Thomas v. State

RAKER, Judge. Garrison Thomas, • petitioner, was convicted in the Circuit Court for Charles County of felony murder, robbery, and second-degree murder. In this appeal, he raises two questions for review. The primary question is whether the trial court erred in admitting as evidence of consciousness of guilt the fact that petitioner resisted when, pursuant to a search warrant, the police sought to obtain a sample of his blood.

The second question is whether the trial court’s rulings restricting the cross-examination of a key State’s witness and ³⁴⁵ limiting access to that witness’ psychiatric records violated petitioner’s right to confrontation. We shall hold that the evidence of petitioner’s refusal to provide a blood sample was inadmissible to show consciousness of guilt. Accordingly, we shall reverse. I. Petitioner was convicted of killing Beverly Renee Mitchell.

A passerby discovered Ms. Mitchell’s body in Charles County on the evening of March 23, 1995. Police collected physical evidence surrounding her body, including her ATM card and a bank receipt for a withdrawal of $60.00 dated March 22, 1995. The medical examiner ruled her death a homicide, caused by strangulation and blunt force injuries to the head. Marva Mitchell, the victim’s mother, last saw her daughter on the evening of March 22, 1995.

She had asked her daughter to bring some money to her sister’s husband, James Porter. Marva Mitchell had stopped at the Porter residence earlier that day to tell Mr. Porter that Beverly Mitchell would be bringing the money he needed to get to work the next day. Petitioner, who lived in the basement of the Porters’ home, wTas present during that conversation. Beverly Mitchell visited her mother that evening around 9:00 p.m.; when she left, she said that she was going to the Porters’ home.

Porter testified that Ms. Mitchell dropped off $10.00 at his house that evening. On the morning of March 24, 1995, the police located Ms. Mitchell’s car in the 1100 block of 10th Street, Southeast, in Washington, D.C. On that same day, police located witness Novella Lee Harris. Harris directed investigators to the victim’s car keys and told the police information that linked petitioner to the car. Harris recounted that at approximately 2:30 a.m. on March 23, 1995, petitioner knocked on her door.

He was wearing a dark brown wig and women’s clothing and identified himself as “Cookie.” He was seeking narcotics. Petitioner was driving a car later identified as the car belonging to the victim. ³⁴⁶ Harris, petitioner, and another man smoked crack together for much of the following day. Petitioner, appearing nervous about the car, told Harris differing stories about how he got the car, wiped the car down to remove his fingerprints, and moved the car to the location where police discovered it. Harris saw petitioner discard the car keys in two different locations and saw him attempt to set fire to the car.

Petitioner finally left Harris’ home around 8:00 a.m. on March 24, 1995. On June 25, 1998, approximately three and one quarter years after the murder, with the investigation at a standstill, the police decided to approach petitioner to collect hair and blood samples. Because petitioner was then living in the District of Columbia, police sought and secured a search warrant, issued by the District of Columbia, for blood and hair samples from petitioner. 1 The police met petitioner at his residence and took him to a police station in the District of Columbia. At the station, police showed him the warrant and gave him an opportunity to read it.

Detectives explained that because of the search warrant, petitioner was required to give police hair and blood samples. Petitioner resisted, stating, “You ain’t getting it.” He was restrained forcibly on the ground, and a nurse from a local hospital drew a blood sample. Petitioner calmed down after the blood was drawn and cooperated with the officers in providing hair samples. He also cooperated with police in giving a second blood sample.

The laboratory examination of the blood sample excluded petitioner as a source of the blood found at the crime scene. Petitioner’s trial commenced in June 1999 in the Circuit Court for Charles County. Novella Lee Harris was a key witness against petitioner. Petitioner filed two Motions for ³⁴⁷ Subpoena for Tangible Evidence and In Camera Review to obtain pre-trial discovery of Harris’ psychiatric records from Crownsville State Hospital, located in Crownsville, Maryland, and St. Elizabeth’s Hospital, located in the District of Columbia.

Petitioner requested an in camera review of the records from Crownsville State Hospital to determine whether the records contained relevant information regarding any psychiatric disorders that could provide background for cross-examination. He also asked the court to subpoena records from St. Elizabeth’s Hospital in order to conduct a similar review. After the Circuit Court conducted an in camera review of the Crownsville Hospital records, the court focused on a thirty-day commitment for a mental evaluation of Harris that occurred in May and June of 1982. The court ruled that the records were not relevant to any issue before the court.

