Ebb v. State
| Decision Date | 01 September 1994 |
| Docket Number | No. 117,117 |
| Parties | , 64 USLW 2549 Jeffrey D. EBB v. STATE of Maryland. , |
| Court | Maryland Court of Appeals |
Julia Doyle Bernhardt, Assistant Public Defender (Stephen H. Harris, Public Defender, on brief), Baltimore, for Petitioner.
Ann N. Bosse, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Respondent.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.
In this case we are asked to decide whether the trial court erred when it precluded cross-examination of the State's witnesses, in the jury's presence, about their pending criminal charges or charges of violation of probation. We shall hold that the trial judge did not abuse his discretion, and accordingly, we affirm.
Jeffrey Damon Ebb, the Petitioner, was tried and convicted in the Circuit Court for Montgomery County, for two counts of murder and related charges 1 arising out of an attempted robbery of Brodie's barbershop, which occurred on November 28, 1992. He was sentenced to life without parole on the murder convictions and concurrent sentences totaling 80 years imprisonment on the related charges. He appealed his conviction to the Court of Special Appeals, challenging, among other things, the trial judge's refusal to allow him to cross-examine, before the jury, two state's witnesses about their pending charges. In an unreported opinion, the intermediate appellate court affirmed. We granted Ebb's petition for writ of certiorari to determine whether the trial court properly limited the scope of the cross-examination of witnesses Todd Timmons and Lawrence Allen.
On November 28, 1992, James Brodie, the owner of Brodie's Barbershop, and Michael Peters, a customer at the shop, were shot and killed during an attempted robbery at the barbershop. At Ebb's trial, three of the witnesses called by the State, Todd Timmons, Lawrence Allen, and Jerome House-Bowman, each faced pending criminal or probation violation charges. Timmons had a pending violation of probation, based on a conviction for possession of controlled dangerous substances, and a motion for reconsideration of a sentence. Allen had pending theft and handgun violation charges in Baltimore County. House-Bowman had a pending violation of probation charge based on two armed robbery convictions.
Before trial, Ebb filed a motion requesting that the State disclose whether any witness had been offered any promise, reward or inducement in exchange for testimony. In response, the State proffered that no promises had been made to any witness, but that one witness, Jerome House-Bowman nonetheless believed that his testifying for the State might reflect favorably upon him. The prosecutor stated:
I can tell you that we have not made any written promises of immunity or anything like that to any witness. The only one that I am aware of is the individual, Jerry House-Bowman believes that at some point he was told that somebody would speak on his behalf at a probation hearing that he has.
I have talked with him about that, and I have explained to him that his testimony in this case is only based on the fact that it is the truth and it is the right thing to do. I talked with him about it and made clear to him that there is no express promise that that is going to happen.
. . . . .
But he believes that somebody told him that. So I am sure if he is asked, that is what he is going to say.
Notwithstanding the State's disclaimer, the Petitioner proposed to cross-examine Timmons, Allen, and House-Bowman about their pending charges. In that regard, the Petitioner contended that it is not what the State has promised, but rather the witnesses' motive to testify that is the proper subject of inquiry. Agreeing with the Petitioner, the court observed, The court then ruled, "[f]irst of all, you have to lay some threshold that he does expect something." Pursuant to that ruling, hearings were conducted outside the presence of the jury to give the Petitioner the opportunity to "get [the] threshold foundation that would suggest that [the witness] expects any kind of lenience."
As the State predicted, House-Bowman acknowledged he had been told his testimony would not assist him in obtaining a favorable disposition of his pending probation matter. He still hoped, however, that testifying would help him to receive leniency. Allen and Timmons, on the other hand, not only confirmed the prosecutor's statement that no promises had been made to anyone, but they also denied expecting anything in return for their testimony.
In a hearing outside the presence of the jury, the examination of Timmons was as follows:
Defense counsel also questioned Lawrence Allen out of the jury's presence. The inquiry was as follows:
[MR. ALLEN] No.
At the conclusion of the hearings, as to Timmons and Allen, the court ruled that because no promises of leniency had been made and the witnesses denied any expectation of leniency, the Petitioner could not inquire in the jury's presence about pending charges. A different conclusion was reached as to House-Bowman; because he stated that even though no promise of leniency had been made, he thought that his testifying for the State might reflect favorably upon him, and therefore, the court ruled that the Petitioner could pursue the matter before the jury.
The Petitioner was convicted and noted an appeal to the Court of Special Appeals. Before the intermediate appellate court, Ebb argued that Judge Cave erred in restricting the cross-examination of Timmons and Allen. Rejecting his claim, the intermediate appellate court stated,
We agree with the appellant that the pendency of criminal charges can be a source of possible bias. Pettie v. State, 316 Md. 509, 512-18 (1989); Brown v. State, 74 Md.App. 414, 415-22 (1988). As we explained in the Brown case, however, it is not even an explicit agreement between the State and a witness with respect to the witness's testimony that is the relevant factor. It is, rather, the case that, in order to show bias or motive to fabricate, the cross-examination must focus on the witness's state of mind. We observed, 74 Md.App. at 421 :
[T]he crux of the inquiry insofar as its relevance is concerned, is the witness's state of mind. What is essential to the preservation of the right to cross-examine is that the interrogator be permitted to probe into whether the witness is acting under a hope or belief of leniency or reward.
See also Fletcher v. State, 50 Md.App. 349, 359 (1981). In dealing with the cross-examination of a witness in an effort to show bias or motive, the trial judge retains the discretion to impose reasonable limitations. Smallwood v. State, 320 Md. 300, 307 (1990).
The Court of Special Appeals affirmed the conviction, holding that "[i]n the balanced handling of this issue, we see no abuse of discretion on the part of Judge Cave." We agree and hold that the trial judge did not abuse his discretion in precluding the cross-examination of the witnesses about their pending charges.
The Petitioner argues that the trial court's ruling precluding cross-examination of Timmons and Allen, in the jury's presence, with regard to their pending charges was error. He maintains that, because it is the jury's responsibility to assess whether a witness is truthful, he has a constitutional right to cross-examine the witness in the jury's presence and that it is not necessary to first make a showing that the cross-examination will yield facts tending to discredit the witness' testimony. Essentially, he is arguing that whenever a witness for the State has a pending criminal charge, the defendant is entitled to inquire, before the jury, whether the witness has an expectation of leniency as a result of his testimony. He concludes, therefore, that notwithstanding a witness's denial of an expectation of leniency, whether the witness in fact hoped to gain favorable treatment was for the jury to determine.
The State contends that the trial judge did not abuse his discretion by precluding cross-examination about the witness' pending charges. Alt...
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