Preston v. State

HARRELL, J. Witnesses in criminal trials have typically a variety of interactions with the State prior to testifying under oath before a judge and/or jury. Usually, a witness is interviewed initially by a police officer or detective after the commission of a crime. Witnesses might be offered a monetary reward in exchange for coming forward with information pertaining to a ⁷⁰ crime. Witnesses “with a past” might exchange their testimony for a favorable plea deal arising from the case in which they are to testify or a related matter, or qualified or absolute immunity.

In some cases, a witness might fear for his or her life, or for the safety of an immediate family member, and be placed in some form of witness protection program prior to and/or after trial to ensure his or her safety. In the present case, a witness was placed in protective housing for several months leading up to a murder trial after she claimed that the defendant showed up on her doorstep, causing her to be in fear of retaliation for talking with the police. We consider here whether her placement in reasonable protective housing constitutes a “benefit” that would compel the trial judge, upon request by the defendant, to give a particularized jury instruction pertaining to that witness’s credibility (Maryland Criminal Pattern Jury Instruction (2nd ed.2012, 2013 Supp.) 3:13, “Witness Promised Benefit”). We conclude that it does not.

I. Statement of Facts and Procedural History On the evening of 14 March 2009, Dontae Preston (“Preston”), Keon Barnes (“Barnes”), and Katrina Harrell (“Harrell”) (no kin to the author of this opinion) attended an ill-fated co-ed “pajama party” at the home of Nichelle Payton (“Pay-ton”) at 1907 N. Pulaski Street in Baltimore City. 1 Shortly after the party got underway, Barnes was shot and killed on the premises. Seven shell casings were recovered from the scene. Sandra Bohlen, called at trial by the State as an expert in ballistics and firearms identification, testified that the bullets from all seven casings were fired from the same gun. Dr. Carol Allen, a medical examiner called also by the prosecution, testified that Barnes died from multiple gunshot wounds.

No gun was recovered. None of the casings tested positive for fingerprints. Preston was charged with murder in the first degree, use of a handgun in the commission of a felony and crime of violence, and illegally carrying a handgun. ⁷¹ Two of the partygoers testified as eyewitnesses at Preston’s trial in the Circuit Court for Baltimore City, which began on 21 May 2012. Harrell, the first eyewitness called, testified that, at some point at the beginning of the evening, she exited Payton’s home and went to her car (parked two or three doors down from the home, on the same side of the street) in order to retrieve a CD.

On her way to her vehicle, Harrell passed between Preston and Barnes as they were talking to each other on the top step leading to the front door of Payton’s home. 2 Harrell did not hear the substance of their conversation, but testified that they did not “appear to be arguing.” After she entered her car, she turned the key in order to unlock the CD player and remove the CD. As she pushed the eject button, she heard gunshots. She looked “up towards 1907,” and saw Barnes lying on the steps, with Preston standing over him holding a gun with “fire [coming] from it.” She ducked “under the seat” on the passenger side for a few seconds, and then called 911. After identifying Preston from a photo array weeks after the shooting, Harrell identified also Preston (who she referred to as “Beefie” or “Beefy”) in court as the individual that shot Barnes.

Payton was the second eyewitness (of a sort) to testify at Preston’s trial. Payton heard gunshots while she was inside her home preparing for the party. As she walked downstairs, she heard initially “a pop.” Payton assumed that one of the balloons she had inflated for the party popped, until she heard more “pops” and realized that they were gunshots. She ran upstairs, 3 screaming, and looked out her bedroom window. ⁷² She saw Barnes lying on the porch steps while Preston (who she referred to as “Beefie”/“Beefy” or “Donnie”) went to his car and left the scene.

She ran downstairs, opened the front door, and attempted to revive Barnes. Payton did not testify to seeing a gun in anyone’s possession. Defense counsel attempted to establish through cross-examination that Payton cooperated fully with the State only because the police agreed to move her to free, protective housing for several months prior to trial, although she testified that her experience in temporary protective housing “d[id] not cause [her] to come in here and say something [she] otherwise wouldn’t.” Much time was spent determining what information she volunteered to investigating detectives prior to trial and when it was volunteered. It was learned that, on the night of the murder, Payton accompanied homicide detectives to the police station, but told them simply that she hosted the party and named the guests in attendance.