The judge denied petitioner’s motion to subpoena privileged records for pre-trial review from St. Elizabeth’s Hospital on the following two grounds: petitioner did not show any likelihood that the records contained any relevant information, and St. Elizabeth’s Hospital is not an agency under Maryland control. At trial, during the cross-examination of Harris, petitioner asked about her “history of emotional problems.” In response to the State’s objection, petitioner argued that he wanted to explore Harris’ “weird feelings” and whether they resulted from smoking crack or emotional problems. The court sustained the objection but permitted some latitude to defense counsel, ruling as follows: “You can ask her what was causing her weird feelings. I have no problem with that.

And if you want to ask her anything further about emotional problems then you can approach the bench because I don’t know where we are going to go and I don’t believe that you do either.” Defense counsel never questioned Harris further about her feelings or psychiatric history. Petitioner moved in limine to preclude the State from introducing testimony that petitioner resisted when the police officers sought to draw a sample of his blood. The State ³⁴⁸ argued that the refusal to give the blood sample was admissible as evidence to show consciousness of guilt. Petitioner argued that the evidence was not relevant because the police attempted to take the blood sample over three years after the murder and because many innocent reasons other than consciousness of guilt could explain a person resisting police attempts to procure a blood sample.

Petitioner maintained that the evidence of his refusal was ambiguous and therefore irrelevant. He argued that even if the evidence were relevant, its prejudicial effect outweighed its probative value. The trial court denied petitioner’s motion, and the State offered the evidence at trial. 2 Petitioner was convicted, and the judge sentenced him to life imprisonment for felony murder and merged the other convictions for sentencing purposes. Petitioner noted a timely appeal to the Court of Special Appeals.

In am unreported opinion, the intermediate appellate court affirmed, holding that the trial court did not abuse its discretion in admitting the evidence of Thomas’ refusal to provide a blood sample as evidence of consciousness of guilt. The court also held that the trial judge did not abuse his discretion by excluding Harris’ psychiatric records as irrelevant and by limiting cross-examination regarding her alleged emotional problems. We granted Thomas’ petition for writ of certiorari to answer the following questions: ³⁴⁹ “Whether testimony that the accused resisted attempts to draw his blood is admissible as evidence of ‘consciousness of guilt.’ “Whether the accused’s right to confrontation includes pretrial disclosure of the State’s key, non-victim witness’ psychiatric history, as wTell as cross-examination of that witness regarding her psychiatric history.” Thomas v. State, 369 Md. 570 , 801 A.2d 1031 (2002). We hold that the trial court erred in admitting the testimony regarding petitioner’s refusal to submit to blood testing to show consciousness of guilt.

II

Petitioner’s first argument is that the trial court erred in denying his motion in limine to exclude testimony regarding his refusal to submit to a blood test. He contends that the evidence is irrelevant because it is ambiguous in that the demand for the blood occurred more than three years after the murder and that his conduct was susceptible to many possible innocent explanations. Even if probative, any probative value it might have is substantially outweighed by the danger of prejudice. The State argues that petitioner’s resistance, after he was informed of his legal obligation to comply, was relevant to show a consciousness of guilt.

The State contends that any possible innocent explanation for the conduct goes to the weight of the evidence but not its admissibility. The State argues that petitioner’s refusal to submit to blood testing, unaccompanied by any indications of religious or other concerns, shows his fear that the test results might produce inculpatory evidence linking him to Ms. Mitchell’s murder. The State concludes that the trial court properly exercised its discretion in admitting the evidence to show consciousness of guilt. Petitioner’s second issue relates to his ability to cross-examine Ms. Harris.

He argues that the trial court erred in denying his Motions tor Subpoena for Tangible Evidence and ³⁵⁰ In Camera Review. He argues that the trial court should have subpoenaed records from St. Elizabeth’s Hospital even though the hospital is not a Maryland agency. Petitioner also contends that although the trial court briefly reviewed the Crownsville Hospital records in camera, due process required that the court conduct a thorough review for information relevant to Harris’ mental state. Denial of pre-trial access to the psychiatric records, he argues, undermined his ability to prepare a proper cross-examination.

Finally, petitioner asserts that, in contravention of the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights, the trial court deprived him of a fair trial by limiting his cross-examination of Harris about her psychiatric history. The State argues that the trial court properly denied petitioner’s motions as to Harris’ Crownsville psychiatric records. In addition, the State argues that because petitioner actually had the Crownsville records pre-trial, the scope of the court’s in camera review made little or no difference. Moreover, petitioner could not identify anything relevant in those records.

As to the St. Elizabeth’s Hospital records, the State contends that because the Hospital is an out-of-state agency and the defense could not show any likelihood that the records contained relevant information, the trial court did not err. Finally, as to the scope of Harris’ cross-examination, the trial court did not abuse its discretion.

