Petitioner, a former Baltimore City police officer, appeals from his conviction for theft under the value of $300 and misconduct in office. He complains that the trial court abused its discretion in refusing to permit his attorney to cross-examine the complaining witness as to whether he had
Dorian Martin, petitioner, was indicted by the Grand Jury for Baltimore City for the offenses of robbery, theft and misconduct in office. A jury acquitted him of the robbery, but convicted him of theft under the value of $300 and misconduct in office.
Petitioner is a former police officer in Baltimore City. Felix Guevera was the complaining witness in the case. The incident that led to the criminal charges occurred while petitioner was an on-duty police officer. Petitioner's version of the incident differs markedly from Guevera's version.
At trial, Felix Guevera testified that on the evening of December 28, 1998, while he was walking home from work at about 8:30 p.m., he was approached on a residential street corner by petitioner, who was dressed in full police uniform. Upon request for identification, he handed petitioner his wallet. Petitioner then searched his pockets, finding $300 in U.S. currency in Guevera's front pocket. Petitioner took the $300, including a $100 bill, and placed it into his own pocket, then got into his police van and drove away. Through a friend, Guevera reported the incident to the police later that evening.
At the end of his shift, petitioner was detained at the police station and questioned about the incident by his superiors. The officers told him of Guevera's accusations against him, and he denied all involvement in the incident. In response to the officers' questions as to whether he had any money on him, he removed $347 from his pocket, including a $100 bill. He said that the money belonged to him and was to be used to pay for day care for his child. Petitioner denied Guevera's allegations, claiming that the money was his own. District commander Major George Klein testified that he informed petitioner of his mandatory suspension, advised him of his rights under the Law Enforcement Officers' Bill of Rights (LEOBR), and contacted counsel for him. Petitioner spoke to an attorney and resigned from the police force immediately following the conclusion of the phone conversation. The State placed his signed resignation form into evidence over defense objection.
Petitioner testified on his own behalf at trial. He stated that he was driving the police van that night when he saw several males standing on the corner, near a bar. He rolled down the window and told the men "we will have to clear this corner." He noticed that several men walked away, but that Guevera did not leave. Martin then got out of the police van and approached Guevera. He told Guevera that he had to leave the area; at that time, Guevera "pulled out a wad of money and put it in my face, waved it in my face, and in broken English said, `I can buy and sell you.'" Martin testified that he felt "disrespected" and acting "out of poor judgment," he took the money out of Guevera's hand. Martin then received a radio call for a "wagon run," and he left the area. He testified that, as he pulled away, he said to himself, "Oh shit, I got this guy's money." He returned to the area in an attempt to find Guevera, but he was unsuccessful.
Petitioner also testified that, when questioned by his superiors, he denied Guevera's allegations because of his fear that "when a black policeman is in a situation" similar to his, he "would not be given a fair
Petitioner was convicted of theft under $300 and misconduct in office. He was sentenced to two concurrent terms of eighteen months imprisonment, all but six months of which were suspended, with one year supervised probation.
Petitioner noted a timely appeal to the Court of Special Appeals, which affirmed the judgments of conviction in an unreported opinion. This Court issued a writ of certiorari. See Martin v. State, 362 Md. 359, 765 A.2d 142 (2001).
Petitioner argues that the trial court abused its discretion in prohibiting cross-examination regarding Guevera's intent to file a civil lawsuit against the city, thereby preventing the defense from exposing to the jury facts from which it might assess the witness's credibility and to show the jury that the witness was biased and had a motive to fabricate. The State argues that no lawsuit had been filed and that mere contemplation of a civil action is not relevant to the witness's credibility.
The Sixth Amendment to the United States Constitution
At trial, defense counsel asked Guevera, the sole witness to the incident, whether he had hired a lawyer to sue Baltimore City. The State objected to the
The general rule is that evidence of a pending lawsuit by a witness in a criminal prosecution against the accused,
The State argues that because the lawsuit in this case was at best only a contemplated action, the trial court did not abuse its discretion in refusing to permit defense counsel to question the prosecuting witness about whether he intended to file a lawsuit. While we have not previously commented on whether contemplated civil lawsuits are relevant in examining witness bias, the majority view in this country is that questions on cross-examination to a witness regarding a contemplated civil action should be permitted. See State v. Arlington, 265 Mont. 127, 875 P.2d 307, 316 (1994) (adopting majority view that cross-examination as to contemplated civil lawsuits against the defendant is allowed on cross-examination). We find no meaningful distinction between contemplated and commenced lawsuits for cross-examination purposes. See Wooten, 464 So.2d at 642 (stating that, although litigation was merely contemplated, it is a distinction without a difference); People v. Richmond, 35 Mich.App. 115, 192 N.W.2d 372, 375 (1971) (stating that, "[e]ven in the absence of precedents dealing with contemplated suits, the rationale is the same as commenced suits").
