Hopper v. State

• Decision Date: 01 September 1984
• Docket Number: No. 1361,1361
• Citation: 64 Md.App. 97,494 A.2d 708
• Parties: Gary Lee HOPPER v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 97

64 Md.App. 97

494 A.2d 708

Gary Lee HOPPER v. STATE of Maryland.

No. 1361, Sept. Term, 1984.

Court of Special Appeals of Maryland.

July 5, 1985.

Mark Colvin, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Jillyn K. Schulze, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, Andrew L. Sonner, State's Atty. for Montgomery County and Robert Dean, Asst. State's Atty. for Montgomery County, Rockville, on brief), for appellee.

Argued before WEANT, GARRITY and ADKINS, JJ.

GARRITY, Judge.

"The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony." ¹

In this matter we are asked to determine whether the trial judge abused his discretion in curtailing the cross-examination of a victim as to his pecuniary interest to falsify testimony in order to keep an award of $2,698.19 he had received from the Criminal Injuries Compensation Board.

Appellant Gary Lee Hopper, an admitted male prostitute, had been charged by indictment with assault with intent to murder, assault with intent to maim, and attempted robbery. His victim was Paul Mann, an admitted homosexual. Hopper was found guilty by a jury in the Circuit Court for Montgomery County of attempted robbery and sentenced to ten years imprisonment.

Facts

Mr. Mann testified that after meeting Hopper at a bar in the District of Columbia, Hopper agreed to accompany him to his Montgomery County apartment and provide sexual services in exchange for $30.00. According to Mann, that night Hopper rendered the services promised and "was a perfect gentleman." The next morning Mann paid Hopper $30.00 and gave him a ride to a nearby art gallery. That evening, however, according to Mann, Hopper telephoned him and asked if he could spend another night at the apartment, assuring Mann that this time he would not seek compensation. The victim testified that he agreed that Hopper could "come and stay and just sleep on the couch." Mann further stated that although Hopper tried to interest him in another sexual act, he replied, "[n]o, I told you that I am not able to give you anything, and I don't feel that I want any second session with you. It does not interest me." The victim further testified, "I slept for quite a while I know, and the next thing I knew something crashed and someone crashed down on top of me, the full weight of the body, and put his left arm around my neck and ... cut my throat." Mann managed to roll away from his assailant's grasp and then gird himself from further attack as he seemingly froze Hopper in his tracks with the reminder that mutual friends knew of Hopper's presence in the apartment. When Mann asked Hopper why he had cut him, the appellant replied that he needed money. Moments later, the victim was able to run out of the apartment, lock the door from the outside, and ask a neighbor to call the police.

Hopper testified, on the other hand, that he had spent three nights at Mr. Mann's apartment and provided sexual services each night before sleeping with Mann in the latter's bed. According to the appellant, after the third session, he awoke at about 5:30 a.m. When he awakened Mann and asked for a ride, Mann became "cranky" and an argument ensued. When Hopper demanded his money for the sexual services, Mann replied that he did not owe him anything inasmuch as the appellant had spent three nights in his apartment. Both men became "angry" and at one point in the argument, the appellant pulled out a knife and said, "[j]ust stay away from me. All I want is my money that you owe me." As the appellant turned and started to walk away, Mann grabbed him. In the ensuing tussle, both men fell to the floor and Mann was accidentally cut, according to Hopper. Hopper further testified that when he saw Mann bleeding, he told Mann that he "didn't mean to do it," and that he "wasn't trying to hurt him." He then put the knife in his gym bag and telephoned the police for help. Hopper testified that he became "scared" and left the apartment through the sliding glass doors leading from the bedroom to the balcony, and drove to his home in Orlando, Florida, where he was arrested two weeks later. The appellant reiterated that Mann had been cut accidentally, and denied any intent to kill, injure or rob him.

Mr. George Cornell, who also had had a sexual relationship with Hopper, testified that he had been a friend of Paul Mann for fifteen years, that he had given the knife to Hopper about a week before the incident in question, and that Hopper had been polite with him.

