Rowe v. State

ALPERT, Judge. A contract murder brought us this appeal. Joe Bill Rowe, appellant, ardently contends that he was not the hired gun. Prosecutors in Anne Arundel County convinced ⁴⁹⁰ a jury otherwise, for on March 30, 1984, Rowe was convicted of two counts of first degree murder and was subsequently sentenced to two consecutive terms of life imprisonment.

This appeal followed, and appellant assigns a pentad of errors. He claims that the trial court erred in: 1. Restricting the cross-examination of a prosecution witness; 2. Refusing to apprise the State’s principal witness of his privilege against self-incrimination; 3.

Sustaining the State’s objection to the question of whether or not any physical evidence linked appellant to the scene of the crime; 4. Excluding evidence that the State’s principal witness had offered to kill the wife of a defense witness; and 5. Excluding evidence indicating that the State’s principal witness was the actual perpetrator of the offense. Perceiving no error, we shall affirm.

FACTS On December 21, 1981, John and Donna Carback were brutally murdered. John met his death by a gunshot wound to the head; Donna died as the result of multiple gunshot and stab wounds. An investigation by the Anne Arundel County Police Department resulted in the indictment of Joe Bill Rowe for those murders. At trial in the Circuit Court for Anne Arundel County, the State’s star witness, and a potential co-conspirator, was one Wade Lane.

Lane testified that in the late summer or early fall of 1981, an old acquaintance, one Larry Bratt, 1 contacted him in Texas where he, Lane, was working in the oil fields. As a result of that contact, a meeting was set up between the two in Atlanta, Georgia. At the meeting in Atlanta, Bratt told Lane that there were two people in ⁴⁹¹ Maryland that Bratt wanted “taken out” (killed). Thinking that Bratt was joking, Lane declined.

Apparently, Bratt was not joking; he persisted in his request, and asked Lane to put him in touch with someone who would be willing to perform a murder for hire. Upon returning to Texas and resuming his oil field employment at the Wagner Manufacturing Company, Lane engaged in a conversation with Rowe and, according to Lane, Rowe expressed a willingness to act as the “hit man.” Lane then put Rowe in touch with Bratt. Under a grant of immunity, Lane further testified that on December 18, 1981, he had travelled to Maryland for the purpose of modifying an Ingram submachine gun for Bratt by transforming it from semi-automatic to fully automatic. The following day he and Bratt met Rowe at the Baltimore-Washington International Airport and drove to Bratt’s apartment, where they met one Tommy Raspa.

According to Lane, Bratt, Raspa and appellant, while at the apartment, planned the surreptitious entry by Raspa and Rowe into the Carbacks’ residence. They planned to tell the Carbacks, who allegedly were major narcotics dealers, that Bratt “was getting out of the dope business and Raspa was going to introduce him to his supplier” who was supposed to be none other than Rowe. According to Lane, Bratt and his girlfriend left for dinner while Raspa and appellant put some items in a bag (the Ingram, a bag of white powder and a mirror) and left. Bratt returned from dinner alone.

Shortly thereafter, Rowe returned with Raspa. Rowe, at that time, was injured; the end of one of his fingers above the “knuckle joint” (interphalangeal joint) was missing. Lane then attempted to bandage the finger while Bratt and Raspa returned to the Carbacks, apparently to pick up some drugs that were left at the Carback residence. When Bratt returned with Raspa, Bratt had a towel with blood on it and a knife in it, which he shoved up to Lane’s face and said, “My man here [Raspa] had to finish her with this knife.” ⁴⁹² Lane travelled to Atlanta with Rowe and Raspa.

They stopped at a river on the way and threw two handguns into the river. Rowe allegedly told Lane that during the murder Donna Carback started screaming so he put his hand over her mouth and Raspa shot him in the finger. Lane’s testimony was corroborated by one witness who selected appellant’s photograph as the likeness of a person seen with Bratt and Lane in Maryland on Saturday, December 19. Lane’s testimony regarding Rowe’s arrival in Georgia on December 20th was also corroborated.

Friends of Lane’s, the Reeders, testified that Mrs. Reeder picked up Lane and Rowe at a bus station which services an airport shuttle. Mr. Reeder testified that when Lane and appellant arrived at his house, he attempted to clean Rowe’s wound and that Lane and Rowe stayed with him and his wife the night of the 20th. Mrs. Reeder also testified that on the 21st she took Lane home and dropped Rowe off at the same bus station where she had picked him up on the previous day. Rowe’s doctor testified that he examined Rowe’s hand on December 22nd at his office in Odessa, Texas; at the time it was treated, the wound was “from 24 to maybe about 48 hours old.” Hospital records, introduced at trial, indicated that appellant was admitted in connection with this injury on the afternoon of December 22nd.

Finally, the State presented evidence tending to show that Rowe may not have been at work on December 19th. The records, although indicating that Rowe had worked that day, were written by someone other than appellant. Mrs. Rowe, appellant’s wife, admitted to filling out appellant’s work record for that day and testified on cross-examination that it was the first time she had ever filled them out for appellant. During appellant’s case-in-chief, appellant testified that he was in Odessa, Texas the weekend of December 19th and 20th and that he hurt his hand on the 20th when a gun he was carrying accidentally discharged.

