Tshibangu Kazadi v. State of Maryland, No. 779, September Term 2017. Opinion by
Thieme, Raymond G., Jr., J. (Senior Judge, Specially Assigned).
DISCOVERY – MD. RULE 4-263(d)(6)(A) -- WITNESSES – MOTION TO
COMPEL PRODUCTION OF IMMIGRATION-RELATED INFORMATION
AND DOCUMENTS AS IMPEACHMENT EVIDENCE. The motion court did not
err or abuse its discretion in denying a defense motion to compel disclosure of
information and documents regarding the immigration status of a prosecution witness,
where there was no evidence of a “quid pro quo” or other agreement under which the
witness or her minor son obtained or expected an immigration benefit for identifying the
defendant as the person who shot the victim.
CROSS-EXAMINATION – WITNESSES – PROTECTIVE ORDER
PROHIBITING IMPEACHMENT BASED ON IMMIGRATION STATUS OF
PROSECUTION WITNESSES. The trial court did not err or abuse its discretion in
granting the State’s motion to preclude the defense from cross-examining prosecution
witnesses about their immigration status and a pending deportation order, where neither
witness was a suspect in the crime for which the defendant was on trial and there was no
promise or benefit extended by the State concerning immigration.
Circuit Court for Baltimore City
Case No. 116042016
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 779
September Term, 2017
______________________________________
TSHIBANGU KAZADI
v.
STATE OF MARYLAND
______________________________________
Graeff,
Beachley
Thieme, Raymond G., Jr.,
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Thieme, J.
______________________________________
Filed: February 4, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-02-04
15:25-05:00
Suzanne C. Johnson, Clerk
On the evening of August 18, 2015, in an alley behind the 200 block of North
Conkling Street in Baltimore, twenty-one-year-old Brandon Smith was fatally shot. The
State tried appellant Tshibangu Kazadi, a resident of that street, for Mr. Smith’s murder.
Critical to that prosecution was eyewitness testimony by two of appellant’s next-door
neighbors – a mother and her minor son, whose immigration statuses were the subject of
discovery and cross-examination rulings that are challenged in this appeal. After both
witnesses identified appellant as the killer, a jury in the Circuit Court for Baltimore City
convicted appellant of second degree murder and using a firearm in a crime of violence.
Appellant was sentenced for the murder to thirty years, with all but twenty-five years
suspended, consecutive to fifteen years for the weapon offense, the first five of that served
without parole, for a total executed time of forty years.
Appellant challenges his convictions on three grounds, which we have re-ordered
chronologically as follows:
1. Did the circuit court abuse its discretion in refusing to propound Mr.
Kazadi’s requested voir dire questions?
2. Did the circuit court abuse its discretion in denying defense counsel’s
motion to compel discovery and, thereafter, in refusing to allow defense
counsel to question the State’s two main witnesses regarding their
immigration issues?
3. Did the circuit court abuse its discretion in refusing to propound defense
counsel’s proposed jury instruction on eyewitness identification?
Concluding there was no error or abuse of discretion, we shall affirm appellant’s
convictions. In doing so, we address the limited circumstances in which a criminal
defendant is entitled to discovery and cross-examination regarding the immigration status
of prosecution witnesses.
FACTS AND LEGAL PROCEEDINGS
On August 18, 2015, fifteen-year-old M.L. and his mother S.L.H. had been living
in their family home at 208 North Conkling Street, next door to appellant, for more than
two years.1 That evening, S.L.H. asked M.L. to retrieve garbage cans from the alley behind
their house. While M.L. was doing so, Brandon Smith was shot three times.
Although M.L. saw appellant fire at the victim, and both he and S.L.H. saw appellant
running from the scene with a handgun, they did not tell police until months later. On
January 19, 2016, M.L. and his mother, “afraid of what could happen,” told police what
they witnessed. Both made photo identifications of appellant as the person who shot Mr.
Smith and ran from the scene.
Before trial, the parties litigated disputes over whether the State was required to
disclose information and documents pertaining to the immigration status of M.L. and
S.L.H. and whether defense counsel could cross-examine both witnesses about
immigration matters, including a deportation order that S.L.H. mentioned to police. (See
our discussion infra, in Part II.) As detailed in our discussion, the circuit court denied
appellant’s motion to compel discovery and foreclosed cross-examination regarding the
immigration status of both witnesses.
1
We shall refer to these witnesses by their initials, given their testimony against
appellant and the allegations regarding their immigration status.
2
At trial, M.L. testified that as he was on his back deck that August evening, he heard
a gunshot and looked into the alley. He saw appellant fire a handgun at the victim two or
three times. When his mother came to the back door, they both saw appellant run into the
back of his house, still carrying a gun in his hand.
S.L.H. recounted that while M.L. was out back collecting their trash cans, she heard
gunfire. Stepping out her back door, she saw her son running toward her, saying “that the
guy had killed someone.” S.L.H. saw appellant “running” and “hiding his weapon,” as he
fled into his basement with a handgun.
Outside, S.L.H. found a “kid” she did not know, who was “agonizing” with three
gunshot wounds. Her scream drew others. S.L.H. and M.L. told members of appellant’s
family what they had seen, but they did not tell police or other emergency responders,
because S.L.H. “was scared” after appellant’s family “realized that [they] had said that
[appellant] was the one that had killed him.”
S.L.H. and M.L. waited five months, until January 19, 2016, to disclose to police
what they saw. After the trial court foreclosed mention of their immigration status, S.L.H.
testified that she did not come forward earlier because she was scared of both “[appellant]
or his family” and “something else” that was “not connected to [appellant] or his family.”
Her disclosure to police occurred after she revealed information to her sons’ doctor,
who put her in contact with a social worker in the State’s Attorney’s Office. S.L.H. and
M.L. separately met with police, reported what they observed on the night of the shooting,
and identified appellant in photo arrays as the person who shot Brandon Smith.
We shall add pertinent facts in our discussion of the issues raised by appellant.
3
DISCUSSION
I. Voir Dire of Prospective Jurors
Appellant contends that the trial court abused its discretion in denying his request
for voir dire questions asking whether prospective jurors would comply with the reasonable
doubt standard, the presumption of innocence, and the right not to testify. We agree with
the State that the court correctly followed Court of Appeals precedent and did not abuse its
discretion in declining to ask about prospective jurors’ “willingness to follow points of law
covered in the court’s jury instructions.”
A. Trial Record
Defense counsel’s written request for voir dire questions included the following
queries:
17. The Court will instruct you that the State has the burden of proving the
Defendant guilty of the offenses charged beyond a reasonable doubt. Are
there any of you who would be unable to follow and apply the Court’s
instructions on reasonable doubt in this case?
18. Is there any member of the prospective jury panel who would hesitate to
render a verdict of not guilty if you had a hunch that the Defendant had
committed the alleged crime, but were not convinced of that fact beyond a
reasonable doubt?
19. The Court will instruct you that the Defendant is presumed to be innocent
of the offenses charged throughout the trial unless and until the Defendant is
proven guilty beyond a reasonable doubt. Is there any member of the jury
panel who would be unable to give the Defendant the benefit of the
presumption of innocence?
20. Under the law the Defendant has an absolute right to remain silent and to
refuse to testify. No adverse inference or inference of guilty may be drawn
from the refusal to testify. Does any prospective juror believe that the
Defendant has a duty or responsibility to testify or that the Defendant must
be guilty merely because the Defendant may refuse to testify?
4
The trial court declined to include these questions in its voir dire, ruling that the
legal principles addressed in them would be “covered adequately in the instruction portion
of the case” and by “other questions” that it planned to ask. Instead, the court used
questions taken from the pattern voir dire approved for criminal trials. See Maryland State
Bar Ass’n, Model Jury Selection Questions for Criminal Trials,
http://www.msba.org/uploadedFiles/MSBA/Member_Groups/Committees/Publications/C
riminal%20Voir%20Dire%20Model%20Questions%20(2).pdf [https://perma.cc/D5LY-
AZ6B] (last visited December 10, 2018).