No written statement was sought or taken from Payton that night or shortly thereafter as she claimed not to have seen the shooting. Payton was interviewed a second time, one or two days later, but no additional substantive information was given or obtained. Payton testified that, some number of days after the murder, Preston came to her house and knocked on the door. She was home, looked out the window, and saw Preston, but did not answer the door because she was scared.

Preston did not threaten her verbally or communicate with her in any way, other than knocking on her door. Sometime after this event, 4 Payton called Detective Michael Moran, told him that she “was scared to stay there,” and asked to be moved. Payton identified Preston on 8 April 2009 in a photo array as having attended her party that night. She reported that ⁷³ she saw him go to his car after Barnes was shot.

She gave also a taped statement to the police detailing what she saw on the evening of Barnes’s death. Payton testified on direct examination that when she provided her statement to the police and identified Preston in the photo array, the police had not moved nor promised yet to move her into protective housing. Later, on cross-examination, she admitted that she did not tell the police initially that she witnessed a portion of the aftermath of the shooting. Defense counsel and Payton had the following exchange: [Defense Counsel]: And, in fact, you didn’t cooperate or talk to the police or tell them anything about anything until after the point in time in which you say [Preston] came and knocked on your door?

Is that correct? [Payton]: Correct. [Defense Counsel]: And that’s when you then went and called the detectives and said I want to be moved, correct? [Payton]: He came to my house again. [Defense Counsel]: And you said that you wanted to be moved? [Payton]: Right. [Defense Counsel]: And on that day when they came to your house, you didn’t give them a statement saying anything about anybody going across the street, did you? [Payton]: No. [Defense Counsel]: It wasn’t until after you got assurances that they were going to move you, put you up and pay for you that you then gave a taped statement, isn’t that correct? [Payton]: Correct. No.[ 5 ] Detective Moran testified at trial that he spoke to Payton several times during the course of his investigation because she was seared and volunteered only small amounts of information at each interview. The detective explained that, on 3 ⁷⁴ April 2009, Payton contacted him about how she was afraid for her life. 6 Detective Moran advised Payton to come to his office that day, but she declined, saying that she had something pressing to do with her children. Payton did not identify Preston from the photo array or give her taped statement to Detective Moran until five days later (on 8 April 2009).

Six days after that, on 14 April 2009, Moran requested of the State’s Attorney’s Office that Payton be moved to protective housing. Defense counsel questioned Detective Moran as follows: [Defense Counsel]: So, Detective, when you first got this phone call talking about how scared she was, why wouldn’t you make the request then? Detective Moran: At that time, she was not completely honest as to what she saw. She was still really scared.

She knows— [Defense Counsel]: So it was not until she gave you— COURT: Counsel. [Defense Counsel]: — that you asked for it then? COURT: Counsel. Counsel. I’m not saying it again, okay?

Continue answering your question. Detective Moran: Could you repeat the question, sir? [Defense Counsel]: I’ll rephrase the question. How come you waited until after she did a photographic array to put in that request to have her moved when she indicated that she was scared on April 3rd? Detective Moran: I actually believe it was under her request.

It’s a lot for someone to move their life. You know, you got kids. She has a grandmother who was sick in the house. That’s her neighborhood.

That’s her life. And that’s a lot to move somebody. So I think it was under her request that she finally said, ok, I’m ready now. ⁷⁵ The Baltimore City State’s Attorney’s Office paid ultimately $13,530 to relocate Payton (with $400 of moving expenses facilitating the transition into — but not out of — temporary housing) 7 for a period of 7-8 months prior to trial. 8 Payton did not contribute to the expenses of her temporary housing situation. She was aware that the State’s Attorney’s Office paid for her protective housing, but did not know how much was paid.