He further testified ⁴⁹³ that he did not seek medical attention then because of an upcoming custody matter in which his present wife was involved. His testimony was corroborated by a friend, Roger Davidson, and his wife, Rose Rowe, both of whom testified to seeing appellant in Texas on December 19th and 20th. I. Rowe contends that the court erred in not allowing him to show the “bias” of Detective Sergeant William A. Tankersley. He argues that “Detective Sergeant William A. Tankersley was among the principal investigating officers in the case, and the conduct and content of his interviews with Appellant’s alibi witnesses became a major subject of controversy.” Detective Tankersley testified twice during the course of the trial.

He testified during the State’s case-in-chief and as a rebuttal witness. Rowe’s sole defense in this case has been that he was not involved in the Carback murders and could not have been involved because he was in Odessa, Texas the weekend of December 19th and 20th. The purpose of Detective Tankersley’s testimony as a rebuttal witness was to impeach the credibility of Rowe’s witnesses. When compared, there are several discrepancies between Tankersley’s testimony and the testimony of defense witnesses, Rowe’s wife and Roger Davidson.

During Rowe’s case-in-chief, Mrs. Rowe testified that on December 19, 1981, she went to see Rowe at work and then drove to her sister-in-law’s. She saw appellant again when she returned home Sunday, December 20th. Appellant, at that time, had his finger wrapped in gauze; she did not, however, ask him how he was injured. Mrs. Rowe testified that she knew she returned on Sunday because she was to go to court the following Tuesday in connection with a custody matter.

Detective Tankersley, on the other hand, testified on rebuttal that when he interviewed Mrs. Rowe in March, ⁴⁹⁴ 1984, she stated she did not ask appellant about his hand because “she did not care to know.” According to the detective, Mrs. Rowe also stated that the reason she remembered seeing appellant on Sunday, December 20th, was that she had to get her children ready for school the following day. The detective also testified that when he confronted Mrs. Rowe with the fact that there was no school because of Christmas vacation, she admitted that she may have been confused about her days but was nevertheless sure she saw appellant in Odessa on December 20th. Mrs. Rowe denied these statements when cross-examined. One of appellant’s other alibi witnesses, Roger Davidson, testified that he met with appellant while job hunting at appellant’s place of employment on the two Saturdays before Christmas, 1981.

He stated that he and appellant went drinking on the afternoon of December 19th and that when he next saw appellant on Sunday, December 20th, appellant had an injured hand. Detective Tankersley, on the other hand, testified on rebuttal that when he interviewed Roger Davidson in March 1984 Davidson told him the same story. When the detective, however, pointed out that Davidson had not started working with appellant until December 29th, the detective noted that Davidson recanted and said that perhaps it was not until after Christmas that he went drinking with appellant. Roger Davidson denied these statements when cross-examined about them; according to him he told Tankersley that he saw appellant the two Saturdays before Christmas.

Given the apparent inconsistencies in the testimony, appellant, in an effort to lessen the impact of Tankersley’s rebuttal testimony, attempted to impeach his credibility by attempting to elicit evidence of bias. Detective Tankersley was asked: ... policemen, you in particular, receive promotions for closing out major homicides? ⁴⁹⁵ The court sustained the prosecutor’s objection. Next, Tankersley was asked: Is it fair to say Detective Tankersley that you want this jury to convict Joe Bill Rowe? Again, the prosecutor objected.

The court again sustained the objection. This was not reversible error. Our courts have long held that “a witness may be cross-examined ‘on such matters and facts as are likely to affect his credibility, test his memory or knowledge, show his relation to the parties, or cause, his bias, or the like.’ ” Cox v. State, 298 Md. 173, 178 , 468 A.2d 319 (1983) (quoting Kantor v. Ash, 215 Md. 285, 290 , 137 A.2d 661 (1958)). While “cross examination will not be permitted on matters that are irrelevant, or immaterial to the issue being tried,” 298 Md. at 179 , 468 A.2d 319 , a witness’s bias is always relevant in that it may affect the weight of his testimony.

See Cox, 298 Md. at 180 , 468 A.2d 319 (“where matter is purely collateral to issue at trial it should only be admitted if probative of a lack of credibility”). In the case sub judice the questions asked of the detective sought to elicit evidence of his bias. Evidence of bias is produced to impress upon a trier of facts that a witness’s testimony should not be taken at face value, not because the witness is lying but rather because his bias or prejudice has colored his testimony. See Annot., 87 A.L. R.2d 407.

Admissibility of the subject questions was within the sound discretion of the trial court. Judge Charles E. Orth, speaking for a majority of this Court in Cox v. State, 51 Md.App. 271 , 443 A.2d 607 (1982) said: We are mindful of the general rule so often cited that the allowance or disallowance of questions on cross-examination is normally left to the sound discretion of the trial ⁴⁹⁶ judge. And we recognize that discretionary rulings by the trial court carry a presumption of validity. 51 Md.App. at 282 , 443 A.2d 607 (citations omitted). We explored the limits of that discretion in an earlier case, Fletcher v. State, 50 Md.App. 349, 357 , 437 A.2d 901 (1981): The determination of whether there has been an abuse of discretion necessarily requires consideration of the particular circumstances bearing upon each individual case.

Clearly, the absolute preclusion of cross-examination pertaining to a witness’s motive for testifying would be an abuse of discretion, but beyond that we must look to such factors as the scope of interrogation permitted, how relevant the particular inquiry is to bias or motive, and whether the defendant has been prejudiced by the court’s ruling. In Reese v. State, 54 Md.App. 281, 287 , 458 A.2d 492 (1983), we further defined the boundaries of the trial judge’s discretion in protecting a