin occupied the front passenger seat. Mr. Rose came out of his mother’s house to speak with Mr. Gordon, who emerged from the ear while Mr. McLaurin remained seated within.

Mr. Peterson and his acquaintance Thomas Hughes had driven separately to the neighborhood in a car provided by Alexis Brown, a friend of Mr. Peterson who accompanied them with her four-year old son. They parked a block from Calvin Rose’s house. Ms. Brown and her child remained in the car a block away, out of sight of Mr. Gordon’s car, while Mr. Peterson and Mr. Hughes walked back to meet with Mr. Gordon. Once the men were together, at Mr. Gordon’s suggestion, he and Mr. Peterson got into his car, with Mr. Gordon returning to the driver’s seat and Mr. Peterson taking the rear seat on the driver’s side, but leaving the door open.

Mr. McLaurin had remained seated in the front passenger seat. Mr. Rose and Mr. Hughes were outside in front of the car. Shortly thereafter, a gun appeared — wielded by Mr. Peterson, according to prosecution witnesses at the trial. The three men inside the car began struggling.

A shot was fired, striking Mr. Gordon inside the car. Mr. Hughes ran from the area in front of the car to the back of the car near Mr. Peterson. Mr. McLaurin got out of the car and tried to run away, but was shot in the leg and fell to the ground. At some point during the struggle, Mr. Rose ran back into his mother’s house to escape the range of fire and to call 9-1-1.

The encounter in the car and the street was observed by Mr. Rose’s sister, Cassandra, from a second floor window in the Rose home. ¹¹⁶ Mr. Peterson and Mr. Hughes fled back to Ms. Brown’s car with the pills and money and drove off. After the two men left the neighborhood, Mr. Rose stayed on the scene of the shooting and waited for the police to arrive. He received a call on his cell phone from Mr. Peterson, who told him not to say anything to the police. Mr. Rose hung up on Mr. Peterson and gave a statement to the police about what happened.

Mr. Gordon died from his gunshot wound. But Mr. McLaurin survived and spoke with an officer on the scene before being transported to a hospital. Mr. Peterson and Mr. Hughes were arrested the next day. Mr. Gordon’s wallet was later recovered from the driver’s side of Ms. Brown’s car.

B. Charges A statement of charges was filed against both Mr. Peterson and Mr. Hughes in connection with the shooting on March 28, 2009. Those charges were superseded when the grand jury returned indictments on May 19, 2009, against both men charging them with several offenses related to the incidents: first degree felony murder, two counts of use of a handgun during the commission of a felony or crime of violence, assault in the first degree, robbery with a dangerous or deadly weapon, conspiracy to commit murder, conspiracy to commit robbery, attempted first degree murder, and robbery. Circuit Court for Prince George’s County, Case Nos. CT090712A, CT090712B. Mr. Hughes later entered into a plea agreement with the State several months before his trial, agreeing to testify against Mr. Peterson in exchange for a sentence of 20 years’ imprisonment, with all but eight years suspended.

C. Trial Prosecution Case After numerous motions hearings and postponements, Mr. Peterson’s case came to trial in mid-August 2011. The prosecution theory of the case was that, after arranging for a drug ¹¹⁷ deal with Mr. Gordon, Mr. Peterson planned to rob him; that, for that purpose, he enlisted Mr. Hughes; that Mr. Peterson obtained transportation from his friend Ms. Brown and, unknown to the others, brought a gun to the meeting with Mr. Gordon; and that, during the struggle in Mr. Gordon’s car, Mr. Peterson shot him from behind and before he fled back to Ms. Brown’s car, also shot Mr. McLaurin. The State presented the testimony of four witnesses to the shooting: Mr. Rose, his sister Cassandra Rose, Mr. McLaurin, and Mr. Hughes. Calvin Rose.

Calvin Rose testified that he had been friends with Domonique Gordon, and that he knew Jerrod Peterson from living in the same neighborhood for many years. He testified that he had introduced Mr. Peterson and Mr. Gordon to each other the week before the shooting. On the evening of March 27, 2009, Mr. Peterson called him at his home to ask if he had seen Mr. Gordon. Mr. Rose looked outside while he was on the phone.

He saw Mr. Gordon in a car outside his house, and informed Mr. Peterson that Mr. Gordon was there. Mr. Rose then went outside to talk to Mr. Gordon. He saw Ms. Brown’s car pass by and shortly thereafter Mr. Peterson and Mr. Hughes (then unknown to Mr. Rose) walked up to them. At Mr. Gordon’s suggestion, Mr. Gordon got back into the driver’s seat of the car and Mr. Peterson got in the back seat immediately behind him, but left the door open while Mr. Rose stood near the front of the car.

Mr. Rose turned away from the car to speak briefly to Mr. Hughes who was standing farther away from the car. He saw Mr. Hughes’ eyes widen, as though he were surprised to see something. When Mr. Rose turned to look back at the car, he realized that Mr. Peterson had a gun, and that the men in the car appeared to be struggling. Mr. Rose ran back into his mother’s house to get out of the range of the gun and to protect his daughter, who was standing in the doorway.

