Waddell v. State

ALPERT, Judge. “Those who cannot remember ... past [judicial errors] are condemned to repeat ... [them].” 1 These words of wisdom set the tone for this appeal. Warren A. Waddell (appellant) complains to us about a conviction of first degree murder and the use of a handgun in the commission of ⁵⁷ a violent crime. He contends, inter alia, that he was denied a fair trial because the trial court made improper comments suggesting his guilt. We agree that one of the comments potentially was so damaging that it deprived appellant of his right to a fair trial.

Consequently, we shall reverse. Facts Appellant and Carlton Robinson were co-workers at the Precision Concrete Company. Early in the morning of November 9, 1988, someone shot Robinson to death in Baltimore City. No one saw the shooting.

Appellant was charged with Robinson’s murder and the use of a handgun in the commission of that murder. He was tried by jury in the Circuit Court for Baltimore City on October 24, 1989, the Hon. Elsbeth Bothe presiding. At trial, Robert Kline, the supervisor at Precision Concrete, for Robinson and appellant, testified that the day before he was killed, Robinson had teased and aggravated appellant — calling him a “dickhead” — while they were at work.

The comments upset appellant, who then made remarks to the effect that he could “get” Robinson and the others who were teasing him. Robinson was shot with both copper jacketed and hollow point bullets. A firearms expert testified that the bullets had been fired from a semi-automatic pistol made by any one of seven weapons manufacturers. Two witnesses testified that appellant owned a weapon produced by one of these seven manufacturers and that appellant always loaded his gun with a “mix,” i.e., he alternated solid and hollow point bullets when he loaded the gun.

Two police officers, who arrived at the scene within minutes of the dispatcher’s call, testified that Robinson was conscious and that he named appellant as the person who shot him. The two paramedics who arrived shortly thereafter testified that Robinson repeatedly said “[H]elp me, I’m dying” and described how “his friend” had shot him. ⁵⁸ Other testimony established appellant’s behavior after the shooting, i.e., he told the Precision Concrete supervisor that he wanted to get his paycheck “to get out of town” and that he had a passport. Over objection, the court permitted witnesses to testify about appellant’s responses to their statements implying that appellant was the killer, including appellant’s statements indicating his intent to obtain counsel. The jury found appellant guilty of first degree murder and the use of a handgun in the commission of a crime of violence.

On November 29,1989, the court sentenced appellant to life imprisonment without the possibility of parole for the murder conviction. The court also imposed a consecutive sentence of 20 years imprisonment for the handgun conviction. Appellant noted an appeal to this Court on December 13, 1989, asking whether: I. the trial court’s comments suggesting appellant’s guilt deprived him of a fair trial; II. appellant was denied a fair trial because the State offered evidence of his plans to obtain counsel to ' show a consciousness of guilt; III. the trial court abused its discretion when it permitted two lay witnesses to identify and to testify on ballistics; IV. the trial court improperly restricted appellant’s cross-examination of two State’s witnesses; and V. the trial court erred when it refused to grant appellant’s requested jury instructions. We shall reverse because of a single remark made by the trial judge which potentially was so damaging that we believe it deprived appellant of the opportunity for a fair trial.

We also address the remaining issues to assist the trial court on remand. ⁵⁹ I. Appellant contends that on innumerable occasions during trial, the trial judge interrupted counsel, questioned witnesses, and interjected comments as to factual matters. Although appellant concedes that “some of these remarks arguably might be considered clarification of counsel’s questions, [he argues that] others range far beyond the prerogative of the trial court to aid in the questioning of a witness when counsel’s questions are unclear or embarrassing.” See Bell v. State, 48 Md.App. 669, 677 , 429 A.2d 300 (1981). As a result, appellant claims that the judge did not preserve an attitude of impartiality, thereby depriving appellant of his right to a fair trial. We have carefully considered all of those interruptions, questions, and interjections by the trial judge that appellant has noted in his brief.