Just as the formal commencement of a civil lawsuit may establish witness bias, action taken in contemplation of the commencement of a civil lawsuit against a criminal defendant by a prosecuting witness
In State v. Doughty, 399 A.2d 1319 (Me. 1979), the Supreme Court of Maine observed that the rule that the pendency of a civil action filed by a witness in a criminal case against the accused includes the case "where no civil action has been commenced, but such a suit is or may be contemplated, as in the case of consultation with, or hiring of, an attorney." Id. at 1323. The court explained:
Id. at 1324 (emphasis added). This proposition finds wide support among other jurisdictions. See, e.g., Villaroman, 184 F.2d at 261-62; People v. Morton, 213 Mich.App. 331, 539 N.W.2d 771, 773 (1995); Arlington, 875 P.2d at 315-16; State v. McFarlane, 279 S.C. 327, 306 S.E.2d 611, 613 (1983); Ferguson Seed Farms v. McMillan, 18 S.W.2d 595, 598-99 (Tex. Comm'n App.1929, holding approved).
The State contends that any error is harmless. While conceding that Guevera's testimony was important to the prosecution's case, the State argues that the testimony was "almost entirely undisputed" and, moreover, corroborated by the admissions of petitioner. The State further argues that defense counsel was permitted to cross-examine the witness at length and that the case against petitioner was strong overall.
To find that the error was harmless, we must be "`satisfied that there is no reasonable possibility that the evidence complained of—whether erroneously admitted or excluded—may have contributed to the rendition of the guilty verdict.'" Smallwood v. State, 320 Md. 300, 308, 577 A.2d 356, 360 (1990) (quoting Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976)). We are not persuaded beyond a reasonable doubt that the jury would have reached the same verdict had the defense been permitted to undermine the credibility of the witness, Guevara.
The jury had to decide whether to accept petitioner's version of the events or Guevera's version. Thus, credibility was a central issue in the case. Since Guevera's retaining a lawyer to bring a civil lawsuit was relevant to his credibility, it was error to preclude defense counsel from cross-examining him about it. Guevera testified that petitioner simply took $300 from the Guevera's pocket, placed it in his own pocket, and left. Petitioner's version of events, however, is that Guevera taunted him verbally and waved the money in his face, that he then took the money from Guevera's hand in anger, and that he forgot momentarily that he had the money when he responded to a call to duty. These versions of the incident differ significantly, and the jury's assessment of who was telling the truth was critical. Petitioner was denied the opportunity to establish the bias or pecuniary interest of the witness. Thus, the complete denial to petitioner of an opportunity to impeach the witness's credibility was not harmless error.
Petitioner raised a second allegation of error in his certiorari petition. He argues that the trial court erred in permitting the State to introduce evidence that when petitioner was accused of robbery, he consulted with an attorney and, immediately following consultation with counsel, he resigned from the police force. We will address his contention for the guidance of the trial court in the event of a retrial.
Prior to trial, defense counsel moved in limine to exclude evidence that petitioner consulted with an attorney and, following his consultation, he resigned from the police department. The trial court excluded evidence that petitioner consulted with counsel, but reserved ruling as to the admissibility of petitioner's resignation. The court cautioned defense counsel that if he "opened the door" to the counsel evidence, the State could properly respond to it.