He testified that, as he reached the house, he heard a gunshot and turned to see Mr. ¹¹⁸ Hughes running toward the car. Then he heard a second shot as he was calling 9-1-1 from inside the house. After Mr. Peterson and Mr. Hughes left the area, Mr. Rose went outside and saw Mr. McLaurin laying on the ground. After the police arrived, Mr. Peterson called Mr. Rose on his cell phone while Mr. Rose was talking with a police officer on the scene.

Mr. Peterson told him not to say anything to the police. Mr. Rose testified that he replied, “What the f[---] did you do? I don’t even know you,” and hung up. In an interview at the police station, he later identified Mr. Peterson as the man with the gun.

Thomas Hughes. According to Mr. Hughes, he met Mr. Peterson a few days before the shooting through Mr. Hughes’ cousin. Mr. Peterson told him that he knew someone who sold ecstasy pills, but that he thought they could easily steal the pills instead of paying for them. Mr. Peterson asked him to obtain a gun.

Mr. Hughes could not find a gun and assumed they would attempt to steal the pills without a weapon. He also thought his cousin would be participating in the theft, but when Mr. Peterson picked him up, the only other people in the vehicle were a woman and child he did not know. Mr. Hughes testified that they drove past Mr. Rose’s house and parked down the street. They walked back up the street and, when they arrived at the Rose house, Mr. Peterson entered the back seat of Mr. Gordon’s car while Mr. Hughes stood outside the car with Mr. Rose.

He was surprised to see Mr. Peterson brandish a gun and, when a struggle broke out in the car, he ran to the side of the car to help Mr. Peterson. He reached into the car to try to pull Mr. Peterson out, but was unable to do so. Mr. Peterson then shot Mr. Gordon. As Mr. McLaurin fled the car, Mr. Peterson shot Mr. McLaurin in the leg.

According to Mr. Hughes, he and Mr. Peterson then fled back to the car in which they had come. James McLaurin. Mr. McLaurin, who worked as a barber in the District of Columbia and had known Mr. Gordon for a number of years, met with Mr. Gordon on the day of the ¹¹⁹ murder at his barber shop. He testified that, after drinking at the barber shop for a while, he and Mr. Gordon drove over the state line to buy more liquor at a Maryland liquor store.

They then drove to Mr. Rose’s neighborhood, an area unfamiliar to Mr. McLaurin. He testified that Mr. Peterson entered their car and, at some point afterwards, struck Mr. McLaurin with a metal object and demanded that he “give me your money.” Mr. McLaurin was dazed, but he heard a struggle in the car and a gun shot. He got out of the car, but was struck by a bullet in the right thigh and fell to the ground. He said that someone grabbed his belongings and fled while he was on the ground.

He crawled back to the car, but was unable to rouse Mr. Gordon. The police arrived shortly thereafter and he was taken to the hospital. Cassandra Rose. Mr. Rose’s sister, Cassandra Rose, testified that she was looking out the second floor window of her home when her brother told her that the car parked in front of the house belonged to Mr. Gordon.

She said that she saw two men approach the car, saw movement in the car, and heard a gunshot. She heard, but could not see who fired, the first shot. She saw the passenger (Mr. McLaurin) get out of the car and flee. “And the guy who was on the left side of the car ... reached over the car and shot.” Other testimony. Although she did not see the shooting, Alexis Brown testified about driving to the location with Mr. Peterson and Mr. Hughes that night, remaining in the car for 15 minutes when the two men went to their meeting, and departing after they returned with pills and money.

Other prosecution witnesses included the police officers who responded to the shooting and crime evidence technicians who had collected and processed evidence from the crime scene. The technicians introduced photographs of the crime scene and items recovered at the scene that night, including money, drugs, clothing items, and bullets, as well as Mr. Gordon’s wallet, which had been recovered from next to the driver’s seat in the car Mr. Peterson had driven. An expert in forensic serology and DNA analysis from the county crime lab and a firearms examiner testified about their examination of ¹²⁰ the recovered items and established that Mr. Peterson’s DNA was found on the steering wheel of Ms. Brown’s car. The deputy chief medical examiner testified concerning the autopsy of Mr. Gordon.

Defense Case The defense suggested, largely through cross-examination of the State’s witnesses, that Mr. Hughes was the shooter. A ballistics expert testified about ejection patterns in modern pistols and concluded that the spent casing indicated that Mr. Gordon was shot from either behind or to the side. Several friends and family members of Mr. Peterson testified as character witnesses on his behalf. The defense also called the lead detective in the case and questioned him about proffer sessions between Mr. Hughes and the State before Mr. Hughes became a witness for the State, as well as the detective’s interviews of James McLaurin and Calvin Rose.