Although the trial judge sometimes inappropriately asked questions and interjected comments, we do not believe that individually or cumulatively they warrant reversal save for the sole comment on which we have decided to reverse. That comment occurred in the following context: The Precision Concrete supervisor, Robert Kline, testified that appellant continued to carry a gun to work even after he had ordered appellant not to do so. On direct examination, the trial judge expressed her disbelief by repeatedly asking questions such as “And you just let him do it?” On cross-examination, defense counsel asked the supervisor why he permitted appellant to come to work if he knew that appellant was armed. The supervisor responded that he was familiar with the area in which appellant lived and understood why appellant might feel the need for protection.

Here, the trial judge — in full hearing of the jury — said, “You know different now.” As appellant notes in his brief, the meaning of this comment is crystal clear. The judge meant by her remark that Kline now knew that appellant carried the gun for reasons other than just protection, the “indisputable implication” being that appellant had shot and killed Carlton Robinson. We find no other possible construction of the ⁶⁰ judge’s remark except for this one, which presupposes appellant’s guilt. We have warned this trial judge on at least two prior occasions that she should act with restraint during trial to avoid the appearance of prejudice against the accused.

See McMillian v. State, 65 Md.App. 21 , 499 A.2d 192 (1985), and Ferrell v. State, 73 Md.App. 627 , 536 A.2d 99 (1988), rev’d on other grounds, 318 Md. 235 , 567 A.2d 937 (1990). Although we concluded in both McMillian and Ferrell that the judge’s interruptions, comments, and questions were not “tantamount to reversible error,” we admonished her for not having “exercised greater restraint.” Ferrell, 73 Md.App. at 639, 536 A.2d 99 ; McMillian, 65 Md.App. at 27 , 499 A.2d 192 . We further stated in, Ferrell that “[w]hen a judge interjects himself or herself into a case to any significant extent, as, despite prior admonitions from this Court, Judge Bothe seems wont to do, he or she invites this kind of argument and risks not only a reversal of the conviction but embarrassing censure as well.” Id. 73 Md.App. at 638-39 , 536 A.2d 99 (citations omitted). Our admonitions appear to have had little effect.

The comment that the judge interjected during the supervisor’s testimony was so egregious — so inflammatory as it were— that this time we have no choice but to reverse. Through that comment, the judge clearly implied her belief that appellant shot and killed Carlton Robinson. When she did so, she crossed over the line of impartiality and became an advocate for the State. We think that it was impossible for appellant to have had a fair trial under the circumstances.

We hold that the judge’s comment suggesting appellant’s guilt constituted reversible error and remand the case to the circuit court for a new trial with a different judge. We now address the remaining issues to assist the trial court on remand.

II

Appellant argues that he was denied a fair trial because the State offered evidence of his plans to obtain ⁶¹ counsel to show consciousness of guilt. He contends that occurred during the prosecutor’s direct examination of the Precision Concrete supervisor: [THE PROSECUTOR]: So you told [Waddell] what? [KLINE]: I told him that I had been called and Carlton [the victim] was shot several times and they said that you were the triggerman. [THE PROSECUTOR]: And what did Mr. Waddell say to that? [DEFENSE COUNSEL]: Objection. [KLINE]: He said he had to go call the, use the phone and call his lawyer. [THE PROSECUTOR]: So when you confronted Mr. Waddell and he gave his explanation about the gun and said he had to go and make a phone call, was anything else said by you or by him? [KLINE]: No. Just a few of the men told him— [DEFENSE COUNSEL]: Objection. [THE COURT]: Don’t tell us what other people told him. [THE PROSECUTOR]: We just need from you what you said and what Mr. Waddell said. [KLINE]: All he said [was] he had to go make a call and call his lawyer. Then he was like real scared. [DEFENSE COUNSEL]: Objection. [THE COURT]: He can tell us how he acted. But don’t tell us what your conclusions are.

We previously addressed this issue in Hunter v. State, 82 Md.App. 679 , 573 A.2d 85 (1990). In Hunter , the defendant was tried and convicted of negligent homicide by motor vehicle while intoxicated, driving while intoxicated, and failure to control vehicle speed to avoid collision. Id. at 679 , 573 A.2d 85 . On defense counsel’s cross-examination at trial, the investigating officer injected into her testimony the fact that the defendant called his attorney immediately after the accident.

