973 A.2d 796 (Md. 2009), 110, Diggs v. State

Docket Nº:110, 147.
Citation:973 A.2d 796, 409 Md. 260
Opinion Judge:BATTAGLIA, J.
Party Name:Steven DIGGS v. STATE of Maryland. Damon Lamar Ramsey v. State of Maryland.
Attorney:Claudia A. Cortese, Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore), on brief, for appellant. Jessica V. Carter, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore), on brief, for appellee.
Judge Panel:Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
Case Date:June 12, 2009
Court:Court of Appeals of Maryland
 
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Page 796

973 A.2d 796 (Md. 2009)

409 Md. 260

Steven DIGGS

v.

STATE of Maryland.

Damon Lamar Ramsey

v.

State of Maryland.

Nos. 110, 147.

Court of Appeals of Maryland.

June 12, 2009

Page 797

Claudia A. Cortese, Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore), on brief, for appellant.

Jessica V. Carter, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore), on brief, for appellee.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

BATTAGLIA, J.

[409 Md. 262] In this opinion, we are called upon to determine whether Steven Diggs and Damon Lamar Ramsey, Appellants, are [409 Md. 263] entitled to new trials, because the judge who presided over their original proceedings acted like a co-prosecutor. It is clear in both of these cases that neither of the prosecutors presented the cases well, nor did the defense attorneys adequately represent their clients. Nevertheless, it is the presiding judge who is the subject of the questions presented. Diggs presents the following question:

Page 798

1. Was Mr. Diggs deprived of a fair trial because the trial court failed to preserve an attitude of impartiality in his questioning of witnesses?

Diggs v. State, 406 Md. 443, 959 A.2d 792 (2008). In the companion bypass case,1 Ramsey presents the following questions:

1. Did the trial court violate Damon Ramsey's constitutional right, under the Fifth and Fourteenth Amendments, to a fair trial where the trial judge acted as a second prosecutor and created a hostile courtroom environment for defense counsel in front of the jury, all of which suggested extreme bias against the defense?

2. Did the trial court violate Damon Ramsey's Sixth Amendment right to confront his accuser when the trial judge prevented defense counsel from challenging the credibility of the only police officer to testify against Damon Ramsey? [2]

Ramsey v. State, 406 Md. 744, 962 A.2d 370 (2008).

I. Background

Steven Diggs was arrested and charged in Baltimore City with possession of marijuana, possession of marijuana with an intent to distribute, operating an unregistered motor vehicle, driving an uninsured vehicle, and driving without a license. [409 Md. 264] During the course of trial proceedings that occurred on June 1, 2007, Diggs was tried for possession of marijuana and possession of marijuana with an intent to distribute.3 A jury found Diggs guilty on the charge of possession of marijuana, but was unable to render a unanimous decision on the charge of possession of marijuana with an intent to distribute. Diggs appeals from his conviction, alleging that he was denied a fair trial as a result of judicial bias, premised upon repeated and egregious behavior of the trial judge.

Diggs' first allegation of bias involves statements made by the judge during the direct examination of Detective John Giganti, who testified that he pulled Diggs' vehicle over because it had no license plates and thereafter discovered what he believed to be marijuana. When the prosecutor did not adequately lay the foundation for distribution of the marijuana, the judge pursued his inquiry more specifically about the packaging of the marijuana:

[STATE'S ATTORNEY:] Now, based on your expertise and experience, did you draw any conclusion as to the number of ziplock baggies recovered, the thirty-five baggies?

[DETECTIVE GIGANTI:] It was not for personal use. It was for street level distribution.

[STATE'S ATTORNEY]: And what about the money in the console?

THE COURT: Let me stay with that for a second. Why do you say that, sir, that it would be for street level distribution, not for personal use. What is about it-

Page 799

[DETECTIVE GIGANTI:] Thirty-five bags of marijuana is a lot of personal use.

THE COURT: Okay. How about the individual packages?

[409 Md. 265] [DETECTIVE GIGANTI:] They are probably worth about ten dollars a piece.

THE COURT: And they're packaged individually?

[DETECTIVE GIGANTI:] They're packaged individually in small ziplock bags and the money again with small denominations other than a hundred dollar which would be consistent with ten dollar or dime bags as they're known on the street, of marijuana.

Diggs also contends that the judge interfered during Detective Georgiades' direct examination, because after Detective Georgiades could not recall telling Detective Giganti that he had previous contact with Diggs or previously had arrested Diggs, the judge allegedly attempted to rehabilitate the officer by stating: " It was over two and a half years ago, right? I mean we're talking November and the event would have been September '04 so okay."

Diggs further posits that the judge acted as a co-prosecutor during the direct examination of Diggs' first witness, Sherienne Diggs, Diggs' sister. The first instance of bias allegedly arose when Sherienne Diggs failed to recall various details about money and marijuana bags found in her car, and the judge pressed her for details:

[DEFENSE COUNSEL:] Okay. How much money? Did you count the money?