B. Standards Governing Voir Dire of Prospective Jurors
“Voir dire is critical to assure that the Sixth Amendment to the United States
Constitution and Article 21 of the Maryland Declaration of Rights guarantees to a fair and
impartial jury will be honored.” Stewart v. State, 399 Md. 146, 158 (2007). Under
Maryland law, “the sole purpose of voir dire is to ensure a fair and impartial jury by
determining the existence of cause for disqualification, and not as in many other states, to
include the intelligent exercise of peremptory challenges.” Collins v. State, 452 Md. 614,
622 (2017) (citation and quotation marks omitted). Although trial courts have “significant
latitude in the process of conducting voir dire and the scope and form of questions
presented to the venire[,]” we are mindful that
[u]ndergirding the voir dire procedure and, hence, informing the trial court’s
exercise of discretion regarding the conduct of the voir dire, is a single,
primary, and overriding principle or purpose: to ascertain the existence of
cause for disqualification. [W]e do not require perfection in its exercise. The
trial court reaches the limits of its discretion only when the voir dire method
employed by the court fails to probe juror biases effectively.
5
Id. at 622-23 (citations and quotation marks omitted).
Appellate courts “review a judge’s conduct of voir dire for abuse of discretion and,
when a judge’s approach provides reasonable assurance that prejudice will be discovered,
the judge has acted within his or her discretion.” Id. at 628. The Court of Appeals has held
that, to accomplish that objective,
certain substantive elements [must] be incorporated. If relevant to the case
and requested by one of the parties, we have held that it is reversible error
for a trial court not to question the venire regarding racial, ethnic, cultural or
religious bias; whether more or less credence would be given to a police
officer simply because of that officer’s position; and whether the venire
harbors an unwillingness to convict a defendant of a capital crime. Yet, even
for these mandatory subjects of inquiry, generally, neither a specific form of
question nor procedure is required.
Id. at 624 (citations, quotation marks, and footnote omitted).
Long ago, in Twining v. State, 234 Md. 97, 100 (1964), the Court of Appeals decided
that a trial court does not abuse its discretion by refusing to ask whether prospective jurors
“would give the accused the benefit of the presumption of innocence and the burden of
proof.” The Twining Court stated that “[i]t is generally recognized that it is inappropriate
to instruct on the law at this stage of the case, or to question the jury as to whether or not
they would be disposed to follow or apply stated rules of law.” Id.
C. Appellant’s Challenge
Acknowledging that his voir dire challenge is foreclosed under Twining, appellant
tests that precedent, arguing that
[i]n the fifty-three years since Twining was decided, . . . two advances in the
law have made the opinion an artifact of its time: First, Twining is simply
inconsistent with subsequent Court of Appeals decisions that emphasize that
“it is the venire person’s state of mind, in particular, whether there is some
6
bias, prejudice, or preconception, that is the proper focus of voir dire.”
Accordingly, these decisions recognize a defendant’s right to a voir dire
question if the area of inquiry “entail[s] potential biases or predispositions
that prospective jurors may hold which, if present, would hinder their ability
to objectively resolve the matter before them.” [State v. Thomas, 369 Md.
202, 211-12 (2002)]. Second, the holding in Twining rests on the premise
that the court’s instructions to the jury on the law, including instructions on
the presumption of innocence and the burden of proof, are “only advisory.”
[Twining,] 234 Md. at 100. Since 1964, when Twining was decided, the
Court has made clear that jury instructions are not advisory only.
In support of the latter point, appellant cites Stevenson v. State, 289 Md. 167, 188
(1980), and Montgomery v. State, 292 Md. 84, 91 (1981), which hold “that instructions on
the presumption of innocence and burden of proof are ‘binding’ on the jury and are ‘not
advisory.’” See also Unger v. State, 427 Md. 383, 411 (2012) (“the Stevenson and
Montgomery opinions set forth a new interpretation of Article 23 and established a new
state constitutional standard”). Appellant maintains that, because the trial court must
excuse for cause “[p]rospective jurors who would be unable to apply the presumption of
innocence and proof beyond a reasonable doubt standards, and jurors who believe that a
defendant has a duty or responsibility to testify and that if he refuses to testify he must be
guilty,” the trial court’s “refusal to ask defense Questions 17 through 20” denied him “the
opportunity to discover and challenge such jurors for cause.”
We conclude that Twining is still controlling. Contrary to appellant’s contention,
the Court of Appeals has affirmed the continuing vitality of Twining in decisions issued
long after Montgomery and Stevenson. For example, twenty-five years after jury
instructions were declared binding in Montgomery, the Court, in State v. Logan, 394 Md.
7
378, 398-99 (2006) (some internal citations omitted), invoked Twining in holding that a
voir dire question proposed by the defense
was not a proper voir dire question because it asked prospective jurors
whether they would apply the rules of law as instructed by the trial court.
We agree that Question 7a amounts to a solicitation of whether prospective
jurors would follow the court’s instructions on the law. This practice is
generally disfavored in Maryland, and we find no abuse of discretion on this
point. See Twining v. State, 234 Md. 97, 100 (1964) (stating it is “generally
recognized that it is inappropriate . . . to question the jury as to whether or
not they would be disposed to follow or apply stated rules of law”).
Similarly, in Stewart v. State, 399 Md. 146, 162-63 (2007), the Court continued to follow
the policy and practice established in Twining, stating that, “[a]s we noted in Logan,
questions asking whether prospective jurors would follow the court’s instructions on the
law are disfavored in Maryland and a court does not abuse its discretion in refusing to ask
them.”
The Court of Appeals mandate on this question is clear. Consequently, any
challenge to such binding precedent must be pursued in that Court. We do not address the
out-of-state cases cited by appellant for the proposition “that a defendant has a right to voir
dire questioning aimed at identifying prospective jurors who are unable or unwilling to
apply the presumption of innocence.”2 Even if the Court of Appeals had not foreclosed
2
Compare Jones v. Florida, 378 So. 2d 797, 798 (Fla. Dist. Ct. App. 1979)
(“counsel must be permitted to inquire of prospective jurors concerning their willingness
and ability to accept the court’s charge in a criminal case concerning the presumption of
innocence, the state’s burden of proof in respect to each element of the offense charged,
and the defendant’s right not to testify, if the court has not first thoroughly examined the
prospective jurors on those subjects”); Illinois v. Zehr, 469 N.E.2d 1062, 1064 (Ill. 1984)
(trial court’s refusal to voir dire about the presumption of innocence, burden of proof, and
right not to testify “resulted in prejudicial error” because “[i]f a juror has a prejudice against
(continued)
8
consideration of such extra-jurisdictional decisions, they are inapposite to the extent those
jurisdictions do not share Maryland’s limitations on the scope of voir dire.
II. Immigration Issues
Appellant next argues that “the [trial] court abused its discretion in denying defense
counsel’s motion to compel discovery and, thereafter, in refusing to allow defense counsel
to question the State’s two main witnesses regarding their immigration issues.” In his view,
“[t]he court’s denial of the motion to compel discovery regarding the [witnesses’]
immigrations issues and deportation order and the foreclosure of cross-examination on
these issues combined to deprive [appellant] of his right to confrontation guaranteed by the
Sixth Amendment to the United States Constitution and Article 21 of the Maryland
Declaration of Rights.”
After reviewing the relevant record, we shall address the discovery and cross-
examination rulings in turn, explaining why neither warrants appellate relief.
any of these basic guarantees, an instruction given at the end of the trial will have little
curative effect”); New Hampshire v. Cere, 480 A.2d 195, 198 (N.H. 1984) (citing national
survey revealing that 50% of respondents believed that the accused was required to prove
his or her innocence as grounds for mandating voir dire about accepting and applying the
court’s instructions on the presumption of innocence and the State’s burden of proving
guilt beyond a reasonable doubt); New Jersey v. Lumumba, 601 A.2d 1178, 1188-89
(Super. Ct. App. Div. 1992) (court erred in refusing to ask during voir dire whether
prospective jurors understood presumption of innocence).
9
A. Relevant Record
Before trial, appellant moved to compel the State to disclose information regarding
the immigration status of S.L.H. In support, defense counsel proffered that in her statement
to police, S.L.H. said “that she was hesitant to come forward with information because she
was worried about an outstanding deportation order.” Defense counsel asked the court to
order the State to disclose information regarding S.L.H.’s immigration status, including her
Alien Number (“A Number”) and a copy of any deportation order, on the ground that
testifying in the criminal case would make S.L.H. and her minor son, M.L., “eligible for
relief from the deportation order.” In addition, counsel argued that both witnesses’ “efforts
to avoid compliance with the deportation order involved conduct that reflects upon a
character for untruthfulness ‘under [Md.] Rule 5-608.’”