D. Verdict, Sentencing, and Appeal The jury found Mr. Peterson guilty of first degree felony murder, first degree assault, robbery with a dangerous or deadly weapon, conspiracy to commit robbery, theft, and two counts of use of a handgun during the commission of a felony or crime of violence. 2 On September 2, 2011, Mr. Peterson was sentenced to life in prison, with all but 85 years suspended and including 10 years mandatory incarceration related to the two firearms convictions. Mr. Peterson appealed. The Court of Special Appeals affirmed his convictions in an unreported decision. We granted a writ of certiorari to consider (1) whether certain limitations on defense counsel’s cross-examination of Mr. Rose and Mr. Hughes exceeded the trial court’s discretion and violated his constitutional right to confront the witnesses against him; ¹²¹ and (2) whether the attorney-client privilege precluded the defense from calling Mr. Hughes’ attorney as a witness to testify as to his proffer sessions with the prosecution.

II Discussion A. Whether the Trial Court Improperly Limited Defense Cross-Examination Mr. Peterson points to three areas of inquiry that he argues were improperly limited by the trial court: (1) whether Mr. Rose expected a benefit from his testimony at Mr. Peterson’s trial as to pending charges against him in Virginia and Maryland, in light of an earlier agreement Mr. Rose had made to act as an informant for the Fairfax County, Virginia, police, (2) whether Mr. Hughes had experienced hallucinations affecting his testimony concerning the shooting, in light of medical records indicating that he had reported hallucinations at a later date, and (3) whether Mr. Hughes’ testimony was affected by the specific potential sentence for the murder of Mr. Gordon — a charge that, as to Mr. Hughes, would be dismissed as part of his plea agreement with the State. Mr. Peterson contends that these limitations cumulatively amounted to a violation of his right under the federal and State constitutions to confront the witnesses against him. With respect to some of these contentions, the State asserts that defense counsel failed to adequately apprise the trial court of the nature of his proposed cross-examination or that the argument that Mr. Peterson makes to us is not the same argument made to the trial court — in other words, that he failed to preserve at least some of these issues for appeal. 1. Cross-Examination, the Right of Confrontation, and the Standard of Appellate Review It has long been recognized that cross-examination is ¹²² essential to the truth-finding function of a trial. 3 A criminal defendant’s right to cross-examine the prosecution’s witnesses is protected by the Confrontation Clause that appears in both the federal and State constitutions. 4 “The right of confrontation includes the opportunity to cross-examine witnesses about matters relating to their biases, interests, or motives to testify falsely.” Martinez v. State, 416 Md. 418, 428 , 7 A.3d 56 (2010).

That principle is incorporated in Maryland Rule 5-616(a)(4), which provides that “The credibility of a witness may be attacked through questions asked of the witness, including questions that are directed at: ... Proving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely.” To comply with the Confrontation Clause, a trial court must allow a defendant a “threshold level of inquiry” that “expose[s] to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witnesses.” Martinez, 416 Md. at 428 , 7 A.3d 56 (quoting Davis v. Alaska, 415 U.S. 308, 318 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974)). Once the constitutional threshold is met, trial courts may limit the scope of cross-examination “when necessary for ¹²³ witness safety or to prevent harassment, prejudice, confusion of the issues, and inquiry that is repetitive or only marginally relevant.” Martinez, 416 Md. at 428 , 7 A.3d 56 ; see also Lyba v. State, 321 Md. 564, 570 , 583 A.2d 1033 (1991). As Maryland Rule 5-611 provides, a trial court is to “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.” Therefore, although the defendant has “wide latitude ... the questioning must not be allowed to stray into collateral matters which would obscure the trial issues and lead to the factfinder’s confusion.” Smallwood v. State, 320 Md. 300, 307-08 , 577 A.2d 356 (1990).

Mr. Peterson asks this Court to adopt a “two-tiered standard of review” when a defendant alleges unconstitutional limits on cross-examination. Under that approach, he argues, we should review the trial court’s rulings with respect to cross-examination in his case under a de novo standard rather than an abuse of discretion standard. Mr. Peterson primarily relies on United States v. Larson, 495 F.3d 1094 (9th Cir.2007) (en banc), in which the Ninth Circuit Court of Appeals articulated the following approach to assessing claims that a trial court’s restrictions on cross-examination violated the Confrontation Clause: If the defendant’s challenge is based on “the exclusion of an area of inquiry,” the court reviews de novo. If the limitation is on “the scope of questioning within a given area,” the court reviews under an abuse of discretion standard. 495 F.3d at 1101 .

Under this approach, the standard of review turns on how one distinguishes between what is an “area of inquiry” and what is “within an area of inquiry.” In Larson , the court held that “the biases and motivations to lie of the Government’s cooperating witnesses” constituted an “area of inquiry,” and that limitations on cross-examination of those witnesses about mandatory minimum sentences were “within” that area and ¹²⁴ therefore to be reviewed under an abuse of discretion standard. 5 495 F.3d at 1102 . The approach of the Ninth Circuit is perhaps one useful way of conceptualizing an appellate court’s task in assessing a claim that a restriction on cross-examination violated a defendant’s right of confrontation. However, we see no particular need to adopt it. 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.