She testified further that she would not have asked the police or the State’s Attorney’s Office for assistance if she hadn’t been afraid to continue to live at 1907 N. Pulaski Street. Defense counsel requested that Maryland Criminal Pattern Jury Instruction (2nd ed.2012, 2013 Supp.) (“MPJI-Cr”) 9 3:13, “Witness Promised Benefit” (“Jury Instruction 3:13”), be read to the jury. The requested instruction reads as follows: You may consider the testimony of a witness who [testifies] [has provided evidence] for the State as a result of [a plea agreement] [a promise that he will not be prosecuted] [a financial benefit] [a benefit] [an expectation of a benefit].[ 10 ] However, you should consider such testimony with caution, because the testimony may have been influenced by a desire to gain [leniency] [freedom] [a financial benefit] [a benefit] by testifying against the defendant. Defense counsel proposed initially, before Payton testified, that the court read Jury Instruction 3:13 to the jury at the end ⁷⁶ of the second day of trial.

The State objected, arguing that Payton’s free housing was not the sort of situation contemplated by Jury Instruction 3:13, but rather was a protective measure “as a result of [Preston] coming to her house after this incident, and [Payton] contacting] the detective to let him know she was — she was in fear.” The State argued that Jury Instruction 3:13 was “geared more towards somebody who’s like a paid confidential or a paid informant, something of that sort that gives testimony, and knows how much compensation they’re going to get in return.” The trial judge declined at that time to give the instruction, but indicated he would revisit the question at the end of the trial: I’m going to say no right now, but depending upon how she testifies and what she says and whatever the other officers may say, I may revisit it. But based on what you’ve proffered, I don’t believe it’s appropriate. I believe it would be a situation where every time a witness is relocated or something along those lines, we’d need to read this. I don’t think that’s what this is for.

The trial judge told defense counsel, however, that he had “a right to ask about free housing, because that’s what she received,” including the $400 given for moving expenses. 11 After Payton’s testimony, during a break in the trial when the court and parties discussed jury instructions, defense counsel objected to the omission of the “Witness Promised Benefit” instruction. The court denied the requested instruction, ruling as follows: All right. I have, again, I don’t know what else is going to come out but, based on what has been presented so far, I still do not believe that it is an appropriate instruction given the fact that it was housing and I’m not sure, at least at this point, that it was an exchange for — let’s see. ⁷⁷ “You may consider the witness who either testifies!!,”] and she has[,] t“]or provided evidence,” which she did for the State, “as a result of a plea agreement, a promise that he will not be prosecuted, a financial benefit, or benefit.” This Court is not satisfied that the testimony or evidence was [“]as a result of.[... ”] So for those reasons, your request for that is denied over your objection. Before closing arguments, the trial judge gave the jury the following instruction regarding the credibility of non-expert witnesses: Now, you are the sole judge of whether a witness should be believed.

In making this decision, you may apply your own common sense and everyday experiences. In determining whether a witness should be believed, you should carefully judge all of the testimony and evidence and the circumstances under which the witness testified. You should consider such factors as the witnesses] behavior on the stand and manner of testifying, did the witness appear to be telling the truth, the witnesses] opportunity to see or hear the things about which testimony was given, the accuracy of the witnesses] memory, does the witness have a motive to not tell the truth, does the witness have an interest in the outcome of the case, was a witness’[s] testimony consistent, was a witnesses] testimony supported or contradicted by evidence that you believe and whether and the extent to which the witnesses] testimony in the court differed from the statements made by the witness on any previous occasion/[ 12 ] You need not believe any witness, even if the testimony is uncontradicted. You may believe all, part, or none of the testimony of any "witness. ⁷⁸ You should also consider the witnesses] certainty or lack of certainty, the accuracy of any prior description, and the witnesses] credibility or lack of credibility, as well as any other factor surrounding the identification.

The jury convicted Preston of first-degree murder, use of a handgun in the commission of a crime of violence, and wearing, carrying, and transporting a handgun. The court sentenced Preston to incarceration for life (for the murder), with a consecutive term of incarceration for twenty years (for the use of the handgun) and a concurrent term of incarceration for three years (for the carrying conviction). Preston appealed to the Court of Special Appeals, which affirmed. Preston v. State, 218 Md.App. 60 , 96 A.3d 800 (2014).