III

The fundamental test in assessing admissibility is relevance. Maryland Rule 5-402 provides as follows: “Except as otherwise provided by constitutions, statutes, or these rules, or by decisional law not inconsistent with these rules, all relevant evidence is admissible. Evidence that is not relevant is not admissible.” Relevant evidence is evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it ³⁵¹ would be without the evidence.” Md. Rule 5-401; see also Snyder v. State, 361 Md. 580, 591, 592 , 762 A.2d 125, 131 (2000)(noting that evidence is relevant when “in conjunction with all other relevant evidence, the evidence tends to make the proposition asserted more or less probable”). Relevant evidence is generally admissible.

See Md. Rule 5-402. A trial court, however, may exclude otherwise relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice.” Md. Rule 5-403. A person’s behavior after the commission of a crime may be admissible as circumstantial evidence from which guilt may be inferred. This category of circumstantial evidence is referred to as “consciousness of guilt.” We observed in Snyder v. State, 361 Md. 580, 591 , 762 A.2d 125, 131 (2000) that “[i]f relevant, circumstantial evidence regarding a defendant’s conduct may be admissible under Md. Rule 5-403, not as conclusive evidence of guilt, but as a circumstance tending to show a consciousness of guilt.” 361 Md. at 593 , 762 A.2d at 132 ; see also Martin v. State, 364 Md. 692, 706 , 775 A.2d 385, 393 (2001); Whittlesey v. State, 340 Md. 30 , 62 65, 665 A.2d 223, 239-40 (1995); Hunt v. State, 312 Md. 494, 508-09 , 540 A.2d 1125, 1132 (1988); Wright v. State, 312 Md. 648, 654-55 , 541 A.2d 988, 991 (1988); Davis v. State, 237 Md. 97, 105-06 , 205 A.2d 254, 259 (1964), cert. denied, 382 U.S. 945 , 86 S.Ct. 402 , 15 L.Ed.2d 354 (1965); Westcoat v. State, 231 Md. 364, 368 , 190 A.2d 544, 546 (1963).

Conduct typically argued to show consciousness of guilt includes flight after a crime, escape from confinement, use of a false name, and destruction or concealment of evidence. See, e.g., Whittlesey, 340 Md. at 63-65 , 665 A.2d at 239-40 (flight); Sorrell v. State, 315 Md. 224, 230-31 , 554 A.2d 352, 355 (1989)(failure to return during trial); Wright, 312 Md. at 654-57 , 541 A.2d at 991-92 (use of false name to conceal identity); Sewell v. State, 34 Md.App. 691, 694-95 , 368 A.2d 1111, 1114 (1977)(destruction of evidence); 2 McCormick on Evidence § 263, at 172-73 (John W. Strong ed., 5th ed.1999)(flight from scene or from jurisdiction after crime, assuming false name, changing appearance, resisting arrest, attempting to bribe arresting officers, forfeiture of ³⁵² bond by failure to appear, escape from confinement); 2 J. Wigmore, Evidence § 276, at 111 (3d ed.1940)(flight, escape from custody, resistance to arrest, concealment of evidence, assumption of false name). A person’s post-crime behavior often is considered relevant to the question of guilt because the particular behavior provides clues to the person’s state of mind. The reason why a person’s post-crime state of mind may be relevant is because, as Professor Wigmore suggested, the commission of a crime can be expected to leave some mental traces on the criminal. 1 Wigmore, supra, § 173, at 632.

Applying our accepted test of relevancy, “guilty behaviour should be admissible to prove guilt if we can say that the fact that the accused behaved in a particular way renders more probable the fact of their guilt.” Andrew Palmer, Guilt and the Consciousness of Guilt: The Use of Lies, Flight and Other ‘Guilty Behaviour’ in the Investigation and Prosecution of Crime, 21 Melb. U.L.Rev. 95, 98 (1997). As is the nature of circumstantial evidence, the probative value of “guilty behavior” depends upon the degree of confidence with which certain inferences may be drawn. Professor Wigmore has identified two distinct inferences—first, an inference of a guilty state of mind from the guilty behavior; and second, an inference of guilt from the guilty state of mind.

See 1 Wigmore, supra, § 173, at 632. Some courts have identified four inferences that are necessary to establish admissibility. In the context of flight as consciousness of guilt evidence, the United States Court of Appeals for the Fifth Circuit reasoned that the probative value of the evidence “depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.” ³⁵³ United States v. Myers, 550 F.2d 1036, 1049 (5th Cir.1977); see also, e.g., United States v. King, 200 F.3d 1207, 1215 (9th Cir.1999); United States v. Hankins, 931 F.2d 1256, 1261-62 (8th Cir.1991); United States v. Dillon, 870 F.2d 1125, 1126-27 (6th Cir.1989); United States v. Howze, 668 F.2d 322, 324 (7th Cir.1982); Ex parte Weaver, 678 So.2d 284, 290 (Ala.