Waldron v. State

ROBERT M. BELL, Judge. Appellant, John D. Waldron, Jr., was tried by a jury in the Circuit Court for Anne Arundel County. He was convicted of kidnapping, armed robbery, and use of a handgun in the commission of a crime of violence, and sentenced to a total of twenty-five years imprisonment. Appellant presents the following issues on appeal: 1.

Whether the arbitrary curtailment of the cross-examination of a material State’s witness with regard to ⁶⁹¹ her motive to lie requires that appellant’s conviction be reversed? 2. Whether the admission of irrelevant and highly prejudicial evidence as to collateral matters constituted error by the trial court? 3. Whether the trial court’s failure to exercise its discretion to impose sanctions for the State’s violation of discovery rules requires appellant’s conviction to be reversed? 4. Whether the trial court erroneously admitted appellant’s past convictions into evidence? 1.

Appellant alleges that he was denied his constitutional right to confront a witness against him when the trial court arbitrarily restricted his counsel’s cross-examination of Margaret Herron with regard to her motive to lie. Herron, a State witness, testified to acts and admissions made by appellant, subsequent to the robbery, while he was visiting Florida. 1 On July 5, 1983, Richard Spies, the owner of Edgewater Liquors, was accosted by a gunman as he left his establishment to deposit his weekend receipts in a local bank, was placed in an automobile driven by a second gunman, and was thereby transported to an elementary school, where he was robbed. Upon notifying the police, he described one of the gunmen, whom he “knew from the neighborhood”, as being between the ages of 28 and 32, 6 feet tall, 275-290 lbs., with a full beard and mustache, close-cropped tightly curled hair and immaculately dressed in a white shirt and dark pants and sunglasses. Prior to the trial, Spies participated in the preparation of a composite drawing and artist sketch of that man.

He also selected a 1977 photograph of appellant from among a group of six photographs and ⁶⁹² identified appellant as the robber from some surveillance photographs of appellant, taken outside appellant’s home shortly after the robbery. 2 At trial, Spies testified that the robber was 5' 5" tall, weighed 290 lbs. and was between 32 and 39 years of age. When identifying appellant, he noted that the robber was fatter, better groomed and had curlier hair than the appellant. At that time, appellant was 5’8” tall, weighed more than 205 lbs. 3 and did not have tightly curled hair or a beard and mustache. 4 Herron’s testimony was extensive and incriminating. She testified that appellant, whom she had known for about twelve years, arrived in Florida on July 12, 1983 and stayed with her until the end of July.

At that time, he “had a lot of money” 5 that he said he got from “... a liquor store holdup” in his neighborhood in Maryland. 6 She related part of a conversation between appellant and Mike Mitchell, 7 from which she learned that Mike Mitchell “did the holdup with Johnny”. Herron described two handguns, brought to ⁶⁹³ Florida by Mitchell; the description was consistent with the guns used in the robbery. 8 Testimony was also given relative to appellant’s appearance. Herron said that when appellant arrived in Florida, “[h]e had curly hair and a full beard and a mustache, healthy looking.” When appellant left, “he had decided to shave ... just to change his look, his I.D.” She testified that appellant’s appearance at trial was different in that he no longer had curly hair, had lost 20-30 lbs., and was clean shaven. Finally, Herron testified as to appellant’s use of drugs, marijuana and cocaine.

She testified that, “Johnny smoked about two or three jays 9 a day” and used about 1/4 ounce of cocaine per day “towards the end”; 10 the money to pay for the cocaine came from the robbery; 11 and that when appellant left Florida, he took his drugs with him. On cross-examination, the following colloquy occurred: [BY KIRBY — Appellant’s Counsel] Q. Were you involved in the possession of a large amount of marijuana? MS. BAYLEY (Asst.

State’s Attorney): Objection, your Honor. COURT: Overruled. A. Yes, I was. Q. How much marijuana?

A. You mean at this time or you mean all times or what? Q. Well, at any time. ⁶⁹⁴ MS. BAYLEY: Objection, Your Honor COURT: Well ... sustained. Q. Right around the time of July, the last time ...

A. Johnny’s trying to tell you November the 2nd sir. Can I help you out? Q. Sure. A. Okay.

Q. Tell us about it. MS. BAYLEY: Your Honor, I object to November 2nd. COURT: 1983?

A. Yes, can I tell you about it ... COURT: 1983? Was it? A. Yes, can I tell you about it ...

COURT: Alright, I’ll sus- ... A. ... without having a bunch of ... COURT: No. A. Okay. COURT: Sustained.

