Archer v. State

HARRELL, Judge, dissenting.

Petitioner, Anthony Rodney Archer, was convicted of felony murder, attempted first degree murder, and two counts of the use of a handgun in a crime of violence. We granted certiorari to determine whether Archer should receive a new trial because the trial judge erred when he threatened a reluctant State’s witness, Lewis Bailey, with possible contempt and imprisonment, and advised the witness that he, contrary to his prior testimony in a co-defendant’s trial and before the Grand Jury that indicted Petitioner, could testify in favor of the Petitioner, thus permitting the State to introduce any earlier inconsistent statements as substantive evidence of Archer’s culpability. The Majority and Concurring opinions here hold that Archer’s due process rights were offended by one or more aspects of the trial judge’s injudicious and excessive comments. Though I agree there was error, the error was harmless on this record. Thus, I respectfully dissent. I would affirm the judgment of the Court of Special Appeals.

What About the Other Evidence?

The testimony of Lewis Bailey, the reluctant witness, was not the only inculpatory evidence presented to the jury at Archer’s trial. The State also presented eyewitness testimony from the two surviving victims of the robbery-homicide, Rudolph Lyons and William Faulkner. Lyons was adamant in his identification of Archer as the man with whom he first struggled, and who subsequently shot him in the eye as he lay on the sidewalk:

[Prosecutor:] Now, the person that you said approached you and put the gun in your stomach and tussled with you, that’s the same person that stood over you and shot you in the face?
*365[Lyons:] Yes.
[Prosecutor:] Is that person in the courtroom today?
[Lyons:] Yes.
[Prosecutor:] Where is that person seated?
[Lyons:] Right there. That’s the person that shot me in my eye and tried to kill me. He thought he killed me but he didn’t. You just took my eye. That’s all you did. And you scarred me for life.
[Prosecutor:] Indicating the defendant for the record.
* * >'fi
[Prosecutor:] How many times did you actually see his face? [Lyons:] When he got up on me and he — when he put the gun in my stomach, I’m looking him right in his eyes. And he grabbed for my chain. That had to take a few seconds. I got the gun away from him and when we got to tussling, I’m still looking at him. And then when I get shot in my shoulder and I fall and turned around, this is the same person standing over the top of me looking me dead in my eye and pulled the trigger.

The apparent certainty of Lyons’ identification was unshaken during cross-examination.

The second victim, William Faulkner, also testified that he recognized Archer as one of the three men involved in the robbery-homicide. Although Faulkner saw Archer’s face only after he ran across the street once the shooting began, he positively identified Archer at trial. Additionally, two years prior to Archer’s trial on 9 December 1999, both Lyons and Faulkner independently picked out Archer in a live police lineup.

What to Make of the Evidence Adduced Through Bailey?

A.

I agree that the trial judge in Archer’s case, Judge Prevas, made unduly heavy-handed comments to Bailey and his lawyer in an effort to induce Bailey to testify at Archer’s trial, as Bailey had promised to do in his earlier plea agreement with *366the State. Petitioner contends, and the Majority accepts, that, but for Judge Prevas’s comments during Archer’s trial, Bailey would have stood firm on his refusal to testify and, therefore, the jury would not have heard Bailey’s live testimony, nor excerpts from his videotaped testimony from the co-defendant’s trial on 30 August 1999.

I am not convinced, on this record, that Judge Prevas’s comments at Archer’s trial necessarily were the clear, procuring cause of Bailey’s decision to testify.1 Although inappropriate in context, the judge’s threat of life imprisonment for contempt was moderated more than Petitioner would have us believe.2 More importantly, even after these dire admonitions, Bailey nonetheless refused to testify, choosing instead to take his chances in a contempt trial before Judge Themelis.

There is no credible record of what transpired before Judge Themelis. It is a fact, however, that only after appearing before him did Bailey agree to testify in Archer’s trial. When asked directly during Archer’s trial what occurred in Judge Themelis’s courtroom, Bailey testified, “The only thing I heard him say was that if I don’t testify, it will be 20 years. I don’t know if I would get the 20 years but if the jury found me guilty.” (emphasis added). Bailey’s ultimate decision to testify, therefore, was not based necessarily on the prospect of a summary conviction for contempt with a punishment of life imprisonment as supposedly theorized by Judge Prevas, but *367more likely because he perceived a risk of imprisonment of perhaps up to twenty years from Judge Themelis if he were found guilty of contempt by a jury. For all we know on this record, whatever Judge Themelis said to Bailey could have conformed to the ideals urged by the Majority (see Maj. op. at 356-58).