The State opposed the motion, arguing that S.L.H.’s immigration status was “neither
relevant nor discoverable,” under Brady v. Maryland, 373 U.S. 83 (1963), and Md. Rule
4-263, which require disclosure of impeachment material, including “the witness’s prior
conduct that would show untruthful character pursuant to [Md.] Rule 5-608(b)” and “any
relationship between the State and the witness that may constitute an inducement to
cooperate or testify on behalf of the State.” The prosecutor maintained that no disclosure
was required because “the State has not represented to [S.L.H.] that she would receive
special treatment for her cooperation in this case.” Moreover, the prosecutor continued,
“defense counsel has proffered no evidence to show that [S.L.H.] is actively attempting to
evade her outstanding deportation order[,]” and “speculation should not serve as a basis for
a fishing expedition into the immigration status of a witness.” Accompanying its response,
10
the State proffered an executive order from the Mayor of Baltimore, “encourag[ing] any
and all residents of Baltimore to report crimes to law enforcement, regardless of race,
ethnicity, or immigration status.”
The State also moved in limine to restrict cross-examination of S.L.H. and M.L.,
citing case law that “[i]mmigration status alone does not reflect upon an individual’s
character and is thus not admissible for impeachment purposes.” Ayala v. Lee, 215 Md.
App. 457, 480 (2013). The State distinguished S.L.H. from the witnesses who were subject
to cross-examination in Carrero-Vasquez v. State, 210 Md. App. 504 (2013), and United
States v. Blanco, 392 F.3d 382 (9th Cir. 2004), on the ground that she “has no connection
to the crimes,” no special immigration status based on a relationship with the government,
and no other motive to testify falsely. Nor had she been “promised or induced . . . to
provide any information that she has already given, or which may be elicited during trial
testimony.”
In a memorandum opinion, the motion court denied appellant’s discovery request,
reasoning that
[u]nlike United States v. Blanco, where the witness at issue was a paid federal
informant who had been granted special immigration status based on his
cooperation with the government, [appellant] does not identify any specific
promise or inducement extended by the State to either witness in connection
with the witness’s immigration status. See Briggs v. Hedgpeth, 2013 WL
245190 at *6-10 (N.D. Cal. Jan. 22, 2013) (denying habeas relief based on
alleged Brady violation despite certain statements made to victim by police
that they could help him with immigration matter). [Appellant] apparently
simply wants to confirm the information stated by [S.L.H.], with some hope
that it might be developed into a credibility issue. The only case cited by
[appellant], Carrero-Vasquez v. State, did not involve any discovery issue.
Without a showing by [appellant] of some special relationship between the
witness and the State relating to immigration or some promise or inducement
11
or benefit extended by the State concerning immigration, [appellant] has
failed to show a basis to compel any further disclosure.
(Emphasis added; some citations omitted.)
The motion court reserved the ruling on the State’s motion in limine, for decision
by the trial court. At a suppression hearing conducted on the eve of trial, S.L.H. explained
that she waited to tell police that she saw appellant run from the alley with a gun in hand,
because she was afraid of appellant, who was living next door, and of “the weapons that
they had in there.” Outside the presence of the jury, S.L.H. explained that after disclosing
to appellant’s family members that she saw appellant at the murder scene, she believed
“[t]he life of [her] family was in danger.” Afterward, appellant and his friends “would be
in front of [her] house,” staying there whenever she opened the door. They warned that
she “should not be outside with [her] sons” because “something could happen.”
After she and M.L. identified appellant to police, the family received relocation
assistance, which included payment of rent. But S.L.H. did not receive or ask for any other
benefits. Nor did she expect any benefits for testifying.
The trial court accepted that testimony, pointing out that it had “not heard anything
from this family indicating to me that there is an immigration issue that would have been
a factor in them testifying.” The court also expressed “significant concern” about “how
this jury’s going to react[,]” pointing out that
there is some level of hostility in some circles in our society to people who
are perceived as being here illegally. Whether that is valid or not valid, I
don’t want to be in a situation where we prejudice a jury by raising an issue
which may not be germane to the case. Obviously if it is germane to the case,
if they’ve been promised to stay in the U.S. indefinitely . . . in exchange for
12
testimony[,] that obviously is a very valid factor and in which case the
prejudice is something that would not be outweighed.
When the court pressed defense counsel for any “indication . . . that there’s a quid
pro quo for immigration status[,]” defense counsel responded:
[DEFENSE COUNSEL]: Well, I would argue that one of the reasons she
decided to come forward was because she was informed apparently by the
social worker that the police wouldn’t enforce the deportation order. And I
think non-enforcement of a deportation order is a benefit.
[PROSECUTOR]: We’ve heard no testimony to that effect.
THE COURT: I haven’t heard any testimony to that. Who is the social
worker, by the way?
[DEFENSE COUNSEL]: It’s the one from the doctor.
THE COURT: Well, that’s not official conduct. . . .
Now, there is Evelyn, who I take it is a member of the [State’s Attorney’s]
staff . . . .
And so the question is, did the State’s Attorney’s Office provide her quid pro
quo. Now in federal court they have these . . . detailed contracts that . . . you
can put into the record and I don’t know that the State’s – I’ve never seen
one –
[PROSECUTOR]: No.
THE COURT: -- that the State’s Attorney’s Office has. And if she were
placed in a new house and the new house was . . . some mansion in Ruxton
or something, that’s one thing. I kind of suspect that’s not what she got. . . .
[U]nless you have something more concrete about her immigration status I
am really concerned about putting into the record possibly that this lady is an
illegal immigrant – an undocumented alien . . . or that her son is given the
fact that there is, as I say, among circles in our society a strong bias,
prejudice, in fact, . . . against people who are undocumented aliens. . . . [I]t’s
legitimate to pursue areas of legitimate inquiry on cross examination. . . . But
by the same token I don’t want to get into areas that I think are going to shed
more heat than light. This is one. So unless you can make a proffer to me,
let’s say tomorrow when she comes on to testify that you’ve got something
13
that would constitute . . . a quid pro quo on the immigration status[,] I’m
uncomfortable with letting that in.
The trial court also rejected defense counsel’s contention that failing to comply with
a deportation order was impeachable “evidence of deceit” because it was “analogous to the
way that the Court of Appeals has said drug dealers necessarily are surreptitious[.]” The
court explained that it did not “buy the notion that a family who comes to America to try
to make something of themselves and get their kids in school is equivalent to a drug dealer.”
Ruling that “we’re not going to do an immigration trial here in this court as part of this
criminal case[,]” the court explained that “this is one of those circumstances in which the
equities I think really militate against allowing that particular thing to become an issue in
the case.” Unless defense counsel could “come up with something that makes it more than
a speculation that there’s a quid pro quo,” presented “out of the hearing of the jury[,] . . . it
would be unfairly prejudicial to the witness.”
Defense counsel, attempting to keep the door open, pointed out that he had been
unable to conduct any search for evidence relating to S.L.H. because the prosecutor
“thwarted” his efforts to obtain the “immigration A number” by which all immigration
information must be accessed. When the court asked the prosecutor why, she responded:
[PROSECUTOR]: I don’t have the information, Your Honor, and obviously
Baltimore is a sanctuary city. . . . As a City employee I don’t think it’s my
job to inquire into her immigration status. I have never asked her what it is.
. . . Again, there’s been no relationship here between the State or any
government agency saying, if you come in and you testify then . . . we’re
going to make you a United States citizen. . . . These are just folks who had
the unfortunate luck of living next door to somebody . . . who killed someone.
14
The trial court granted the State’s motion in limine, subject to reconsideration if
defense counsel “discover[s] something that is relevant and that is concrete[.]”
The next day, after S.L.H. completed her direct examination, the prosecutor noted
that “no additional evidence has been presented . . . with regards to the immigration
issue[.]” Defense counsel disagreed, arguing “quite the opposite” based on S.L.H.’s
testimony that she did not come forward initially because she was afraid of appellant.
Counsel maintained her trial testimony was inconsistent with her recorded statement to
police that she was afraid to come forward because of the deportation order. Defense
counsel argued that this was an impeachable inconsistency regarding her “motivation for
not coming forward.”
The trial court denied defense counsel’s request to impeach S.L.H. with her
statement that she did not come forward earlier because she was afraid of being deported,
because that was not necessarily inconsistent with her testimony that she also was afraid of
appellant. In turn, because defense counsel still had not proffered any evidence that S.L.H.
received an immigration benefit in return for her testimony, and her immigration status was
not probative of credibility, the court restricted defense counsel to asking whether she had
given police an “inconsistent reason” for not coming forward.
On cross-examination, defense counsel asked S.L.H. about her statement to police:
[DEFENSE COUNSEL]: Now, the police, when you talked to them in
January, they asked you why you didn’t come forward initially.