To the extent that Mr. Peterson is suggesting that we apply a de novo standard of review to each individual decision a trial court makes to limit cross-examination when a Confrontation Clause challenge is raised, we reject that suggestion. 2. The Preservation Rule and its Purpose The Maryland Rules require that a party who objects to the admission or exclusion of evidence at trial must make the grounds for a different ruling manifest to the trial court at a time when the court can consider those grounds and decide ¹²⁵ whether to make a different ruling. In particular, to preserve an objection to the trial court’s exclusion of evidence, the party must show both prejudice and that “the substance of the evidence was made known to the court by offer on the record or was apparent from the context within which the evidence was offered.” Maryland Rule 5-103(a)(2). A similar requirement pertains to an objection to the admission of evidence.

See Maryland Rule 5-103(a)(1) (in order to contest admission of evidence, party must show prejudice, a timely objection, and the specific ground, if requested by the court or required by rule); Maryland Rule 4-323(a) (“An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived .. ,”). 6 The preservation rule applies to evidence that a trial attorney seeks to develop through cross-examination. While counsel need not — and may not be able to — detail the evidence expected to be elicited on cross-examination, when challenged, counsel must be able to describe the relevance of, and factual foundation for, a line of questioning. See Grandison v. State, 341 Md. 175, 206-11 , 670 A.2d 398 (1995).

The rules governing appellate review reflect the same principles. “Ordinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” Maryland Rule 8-131(a). Although this Court may “address the merits of an unpreserved issue,” that discretion “is to be rarely exercised and only when doing so furthers, rather than ¹²⁶ undermines, the purposes of the rule.” Robinson v. State, 410 Md. 91, 104 , 976 A.2d 1072 (2009); Conyers v. State, 354 Md. 132, 150 , 729 A.2d 910 (1999). The purposes of Rule 8-131(a) are furthered in “cases where prejudicial error was found and the failure to preserve the issue was not a matter of trial tactics.” Grandison v. State, 425 Md. 34, 69-70 , 38 A.3d 352 (2012) (quoting Abeokuto v. State, 391 Md. 289, 327 , 893 A.2d 1018 (2006)). The purpose of the preservation rule is to “prevent! ] unfairness and requirfe] that all issues be raised in and decided by the trial court, and these rules must be followed in all cases!.]” Grandison, 425 Md. at 69 , 38 A.3d 352 (quoting Abeokuto, 391 Md. at 327 , 893 A.2d 1018 ).

Put another way, the rule exists “to prevent ‘sandbagging’ and to give the trial court the opportunity to correct possible mistakes in its rulings.” Bazzle v. State, 426 Md. 541, 561 , 45 A.3d 166 (2012) (internal citations omitted); see also Robinson, 410 Md. at 103 , 976 A.2d 1072 (“Fairness and the orderly administration of justice is advanced by requiring counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings.”) (internal citations and quotations omitted). An appeal is not an opportunity for parties to argue the issues they forgot to raise in a timely manner at trial. Nor should counsel “rely on this Court, or any reviewing court, to do their thinking for them after the fact.” Grandison, 425 Md. at 70 , 38 A.3d 352 (quoting Abeokuto, 391 Md. at 327 , 893 A.2d 1018 ). 3. Cross-Examination of Calvin Rose Proposed Cross-Examination, Proffers, and Rulings A reading of the transcript reveals a zealous and talented defense attorney with a shotgun approach to objections and impeachment and a trial judge trying to maintain an orderly trial, growing impatient, and not always grasping what target the shotgun was aimed at.

The discussion of the defense ¹²⁷ effort to impeach Calvin Rose’s possible expectation of a benefit in relation to pending charges offers a case in point. Pre-Trial Agreement At a pre-trial hearing in November 2010 — before a different, judge than the judge who ultimately presided over the trial— the prosecution and defense had agreed that defense counsel could ask Mr. Rose whether he expected to benefit from his testimony with respect to certain charges pending against him at the time of trial — in particular, an unspecified pending charge in Prince George’s County, a pending misdemeanor charge in Fairfax, Virginia, and an alleged violation of probation in Virginia. 7 The prosecutor and the hearing judge cited this Court’s then-recent decisions in Martinez v. State, supra. and Calloway v. State, 414 Md. 616 , 996 A.2d 869 (2010), as the basis for allowing the questions. Mistrial Motion after Opening Statement When the case came to trial the following year before a different judge, the agreement appeared to have broken down — or at least there were differences as to its interpretation. In opening statement, defense counsel sought to defuse the impact of the anticipated adverse testimony of Calvin Rose by advising the jury that Mr. Rose had prior convictions and also had “pending” charges.

The mention of pending charges was not specifically related to a possible “expectation of benefit,” although counsel did state that Mr. Rose had previously “workfed] with the State” — apparently a reference to a cooperation agreement with the Fairfax County, Virginia, police. The prosecution objected at the mention of pending charges. After ascertaining from the defense counsel that he was not referring to any charges or agreements in Prince George’s County, the court sustained the objection. ¹²⁸ After opening statements had concluded, but before testimony began, defense counsel asked for a mistrial or, alternatively, to supplement his opening statement, on the ground that that the trial judge had denied Mr. Peterson due process by sustaining objections to parts of the defense opening statement, some of which related to the anticipated impeachment of prosecution witnesses. Defense counsel asked to “make a record” in connection with the mistrial motion: [DEFENSE COUNSEL]: Judge Smith has already ruled that the burglary tool conviction is admissible.

