Reese v. State

Lowe, J., delivered the opinion of the Court. While on his way home from a neighborhood store, twenty-year-old Donald Major was suddenly and incomprehensibly assaulted and robbed by appellant (who had been his friend during the previous year) and an associate named William McClain. While appellant and McClain were walking ahead of Major, McClain struck him in the face with a nunchaku (two sticks joined by a chain) and appellant pointed a .38 caliber pistol at him demanding his watch. When he fell to the ground he was again struck with the nunchaku and ordered by appellant to remove his jacket.

In all, the two took from him his watch, jacket, shoes and about $9.00, which they offered to return to him if he would fight McClain. Apparently declining that opportunity, appellant then gave him two minutes to run home or be shot and, as he was preparing to depart, the threat was punctuated by appellant’s firing the pistol in the air. As the victim ran toward home and to the police, the assailants fled the scene in the opposite direction. The officer to whom Major immediately reported the incident took him to the hospital after unsuccessfully seeking appellant at his home.

Upon this testimony of Donald Major, a jury in the Criminal Court of Baltimore convicted appellant of robbery with a deadly weapon, despite his explanation that it was McClain who had occasioned and consummated the entire episode. Although he admitted taking the personal effects McClain had freed from the victim and "set it on the side”; he denied carrying a gun or touching the victim, but his ²⁸³ explanation for having "set,. . [alside” the victim’s property was somewhat less than convincing to the jury which convicted him of robbery. The jury must have been convinced, however, that the degree of participation by appellant as recited by Major was overstated, since it acquitted him of the use of a handgun in the commission of a crime of violence. It is the victim’s credibility that is at issue in this appeal.

Before, during and after the trial appellant sought leave to probe the psychiatric history of the victim and to cross-examine him regarding related matters. When the issue was raised in limine prior to trial, appellant’s knowledge and consequent proffer was rather limited to hearsay knowledge that the victim had been a patient receiving treatment at Springfield State Hospital. The court declined to permit the inquiry on that limited proffer but agreed to reconsider the matter upon the availability of additional psychiatric information. In fact, the court directed its staff to contact the Medical Administrator of the Supreme Bench of Baltimore, Mr. Conti, and obtain "some information from the files of the hospital”.

Following Mr. Major’s testimony during the trial, the court recessed to meet with Mr. Conti who informed the court that Major had been admitted to Springfield State Hospital "at least twelve times in the last several years,” the most recent having been since the robbery but prior to trial. Relating what he had obtained from the record the Medical Administrator indicated that Mr. Major’s diagnosis was "mixed emotional disturbance and borderline personality,” which was described by Mr. Conti. "Essentially a borderline personality individual is someone who experiences from time to time under stress episodes of psychosis or losing touch with reality and comes back into reality fairly easily.” Mr. Conti added that he was not able to state that these precise symptoms applied specifically to the victim but, he added, that ²⁸⁴ "if he had been out of touch with reality at the time of the offense he would not be able to recollect issues in any kind of detail.” Mr. Conti volunteered the observation on the other hand, that a courtroom appearance "is a tremendous amount of stress for anybody” and apparently Mr. Major had held up thus far in trial. The judge decided that: "From the limited information that we have from Mr. Conti from the hospital records I don’t think there is sufficient information at this time to permit an interrogation of the witness on that basis and I don’t think it is practical to continue the case over at this point.” He did suggest to appellant’s counsel, however, that: "Perhaps if the Jury finds your man guilty you could get some information and incorporate it in a motion for a new trial or a motion to strike or something.” The trial was then resumed without the jurors having any knowledge of this key witness’s psychological propensities or psychiatric problems.

They convicted appellant on Major’s testimony. Accepting the judge’s recommendations, appellant subpoenaed the Springfield State Hospital’s medical records, the contents of which formed the basis of his motion for a new trial. In addition to revealing that Mr. Major was readmitted to the hospital six days after the trial, counsel proffered that "the hospital records indicate that on the April 29, 1982 report that Dr. Parks states the patient has a long history of drug abuse and frequent psychotic episodes and then on an earlier admission in 1981 —June 1,1981 — they found that when the patient, Mr. Major, was on the ward 'he is psychotic with bizarre, confused and agitated behavior’ — ²⁸⁵ This is now June 1, 1981 where they say that 'on the ward he is psychotic with bizarre, confused and agitated behavior such as running up and down the hallway, banging on the door, standing in the corner of the room, touching walls, running fingers along the corner and talking to himself when there is nobody around. They also diagnosed him as being schizophrenic.