Id. at 683 , 573 A.2d 85 . The prosecutor returned to the matter of the attorney when he cross-exam ⁶² ined the defendant. Id. at 684 , 573 A.2d 85 . After the defendant confirmed that he had called his attorney, the prosecutor asked why he had done so.

Id. The court overruled defense counsel’s objection to the question and the defendant responded, “To see if he would defend me.” Id. On appeal, the defendant complained that the court erred when it admitted testimony about the defendant’s telephone call to his attorney immediately after the accident. Id. at 682 , 573 A.2d 85 .

We held that although the officer’s testimony was inappropriate and outside the scope of defense counsel’s questions — and thus was volunteered — defense counsel made no timely motion to strike that part of her testimony at trial. Id. at 685-86 , 573 A.2d 85 . Thus, the defendant could not later complain of it. Id. at 686 , 573 A.2d 85 .

That did not finish the matter, however. We went on to say that [t]he cognizable error came not during the [officer’s] testimony ... but on the cross-examination of [the defendant]. When the prosecutor not only returned to that testimony but demanded that appellant explain why he called his lawyer just minutes after involvement in a serious accident, an objection was made, and it was overruled. It was that question and answer, more than the statements of ... [the officer], that formed the foundation of the prosecutor’s consciousness of guilt argument in this case.

The seeds of the argument were in the admission that the call was made to see if the lawyer would ‘defend me.’ Id. at 686 , 573 A.2d 85 (emphasis in original). We found that the defendant did not waive his complaint and that it was a valid one. Id. Although the sixth amendment right to counsel did not protect the defendant because he obtained counsel before any judicial proceedings had begun, ie., before his sixth amendment right to counsel had attached, see Kirby v. Illinois, 406 U.S. 682, 688-89 , 92 S.Ct. 1877, 1881-82 , 32 L.Ed.2d 411 (1972); see also Hunter, 82 Md.App. at 689-90 , ⁶³ 573 A.2d 85 , Judge Wilner noted that such evidence still was impermissible.

An individual’s right to seek counsel is not limited to the specific right conferred by the sixth amendment or by its state counterpart, the Maryland Declaration of Rights, art. 21. An individual has an independent right “to seek legal advice or representation at anytime, on any matter, and for any reason,” Hunter, 82 Md.App. at 690-91 , 573 A.2d 85 , that is protected by the fourteenth amendment due process clause and its state counterpart, the Maryland Declaration of Rights, art. 24. Judge Wilner then went on to explain for the court that such evidence was irrelevant purely as an evidentiary matter. [T]he exercise of this right does not imply a consciousness of guilt. In seeking legal advice or representation, the person may well believe himself capable of some tortious or criminal conduct.

But he may just as well believe himself entirely innocent or only partly culpable, or he simply may not know whether his acts or omissions are in violation of law. And if he has some pre-formed belief as to his culpability or innocence, that belief may turn out to be unfounded. Indeed, common human experience would suggest that, absent some special circumstance not evident here, the most likely purpose for seeking legal advice or representation is to find out what one’s status and exposure may be. If there is a rational inference to be drawn from the seeking of such advice or representation therefore, it cannot be more than that — an uncertainty.

To draw an inference of consciousness of guilt from the seeking of such advice, then, is both illogical and unwarranted; the fact to be inferred — the consciousness of guilt — is not made more probable (or less probable) from the mere seeking of legal advice or representation, and so evidence of the predicate fact is simply irrelevant. On pure evidentiary grounds, it is inadmissible. Id. at 691 , 573 A.2d 85 . Thus, our holding that the State may not “offer evidence of, or comment upon, a criminal defendant’s obtention of ⁶⁴ counsel ... to show a consciousness of guilt” was based on two premises.

Id. at 686 , 573 A.2d 85 . First, that the fourteenth amendment due process clause and its State counterpart, Article 24 of the Maryland Declaration of Rights, protects at all times and under all circumstances an individual’s right to seek counsel. Id. at 690-91 , 573 A.2d 85 . And second, as a purely evidentiary matter, an individual’s exercise of that right is irrelevant because it