[S.L.H.]: Because I was scared.
[DEFENSE COUNSEL]: Okay. And I’m going to ask you this question very
carefully. But at the time you didn’t tell the police that you were scared of
15
Mr. Kazadi or his family, you told them you were scared of something else,
correct?
[S.L.H.]: Yes.
[DEFENSE COUNSEL]: Okay. And that is something not connected to Mr.
Kazadi or his family?
[S.L.H]: Can you repeat the question please?
[DEFENSE COUNSEL]: Sure. The other thing that you’re scared of is not
connected to Mr. Kazadi or his family?
[S.L.H.]: I said – I said both. I said why I was worried.
When defense counsel refreshed her recollection with a transcript of her recorded
interview with police, S.L.H. responded: “I repeat again, I spoke about both. I was afraid
of his family and something else.”
After concluding his cross-examination of S.L.H., defense counsel proffered for the
record that he would have asked her about her immigration status, including questions
about the deportation order. Likewise, during M.L.’s cross-examination, defense counsel
proffered that, but for the prior ruling, he would have asked immigration-related questions.
The court reiterated that “the questions are ruled out as far as the immigration question.”
B. The Parties’ Contentions
Appellant contends that the “court abused its discretion in denying defense
counsel’s written motion to compel the State to produce [S.L.H.’s] Alien Number and a
copy of the deportation order[,]” because “[d]efense counsel had an obligation to
investigate the credibility of the two eyewitnesses who testified that Mr. Kazadi shot
another man in the alley behind their house.” In his view, he established “a good faith
16
basis to believe that the requested discovery materials would reveal information relevant
to the credibility of [S.L.H.] and her son.” Once S.L.H. “stated to police that she had an
outstanding deportation order[,]” appellant maintains, such “information was
discoverable” under Md. Rule 4-263, because “a number of courts have concluded that
unlawful entry into the United States, the commission of an immigration-related offense,
and false representations made in an effort to get into or remain in the United States reflect
on credibility.”3
Linking his disclosure and confrontation complaints, appellant also argues that the
court’s discovery ruling “placed [defense counsel] in an impossible situation[,]” because
3
Appellant cites a number of extra-jurisdictional cases as support for the proposition
that “evidence of unlawful entry . . . or the violation of immigration law, not just one’s
status as an illegal immigrant, is admissible as relevant to a witness’s truthfulness.” Yet
not all those decisions support that thesis, and most pertain to impeachment of the
defendant rather than a prosecution witness. Compare United States v. Almeida-Perez, 549
F.3d 1162, 1174 (8th Cir. 2008) (“the use of such evidence is fraught with the danger of
prejudice to a defendant by introducing the possibility of invidious discrimination on the
basis of alienage”); with United States v. Cardales, 168 F.3d 548, 557 (1st Cir. 1999)
(defendant’s “unlawful entry into Puerto Rico was relevant to show [his] character for
truthfulness, and was therefore admissible to impeach [him] on cross-examination”);
United States v. Cambindo Valencia, 609 F.2d 603, 634 (2nd Cir. 1979) (evidence of
defendant’s immigration violation was properly admitted as evidence bearing on his
credibility); Marquez v. Wyoming, 941 P.2d 22, 26 (Wyo. 1997) (trial court had discretion
to allow “testimony about [defendant’s] illegal alien status and his use of a false social
security number . . . for purposes of impeachment” because it “was probative of [his]
character for truthfulness”). Cf. Illinois v. Austin, 463 N.E.2d 444, 452 (Ill. App. Ct. 1984)
(recognizing that “an illegal alien, like a probationer, might be vulnerable to pressure, real
or imagined, from the authorities”); Arroyo v. Texas, 259 S.W.3d 831, 835 (Tex. Ct. App.
2008) (no evidence of cooperation of witness with law enforcement in exchange for
immigration assistance); New Mexico v. Huerta-Castro, 390 P.3d 185, 198-99 (N.M. Ct.
App. 2016) (application for U-Visa allowing mother to remain in country legally in return
for testimony against two accused of sexually assaulting her children was impeachment
evidence that showed possible motive for fabricating charges).
17
“[h]e was not able to discover the basis for the deportation order, which very well may
have been relevant to the witness’s credibility[,]” perhaps revealing “evidence of illegal
entry or use of falsehoods to enter or remain in the country.” According to appellant, “[t]he
trial judge exacerbated the problem by refusing to permit defense counsel to ask the
witnesses any questions whatsoever about their immigration issues, particularly the
deportation order and whether they expected any immigration benefit in return for
testifying for the State.”
The State counters that the circuit court properly exercised its discretion in limiting
both discovery and cross-examination, because
[t]he police statement that formed the basis for the defense’s motion to
compel establishes only that [S.L.H.] was in the United States illegally, and
that she, her two children, and her husband were the subject of a deportation
order. This information was not relevant to the witnesses’ credibility, and
should not, without more, serve as the basis for [a] State-assisted fishing
expedition into the immigration records of a witness.
After the State’s Attorney “presumably fulfilled” the State’s obligation to disclose
“prior criminal convictions, pending charges, or probationary status that may be used to
impeach the witness,” Md. Rule 4-263(d)(6)(C), the State contends that appellant “was not
entitled to more simply because the State’s witnesses were in the United States illegally.”
“[F]or similar reasons,” the State continues, the court appropriately limited cross-
examination on the ground that defense counsel’s “proposed inquiry into the witnesses’
immigration status lacked probative value” and “posed a substantial danger of unfairly
prejudicing the jury against the witnesses.”
18
C. Maryland Law
Maryland Rule 4-263(d)(6)(A), governing the State’s discovery obligations in a
criminal case, provides that, “[w]ithout the necessity of a request, the State’s Attorney shall
provide to the defense . . . [a]ll material or information in any form, whether or not
admissible, that tends to impeach a State’s witness, including . . . evidence of prior conduct
to show the character of the witness for untruthfulness pursuant to Rule 5-608(b)[.]”
“A criminal defendant’s right to confront witnesses is guaranteed by the Sixth
Amendment to the United States Constitution and Article 21 of the Maryland Declaration
of Rights.” Ashton v. State, 185 Md. App. 607, 621 (2009). See Pantazes v. State, 376
Md. 661, 680 (2003). “‘Central to that right is the opportunity to cross-examine
witnesses.’” Ashton, 185 Md. App. at 621 (quoting Pantazes, 376 Md. at 680). Yet a
defendant’s right to cross-examine is not limitless, as judges “have wide latitude to
establish reasonable limits on cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.” Pantazes, 376 Md. at 680. “Thus, the scope
of the cross-examination lies largely within the discretion of the trial judge.” Ashton, 185
Md. App. at 621. “An abuse of discretion occurs when the trial judge imposes limitations
on cross-examination that ‘inhibit . . . the ability of the defendant to receive a fair trial.’”
Gupta v. State, 227 Md. App. 718, 745 (2016) (quoting Pantazes, 376 Md. at 681-82),
aff’d, 452 Md. 103, cert. denied, 138 S. Ct. 201 (2017).
Implementing these constitutional guarantees, Md. Rule 5-616(a)(4) authorizes
impeachment “through questions asked of the witness, including questions that are directed
19
at . . . [p]roving that the witness is biased, prejudiced, interested in the outcome of the
proceeding, or has a motive to testify falsely[.]” Among the cross-examination tools
available to defendants is Md. Rule 5-608(b), authorizing impeachment based on a
witness’s prior conduct. That rule provides:
The court may permit any witness to be examined regarding the witness’s
own prior conduct that did not result in a conviction but that the court finds
probative of a character trait of untruthfulness. Upon objection, however,
the court may permit the inquiry only if the questioner, outside the hearing
of the jury, establishes a reasonable factual basis for asserting that the
conduct of the witness occurred. The conduct may not be proved by extrinsic
evidence.
There is no Maryland precedent addressing a criminal defendant’s right to discover
immigration-related information about prosecution witnesses. Yet two Maryland cases
provide some guidance on the right to cross-examine witnesses about immigration matters.
We review both as background for our discussion below.
In Ayala v. Lee, 215 Md. App. 457, 463-66, 480 (2013), the trial court did not err or
abuse its discretion in foreclosing cross-examination of the plaintiffs about immigration-
related information, including their illegal status, use of illegally acquired Social Security
numbers, and misrepresentation of their immigration status on employment documents.