The intermediate appellate court considered whether the trial court abused its discretion in declining to give the “Witness Promised Benefit” jury instruction, concluding that it did not. Preston, 218 Md.App. at 62 , 96 A.3d at 801-02 . That court began by recognizing that “the decision whether to give the jury a particularized credibility instruction is left to the sound discretion of the trial judge.” Preston, 218 Md.App. at 73-74 , 96 A.3d at 808 . Although the jury could have inferred, based on the unclear testimony adduced at trial, that Payton may have cooperated with the police because she expected to receive rent-free protective housing, the trial judge did not abuse his discretion in declining to give Jury Instruction 3:13 because the standard credibility instructions covered concerns regarding Payton’s testimony, defense counsel cross-examined fully Payton regarding the protective housing, and defense counsel was free to argue in closing that Payton’s credibility was questionable (though defense counsel chose not to).

Preston, 218 Md.App. at 75 , 96 A.3d at 809 . The Court of Special Appeals concluded alternately that, even if the trial court abused its discretion, the error was harmless as Payton’s testimony was corroborated by the testimony of Harrell, who “saw everything [Payton] did, and more.” Preston, 218 Md.App. at 76 , 96 A.3d at 810 . Finally, in a footnote, the intermediate appellate court declined to address the State’s alternative argument that Payton’s receipt of protec ⁷⁹ tive housing was not the type of “benefit” Jury Instruction 3:13 was intended to cover. Id. n. 4, 96 A.3d at 810 n. 4.

Preston and the State filed petitions for writ of certiorari, which we granted, to consider the following consolidated and re-ordered questions 13 : 1. Is protective housing provided to a witness in a first degree murder case the type of “benefit” contemplated by the “witness promised benefit” pattern instruction? 2. Does the record show that there was a “promise” or “testimony” that was “as a result of’ a promise? [ 14 ] 3. Is the “witness promised benefit” jury instruction part of a special class of instructions, as the Court of Special Appeals held, such that it remains always discretionary even when it is supported by some evidence? [14] 4.

If so, did the trial court abuse its discretion in declining to give the instruction in this case, where an eye witness provided “some evidence” that she exchanged her cooperation with the State for free, protective housing?[ 14 ] 5. If not, did the court err as a matter of law in declining to instruct the jury as defense counsel requested?[14] Preston v. State, 440 Md. 461 , 103 A.3d 593 (2014). Because of our answer to the first question, we do not reach the others. ⁸⁰ Regarding question 1, Preston argues that Payton received a “financial benefit” or “benefit” in the form of protective housing. He maintains that there is no principled distinction between the “indirect payment” of “rent-free housing” and a direct cash payment — both are “financial windfalls” that give a witness a motivation to lie on the State’s behalf. 15 He alludes to cases from other jurisdictions in which enrollment in a witness protection program was viewed as a factor impacting potentially upon the credibility of a witness.

The State argues that, considering the context, the protective housing Payton received was not a “benefit” within the meaning of Jury Instruction 3:13. The State reasons that the “evident purpose” of the jury instruction implies a “fairly high threshold for what constitutes a ‘benefit’ to view it otherwise, the results could become absurd. Because protective housing is not akin to a plea agreement or a large cash payment, it should not be considered a benefit. The State highlights several points of contrast between a direct cash payment and protective housing valued in a similar amount: (1) Payton did not know the dollar value of the housing until trial, whereas paid informants know in advance the bargained-for value of their testimony; (2) the purpose of protective housing is to keep a witness safe, whereas the purpose of a cash payment is to reward or pay a fee; (3) witnesses who ⁸¹ receive protective housing are afraid, whereas witnesses who receive cash payments “desire to be rewarded”; and (4) cash can be used for any purpose, whereas protective housing is not a liquid asset.

Moreover, the State argues that Jury Instruction 3:13 is designed to address testimony from “jailhouse informants and persons from the criminal milieu” whose testimony should be viewed justifiably with some degree of suspicion, not citizens who are afraid of retaliation. The State references jury instructions from federal and other state jurisdictions and various cases discussing those instructions, which we will address below. Finally, the State concludes that any error committed by the trial court in not giving Jury Instruction 3:13 was harmless in light of defense counsel’s relatively thorough cross-examination of Payton and his foregoing the opportunity to argue Payton’s credibility during closing arguments.