Petitioner further contends that Bailey’s testimony also was procured by Judge Prevas effectively granting Bailey a “license to commit perjury.” I am not convinced that the inappropriate suggestion to Bailey that he may choose to testify more favorably (or at least “friendlier”) to Archer than in his prior testimony was a determinative factor in Bailey’s election to testify. Bailey’s stated reason for his reluctance to testify stemmed from a jailhouse assault upon him, which he attributed to retribution for his earlier testimony at the co-defendant’s trial and inferentially as a warning regarding further testimony about the crimes. Yet, at Archer’s trial, Bailey, supposedly freed by Judge Prevas of any fear of a perjury charge, nonetheless provided substantial and relevant inculpating testimony against Archer, stating that Archer joined in the conspiracy to commit robbery; that he armed himself for that purpose; and, that he participated in the attempted robbery and shooting. These elements of his testimony at Archer’s trial were consistent with his earlier testimony at Edmonds’s trial.

Let us consider for a moment the asserted “inconsistencies” between Bailey’s testimony at the co-defendant’s prior trial and that given at Archer’s trial. First, at the prior trial, when asked by the State how he and the co-defendants reached the decision to commit robbery, Bailey testified, “[Archer] seen some nice chains that he wanted so he told us, we got to go out the way to get some guns to come back down here and get some chains.... ” But at Archer’s trial, when asked whose idea it was to commit the robbery, Bailey testified, “It was Keith [Edmonds] out there.” When confronted by the State about this inconsistency, Bailey testified, “We all said that [we should commit robbery], so that ain’t nothing.” The second “inconsistency” was premised on, at the prior trial, Bailey *368testified that Archer approached Lyons at the start of the robbery. At Archer’s trial, however, Bailey testified that he didn’t see whom Archer approached: “I wasn’t paying nobody no mind. I wasn’t paying [Archer] no mind.” When confronted about the vagueness of this testimony, Bailey said of his prior testimony, “I guess that’s who we had. I didn’t know who had who for real.” When pressed further by the State, Bailey testified, “It was that [the events were fresher in his mind at the prior trial]. But not really though. Because I forget things. You understand, I was going to ... a slow education school.” The final “inconsistency” in Bailey’s testimony was whether he observed, after the robbery-homicide, Edmonds hand his gun to Archer. At the prior trial, Bailey admitted to seeing the transfer; but at Archer’s trial, when asked if observed the transfer of the gun, Bailey testified, “... I ain’t see [sic] that. Give the gun? I don’t recall.” These so-called inconsistencies do not amount to perjurious testimony given under the implied immunity that Petitioner asserts Judge Prevas effectively extended. To the contrary, it is just as likely that Bailey gave testimony to the best of his present recollection, given the lapse of five years since the shooting and the fact that Bailey was a self-described “slow learner” who lacked the reading skills necessary to refresh fully his recollection with the transcript of his testimony at the prior trial.3

*369In Brown v. State, 339 Md. 385, 663 A.2d 583 (1995), a prosecutor’s statement was held to be error where, in her closing argument to the jury, she argued that if it found the defendant guilty, it could recommend mercy. Id. at 395-96, 663 A.2d at 588-89. The jury found the defendant guilty, but did not recommend mercy. Id. at 396, 663 A.2d at 589. The majority in Brown could not conclude, beyond a reasonable doubt, that the jury, after considering the prosecutor’s remark, had not convicted Brown based on a lesser standard of proof. Id. at 397-98, 663 A.2d at 589. Writing in dissent, Judge Rodowsky, joined by Judges Chasanow and Raker, opined that because the verdict was unqualified, the prosecutor’s error was harmless. Id. at 398, 663 A.2d at 590 (Rodowsky, J., dissenting). Somewhat similarly, the record in the present case does not compel the conclusion that Bailey relied on the comments of Judge Prevas in Archer’s case to reach his decision to testify. As did the Majority in Brown, the Majority here engages in “an interesting, but irrelevant, discussion of a problem in the abstract.” Id. at 398, 663 A.2d at 590.