After inquiring into the witness’ criminal history and learning that she had never been convicted counsel inquired: Q. You were charged with the marijuana? MS. BAYLEY: Objection, Your Honor. COURT: Sustained.

Appellant then sought to learn if the State paid her travel expenses to Maryland and where she was residing while here: Q. Did the State’s attorney send you money to come up here and testify? A. I was ... MS. BAYLEY: Objection, Your Honor.

A. I was subpoenaed to come up here. I had no choice in the matter. I’m also subpoenaed to tell the truth. Q. The question was ... the question was ... ⁶⁹⁵ MS.

BAYLEY: Your Honor, I’m going to object to to the question. COURT: Sustained. Q. Were you paid anything to come in here and testify? A. I was paid no money to come in here to testify, no sir?

Q. And you’re staying at your own ... your’re staying overnight and you’re paying for that, too, is that right? A. I don’t think I have to tell you where I’m staying overnight, do I sir? COURT: No. MR. KIRBY: I didn’t say where, Your Honor, I just asking who’s paying for it.

COURT: It doesn’t matter. MS. BAYLEY: Objection, Your Honor. COURT: Sustained.

Cross-examination is the vehicle by which the right of confrontation is given substance. Douglas v. Alabama, 380 U.S. 415 , 85 S.Ct. 1074 , 13 L.Ed.2d 934 (1965). Thus, it is a matter of right, not a privilege. State v. DeLawder, 28 Md.App. 212 , 344 A.2d 446 (1975).

It is “[t]he tool available to each side to test the believability of the testimony...”. State v. Cox, 298 Md. 173 , 468 A.2d 319 (1983). As such, cross-examination may be directed at generally attacking the credibility of witnesses or examining the presence or absence of bias or motivation for testifying. Davis v. Alaska, 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974), State v. Cox, supra, Johnson and Walters v. State, 30 Md.App. 512 , 352 A.2d 371 (1976).

The Supreme Court stated the rule in Davis v. Alaska, supra, 415 U.S. at 316 , 94 S.Ct. at 1110 when it said: The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing ⁶⁹⁶ possible biases, prejudices, or ulterior motives of the witness as they may relate directly to the issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is “always relevant as discrediting the witness and affecting the weight of his testimony”. 3A J. Wigmore Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.

Mere accusations of crime or misconduct generally may not be used to impeach a witness unless they are relevant to the credibility of that witness, Cox v. State, supra, or they tend to show that a prosecution witness is under pressure to testify favorably for the State. Johnson and Walters v. State, supra. No proffer need be made prior to making inquiry, for, although necessarily exploratory, it is presumptively proper: , Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. For that reason it is necessarily exploratory; and the rule that the examiner must indicate the purpose of his inquiry does not, in general apply...

It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which a jury cannot fairly appraise them. Alford v. U.S., 282 U.S. 687, 692 , 51 S.Ct. 218, 219 , 75 L.Ed. 624 (1931) (Citations omitted) The right of cross-examination is not unlimited. The allowance of questions on cross-examination and the determination of their relevance are normally reserved for the sound discretion of the trial judge and will not normally be disturbed absent an abuse of discretion.

State v. Cox, supra, Kruszewski v. Holz, 265 Md. 434 , 290 A.2d 534 ⁶⁹⁷ (1972), Fletcher v. State, 50 Md.App. 349 , 437 A.2d 901 (1981). Nevertheless, Where ... the trial judge, as trier of fact and of credibility, limits cross-examination of a witness so as to preclude a demonstration of bias, prejudice or other unworthy motivation on the part of the witness, he prevents the defense from presenting all of the facts, forestalls an adequate basis for assessment of credibility and erodes the purpose of cross-examination ... Deinhardt v. State, 29 Md.App. 391 [ 348 A.2d 286 ] (1975). This constitutes a basis for reversal.

Fletcher v. State, supra, Johnson and Walters v. State, supra. This is especially true when the witness is a “key witness”. 12 See, State v. Cox, supra. In the case sub judice, appellant was foreclosed from inquiry into whether Herron was under indictment in Florida and the extent to which, if at all, her expenses or housing were paid by the State in return for her testimony. Appellant advises us that the thrust of his questions was to elicit testimony from which it could have been concluded that Herron had reason, from either fear or favor, to testify favorably for the State.

The test of admissibility of evidence