II

Discussion Maryland Rule 4-325 governs jury instructions in criminal cases: The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given. Maryland Rule 4-325(c).

As the Court of Special Appeals in this case recognized rightly, this Rule has been interpreted to require trial courts to give jury instructions requested by a party when a three-part test is met. The instruction must state correctly the law, the instruction must apply to the facts of the case (e.g., be generated by some evidence), 16 and the ⁸² content of the jury instruction must not be covered fairly in a given instruction. See Derr v. State, 434 Md. 88, 133 , 73 A.3d 254, 281 (2013), cert. denied, ___ U.S. ___, 134 S.Ct. 2723 , 189 L.Ed.2d 762 (2014); Cost v. State, 417 Md. 360, 368-69 , 10 A.3d 184, 189 (2010); Dickey v. State, 404 Md. 187, 197-98 , 946 A.2d 444, 450 (2008); Roach v. State, 358 Md. 418, 428-29 , 749 A.2d 787, 792-93 (2000). Nonetheless, the decision whether to give a jury instruction “is addressed to the sound discretion of the trial judge,” Gunning v. State, 347 Md. 332, 348 , 701 A.2d 374, 382 (1997), unless the refusal amounts to a clear error of law.

See Derr, 434 Md. at 133 , 73 A.3d at 281 ; Cost, 417 Md. at 369 , 10 A.3d at 189 . The general purposes of jury instructions include: aiding the jury in understanding clearly the case, providing guidance for the jury’s deliberations, and helping the jury to arrive at a correct verdict. See General v. State, 367 Md. 475, 485 , 789 A.2d 102, 108 (2002). “Jury instructions direct the jury’s attention to the legal principles that apply to the facts of the case.” Id. At Preston’s trial, defense counsel requested that the trial judge give Jury Instruction 3:13, which we reproduce again for ease of reference: You may consider the testimony of a witness who [testifies] [has provided evidence] for the State as a result of [a plea agreement] [a promise that he will not be prosecuted] [a financial benefit] [a benefit] [an expectation of a benefit].[ 17 ] However, you should consider such testimony with caution, because the testimony may have been influenced by a desire to gain [leniency] [freedom] [a financial benefit] [a benefit] by testifying against the defendant.

We agree with the trial judge that reasonable protective housing does not constitute a “benefit” within the meaning of Jury Instruction 3:13. ⁸³ A. Use and Interpretation of Jury Instruction 3:13 in Maryland Instructions, such as Jury Instruction 3:13, are premised on the supposition that undercover agents, jailhouse informants, accomplices, and other witnesses who testify for pay, immunity, or other forms of personal advantage may be motivated to lie or exaggerate in order to obtain a particular “benefit,” and that, accordingly, their testimony might be viewed with a degree of skepticism. It is relatively easy to identify a plea agreement, a promise not to prosecute, or a financial benefit such as a reward. 18 The meaning of the term “benefit,” however, is less clear. Jury Instruction 3:13 does not define the term “benefit,” nor is there any legislative history (or its equivalent) of which to speak. 19 Nonetheless, to determine the meaning of a term in the context of a non-legislative jury instruction, we import and apply common and well-established principles of statutory interpretation: We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory. If the language of the statute is clear and ⁸⁴ unambiguous, we need not look beyond the statute’s provisions and our analysis ends---- [W]e may find useful the context of a statute, the overall statutory scheme, and archival legislative history of relevant enactments.