Curtailment of Cross-Examination

Prior to trial, defense counsel advised the court that Mr. Mann had filed a claim with the Criminal Injuries Compensation Board and that a single board member preliminarily had denied the claim under the "family crime" exclusion on the ground that Mr. Mann had been living with the assailant while maintaining a sexual relationship with him at the time of the occurrence. ² He further advised the court that Mr. Mann had been granted a reconsideration of this decision and was ultimately awarded his claim. At trial, when defense counsel sought to cross-examine Mann about the letter of reconsideration he had written denying that he had been maintaining a sexual relationship with the appellant, the following colloquy took place:

MR. DEAN: I am going to object to any at this point--

THE COURT: What in the world does Criminal Injuries Compensation have to do with this case?

MR. COCKERILL: Your Honor, he applied.

THE COURT: He was turned down.

MR. COCKERILL: He was denied benefits on the basis of the family exception that I read to you out of the statute.

...

MR. COCKERILL: The other reason is, of course, being denied, he lost approximately $2,700.00 in benefits.

THE COURT: So?

MR. COCKERILL: He has motivation to testify a certain way and I think it goes as to bias. If he were to testify that he had been over there and had sex more than once, he is imperiling his award.

THE COURT: He may well be, but we are not dealing with the award, we are dealing with the events of that night.

MR. COCKERILL: I think it goes to interest or bias.

THE COURT: How can that go to bias?

MR. COCKERILL: If a man came in and said--let's pick out the most blatant example, Cockerill gave me $2700.00 to testify this way, you would say that goes in--he in effect has received $2700.00 to tell the story in the way that there was no sex on the night before the incident, but he is receiving $2700.00 by telling it that way.

THE COURT: I will sustain the objection. That does not go to bias, it is purely to get in the fact that he is seeking compensation and has got compensation.

(Whereupon, the Bench Conference concluded).

BY MR. COCKERILL:

Q. Mr. Mann, on November 11, 1983, did you write a letter in which you said, "Hopper was an overnight guest in my apartment--

MR. DEAN: Objection.

MR. COCKERILL: (continuing)--and at no time did he ever have anything to do with me other than during the one night he stayed over due to father being in California for two days as he stated."?

THE WITNESS: What did I say, one night or two nights? What we talk about here is the night of the incident, so we do not talk about the night before. It was not relevant to the situation.

I was interrogated by an investigator--

THE COURT: All right. Ask another question.

BY MR. COCKERILL:

Q. Were you told--

A. By whom?

Q. (continuing)--were you told that you would not be entitled to receive benefits if your injury --

MR. DEAN: Objection.

THE COURT: Sustained.

MR. DEAN: Move to strike any reference.

THE COURT: All right. The motion is granted.

MR. COCKERILL: Your Honor, I will proffer the contents of Exhibits 2 and 3. ³ (Emphasis added)

We recognize that the decision to either allow or disallow questions on cross-examination is normally left to the sound discretion of the trial judge. Caldwell v. State, 276 Md. 612, 618, 349 A.2d 623 (1976); Milligan v. State, 18 Md.App. 588, 593, 308 A.2d 418 (1973). "But where limitations imposed by the court upon cross-examination are such as plainly inhibit the ability of the accused to obtain a fair trial, the general rule is manifestly inapplicable." DeLilly v. State, 11 Md.App. 676, 681, 276 A.2d 417 (1971), citing Shupe v. State, 238 Md. 307, 208 A.2d 590 (1965).

The nub of the appellant's contention is that as a result of the trial court's ruling, he was unable to establish a record from which to argue to the jury why Mr. Mann might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. The appellant contends that on the basis of the limited cross-examination that was permitted as to the criminal injuries claim, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness. According to the appellant, Mann was accidentally cut when he grabbed Hopper during an argument about payment for sexual services. Moreover, the appellant argues that the trial judge's ruling actually allowed the prosecutor on rebuttal argument to state the following with impunity:

Now, Mr. Cockerill has implied, suggested, stated that the victim is lying or something. Ladies and gentlemen, just ask yourselves "Why?" Why would Paul Mann lie? There is no reason for Paul Mann to tell lies. There would be no benefit whatsoever accruing to Paul Mann to lie.

It is well settled that the right of confrontation guaranteed by the Sixth Amendment to the federal constitution and Article 21 of the Maryland Declaration of Rights includes the right to cross-examine about matters which affect a witness' bias, interest, or motive to falsify. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Cox, 298 Md. 173, 468 A.2d 319 (1983); Fletcher v. State, 50 Md.App. 349, 437 A.2d 901 (1981); State v....