King v. State

BATTAGLIA and MURPHY, JJ.,

dissent.

Dissenting Opinion by MURPHY, J., which BATTAGLIA, J., joins.

I agree with the majority that this Court should not attempt “to fashion [in the case at bar] a broad rule governing the admissibility of prior convictions to impeach all State’s non-victim, fact witnesses.” I also agree that (1) “when considering the impeachment evidence of a State’s witness’s prior conviction, the motivation for jurors to use improperly that evidence simply does not exist to the degree that it does when they are considering impeachment evidence of a defendant’s prior conviction,” and (2) as a general rule, the trial judge should overrule the State’s objection to defense counsel’s otherwise proper impeachment by conviction question posed to a State’s witness unless the State is able to “articulate a concrete reason why the jury would be inclined to disregard the court’s instructions, about the proper perspective from which to consider an impeaching conviction[.]” From my review of Ms. Lagarde’s entire testimony, however, I am persuaded that this general rule is inapplicable to the case at bar.

To comply with the requirements of Md. Rule 5-609, the Circuit Court was required to balance the “probativeness” of Ms. Lagarde’s conspiracy conviction “against , its potential for unfair prejudice to the witness or to the objecting party.” Beales v. State, 329 Md. 263, 273, 619 A.2d 105, 110 (1993). The express requirement that the trial court consider the potential for unfair prejudice to the witness, as well as to the *709objecting party merely codifies the well established principle that “[t]he trial judge retains discretion to impose reasonable limits on cross-examination to ... prevent harassment, prejudice, confusion of the issues, or inquiry that is ... marginally relevant.” Marshall v. State, 346 Md. 186, 193, 695 A.2d 184, 187 (1997). An essential component of that balancing process is an analysis of what the witness testified to on direct examination. Ms. Lagarde’s testimony on direct was of no real consequence to the issues of (1) when and where Mr. Phillips was shot,1 and/or (2) the identity of the person or persons who shot Mr. Phillips. Although Ms. Lagarde did testify that she was “on the phone” with Mr. Phillips when she “heard shots,” she did not testify that Mr. Phillips identified any of his assailants during this conversation.

If Petitioner had asserted that he shot Mr. Phillips in self-defense, Ms. Lagarde’s testimony about Mr. Phillips’ spontaneous declaration, “[t]hey just shot me for nothing,” would have been of significant consequence to the issue of whether Petitioner had acted in self-defense. That defense, however, was not asserted in the case at bar. According to his trial counsel, Petitioner was a witness rather than a participant.2 Petitioner’s trial counsel told the jurors during his opening statement that, “[m]y client does not deny being there.... *710There’s no question there was a shooting, but it was not Mr. Darryl King.”

Another essential component of the balancing process required by Md. Rule 5-609 is an analysis of what the witness has testified to on cross-examination up to the point at which the trial judge must determine whether to admit or exclude evidence of the witness’s prior conviction. During Ms. Lagarde’s cross-examination, the Circuit Court permitted Petitioner’s trial counsel to question her about whether she had (1) a “business relationship” with Cat, (2) “any dealings with Cat,” and/or (3) knowledge of “any type of business relationship” between Mr. Phillips and Cat.3 It was after she answered these questions in the negative that Petitioner’s trial counsel attempted to introduce evidence of Ms. Lagarde’s prior conviction.4 On the basis of what Ms. Lagarde had testified to at that point, I am not persuaded that the Circuit Court abused its discretion in prohibiting Petitioner’s counsel from cross-examining Ms. Lagarde about her prior conviction.

It is well settled that the jury’s disbelief of a non-party witness does not permit the jury to find that the opposite of what the witness testified to is true. In VF Corp. v. Wrexham Aviation Corp., 350 Md. 693, 715 A.2d 188 (1998), while rejecting the contention that the jurors’ disbelief of a corporate officer (who denied having acted with fraudulent intent) was sufficient to establish that the officer had acted with knowledge that his representations were false, this Court stated that “[t]he jury’s prerogative not to believe certain testimony, however, does not constitute affirmative evidence of the contrary.” Id. at 711, 715 A.2d at 196. Therefore, even if the jurors found that Ms. Lagarde had intentionally given *711false answers to all of the questions asked by Petitioner’s trial counsel, such a finding would not have permitted the jurors to find that any fact assumed and/or insinuated in those questions was true.

In Gray v. State, 388 Md. 366, 879 A.2d 1064 (2005), this Court stated:

As noted by this Court in Dehn v. Edgecombe, 384 Md. 606, 865 A.2d 603 (2005):
“ ‘Abuse of discretion’ is one of those very general, amorphous terms that appellate courts use and apply -with great frequency but which they have defined in many different ways----[A] ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. That kind of distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective. That, we think, is included within the notion of ‘untenable grounds,’ ‘violative of fact and logic,’ and ‘against the logic and effect of facts and inferences before the court.’ ” Dehn v. Edgecombe, 384 Md. at 628, 865 A.2d at 616 quoting North v. North, 102 Md.App. 1, 13-14, 648 A.2d 1025, 1031-1032 (1994).

Id. at 383-84, 879 A.2d at 1073-74.

From my analysis of Ms. Lagarde’s testimony, I am not persuaded that the Circuit Court’s decision to prohibit Petitioner’s trial counsel from questioning Ms. Lagarde about her prior conviction was either “violative of fact and logic” or “beyond the fringe” of what is “minimally acceptable.” I would therefore (1) decide both issues presented to us, and (2) affirm the judgment of the Court of Special Appeals.

Judge BATTAGLIA has authorized me to state that she joins this dissent.

. The record shows that law enforcement officers and emergency medical personnel responded to reports of gunfire, located Mr. Phillips, and transported him to the Prince George’s County Hospital Center.

. The various statements made by Petitioner’s trial counsel in support of the argument that Petitioner was a "mere witness” are consistent with (oral and written) statements made by the Petitioner during a December 29, 2005 custodial interrogation. Prior to trial, the Circuit Court granted Petitioner’s motion for suppression of those statements on the ground that the State had failed to rebut Petitioner's suppression hearing testimony that his statements were given only because a Secret Service Agent threatened to arrest Petitioner’s "common law wife” and mother of Petitioner’s "two kids.” At no point during the trial, however, did the defense introduce admissible evidence that would have been sufficient to present a genuine jury question on the issue of whether any fact assumed or insinuated by Petitioner’s trial counsel—but denied by Ms. Lagarde during her cross-examination—was actually true.

. Petitioner was entitled to—and did—cross-examine Ms. Lagarde about her relationship with Mr. Phillips, even though she had testified on direct examination that Mr. Phillips was her fiancé.

. Petitioner was entitled to—but did not—cross-examine Ms. Lagarde about the fact that she had given Petitioner’s nickname to the investigating officers, and/or about the circumstances under which Mr. Phillips ultimately identified Petitioner as his assailant.