Moore v. State, 424 Md. 118, 127-28 , 34 A.3d 513, 518 (2011) (quoting Ray v. State, 410 Md. 384, 404-05 , 978 A.2d 736, 747-48 (2009) (internal citations and quotations omitted)). When conducting a “plain meaning analysis,” dictionary definitions “ ‘provide a useful starting point for discerning what the legislature could have meant in using a particular term.’ ” Moore, 424 Md. at 129 , 34 A.3d at 519 (quoting Ishola v. State, 404 Md. 155, 161 , 945 A.2d 1273, 1276 (2008)). Black’s Law Dictionary defines the word “benefit” as “[t]he advantage or privilege something gives; the helpful or useful effect something has” or “[p]rofit or gain; esp., the consideration that moves to the promisee.” Black’s Law Dictionary 178 (10th ed.2014). For its part, Webster’s Dictionary defines the word “benefit” as “an act of kindness”; “something that promotes well-being”; or a “useful aid.” Webster’s Tenth Collegiate Dictionary 106 (1993); see Benefit, Google, http:// google.com (search “benefit definition”) (“an advantage or profit gained from something”).

These definitions are of little help to us here. To understand the meaning of the term “benefit” in the relevant pattern instruction as defined in these two dictionaries would lead quickly to absurd results. Such an understanding would be overbroad: if the prosecution paid for a witness’s lunch, gave him or her a ham sandwich on the day of trial, or gave a witness a ride to the courthouse, such actions might be argued to warrant the giving of Jury Instruction 3:13, as meals or rides are “useful aid[s]” in the strictest sense of the term. Similarly, if the conscience of a witness would become unburdened by testifying truthfully at trial, would Jury Instruction 3:13 be warranted because of the “helpful or useful effect” the act of testifying would have for such a troubled witness?

We noted in Moore, 424 Md. at 139 , 34 A.3d at 525 , that a word or phrase can have different meanings based on the context where it appears: ⁸⁵ There is no rule of construction which requires the same meaning always to be given to the same word, when used in different connections and in the same statute or in different statutes. On the contrary, such is the flexibility of language and the want of fixity in many of our commonest expressions, that a word or phrase may bear very different meanings according to the connection in which it is found. Hence the rule that the terms of a statute are always to be interpreted with references to the subject-matter of the enactment. Id.

(quoting Henry C. Black, Handbook on the Construction and Interpretation of the Laws 171-72 (2d ed.1911)); see Price v. State, 378 Md. 378, 388 , 835 A.2d 1221, 1227 (2003) (“We do not read the statute divorced from its textual context, for adherence to the meaning of words does not require or permit isolation of words from their context.” (internal quotations omitted)). As the term “benefit” appears at the end of a list of possible variants in Jury Instruction 3:13, we consider those variants as an aid in seeking the appropriate meaning of the term. Jury Instruction 3:13 applies when a witness testifies as a result of “[a plea agreement] [a promise that he will not be prosecuted] [a financial benefit] [a benefit] [an expectation of a benefit].” 20 We interpret the word “benefit,” in the context of Jury Instruction 3:13, to mean something akin to a plea agreement, a promise that a witness will not be prosecuted, or a monetary reward or other form of direct, quid pro quo compensation or inducement. Reasonable protective services, such as those received by Payton, do not constitute a “benefit” within the meaning of Jury Instruction 3:13.

In the MPJI-Cr, most (if not all) of the pattern jury instructions are accompanied by “Comments” meant to explain or give context to individual instructions. The Comment to Jury Instruction 3:13 is quite short, and reads: Evidence that the State entered into an understanding or agreement with a testifying witness must be disclosed to the ⁸⁶ defendant, regardless of whether the agreement or understanding is formal or informal. Harris v. State, 407 Md. 503, 521 , 966 A.2d 925, 935 (2009); Ware v. State, 348 Md. 19, 41 , 702 A.2d 699, 709 (1997). Neither case referenced in the Comment is helpful for present purposes.

In both Ware and Harris , the primary arguments of the petitioners were that the suppression or withholding of certain evidence violated the State’s constitutional obligations under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and deprived them of fair trials. Harris, 407 Md. at 506 , 966 A.2d at 927 ; Ware, 348 Md. at 24 , 702 A.2d at 701 . In both cases, testifying witnesses received the benefit of favorable plea deals and/or expected reductions in sentences at modification hearings in exchange for their testimony, but, in both cases, the prosecution did not disclose to defense counsel the full extent of the benefits before or during trial. Harris, 407 Md. at 522 , 966 A.2d at 936 ; Ware, 348 Md. at 36-37 , 702 A.2d at 707 .