Although this was a personal injury action rather than a criminal case, we observed in that
context that “[i]mmigration status alone does not reflect upon an individual’s character and
is thus not admissible for impeachment purposes.” Id. at 480 (citing Figeroa v. U.S. I.N.S.,
886 F.2d 76, 79 (4th Cir.1989) (“An individual’s status as an alien, legal or otherwise,
however does not entitle the [government] to brand him a liar.”); Galaviz-Zamora v. Brady
Farms, Inc., 230 F.R.D. 499, 502 (W.D. Mich. 2005) (finding no connection between
20
immigration status and witness credibility); Mischalski v. Ford Motor Co., 935 F. Supp.
203, 207-08 (E.D.N.Y.1996) (finding no support for “the conclusion that the status of being
an illegal alien impugns one’s credibility”)). Moreover, we recognized that “[i]mmigration
violations that involve false statements, such as false employment papers, are more likely
to be relevant, but are still subject to an intensive inquiry into the likelihood of prejudice[.]”
Id. at 481. For that reason, the “relevance of an immigration-related false statement,
standing on its own, is limited if the party against whom it is offered is not charged with
an immigration-related crime.” Id.
In Carrero-Vasquez v. State, 210 Md. App. 504, 516 (2013), a firearm possession
case, the defense sought to establish that a stolen gun found in a borrowed vehicle driven
by the defendant belonged to the owner of the vehicle. Because the vehicle owner admitted
that “she was both illegally in the United States and aware of the potential deportation
consequences if she were convicted of possessing the stolen handgun at issue[,]” this Court
concluded that the defense had established a sufficient foundation to justify cross-
examining the witness about the consequences of a firearm conviction on her immigration
status. Id. at 527. This Court held that the trial court erred in foreclosing impeachment
cross-examination, reasoning that the witness’s immigration status was not “merely a
collateral issue, likely to confuse and mislead the jury,” but rather “an obvious reason that
an important witness for the prosecution might have to testify falsely.” Id. at 508, 522. In
addition, we concluded that “evidence that [the witness] had a motive to testify falsely was
not outweighed at all, much less substantially so, by the danger of confusion to the jury or
unfair prejudice to the State.” Id. at 527 (citations and quotations marks omitted).
21
D. Analytical Framework
Neither Ayala nor Carrero-Vasquez addresses the questions presented here. Indeed,
neither case presents an immigration-related discovery issue, and both present
distinguishable confrontation questions. Because Ayala is a civil case, that decision does
not consider the rights of a criminal defendant to discovery and cross-examination.
Moreover, appellant concedes that although Carrero-Vasquez is a criminal case, it “is only
marginally helpful” because, unlike S.L.H., the prosecution witness in that case had an
immigration-related motive to falsely accuse the defendant, in order to protect herself from
being convicted on the weapon charge, then deported as a result of that conviction. In
contrast, as appellant admits, “there was no suggestion that [S.L.H.] or her son could have
been charged with any crime related to the shooting.”
Although neither Ayala nor Carrero-Vasquez controls our decision in this case, we
apply two important lessons from those decisions: (1) that the immigration status of a
witness generally does not impeach that witness’s credibility regarding a non-immigration
matter, and (2) that the disclosure of a witness’s immigration status may inject unfair
prejudice into the case. In our view, these cases teach that immigration-related information
about a prosecution witness should not be disclosed, whether to defense counsel in
discovery or to the jury during cross-examination, unless such information is sufficiently
probative of the witness’s credibility in the matter before the court, such as in the case of a
witness who receives an immigration-related benefit for testifying or a witness who avoids
an immigration-related detriment as a result of such testimony. Even in those
22
circumstances, a court may restrict discovery or cross-examination to avoid unfair
prejudice to the witness or the proceedings.
Both the motion court and the trial court concluded that the immigration status of
these key prosecution witnesses was not probative of their credibility concerning the
murder of Brandon Smith and that cross-examination regarding their immigration-related
matters would be unfairly prejudicial. For the reasons that follow, we find no legal error
or abuse of discretion in those rulings.
E. Discovery
The motion court found there was no evidence of a quid pro quo that called into
question the credibility of these witnesses regarding what they saw on August 18, 2015.
The record supports that determination.
As detailed in our review of the motion record, defense counsel maintained that
immigration information concerning S.L.H. and M.L. should be disclosed because those
witnesses may have belatedly identified appellant as Brandon Smith’s killer in order to
protect their family from deportation. The prosecutor counter-proffered that the State had
not given S.L.H. or M.L. any immigration-related benefit for identifying appellant or for
testifying against him. S.L.H. corroborated that proffer, testifying outside the presence of
the jury that the only benefit the family received was relocation assistance. Appellant was
permitted to cross-examine her about that assistance.
The State points out that if the prosecutor “had reason to believe that the witness[es]
ha[d] a criminal record,” she was obligated to disclose any “prior criminal convictions,
pending charges, or probationary status that may be used to impeach the witness[.]” See
23
Md. Rule 4-263(d)(6)(C). We agree that the fact that no such disclosure was made, either
before or at the hearing on appellant’s motion to compel, indicates that no such evidence
existed.
Similarly, appellant’s speculation that S.L.H.’s immigration file could have
contained evidence that she made false statements regarding her immigration status is not
persuasive. Even if her file contained such evidence, “the relevance of an immigration-
related false statement, standing on its own, is limited” when, as in this case, “the party
against whom it is offered is not charged with an immigration-related crime.” Ayala, 215
Md. App. at 481. See also United States v. Almeida-Perez, 549 F.3d 1162, 1174 (8th Cir.
2008) (“the relevance of an immigration violation to character for truthfulness is at the least
debatable and would depend on the facts of the particular violation since many immigration
violations do not involve a false statement”).
Absent any evidence of an immigration-related quid pro quo indicating a bias or
motive to testify falsely, defense counsel’s request for S.L.H.’s “A number” and the
deportation order amounted to a fishing expedition for information that would not be
admissible to impeach her. With nothing to link the deportation order or the witnesses’
immigration status, to either their identification of appellant as Mr. Smith’s killer or their
trial testimony, the motion court did not err or abuse its discretion in denying the defense
motion to compel disclosure of immigration material.
24
F. Cross-Examination
In reviewing the trial court’s subsequent decision to foreclose cross-examination of
both S.L.H. and M.L. about immigration matters, we shall consider analogous standards
governing restrictions on impeachment cross-examination regarding pending criminal
charges.
As with any question permitted by Rule 5-616(a)(4) suggesting that a
witness is biased or has a motive to testify falsely, there must be a factual
foundation for the question. The pending charges are not the impeachment
evidence; rather, they are part of the factual predicate for asking the permitted
question about bias or motive. But the existence of pending charges alone is
not a sufficient predicate for such a question. There must be some evidence—
either direct (e.g., an agreement with the prosecution to resolve charges in
return for testimony) or circumstantial (e.g., release of witness from custody,
dismissal of charges, a decision to forgo charges, postponement of
disposition of a violation of probation charge) that the witness has an
expectation of benefitting from the testimony with respect to the pending
charges. The factual predicate for the question becomes attenuated when the
charges are pending in another jurisdiction, particularly another state, or
arose after the witness had provided the prosecution with the same
information as contained in his testimony.
Even if there is a factual foundation to ask a witness about the
witness’s expectation of a benefit with respect to pending charges, a trial
court may limit such questioning if the probative value of such an inquiry is
substantially outweighed by the danger of undue prejudice or confusion.
Peterson v. State, 444 Md. 105, 135-36 (2015) (emphasis added; citations, quotation marks,
and footnotes omitted).
Other jurisdictions have applied substantially similar standards in limiting cross-
examination regarding immigration information. See, e.g., Connecticut v. Jordan, 44 A.3d
794, 815 (Conn. 2012) (“the fact of noncitizenship, standing alone, does not reasonably
suggest that a witness will lie. Rather, there must be some demonstrated link between a
25
witness’ immigration status and his or her propensity to testify falsely”); Arroyo v. Texas,
259 S.W.3d 831, 836 (Tex. Ct. App. 2008) (trial court did not abuse its discretion by
precluding cross-examination about immigration status in the absence of evidence that
witness received a benefit).