B.

Even if Bailey’s testimony in Archer’s trial was procured solely or was caused proximately by Judge Prevas’s comments, the errors committed by Judge Prevas were harmless.

*370When a reviewing court finds trial error, the appellate court must reverse the judgment below unless it concludes the error was harmless. See Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). In making that determination, the reviewing court conducts an independent review of the record with the end of determining whether it is satisfied beyond a reasonable doubt that the error in no way influenced the verdict. Id. In other words, there must be “no reasonable possibility that the decision of the finder of fact would have been different had the tainted evidence been excluded.” Ross v. State, 276 Md. 664, 674, 350 A.2d 680, 687 (1976). In the present case, a reasonable fact-finder could have found Archer guilty, absent Bailey’s testimony, because there was overwhelming other evidence supporting the convictions.

The oft-repeated test for sufficiency is whether, “after viewing the evidence in the light most favorable the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830, 842 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). In the present case, Lyons provided strong and unshaken eyewitness testimony that he got several good looks at Archer’s face during the robbery-homicide. Lyons positively identified Archer as the man who shot him on the night of 11 September 1997. In addition to Lyons’s testimony, the jury also heard from a second eyewitness, Faulkner. Faulkner testified that he too recognized Archer’s face from the robbery-homicide, albeit he saw Archer’s face only when running from the scene; thus, his testimony may have commanded somewhat less persuasive force than that of Lyons. In considering the sufficiency of evidence, however, it is not the role of the appellate court to re-weigh evidence or determine the credibility of a witness. See, e.g., Jones v. State, 343 Md. 448, 465, 682 A.2d 248, 257 (1996) (citing State v. Raines, 326 Md. 582, 590, 606 A.2d 265, 268 (1992); Wilson v. State, 319 Md. 530 at 535, 573 A.2d 831, 833-34 (1990)). Rather, due regard must be given to the jury’s findings of fact and its opportunity to observe and assess the credibility of *371witnesses. See, e.g., White v. State, 363 Md. 150, 162, 767 A.2d 855, 861 (2001) (and cases cited therein). Although Faulkner’s testimony was not as unequivocal as that of Lyons, his testimony provided a second positive identification of Archer. The record before us shows Lyons’s and Faulkner’s testimony was uncontradicted, and therefore, under the Jackson analysis, we must assume was believed by the jury. Thus, the jury had before it on which to base its verdict the testimony of two eyewitnesses who saw Archer attempt to rob them at gunpoint and shoot Lyons in the eye. Furthermore, both Lyons and Faulkner independently identified Archer in a live police lineup two years prior to the trial.4

*372It is the well-established rule in Maryland that the testimony of a single eyewitness, if believed, is sufficient evidence to support a conviction. See Branch v. State, 305 Md. 177, 502 A.2d 496 (1986); Walters v. State, 242 Md. 235, 237-38, 218 A.2d 678, 680 (1966) (stating, “identification by the victim is ample evidence to sustain a conviction.”). This Court has held that even when a witness cannot identify the defendant at trial, evidence of the witness’s previous identification of the defendant in a line up is sufficient to sustain a verdict. See, e.g., Nance v. State, 331 Md. 549, 560-61, 629 A.2d 633, 639 (1993); Bedford v. State, 293 Md. 172, 443 A.2d 78 (1982). With the overwhelming evidence provided by Lyons and Faulkner alone, looked at in a light most favorable to the prosecution, a rational trier of fact could have found Archer guilty beyond a reasonable doubt. Judge Prevas’s errors, therefore, were harmless. The judgment of the Court of Special Appeals should be affirmed.

. The Concurring opinion, at 363, also seems to accept that Bailey’s ultimate decisión to testify, albeit in a somewhat less unfriendly tone towards Archer than previously set, was "prompted by the judge [Judge Prevas]."