These cases are inapposite because, in the case at bar, the jury was informed fully of Payton’s receipt of reasonable protective housing; the question is whether the jury should have been given also Jury Instruction 3:13. 21 There is a dearth of Maryland case law discussing Jury Instruction 3:13, despite the fact that some form of the instruction has been included in the Maryland Criminal Pat ⁸⁷ tern Jury Instructions since at least 2001, see MPJI-Cr (1st ed.1986, 2001 Supp.), if not before. See Stouffer v. State, 118 Md.App. 590, 630 , 703 A.2d 861, 880 (1997) (referring to a “witness promised leniency” jury instruction with similar wording to Jury Instruction 3:13), aff'd in part & rev’d in part, State v. Stouffer, 352 Md. 97 , 721 A.2d 207 (1998). The few reported appellate Maryland cases in which Jury Instruction 3:13 (or a similar instruction) was given did not involve protective housing or protective services. See Dickey v. State, 404 Md. 187, 192 , 194 n. 3, 946 A.2d 444, 447 , 448 n. 3 (2008) (giving Jury Instruction 3:13 where the witness testified as part of a deal to avoid charges following an arrest for possession of controlled dangerous substances); Riggins v. State, 155 Md.App. 181, 196 , 198 n. 16, 843 A.2d 115, 123 , 124 n. 16 (2004) (giving Jury Instruction 3:13 where the witness received, in exchange for testimony, assistance in obtaining a bond review, $200 to pay bills, and a ride to a halfway house).

In Stouffer, 118 Md.App. at 595-96 , 703 A.2d at 863-64 , a defendant (convicted by a jury of first degree felony murder and kidnapping) argued, among other things, that the trial judge erred in refusing to give to the jury an instruction very similar to Jury Instruction 3:13. At the time a witness gave her statement to the police, they promised her that they would give her $200 for rent. Stouffer, 118 Md.App. at 603 , 703 A.2d at 867 . A detective testified that the $200 was given to the witness approximately a month or so after her statement was made, because she called and said that she was having trouble making her rent payment.

Id. According to the detective, the money was not given in exchange for her statement. Id. The defendant requested a “witness promised leniency” instruction, which would have instructed the jury that it: may consider the testimony of a witness who testifies for the State as a result of a financial benefit.

However, [they] should consider such testimony with caution, because the testimony may have been colored by a desire to gain a financial benefit by testifying against [the defendant], Stouffer, 118 Md.App. at 630 , 703 A.2d at 880 . The Court of Special Appeals held that the requested jury instruction was ⁸⁸ “not applicable under the facts and circumstances of the case” because “[t]here was no showing .,. that the witness was promised any financial benefit before the statement was made, nor was there evidence of a quid pro quo.” Id., 703 A.2d at 880-81 . Finally, the intermediate appellate court concluded that the trial judge’s general credibility instructions fairly covered the issue. Id., 703 A.2d at 881 .

The decision of the Court of Special Appeals in Stouffer was affirmed in part and reversed in part on other grounds by us. Stouffer, 352 Md. 97 , 721 A.2d 207 (discussing the sufficiency of the evidence to sustain Stouffer’s convictions, without mentioning any jury instructions pertaining to credibility of witnesses). Accordingly, the intermediate appellate court’s decision is without precedential value. Cf.

Dep’t of Health & Mental Hygiene v. Kelly, 397 Md. 399, 446 , 918 A.2d 470, 497-98 (2007) (Wilner, J., concurring) (characterizing a “decision” of the Court of Special Appeals “that this Court later vacated” as having “utterly no precedential value”). Nonetheless, we take note of it here to demonstrate merely that our colleagues on the intermediate appellate court have taken a restrained view toward the applicability of Jury Instruction 3:13. B. Use and Interpretation of Similar Jury Instructions in Other Jurisdictions Given the sparse, on-point authorities in Maryland, we turn to the decisions of our sister states and federal courts to inform our consideration of whether reasonable protective housing should be seen as a “benefit” within the meaning of Jury Instruction 3:13. Jury instructions similar to Jury Instruction 3:13 are found in jury instruction manuals and handbooks in state and federal jurisdictions nationwide.