[MS. DIGGS:] Yeah, I counted it.

[DEFENSE COUNSEL:] How much was there?

[MS. DIGGS:] It was $1,800.

[DEFENSE COUNSEL:] Okay.

THE COURT: Do you remember the denominations of the bills?

[MS. DIGGS:] No, not exactly.

THE COURT: Do you remember if there were any hundred dollar bills in there?

[MS. DIGGS:] It might have been.

THE COURT: Not might have been. Do you remember one?

[409 Md. 266] [DEFENSE COUNSEL:] Do you remember or don't? It doesn't matter.

[MS. DIGGS:] No, I don't remember.

THE COURT: You'd probably remember a hundred dollar bill, wouldn't you?

[MS. DIGGS:] Not if you see a lot of them all the time.

THE COURT: Did you see a lot of them that day?

[MS. DIGGS:] Later on that day I did.

THE COURT: How about earlier-

[MS. DIGGS:] I don't remember.

THE COURT: When he handed you the money you remember a lot of hundred dollar bills?

[MS. DIGGS:] I remember a lot of twenties.

THE COURT: A lot of twenties. Do you remember a hundred?

[MS. DIGGS:] I'm not sure. I think so. I'm not sure.

[DEFENSE COUNSEL]: Okay. So you don't recall?

[MS. DIGGS:] No.

During cross-examination, Diggs points to numerous instances in which the judge allegedly acted inappropriately. When the State questioned Ms. Diggs about her recollection of how long her brother had been staying at her house, she responded " [n]ot long" and " [m]aybe weeks." The judge intervened and again pressed for details:

Page 800

THE COURT: Was it weeks or was it days? You have a very good memory on everything else.

THE COURT: Days.

[MS. DIGGS:] Days.

THE COURT: Days. How many days?

[MS. DIGGS:] Five, six.

THE COURT: What day of the week did this incident occur?

[MS. DIGGS]: I don't remember.

THE COURT: You don't remember if it was a week day or a weekend?

[409 Md. 267] [MS. DIGGS]: I know it was a week day.

Moments later, the judge inquired into whether Ms. Diggs was " comfortable" with the information she provided regarding where she left her car keys, what time she got home, and what time she received the phone call that her brother had been arrested, while driving her car:

THE COURT: Do you remember where you left the keys on?

[MS. DIGGS:] They were on the table.

* * *

THE COURT: What time did you go into your house?

[MS. DIGGS:] Around eight, eight-thirty.

THE COURT: What time were you planning to go out?

[MS. DIGGS:] Around nine, nine-thirty, ten o'clock.

THE COURT: What time did you get the call that he had been arrested?

* * *

THE COURT: You are comfortable with that testimony?

[MS. DIGGS:] Yes.

THE COURT: And you left $1,500. Was the car locked?

[MS. DIGGS:] Yeah, the car was locked.

THE COURT: You left the money in the console?

[MS. DIGGS:] Yes. I did.

The judge's effort to cross-examine Ms. Diggs about the $1,500 found in the car continued:

THE COURT: How many times did he receive money-how many different times did you see him receive money from other people?

[MS. DIGGS:] I'm not exactly sure how many times.

THE COURT: Well, was it ten or-

[MS. DIGGS:] I don't know. I don't recall.

THE COURT: You don't know if it was ten. Do you know if it was twenty?

[409 Md. 268] [MS. DIGGS:] No.

THE COURT: Do you know if it was thirty?

[MS. DIGGS:] No, I don't.

THE COURT: So you can't say any of that?

[MS. DIGGS:] No, I can't.

THE COURT: Okay. Well, you know it's more than one or two?

[MS. DIGGS:] Yes.

THE COURT: What did he do with that money?

[MS. DIGGS:] He handed it to me and I put it in a bag. I counted it and put it in a bag.

THE COURT: You only put one hunk of money in the console, is that your testimony?

[MS. DIGGS:] Yes.

The judge continued to press Ms. Diggs regarding why Ms. Diggs failed to inform the officers, immediately, that the drugs and money belonged to her boyfriend, as opposed to her brother:

Page 801

THE COURT: Well, you learned that night that he had been arrested, right?

[MS. DIGGS:] Yes.

THE COURT: And you learned he was arrested I guess for possession of drugs, right?

[MS. DIGGS:] Yes.

THE COURT: And the money?

[MS. DIGGS:] Uh-huh.

THE COURT: And you knew that he was innocent?

[MS. DIGGS:] Yes.

THE COURT: Did you go to the police right away and tell them this story that you're telling?

[MS. DIGGS:] I tried to.

THE COURT: What stopped you?

[MS. DIGGS:] I tried to tell them. I tried to tell them that it was [my boyfriend's]. I told [my boyfriend] to tell them that it was his. The police was not-

[409 Md. 269] THE COURT: I didn't ask you about [your boyfriend]. Did you go to the police or go to the State's Attorney-

[MS. DIGGS:] We went around there where they was arresting him at and we tried to tell him. I tried to tell the...

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