. Contrary to Petitioner's assertion at oral argument before this Court, Judge Prevas did not guarantee that Bailey would be convicted of contempt. Rather, he indicated that a sentence would be imposed upon Bailey only if he were convicted of contempt. Additionally, the judge's statement that Bailey could receive life imprisonment for contempt was couched in theoretical terms. He also indicated that he was somewhat uncertain whether this Court would allow to stand such a punishment, if imposed. As Bailey was represented at the time by experienced and competent counsel, it is less likely that Judge Prevas's remarks alone, as inappropriate, injudicious, and excessive as they were, bullied Bailey into submission.

. The so-called inconsistencies between Bailey's testimony at Archer's • trial and that given at Edmonds's trial seem relatively insignificant. Which of the alleged criminal Svengali's hatched the original plan to rob, whether Archer approached Lyons early or later in the criminal episode, hnd whether Edmonds passed his weapon to Lyons after the crimes transpired are of minimal or no significance to the elements of the crimes for which Archer was convicted and figure only in the overall credibility assessment assigned to the jury. Other than his important role in identifying to police Archer as the third miscreant, Bailey's trial testimony regarding Archer was either favorable to Archer (in that it was less culpable than before) or, in terms of culpability, cumulative to that of Lyons and Faulkner. If Bailey's reasons for his reluctance to testify had substance, it is ironical in the extreme that Archer shall prevail here, considering the jailhouse intimidation of Bailey, because Judge Prevas assertedly counter-intimidated Bailey into testifying.

*369The Concurring opinion, concerned about the potential harm to Archer's ability to receive a fair trial in the face of the testimonial inconsistencies, frets "that it would be difficult, if not impossible, for a jury ever to know whether the testimony given was indeed what the witness knew or believed, or whether it was more the product of judicial inducement or coercion.” Concurring op. at 363. Notwithstanding my explained view as to the relative triviality of these inconsistencies, I also conclude that resolution of what parts of Bailey’s testimony (current and former) to believe and what parts to discredit was a routine function that this jury was not hampered in doing, or confused about, on this record. The Concurring opinion assumes that the jury in fact “discredited” or "likely would find incredible and disregard Bailey’s testimony favorable to Archer.” Id. at 363 (emphasis added). I make no such unwarranted assumption because there were lots of reasons, other than the mere inconsistencies, for the factfinder to believe or discredit any portion or all of the evidence attributable to Bailey. See Fn. 4 infra.

. Archer raises no appellate issue before this Court that Bailey's identification of him to police tainted the line-up. Moreover, the jury was aware that Bailey’s testimony at Archer’s trial, watered-down or otherwise, was subject to a plea agreement regarding his role as a confederate of Archer's in the crimes. Judge Prevas, in his final instructions to the jury, gave the following specific direction as to Bailey’s testimony:

You’ve heard testimony from Lewis Bailey who was an accomplice. An accomplice is one who knowingly and voluntarily cooperated with, aided, advised or encouraged another person in the commission of a crime. You must first decide whether the testimony of Lewis Bailey was corroborated before you may consider it. The defendant cannot be convicted solely on the uncorroborated testimony of an accomplice. However, only slight corroboration is required. This means there must be some evidence in addition to the testimony of Lewis Bailey tending to show, either one, defendant committed the crime charged.
Or, two, the defendant was with others who committed the crime at the time and place the crime was committed.
If you find the testimony of Lewis Bailey has been corroborated, it should be considered with caution and given such weight as you believe it deserves.
If you find the testimony of Lewis Bailey has not been corroborated, you must disregard it and may not consider it as evidence against the defendant. Remember, the defendant cannot be convicted solely on uncorroborated testimony of an accomplice.
You also heard testimony that Mr. Bailey has pleaded guilty to a crime arising out of the same events for which the defendant is now on trial. The guilty plea of this witness must not be considered as evidence of guilt against the defendant. You may consider the guilt of the witness in deciding whether the witness is telling the truth, but for no other purpose.
You may consider the testimony of a witness who testifies or has provided evidence for the state as a result of a plea agreement, or a promise that he will not be prosecuted, or a financial benefit, or a *372benefit. However, you should consider such testimony with caution because the testimony may have been influenced by a desire to gain leniency or freedom or financial benefits or a benefit by testifying against the defendant.