That’s number one. And Your Honor didn’t let me get into any of his record. Number — and then there’s a grand theft and a motor vehicle theft in Prince George’s, I think from 2007 or six, and then there is a grand larceny in Virginia, maybe 2009. He has three pending charges in Virginia; one in Fairfax, one in— [PROSECUTOR]: Exactly.

THE COURT: Do you believe that the law is that you can impeach with a pending charge as well? [DEFENSE COUNSEL]: It goes to — we had lengthy discussions with Judge Smith about being allowed to ask questions of witnesses about their expectation of benefit from the State as a result of cooperating with the State on pending charges. THE COURT: Pending here in Maryland or pending in Virginia? [PROSECUTOR]: Both. [DEFENSE COUNSEL]: He’s got three in Virginia. Just for the record, he’s got one in Fairfax pending, one [violation of probation] in Fairfax where he’s facing two and a half years, and one, as we know, in Essex County, Virginia, and one in the Circuit Court in Prince George’s County. Just putting it on the record.

Number three, the confidential informant record, and I’m going to move that into— THE COURT: The confidential informant? What are you talking about? ¹²⁹ [DEFENSE COUNSEL]: He has a contract as a confidential informant with the Detectives in Fairfax. I showed it to the State ahead of time that I was going to— [PROSECUTOR]: I provided it to you. [DEFENSE COUNSEL]: No, I showed her that that was one of the exhibits. She saw it.

She didn’t make a Motion in Limine ahead of time. I would also say that that’s admissible evidence. And, again, it’s circumstantial evidence about his experience with expecting benefits from cooperating with the State. And that is Defense Exhibit— [PROSECUTOR]: What is the benefit in Virginia?

THE COURT: It’s not for the jury to see. Do you believe that you’re going to use this when you present your case? [DEFENSE COUNSEL]: Yes. But, also, your Honor didn’t let me mention the fact that he is a confidential informant. THE COURT: No, I didn’t.

I did not. My understanding is, you cannot mention pending. And I understand what you said, it’s all about what is in his mind, but we don’t know what is in his mind until he takes the stand, and that’s why I didn’t allow you to do it. THE COURT: You know, it’s opening statement.

It’s called a thumbnail sketch of what you plan to introduce in trial. I’m sure this is all — all these issues that you just mentioned are going to come up during the course of the trial. [DEFENSE COUNSEL]: Right. THE COURT: No doubt about it. So, based on that, I’m not going to allow you to reopen.

Objection to Direct Examination of Mr. Rose concerning Expectation of Benefit As the trial judge predicted, the issue concerning questioning Mr. Rose about whether he expected to benefit from his ¹³⁰ testimony in relation to pending charges came up later that day when Mr. Rose took the stand. This time, however, the defense objected to the testimony. When Mr. Rose testified on direct examination, the prosecutor sought, as experienced litigators often do, to anticipate and perhaps blunt the expected impeachment of the witness by questioning him about topics that might affect the jury’s assessment of his testimony. In particular, she questioned Mr. Rose about his own run-ins with the law and whether he had any agreement with the State or expected any benefit from his testimony on behalf of the State.

Defense counsel objected to this line of questioning, and his objections were sustained. Defense counsel thus successfully excluded Mr. Rose’s testimony about whether he expected a benefit as to pending charges. Whether or not this was a waiver (as the State argues), the trial court might be forgiven if it gained the impression that the defense did not view Mr. Rose’s answer to whether he expected a benefit from his testimony as useful to assess his credibility. Cross-examination Concerning Perception, Motive, Bias, and Prior Convictions On cross-examination, defense counsel questioned Mr. Rose both about what he observed the night of the shooting and other matters designed to impeach Mr. Rose’s credibility.

He asked Mr. Rose about his role in introducing Mr. Peterson and Mr. Gordon, soliciting an admission that Mr. Rose “wasn’t stupid” about why the men were meeting up, and implying that Mr. Rose was actually the one who arranged the drug transaction. He obtained an admission from Mr. Rose that he had not seen where Mr. Peterson had obtained the gun. He asked whether Mr. Rose held a grudge against Mr. Peterson for trying to break into Mr. Rose’s car sometime prior to the shooting. He probed whether Mr. Rose had given inconsistent descriptions of the shooting in his 9-1-1 call and in his later statements to police and to a defense investigator.

Defense counsel also obtained an admission from Mr. Rose that he had prior car theft convictions and that he was on probation in Fairfax, Virginia, for possession of burglary tools. ¹³¹ Transition to Questions about Expectation of Benefit After obtaining admissions from Mr. Rose about his prior convictions, defense counsel then sought to pursue the same line of questioning that he had successfully objected to during direct examination. Defense counsel elicited that Mr. Rose was on probation in Fairfax, Virginia, and then the following exchange occurred: [DEFENSE COUNSEL]: Okay. And if you violated probation, you know that you can do more time— [PROSECUTOR]: Objection. THE COURT: Sustained.