We find a recent decision by the Georgia Supreme Court in Lucas v. Georgia, 810
S.E.2d 490 (Ga. 2018), instructive here. In that case, a trial court foreclosed cross-
examination about the immigration status of A.L., a key prosecution witness. Rejecting
Confrontation Clause complaints comparable to those made by appellant, the appellate
court reasoned:
Before the trial court disallowed that line of cross-examination, it
permitted Lucas to examine A.L. outside the presence of the jury. In the
course of that examination, A.L. conceded that he was generally concerned
about the prospect of deportation. But without more, such a generalized
concern does not provide much reason to think that A.L. had cause to shade
his testimony in favor of the prosecution. In the first place, the State of
Georgia—the prosecution in this case—has no power to deport a person
unlawfully present in the United States. Deportation is a matter reserved to
the United States. Although we do not doubt that some aliens may not
appreciate the distinction between our federal and state governments, nothing
in the record suggests that A.L. misapprehended that the prosecuting
attorneys or investigating law enforcement officers with whom he dealt had
any power to have him deported or to otherwise affect his immigration status.
Indeed, about that subject, A.L. said: “I don't know if this has anything to do
with immigration or not.”
A.L. was asked whether he was concerned that, if he did not cooperate
with the prosecution, “they might call immigration,” and he said that he was
not. There is nothing to suggest that anyone associated with the prosecution
threatened or intimated anything to A.L. about deportation, that anyone
promised to help A.L. with his immigration status, or that A.L. had a
subjective belief that cooperating with the prosecution would somehow
benefit him with respect to his status. When A.L. was asked whether greater
cooperation with law enforcement made it less likely that they would contact
federal immigration authorities about him, he said: “Well, I don't know that.”
26
The notion that A.L. was influenced in any way with respect to his
testimony by his immigration status is simply speculative, and evidence of
his immigration status – if relevant at all to his bias and partiality – had very
little probative value. See Olds v. State, 299 Ga. 65, 75 [], 786 S.E.2d 633
(2016) (“[T]he greater the tendency to make the existence of a fact more or
less probable, the greater the probative value. And the extent to which
evidence tends to make the existence of a fact more or less probable depends
significantly on the quality of the evidence and the strength of its logical
connection to the fact for which it is offered.” (Citation omitted)). Such
evidence, on the other hand, could have impugned his character, and it
certainly carried the potential to prejudice jurors against him. See Sandoval
v. State, 264 Ga. 199, 200 [], 442 S.E.2d 746 (1994). See also OCGA § 24-
4-403 (“Relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . .”). Moreover,
the trial court did not prohibit Lucas from cross-examining A.L. generally
about bias or partiality towards the prosecution. Lucas was not prevented
from asking, for example, whether A.L. hoped to receive any benefit as a
result of his testimony. Only his immigration status was off-limits. See
Junior v. State, 282 Ga. 689, 691 []n.4, 653 S.E.2d 481 (2007) (even
assuming that victims’ immigration status created a bias analogous to a deal
with the State, the defendant was only prohibited from asking about their
immigration status; the prohibition “did not encompass any and all questions
concerning whether the victims received any benefit in exchange for their
testimony”). In these circumstances, the trial court was within its
considerable discretion to disallow cross-examination of A.L. about his
immigration status. See . . . Lemons v. State, 270 Ga. App. 743, 749 [], 608
S.E.2d 15 (2004) (defendant was not entitled to cross-examine victim
witnesses about their illegal immigration status where the record showed that
the State “made no promises or offers to assist the victims with their
immigration status and that the victims had not asked for any assistance in
exchange for their testimony”).
Id. at 494-95 (some citations omitted).
As in Lucas, the record here supports the trial court’s finding that there was no
expected or received benefit. From the initial written pleadings, to the pretrial suppression
hearing, to the trial, this record is devoid of any evidence that S.L.H. or M.L. received or
expected an immigration-related benefit as a result of either their identification of appellant
or their testimony against him. We set forth a detailed summary of those proceedings to
27
show that there was no such testimony or proffer. To the contrary, the prosecutor insisted
she had never discussed immigration status with S.L.H. At the suppression hearing before
trial, S.L.H. testified that the only benefit she received was relocation expenses, which were
not tied to the family’s immigration status. She maintained that she did not expect any
benefit for coming forward to identify appellant or testify against him. Her trial testimony
was consistent on that point.
Absent any link between the witnesses’ immigration status and their credibility, the
trial court did not abuse its discretion in foreclosing cross-examination of S.L.H. and M.L.
about immigration matters. Significantly, the court’s ruling only disallowed cross-
examination about immigration status, without preventing defense counsel from asking
whether S.L.H. hoped to receive any other benefit from her testimony, such as relocation
expenses. See id. Accordingly, appellant’s concern that S.L.H.’s testimony was influenced
by her immigration status was “simply speculative, and evidence of [her] immigration
status – if relevant at all to [her] bias and partiality – [would have] had very little probative
value.” See id.
As alternative grounds for affirming the trial court’s decision to restrict cross-
examination, we hold that the trial court did not abuse its discretion in ruling, pursuant to
Rule 5-403, that questioning S.L.H. and M.L. about their immigration status and/or the
deportation order would unfairly prejudice the jury “by introducing the possibility of
invidious discrimination on the basis of alienage.” See United States v. Almeida-Perez,
549 F.3d 1162, 1174 (8th Cir. 2008); cf. Salas v. Hi-Tech Erectors, 230 P.3d 583, 587
(Wash. 2010) (en banc) (probative value of evidence of worker’s status as undocumented
28
immigrant, “by itself, is substantially outweighed by the danger of unfair prejudice”). As
the trial court emphasized, such evidence had a significant potential both to prejudice jurors
against the prosecution witnesses and to confuse jurors by injecting unrelated immigration
issues involving mere bystanders into this murder trial against appellant. See Lucas, 810
S.E.2d at 494-95.
The “final balancing between probative value and unfair prejudice is something that
is entrusted to the wide discretion of the trial judge.” Newman v. State, 236 Md. App. 533,
556 (2018). In the circumstances presented here, the trial court was within its considerable
discretion to foreclose cross-examination of S.L.H. and M.L. about their immigration
status. See Lucas, 810 S.E.2d at 495.
III. Jury Instruction on Eyewitness Identification
In his final assignment of error, appellant contends that the trial court “abused its
discretion in refusing to propound defense counsel’s proposed jury instruction on
eyewitness identification.” The State counters that the court “properly exercised its
discretion by giving the Maryland pattern jury instruction on eyewitness identification
instead of a six-page instruction from New Jersey.” For the reasons explained below, we
agree that the court did not abuse its discretion in giving the Maryland pattern instruction
instead of the lengthy excerpt from the New Jersey pattern instruction.
A. Trial Record
The six-page instruction requested by defense counsel (and set forth in our
appendix) is taken from a ten-page pattern instruction approved for New Jersey courts.
Defense counsel argued to the trial court that this instruction was warranted because it
29
includes language not present in the Maryland pattern instruction, covering concerns about
“human memory,” cross-racial identification, and “weapon focus.” The trial court denied
appellant’s request, explaining
[T]his instruction, besides being extraordinar[il]y lengthy, takes as givens a
whole series of conclusions relating to cognitive science and the like which
I think frankly may very well be correct but it’s an evolving field and this is
. . . carving into stone, scientific conclusions which may or may not prove to
. . . be the case in relative to this particular case.
As an example, the cross-racial effect does exist. At least that’s pretty
much been documented in other research but I don’t think it’s a factor in this
case quite honestly because it was a next door neighbor. It wasn’t someone
that they had never seen before. It was somebody which there’s a high degree
of familiarity. So as an example, although there may be cases in which the
cross-racial effect would be an appropriate instruction, it’s not in the case
under the circumstances of this case. So I have considered that. . . .
And I think that this particular instruction strikes me as overkill. It
strikes me . . . that here was a gee whiz on the part of the court in New Jersey
that they fell in love with a new concept and went overboard in trying to
incorporate it within their processes. . . .
The Maryland Pattern Jury Instruction was a result of a great deal of
effort on the part of the committees and the Court of Appeals which adopted
[them]. It . . . is presumptively correct under Maryland law. I think it
represents a significant analysis of the facts and the understanding of the way
in which people see and perceive. It does cover the ground I think in a way
that is appropriate. . . .
So for all these reasons, . . . I’m not going to be using this instruction
which I think . . . is overkill and . . . may go beyond the science and is
something that would be confusing to the jury . . . .
I do think that the Maryland instruction, the Pattern Instruction, again,
besides being presumptively correct, reflected a lot of serious thought. I
think it accurately describes both the law in Maryland and also gives a good
description of factors[.]
30
The court instructed the jury consistently with Maryland Criminal Pattern Jury
Instruction 3:30 (MPJI-Cr 3:30), as follows:
Now the burden is on the State to prove beyond a reasonable doubt
that the offense was committed and that the defense – excuse me, and that
the defendant was the person who committed it.