During direct examination of Major Klein, the State sought to introduce evidence that petitioner had resigned from the police force immediately following his consultation with counsel. Defense counsel objected. The State requested that the
The court based its ruling on two grounds. First, the court ruled that because the primary dispute in the case was petitioner's state of mind at the time of the event, and particularly whether petitioner had intended to deprive Guevera of the money permanently, petitioner's conduct in response to the allegation was relevant and, on balance, it was more probative of his state of mind than prejudicial. The trial court stated:
Second, the trial court found that, in light of the defense's opening statement— in which defense counsel told the jury of petitioner's life-long desire to become a police officer, and that the police department was using petitioner as a "sacrificial lamb" for the Hispanic community and that the department "abandoned" him— evidence of his resignation from the police force within minutes of his consultation with defense counsel was relevant for the purposes of rebuttal. The trial court stated:
Petitioner contends that evidence of his consultation with an attorney and subsequent resignation from the police department was not relevant and, thus, erroneously admitted by the trial court. Petitioner argues that neither event was probative of his state of mind and that reference to consultation with an attorney was prejudicial and violated his constitutionally protected right to counsel. The State argues that evidence of petitioner's resignation was probative of his
Determination of relevancy ordinarily is left to the sound discretion of the trial court, but may be reversed upon clear showing of an abuse of discretion. See Dupree v. State, 352 Md. 314, 324, 722 A.2d 52, 56 (1998); Merzbacher, 346 Md. at 404-05, 697 A.2d at 439. Relevant evidence is evidence that tends to be probative of a fact at issue in the case. See Maryland Rule 5-401; see also Snyder v. State, 361 Md. 580, 591, 762 A.2d 125, 131 (2000). Evidence that is relevant generally is admissible. See Maryland Rule 5-402. Relevant evidence may, however, be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Maryland Rule 5-403; see also Snyder, 361 Md. at 592-93, 762 A.2d at 132; Merzbacher, 346 Md. at 405, 697 A.2d at 439.
Evidence of a defendant's behavior after commission of a crime may be relevant and admissible as tending to show the defendant's consciousness of guilt. See Snyder, 361 Md. at 593, 762 A.2d at 132. We cannot agree with petitioner that the timing of his resignation, following so closely after learning of the allegations against him, lacks any tendency to support such an inference of guilt. Nor is it clear that the probative value of his resignation, standing alone, is substantially outweighed by the danger of unfair prejudice. We find no clear abuse of discretion in the trial court's ruling that petitioner's resignation met the threshold relevancy for admissibility and proper consideration by the jury.
In general, evidence of consultation with an attorney is not probative of a defendant's guilt. We find the analysis presented by then Chief Judge Wilner in Hunter v. State, 82 Md.App. 679, 573 A.2d 85 (1990), to be instructive:
Id. at 691, 573 A.2d at 91; see also Bruno v. Rushen, 721 F.2d 1193, 1194 (9th Cir. 1983); Henderson v. United States, 632 A.2d 419, 432-33 (D.C.1993); Commonwealth v. Person, 400 Mass. 136, 508 N.E.2d 88, 91 (1987).
In the case sub judice, the State sought to draw an inference of guilt from petitioner's consultation with an attorney.
Petitioner's consultation with an attorney was admitted into evidence as a rebuttal to defense counsel's opening remarks.
The doctrine of curative admissibility permits otherwise irrelevant evidence to be admitted in response to an adverse ruling or action. See Clark v. State, 332 Md. 77, 85, 629 A.2d 1239, 1242-43 (1993). While comments made in opening statements are not evidence under the principle enunciated in Clark, the "general principles involved in allowing a party to `meet fire with fire' are applicable." Terry v. State, 332 Md. 329, 337, 631 A.2d 424, 428 (1993). This doctrine of expanded relevance has its limits, however, as the "remedy must be proportionate to the malady." Terry, 332 Md. at 338, 631 A.2d at 428.
The State's use of petitioner's consultation with an attorney to rebut defense counsel's "abandonment" assertion was not a proportionate response. Evidence of a criminal defendant's consultation with an attorney is highly prejudicial, as it is likely to give rise to the improper inference that a defendant in a criminal case is, or at least believes himself to be, guilty. Cf. United States v. McDonald, 620 F.2d 559, 564 (5th Cir.1980); United States ex rel. Macon v. Yeager, 476 F.2d 613, 616-17 (3d Cir.1973); Henderson, 632 A.2d at 433-34. Moreover, the State's deliberate use of such evidence to support its consciousness of guilt theory renders the evidence particularly prejudicial. See Henderson, 632 A.2d at 434; cf. Zemina v. Solem, 438 F.Supp. 455, 466 (D.S.D.1977), aff'd., 573 F.2d 1027 (8th Cir.1978) (stating that "[t]he prosecution should not be allowed to imply that only guilty people contact their attorneys"). Evidence that Major Klein had followed standard procedures and had advised petitioner of his rights under the LEOBR was sufficient to counter defense
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.