Sustained. No. No. [DEFENSE COUNSEL]: Your Honor— THE COURT: It’s impeachment. You can use the convictions. That’s it. [DEFENSE COUNSEL]: You expect to receive — you expect to use your testimony in this case as a future benefit— [PROSECUTOR]: Objection. [DEFENSE COUNSEL]: — don’t you?

THE COURT: Sustained. THE WITNESS: No, sir. At a bench conference moments later, defense counsel proffered what Mr. Rose’s “testimony would have been had I been allowed to get into the probation[.]” Defense counsel listed Mr. Rose’s pending violation of probation hearing in Fairfax, Virginia, and pending grand larceny charges in Essex County, Virginia, but did not mention any pending charges in Maryland. The discussion continued: [DEFENSE COUNSEL]: We just want to ask him about his— THE COURT: It’s not admissible.

Pending charges are not admissible. [DEFENSE COUNSEL]: Right. And we believe — I’m going to shut up now, I’m sorry — that the jury has a right to see his reaction, to hear his answers. ¹³² The bench conference moved on to other issues, Mr. Rose’s testimony continued, and the trial ended for the day. Proffers after Conclusion of Testimony After the court dismissed the jury for the day, defense counsel asked the court to order that Mr. Rose be temporarily retained in custody in Maryland in case he needed to call him again later in trial. The court denied the request because Mr. Rose was to be returned to custody in Virginia where he was due for a court proceeding the following day. 8 Then counsel approached the bench again: [DEFENSE COUNSEL]: ...

With the questions we wanted to ask about his four pending cases, so, his two pending cases in Virginia, his one pending [violation of probation]— THE COURT: Can I ask you something, [Counsel]? [DEFENSE COUNSEL]: Yes. THE COURT: What rule do you believe allows you to ask about pending cases, or that you should even make it on the record? [DEFENSE COUNSEL]: Bias and expectation of benefits. THE WITNESS 9 : A bias from a pending case that doesn’t involve your client? [DEFENSE COUNSEL]: Right. Expectation of benefit.

THE COURT: What kind of bias would that be? ¹³³ [DEFENSE COUNSEL]: To probe to see whether he has an expectation of benefit. But, Your Honor— THE COURT: But he has said he has no agreement with the State of Maryland. State of Maryland. We don’t have any jurisdiction over Virginia in what they do.

So, I’m not really clear. If, in fact, [the prosecutor] had made a call to someone in Virginia, then I could see where that would be appropriate, but that hasn’t happened in this case. [DEFENSE COUNSEL]: I understand. Our proffer is we just want to ask him those questions about his expectation. THE COURT: That’s not proper under the rules.

THE COURT: But you can’t ask pending. [DEFENSE COUNSEL]: Okay. I’m just putting that on the record. THE COURT: I would not allow that. Counsel and the court went on to discuss another area of cross-examination that defense counsel wished to pursue and then took up scheduling of witnesses for the next day of trial.

At the conclusion of that discussion, defense counsel asked for an opportunity to proffer “the issue we forgot.” For the first time since Mr. Rose took the stand defense counsel presented a written agreement between the Fairfax County police department and Mr. Rose under which Mr. Rose was to be a confidential informant. Defense counsel stated that it would be pertinent to Mr. Rose’s “expectation of benefit” from his testimony in Mr. Peterson’s case. The trial judge noted that it did not involve an expectation from the State of Maryland and stated that she “would have sustained any objection to you trying to get that in.” 10 ¹³⁴ Cross-Examination with Respect to Pending Charges Before we address the particular argument made by Mr. Peterson, it is worthwhile to review the extent to which pending charges against a witness may — or may not — be a topic of cross-examination. Pursuant to statute and rule, the credibility of a witness may be impeached with evidence of certain types of convictions.

See Maryland Code, Courts & Judicial Proceedings Article (“CJ”), § 10-905 11 ; Maryland Rule 5-609. 12 There is no requirement that the witness be ¹³⁵ asked about the prior conviction if the prior conviction is established during the witness’s testimony by a self-authenticating public record. See Maryland Rule 5 — 616(b)(6); Levy & Hornstein, Maryland Evidence: 2015 Courtroom Manual at 205. The rule and statute are limited to final convictions and do not extend to pending charges. Thus, pending charges themselves are not admissible to attack credibility.

What is admissible, however, in the case of a witness testifying for the State in a criminal case, is whether the witness expects some benefit with respect to pending charges as a result of testimony on behalf of the prosecution. It is the answer to such a question that is admissible when the question is permissible under Maryland Rule 5-616(a)(4), which allows a cross-examiner to ask questions “[p]roving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsify.” See Calloway, 414 Md. at 637-39 , 996 A.2d 869 . As with any question permitted by Rule 5-616(a)(4) suggesting that a witness is biased or has a motive to testify falsely, there must be a factual foundation for the question. Calloway, supra.