I would submit that had the Jury been aware of the fact that he has had twelve hospitalizations at Springfield and that his behavior there was irregular it may have been a factor to weigh in deciding on the credibility of the victim and I would also point out that the only witness called by the State as to the facts surrounding this incident was, of course, Mr. Major himself. So, I would submit that his credibility was crucial for the Jury to determine whether or not the State had made out a case. The crucial issue seems to turn upon at what point the judge’s discretion totally to restrict credibility cross-examination of a witness begins and ends. In a different but somewhat related sense, that issue revealed a considerable difference of opinion in this Court in Cox v. State, 51 Md. App. 271 (1982), which the Court of Appeals has consented to clarify by granting the State’s petition for certiorari.

The federal appellate courts have repeatedly held that " 'this discretionary authority ... comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.’ ” Greene v. Wainwright, 634 F.2d 272, 275 (5th Cir. 1981), quoting United States v. Bass, 490 F.2d 846, 858, n. 12 (5th Cir. 1974). This seems to be predicated upon the statement in Alford v. United States, 282 U.S. 687, 691 (1931), that "it is the essence of a fair trial that reasonable latitude be given ²⁸⁶ the cross examiner;” and the importance of the Sixth Amendment right to cross-examine for purposes of impeaching or discrediting a witness was interpreted in United States v. Williams, 592 F.2d 1277, 1281 (5th Cir. 1979), as requiring a particularly wide scope on matters relevant to credibility. More recently (February 22, 1983) and even more appropriately the United States Court of Appeals for the Eleventh Circuit decided that the high degree of relevance of the witness’s mental condition to the issue of her credibility required the trial court to permit a broad-ranging cross-examination of the witness by the defense and to deny it was an abuse of discretion. United States v. Lindstrom, 32 Crim.

L. Rep. 2485 (1983). While that may very well be an appropriate ruling in Maryland, in the case at bar we need not go quite that far. The parties are in agreement upon certain basic concepts that help narrow the issue: i.e., that the scope of cross-examination is within the discretion of the court, Conner v. State, 34 Md. App. 124, 133 (1976); that a witness generally may be cross-examined on any matter relevant to the issues, and the witness’s credibility is always relevant. Smith v. State, 273 Md. 152, 157 (1974).

The'"discretion” of a trial judge to preclude harassment, moreover, is considered a "duty” in protecting witnesses from an examination intended merely to annoy, humiliate or harass. Alford v. United States, 282 U.S. at 694 . We note that in exercising that discretion the Supreme Court has described cross-examination as the principal means by which the believability of a witness and the truth of his testimony are tested. Acknowledging "the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation”, the Court in Davis v. Alaska, 415 U.S. 308, 316 (1974), pointed out that a cross-examiner is not only permitted to delve into a witness’s perceptions and memory, but the cross-examiner is allowed to impeach, "i.e., discredit” the witness.

What is referred to as a "broad discretion” of the trial judge, upon examination, becomes a rather narrow one. The ²⁸⁷ right to discredit an accuser being one of constitutional dimension, Davis, supra, can be but limitedly circumscribed. It appears that only to the extent that the examination strays from extracting from a witness that which discredits the credibility of his testimony, and broaches upon an effort rather to humiliate his person, that the duty to protect at the other end of the spectrum arises. Mulligan v. State, 18 Md. App. 588 (1973).

" '[A] clear distinction is to be taken between those matters called for on cross-examination which merely excite prejudice against the witness, or tend to humiliate him or wound his feelings, and those matters, on the other hand, which are calculated, in an important and material respect, to influence the credit to be given to his testimony. As to the latter class, the witness cannot be shielded from disclosing his own character on cross-examination, and for this purpose he may be interrogated upon specific acts and transactions of his past life; and if they are not too remote in time, and