You’ve heard evidence about the identification of the defendant as the
person who committed the crime. You are to consider the witness’s
opportunity to observe the criminal act and the person committing it,
including the length of time the witness had to observe the person committing
the crime, the witness’s state of mind, and other circumstances surrounding
the event.
You should also consider the witness’s certainty or lack of certainty,
the accuracy of any prior description, and the witness’s credibility or lack of
credibility as well as any other factors surrounding the identification. It is
for you to determine the reliability of any identification and give it the weight
you believe it deserves.
B. Standards Governing Jury Instructions on Witness Identification
Upon request, a trial court is required to “instruct the jury as to the applicable law
and the extent to which the instructions are binding.” Md. Rule 4-325(c). “The court need
not grant a requested instruction if the matter is fairly covered by instructions actually
given.” Id.
We review a decision not to give a requested jury instruction for abuse of discretion.
See Cost v. State, 417 Md. 360, 369 (2010). In doing so, we are mindful that “jury
instructions must be read together, and if, taken as a whole, they correctly state the law, are
not misleading, and cover adequately the issues raised by the evidence, the defendant has
not been prejudiced and reversal is inappropriate.” Fleming v. State, 373 Md. 426, 433
(2003). As this Court has advised
31
for the benefit of trial judges generally[,] . . . the wise course of action is to
give instructions in the form, where applicable, of our Maryland Pattern Jury
Instructions. Those instructions have been put together by a group of
distinguished judges and lawyers who almost amount to a “Who’s Who” of
the Maryland Bench and Bar. Many of these instructions have been passed
upon by our appellate courts.
Green v. State, 127 Md. App. 758, 771 (1999).
With respect to instructions about identification evidence specifically, the Court of
Appeals has held that
[w]hen uncorroborated eyewitness testimony is a critical element of the
State’s case and doubts have been raised about the reliability of that
testimony, a request for an eyewitness identification instruction should be
given careful consideration. Conversely, a request for an eyewitness
identification instruction may be rejected when there is corroboration of the
defendant’s participation in the crime, when the circumstances surrounding
the eyewitness identification do not give rise to any reasonable doubts as to
its accuracy, or when other instructions contain criteria or guidance that is
similar to the requested instruction.
Gunning v. State, 347 Md. 332, 354-55 (1997).
C. Appellant’s Challenge
Appellant contends that the trial court should have instructed the jury using the
language he excerpted from the New Jersey pattern instruction. In his view, the Maryland
pattern instruction is inadequate because it did not specifically address the phenomena of
“cross-racial identification, weapon focus and factors to consider in evaluating the
reliability of a photographic array.” We disagree.
The issue of whether to give an instruction regarding cross-racial identification has
been addressed in three reported Maryland cases, none of which has held that the trial court
abused its discretion in failing to give such an instruction. In Smith v. State, 158 Md. App.
32
673, 704 (2004), rev’d on other grounds sub nom. Smith and Mack v. State, 388 Md. 468
(2005), this Court held that a cross-racial identification instruction was not required
because the defendant presented no evidence suggesting that the witness “lacked
familiarity and contact with persons of [the defendant’s] race” or “that race played a part
in the identification.” Although the Court of Appeals reversed on the ground that the trial
court must allow, when relevant, defense closing argument regarding cross-racial
identification issues, it did not reach the issue of whether it was an abuse of discretion to
deny a cross-racial identification instruction in that instance. See Smith and Mack, 388
Md. at 478, 488-89.
Subsequently, in Janey v. State, 166 Md. App. 645, 666, cert. denied, 392 Md. 725
(2006), this Court held “that the trial judge did not abuse his discretion in refusing to give
the requested instruction on cross-racial identification[,]” while cautioning that our
decision “should not be interpreted as holding that it is never appropriate to give such an
instruction. Nor should the fact that no instruction on cross-racial identification appears
yet in the Maryland Criminal Pattern Jury Instructions serve as the basis for an arbitrary
refusal to consider granting such an instruction.” Id. After acknowledging the same New
Jersey pattern instruction that appellant contends should have been given here, we
concurred with the New Jersey Supreme Court that “an instruction on cross-racial
identification ‘should be given only when . . . [1] identification is a critical issue in the
case, and [2] an eyewitness’s cross-racial identification is not corroborated by other
evidence giving it independent reliability.’” Id. at 664 (quoting New Jersey v. Cromedy,
727 A.2d 457, 467 (N.J. 1999)).
33
Writing for this Court, Judge Meredith pointed out that, “[i]n contrast to the judge’s
duty to instruct the jury as to the applicable law, . . . there is generally no duty for a trial
court to give instructions that emphasize particular facts in evidence.” Id. at 654.
Moreover, there may be important reasons to refrain from doing so:
The underpinning of the Court’s ruling in Smith and Mack was that it is
reversible error for a trial court to prevent a defendant from attacking the
prosecution’s evidence during closing argument. That holding does not
support the conclusion that a trial court commits reversible error if it declines
to give the jury an instruction on cross-racial identification.
In this Court’s opinion in Smith, Judge [James] Eyler highlighted
some of the difficult questions that begin to surface when the courts consider
imposing a rule requiring instructions regarding factors to consider in witness
identification:
Should an eyewitness identification instruction always include
a laundry list of specific factors based on the perceived
common knowledge of men and women? When does such an
instruction constitute an improper comment on the evidence by
the court? More to the point here, if race is to be identified as
a factor, should the same be true for ethnicity and other
analogous factors? What is the rule for multi-racial persons?
How does one determine race? Is race self-proclaimed? What
is the rule for persons who marry persons of another race?
Id. at 663 (quoting Smith, 158 Md. App. at 702).
In Janey, a “foreign” witness identified an African American defendant as the
individual who requested assistance shortly after the crime. We held that it was not error
for the trial court to deny the defense request for a cross-racial identification instruction
because “(1) [the witness’s] identification of Janey was not a critical issue in the case, and
(2) in any event, [the witness’s] identification was corroborated by Janey’s childhood
friend, Jones, who placed Janey at [the witness’s] filling station.” Janey, 166 Md. App. at
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664. We concluded that the requested instruction was not necessary because it “would
have merely confirmed that [the witness’s] self-professed difficulty in recognizing African
American faces was consistent with ‘the experience of many.” Id. at 664-65. On this
record, we held that the New Jersey instruction “could have had no significant influence
on the outcome of deliberations.” Id. at 665.
In Tucker v. State, 407 Md. 368, 382 (2009), the issue was not whether to give any
cross-racial identification instruction, but to give the one used in that case. The Court of
Appeals held that it was error for the trial court to instruct the jury that “[t]here is no
particular reason to think that cross-racial identification applies to eyewitnesses in actual
criminal cases,” because that “was an inaccurate statement of the law[.]” Id. In doing so,
the Court indicated that it is inappropriate for the court to express either judicial
disapproval or approval of the underlying premise that identifications made by witnesses
who are not of the same race are unreliable. Id.
Applying lessons from these decisions to this evidentiary record, we are satisfied
that the trial court did not abuse its discretion in denying appellant’s request for a cross-
racial identification instruction. As the trial court recognized, this was not the prototypical
scenario contemplated in the New Jersey instruction, involving an uncorroborated
identification of the accused by a stranger with a different racial background. Although
S.L.H. and M.L. apparently are Hispanic, they both knew appellant, who is African
American, because they lived next door for two and a half years. Each witness separately
identified appellant in a photo array. Both expressed certainty that appellant was the person
who fired at the victim, fled with the gun, and ran into appellant’s home.
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In these circumstances, we cannot say that the trial court abused its discretion in
harboring concerns that a cross-racial identification instruction would prejudice or confuse
the jury, by suggesting that jurors should disregard or discount the identifications made by
S.L.H. and M.L., based solely on the difference in appellant’s race. As we recognized in
Janey, a court may reasonably exercise its discretion by considering whether such an
instruction will be misunderstood as a judicial directive that the cross-race effect is a
universal phenomenon at work in every identification involving a witness and suspect of a
different race or ethnicity.
Analogous concerns arise regarding the other components of the proposed
instruction, including the detailed language about “weapon focus” and photo arrays. As
discussed, there are cogent reasons to refrain from “imposing a rule requiring instructions
regarding [specific] factors to consider in witness identification[.]” Janey, 166 Md. App.
at 663. Based on this record, we are satisfied that the briefer Maryland analogs to the New
Jersey pattern instructions fairly covered those topics. Accordingly, the trial court did not
err or abuse its discretion in declining to give the lengthy instruction proposed by appellant,
and instead using the Maryland pattern instruction for witness identifications.