The pending charges are not the impeachment evidence; rather, they are part of the factual predicate for asking the permitted question about bias or motive. But the existence of pending charges alone is not a sufficient predicate for such a question. Id. at 638 , 996 A.2d 869 . There must be some evidence — either direct (e.g., an agreement with the prosecution to resolve charges in return for testimony) or circumstantial (e.g., release of witness from custody, 13 dismissal of charges, 14 a decision to forgo charges, 15 ¹³⁶ postponement of disposition of a violation of probation charge 16 ) that the witness has an expectation of benefitting from the testimony with respect to the pending charges.

The factual predicate for the question becomes attenuated when the charges are pending in another jurisdiction, particularly another state, or arose after the witness had provided the prosecution with the same information as contained in his testimony. Even if there is a factual foundation to ask a witness about the witness’s expectation of a benefit with respect to pending charges, a trial court may limit such questioning if “the probative value of such an inquiry is substantially outweighed by the danger of undue prejudice or confusion.” Calloway, 414 Md. at 638 , 996 A.2d 869 (quoting Leeks v. State, 110 Md.App. 543, 557-58 , 678 A.2d 80 (1996)) (emphasis in Calloway). When assessing the possibility of prejudice or confusion, “the trial court is entitled to consider whether the witness’s self interest can be established by other items of evidence.” Martinez, 416 Md. at 430 , 7 A.3d 56 (quoting Calloway, 414 Md. at 638 , 996 A.2d 869 ). For example, in Calloway , this Court noted that, if it is obvious that a "witness has a motive to testify in a certain way, it would be permissible to exclude a reference to a benefit from pending charges when “it is impossible to hypothesize a juror who would have (1) believed [the witness’s] testimony in the absence of evidence that there were unrelated criminal charges pending against him at the time, but (2) rejected his testimony upon learning about those charges.” 414 Md. at 639 , 996 A.2d 869 . 17 ¹³⁷ Whether the Factual Predicate Based on Pending Charges was Preserved for Appeal The discussion of the factual predicate for asking Mr. Rose about any expectation of benefit as to pending charges became somewhat confused because the topic was discussed at the same time when the defense told the jury about his prior convictions or asked him about those convictions.

On more than one occasion, the trial court responded to defense counsel that “pending charges are not admissible” for impeachment— a statement that is indisputably true, as pending charges themselves are not admissible in the same way that a conviction may be for purposes of impeachment. But the defense effort, although not always clearly expressed, was to rely on pending charges as part of the factual basis for asking a question about any expectation of benefit that might influence Mr. Rose’s testimony. We turn to the particular items that Mr. Peterson contends provided a factual predicate for questioning Mr. Rose whether he expected to benefit from his trial testimony with respect to pending charges. It is undisputed that there was no agreement, written or oral, between Mr. Rose and the State, or other direct evidence of a benefit from his testimony.

Rather, Mr. Peterson argues on appeal that there was circumstantial evidence that Mr. Rose would expect a benefit — consisting of pending charges against him in Maryland and Virginia, including a potential violation of probation charge, and a cooperation agreement he had with Virginia police in the past. Pending Maryland Charges The existence of pending charges in Prince George’s County could obviously help provide a circumstantial factual foundation for asking a question on expectation of benefit. ¹³⁸ However, in the context of cross-examining Mr. Rose, defense counsel never attempted to ask him about an expectation of benefit with respect to pending Maryland charges. Indeed, the closest anyone came to asking such a question was when the prosecutor attempted to ask Mr. Rose whether he expected to benefit from his testimony with respect to “anything in Prince George’s County.” However, the defense itself successfully objected to that question and prevented further inquiry. The defense never brought up the topic of pending charges in Maryland while Mr. Rose was on the stand.

It appears that the only time defense counsel mentioned the possibility of a pending Maryland charge to the trial judge was an allusion in an argument over the mistrial motion during opening statement and in the context of a discussion of Mr. Rose’s custody status — not his cross-examination — after the conclusion of his testimony and the departure of the jury. It is not at all clear that defense counsel could have pointed to additional circumstantial evidence of favorable treatment by Maryland prosecutors — as was the case in Martinez and Calloway — in addition to the existence of pending charges alone. In any event, we cannot find that Mr. Peterson preserved an appellate issue with respect to questioning Mr. Rose on expectation of benefit as to pending Maryland charges when the defense itself objected to that line of inquiry. Cooperation Agreement with Fairfax County Police The closest that Mr. Peterson can claim to direct evidence of an expectation of a benefit from testimony for the prosecution was Mr. Rose’s agreement to act as an informant for the Fairfax police.

But, again, defense counsel never attempted to ask any questions about this agreement while Mr. Rose was on the stand. He only broached this area of examination with the court well after both the jury and Mr. Rose had departed. The judge’s ruling — that she “would have sustained any objection” — was suitably hypothetical. Nor did the defense seek to recall Mr. Rose.