Despite the ubiquity of these instructions, we found no reported case dealing squarely with the question of whether reasonable protective housing — and nothing more — constituted a benefit that warranted the giving of a particularized credibility instruction. 22 ⁹⁰ The reported case with the closest factual scenario to the present case emanates from the United States Court of Appeals for the Fifth Circuit. In United States v. Partin, 552 F.2d 621, 643 (5th Cir.1977), a witness testified during direct examination that he was in the federal witness security program and that, as part of the program, he was given a new name and social security number, as well as just over $1,000 per month in subsistence payments for himself and his family. Defense counsel did not object to the witness’s testimony, and also did not cross-examine the witness regarding his participation in the program. Partin, 552 F.2d at 644-45 .

Defense counsel did argue at closing, however, that the witness was not credible. Partin, 552 F.2d at 645 . The trial judge gave the jury the following instruction: All evidence of a witness whose self-interest is shown from either benefits received, whether they be received in money, in protective custody afforded by the Government or any other benefit, or any detriments suffered, threats or promises made, or any attitude of the witness which might tend to prompt testimony either favorable or unfavorable to the accused should be considered with caution and weighed with care. The Attorney General of the United States is authorized by law to provide for the security of Government witnesses, potential Government witnesses, and the families of Government witnesses and potential witnesses.

The Attorney General is likewise authorized by law to provide for the health, safety and welfare of witnesses and their families. This ⁹¹ may include the payment of money, providing a new identity and securing a job to minimize the physical and economic harm to the witnesses and their families. Partin, 552 F.2d at 644. Defense counsel did not object to the instruction as given, and requested an additional instruction that the instruction recounted above did not imply “the Court’s acceptance or rejection of [the witness’s] expressed fear.” Id.

The judge rejected the additional instruction. Id. On appeal, the Court of Appeals for the Fifth Circuit began by noting the uncontested point that the defense had a right to put on evidence that the witness participated in the protection program. Partin, 552 F.2d at 645 (“The defense has a right to show that a witness, while in the [witness protection] program, has received substantial benefits.... ”).

The court mused that the first paragraph of the given jury instruction “tends to cast doubt on [the witness’s] credibility because of his participation in the witness security program.” Partin, 552 F.2d at 645 n. 31. Nonetheless, that court concluded that the instruction as given did not imply that the trial judge believed or disbelieved the witness and so “the additional instruction was properly refused.” Partin, 552 F.2d at 645. We assign little persuasive weight to Partin for several reasons. First, based on our review of pattern jury instructions both in the federal Fifth Circuit and nationwide, the given instruction does not appear to have an origin in any compilation of pattern instructions we were able to find and we cannot discern its origin. 23 It appears that jury instructions like the one administered in Partin are not given commonly, despite the frequency with which federal and state witnesses alike participate in various forms of witness protection programs.

Second, the propriety of the jury instruction as given was not under review by the Fifth Circuit, as the federal Court of Appeals considered only whether the trial ⁹² judge erred in declining to give an additional, supplemental instruction. Partin, 552 F.2d at 644. 24 We turn now to a recent case from one of our sister states. In Massachusetts, the Commonwealth’s highest court considered in dicta whether certain questions addressed by the judge to prospective jurors during voir dire necessitated a new trial. Massachusetts v. Connor, 392 Mass. 838 , 467 N.E.2d 1340 (1984).

Two witnesses in Connor’s trial were participants in the Federal witness protection program and “received substantial financial and other benefits thereunder” (although the opinion does not detail what specific “benefits” were received). Connor, 467 N.E.2d at 1348 . One of those witnesses was a participant, who became an informer, in the criminal activities for which Connor was being tried; the other had criminal charges pending in an unrelated matter. Con- ⁹³ nor, 467 N.E.2d at 1344 .

The judge asked the prospective jurors whether the fact that a witness had received “benefits” under the witness protection program would affect their assessment of the witness’s credibility. 25 Connor, 467 N.E.2d at 1348 . The Supreme Judicial Court of Massachusetts concluded that such