JUDGMENT AFFIRMED. COSTS TO BE
PAID BY APPELLANT.
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APPENDIX
Appellant’s requested instruction on cross-racial identification, taken from the New
Jersey pattern, is as follows:
(Defendant), as part of [his/her] general denial of guilt, contends that the
State has not presented sufficient reliable evidence to establish beyond a
reasonable doubt that [he/she] is the person who committed the alleged
offense. The burden of proving the identity of the person who committed the
crime is upon the State. For you to find this defendant guilty, the State must
prove beyond a reasonable doubt that this defendant is the person who
committed the crime. The defendant has neither the burden nor the duty to
show that the crime, if committed, was committed by someone else, or to
prove the identity of that other person. You must determine, therefore, not
only whether the State has proven each and every element of the offense
charged beyond a reasonable doubt, but also whether the State has proven
beyond a reasonable doubt that this defendant is the person who committed
it.
The State has presented the testimony of [insert name of witness who
identified defendant]. You will recall that this witness identified the
defendant in court as the person who committed [insert the offense(s)
charged]. The State also presented testimony that on a prior occasion before
this trial, this witness identified the defendant as the person who committed
this offense [these offenses]. According to the witness, [his/her]
identification of the defendant was based upon the observations and
perceptions that [he/she] made of the perpetrator at the time the offense was
being committed. It is your function to determine whether the witness's
identification of the defendant is reliable and believable, or whether it is
based on a mistake or for any reason is not worthy of belief. You must decide
whether it is sufficiently reliable evidence that this defendant is the person
who committed the offense[s] charged.
Eyewitness identification evidence must be scrutinized carefully. Human
beings have the ability to recognize other people from past experiences and
to identify them at a later time, but research has shown that there are risks of
making mistaken identifications. That research has focused on the nature of
memory and the factors that affect the reliability of eyewitness
identifications.
Human memory is not foolproof. Research has revealed that human memory
is not like a video recording that a witness need only replay to remember
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what happened. Memory is far more complex. The process of remembering
consists of three stages: acquisition -- the perception of the original event;
retention -- the period of time that passes between the event and the eventual
recollection of a piece of information; and retrieval -- the stage during which
a person recalls stored information. At each of these stages, memory can be
affected by a variety of factors.
Relying on some of the research that has been done, I will instruct you on
specific factors you should consider in this case in determining whether the
eyewitness identification evidence is reliable. In evaluating this
identification, you should consider the observations and perceptions on
which the identification was based, the witness’s ability to make those
observations and perceive events, and the circumstances under which the
identification was made. Although nothing may appear more convincing
than a witness’s categorical identification of a perpetrator, you must critically
analyze such testimony. Such identifications, even if made in good faith,
may be mistaken. Therefore, when analyzing such testimony, be advised that
a witness’s level of confidence, standing alone, may not be an indication of
the reliability of the identification.
If you determine that the out-of-court identification is not reliable, you may
still consider the witness’s in-court identification of the defendant if you find
that it resulted from the witness’s observations or perceptions of the
perpetrator during the commission of the offense, and that the identification
is reliable. If you find that the in-court identification is the product of an
impression gained at the out-of-court identification procedure, it should be
afforded no weight. The ultimate question of the reliability of both the in-
court and out-of-court identifications is for you to decide.
To decide whether the identification testimony is sufficiently reliable
evidence to conclude that this defendant is the person who committed the
offense[s] charged, you should evaluate the testimony of the witness in light
of the factors for considering credibility that I have already explained to you.
In addition, you should consider the following factors that are related to the
witness, the alleged perpetrator, and the criminal incident itself. In particular,
you should consider [choose appropriate factors from one through five
below]:
(1) The Witness’s Opportunity to View and Degree of Attention: In
evaluating the reliability of the identification, you should assess the witness’s
opportunity to view the person who committed the offense at the time of the
offense and the witness’s degree of attention to the perpetrator at the time of
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the offense. In making this assessment you should consider the following
[choose appropriate factors from (a) through (g) below]:
(a) Stress: Even under the best viewing conditions, high levels of stress can
reduce an eyewitness’s ability to recall and make an accurate identification.
Therefore, you should consider a witness’s level of stress and whether that
stress, if any, distracted the witness or made it harder for him or her to
identify the perpetrator.
(b) Duration: The amount of time an eyewitness has to observe an event
may affect the reliability of an identification. Although there is no minimum
time required to make an accurate identification, a brief or fleeting contact is
less likely to produce an accurate identification than a more prolonged
exposure to the perpetrator. In addition, time estimates given by witnesses
may not always be accurate because witnesses tend to think events lasted
longer than they actually did.
(c) Weapon Focus: You should consider whether the witness saw a weapon
during the incident and the duration of the crime. The presence of a weapon
can distract the witness and take the witness’s attention away from the
perpetrator’s face. As a result, the presence of a visible weapon may reduce
the reliability of a subsequent identification if the crime is of short duration.
In considering this factor, you should take into account the duration of the
crime because the longer the event, the more time the witness may have to
adapt to the presence of the weapon and focus on other details.
(d) Distance: A person is easier to identify when close by. The greater the
distance between an eyewitness and a perpetrator, the higher the risk of a
mistaken identification. In addition, a witness’s estimate of how far he or
she was from the perpetrator may not always be accurate because people tend
to have difficulty estimating distances.
(e) Lighting: Inadequate lighting can reduce the reliability of an
identification. You should consider the lighting conditions present at the
time of the alleged crime in this case.
***
(2) Prior Description of Perpetrator: Another factor for your
consideration is the accuracy of any description the witness gave after
observing the incident and before identifying the perpetrator. Facts that may
be relevant to this factor include whether the prior description matched the
photo or person picked out later, whether the prior description provided
details or was just general in nature, and whether the witness’s testimony at
39
trial was consistent with, or different from, his/her prior description of the
perpetrator. [Charge if appropriate: You may also consider whether the
witness did not identify the defendant at a prior identification procedure or
chose a different suspect or filler.]
(3) Confidence and Accuracy: You heard testimony that (insert name of
witness) made a statement at the time he/she identified the defendant from a
photo array/line-up concerning his/her level of certainty that the
person/photograph he/she selected is in fact the person who committed the
crime. As I explained earlier, a witness’s level of confidence, standing alone,
may not be an indication of the reliability of the identification. Although
some research has found that highly confident witnesses are more likely to
make accurate identifications, eyewitness confidence is generally an
unreliable indicator of accuracy.
(4) Time Elapsed: Memories fade with time. As a result, delays between
the commission of a crime and the time an identification is made can affect
the reliability of the identification. In other words, the more time that passes,
the greater the possibility that a witness’s memory of a perpetrator will
weaken.
(5) Cross-Racial Effects: Research has shown that people may have greater
difficulty in accurately identifying members of a different race. You should
consider whether the fact that the witness and the defendant are not of the
same race may have influenced the accuracy of the witness’s identification.
[The jury should also be charged on any other relevant factors in the case.]
In evaluating the reliability of a witness’s identification, you should also
consider the circumstances under which any out-of-court identification was
made, and whether it was the result of a suggestive procedure. In that regard,
you may consider everything that was done or said by law enforcement to
the witness during the identification process. You should consider the
following factors: [Charge if appropriate]:
(1) Lineup Composition: A suspect should not stand out from other
members of the lineup. The reason is simple: an array of look-alikes forces
witnesses to examine their memory. In addition, a biased lineup may inflate
a witness’s confidence in the identification because the selection process
seemed so easy to the witness. It is, of course, for you to determine whether
the composition of the lineup had any effect on the reliability of the
identification.
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(2) Fillers: Lineups should include a number of possible choices for the
witness, commonly referred to as “fillers.” The greater the number of
choices, the more likely the procedure will serve as a reliable test of the
witness’s memory. A minimum of six persons or photos should be included
in the lineup.
(3) Multiple Viewings: When a witness views the same person in more than
one identification procedure, it can be difficult to know whether a later
identification comes from the witness’s memory of the actual, original event
or of an earlier identification procedure. As a result, if a witness views an
innocent suspect in multiple identification procedures, the risk of mistaken
identification is increased. You may consider whether the witness viewed
the suspect multiple times during the identification process and, if so,
whether that affected the reliability of the identification.
(Motion to Correct the Record, filed October 19, 2017) (footnotes omitted).
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