Despite the trial judge’s willingness to provide an advisory ruling, Mr. Peterson simply ¹³⁹ did not preserve this area of impeachment as an appellate issue. Even if defense counsel had attempted to ask questions related to the Virginia informant agreement while Mr. Rose was on the stand, the judge’s predicted ruling would have been appropriate in light of the cryptic information provided in the proffer. The agreement in question is with a police department in another state and, in fact, disclaims any “explicit or implicit” promises of benefit regarding any pending charges, other than that the Fairfax police would arrange a meeting with prosecutors. Nothing in the agreement indicated any connection to the Peterson trial, or to Maryland at all.

Moreover, the Virginia agreement was dated August 2010, more than a year after Mr. Rose had identified Mr. Peterson to Maryland authorities as the shooter. There was no indication that it was still in effect at the time of trial in August 2011. Even if the defense proffer of the agreement had been made while Mr. Rose was still available for questioning, there was an insufficient factual predicate for Mr. Peterson’s counsel to ask questions based on that agreement. Pending Virginia Charges To the extent the defense preserved this issue at all, it was with respect to whether Mr. Rose had an expectation of benefit with respect to pending charges in Virginia.

But, once again, defense counsel’s clearest proffer about his intended cross-examination with respect to the pending Virginia charges came, not when Mr. Rose was on the stand, but in another context. It was only in his argument for a mistrial on due process grounds following opening statement, in which he related such questions to an “expectation of benefit” on the part of Mr. Rose from his testimony in Maryland. At that time, the court ruled on the matter at hand — the motion for mistrial or reopening of opening statement — and indicated that it would deal with issues relating to cross-examination when Mr. Rose was on the stand. When Mr. Rose did take the stand, defense counsel cross-examined him about a wide variety of matters.

After obtain ¹⁴⁰ ing admissions from Mr. Rose as to his prior convictions, defense counsel then appeared to ask about a hypothetical future violation of probation (“And if you violated probation ... ”) and the use of his current testimony in that context. At a bench conference, defense counsel reported to the court that Mr. Rose had a pending charge of violation of probation in Virginia, as well as a pending grand larceny charge but explained that the purpose of asking Mr. Rose about those two charges would be to allow the jury “to see his reaction, to hear his answers.” Defense counsel did not relate the questioning to whether Mr. Rose had an expectation of benefit from his testimony with respect to those charges. The trial court, evidently under the impression that the defense was attempting to admit the pending charges for impeachment — as opposed to relying on them as a factual foundation for a question on expectation of benefits — stated that “pending charges are not admissible.” Defense counsel only made clear that the pending charges were related to questions about bias and an expectation of benefit after Mr. Rose’s testimony had been completed, the jury was dismissed, and Mr. Rose was on his way back to Virginia’s custody. The defense did not ask for Mr. Rose to be recalled.

At that point the trial court indicated that she would not have allowed such questioning because “you can’t ask pending.” We are thus presented with circumstances where it is difficult to say that the defense actually preserved this issue at the time the witness was on the stand, but where the judge after the fact indicated that she would have refused to allow such questions simply because pending charges were involved. We need not resolve whether defense counsel adequately preserved the issue in these circumstances. Even in the after-the-fact proffer concerning the pending Virginia charges, defense counsel did not point to anything like a dismissal of charges, a decision not to charge, or a postponement of disposition of charges that was present in Calloway, Martinez, and Dionas. Moreover, the charges were pending in another jurisdiction and there was no direct or circumstantial evidence that would suggest Mr. Rose was to receive a benefit on the ¹⁴¹ Virginia charges from his testimony in Maryland.

Finally, it was undisputed that, on the night of the shooting when Mr. Rose called 9-1-1 and then identified Mr. Peterson as the shooter to the police, there were no charges pending against him in Virginia. As this Court explained in Calloway , a court would have discretion to exclude questioning about possible bias that may be confusing or prejudicial and when the witness’s self-interest may be established by other evidence that is more probative on the point. 414 Md. at 638 , 996 A.2d 869 . The defense suggested in its cross-examination that Mr. Rose identified Mr. Peterson out of personal animus that existed at the time of the crime. Even if defense counsel had preserved the issue, the trial court would have had discretion to exclude questions based on the pending charges in Virginia.

Summary The ruling of the trial judge that “pending charges are not admissible” was, strictly speaking, correct. But that was not what defense counsel was attempting to do. Rather, what the defense apparently sought to ask — and the answer that might have been admissible — was whether Mr. Rose had an expectation of benefit with respect to charges pending against him at the time of his testimony. However, the proffer that made defense counsel’s intention clear emerged in pieces and spurts, some of it in the context of a legal argument about a different question before any witness had taken the stand and much of it after the witness was long gone.

An appellate court has the leisure to stitch together different pieces of transcript and see where the defense wished to go. It is not surprising that the trial court did not. On this record, we cannot say that the defense adequately preserved the issue that it has raised on appeal as to the questioning of Mr. Rose about his expectation of a benefit. In any event, even if it had been preserved, it is not at all clear that there was a sufficient factual foundation to ask a question concerning an expectation of benefit.

Under the relevant case law, pending charges alone are not an adequate foundation and, unlike Calloway, Martinez, or Dionas, there ¹⁴² was no other direct evidence {e.g., an agreement with the prosecution to resolve charges in return for testimony) or