Lewis v. State

• Decision Date: 01 September 1986
• Docket Number: No. 1128,1128
• Citation: 71 Md.App. 402,526 A.2d 66
• Parties: Donald LEWIS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 402

71 Md.App. 402

526 A.2d 66

Donald LEWIS v. STATE of Maryland.

No. 1128, Sept. Term, 1986.

Court of Special Appeals of Maryland.

June 4, 1987.

Victor A. Houlon (Pickett, Houlon & Berman, on brief, Hyattsville), Philip H. Armstrong (Louis J. Fiechtner and Heeney, Armstrong & Heeney, on brief), Rockville, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Alexander Williams, Jr., State's Atty. for Prince George's County and Thomas McManus, Asst. State's Atty. for Prince George's County, on brief, Upper Marlboro), for appellee.

Argued before MOYLAN, ALPERT and ROSALYN B. BELL, JJ.

ALPERT, Judge.

Like the immovable object meeting the irresistable force, here the right of cross-examination confronts the right of the trial judge to limit it. We believe the trial judge's constraints were a bit too stringent.

Appellant Donald Lewis (Lewis) was tried by a jury upon an eight-count indictment in the Circuit Court for Prince George's County. The jurors found Lewis guilty of attempted first degree rape, use of a handgun in the commission of a crime of violence, third degree sexual offense, assault and battery. They found Lewis not guilty of assault with intent to rape and fourth degree sexual offense. The court later sentenced Lewis to terms of 20, 5 and 3 years on those convictions not merged and ordered the terms to be served concurrently. The court suspended all but 5 years of the total sentence.

On this appeal, Lewis presents two issues:

1. Whether the trial court improperly limited defense counsel's cross-examination of the prosecuting witness?

2. Whether he was denied his constitutional right to a speedy trial?

About the incident from which the charges against Lewis arose, it is sufficient to state: Lewis met and befriended Pamela Valentine in November, 1984; later, they drove to Lewis's sister's house where, according to Ms. Valentine, Lewis tried unsuccessfully to rape her; Valentine escaped, ran into the street, sought help from several people, called police, and eventually received medical attention.

1. Cross-examination

The issue of a cause rarely depends upon a speech and is but seldom even affected by it. But there is never a cause contested, the result of which is not mainly dependent upon the skill with which the advocate conducts his cross-examination. ¹

With these words of Lord Brougham in mind, we turn to appellant's first issue, by which he contends that the trial court improperly terminated his cross-examination of the prosecuting witness. Appellant asserts that the court's ruling violated his constitutional right to confront the witnesses against him. ² The State counters that the court properly exercised its discretion to limit the scope of appellant's inquiry.

(a) The Testimony and Ruling

The State called Pamela Valentine to the stand to testify to Lewis's attack upon her. Her testimony on direct examination lasted approximately 45 minutes. In addition to recounting Lewis's attack, the witness stated that she ran from the house, jumped into a postal carrier's car and told him that Lewis had tried to rape her. Lewis approached the car and spoke to Valentine. When the postal carrier refused to drive her to safety, Valentine testified, she ran to a nearby house where she told the owner what had happened. When the owner of that house refused to help her, Valentine ran to another house where, once more, she told a man she had been attacked. The witness also testified that, later that day, she received medical attention and told her doctor what Lewis had done.

Counsel for appellant then began a somewhat tedious and repetitive cross-examination. Thirty minutes into this cross-examination, counsel was called to the bench and given the following warning:

You have now used about a half hour of cross-examination on what appears to me to be a lot of collateral matters.

The point I am asking you to the bench now is to tell you how much time you have used and to remind you that you don't have an unlimited amount of time with this witness. So you know, I am probably going to start cutting you off when we get to the hour point in time or shortly thereafter.

The point is that you've got to use your time wisely and use it for productive areas of cross-examination.

Forty minutes later, the court announced from the bench, "I will give you five more minutes." Shortly thereafter, the court interrupted counsel:

All right. Mr. Houlon. That's the end of your time. If you wish to come forward and proffer any additional cross-examination that you want to make, you may do so.

At the bench, counsel requested an opportunity to cross-examine Ms. Valentine about her medical treatment and her contact with the mailman and three neighbors immediately after the attack. The court denied that request. Defense counsel then asked the court to reconsider its action or, in the alternative, to grant a mistrial. The court explained and ruled:

Well, as the trier of fact, I have obligations not only to the defendant, but I have obligations to the State, and I have obligations to the witnesses, and I have obligations to the fact-finder, the jury. I can't view any one of those obligations in an isolated fashion, and I will not view them in an isolated fashion, and the reason why I exercised my discretion in cutting off cross-examination--and no one has suggested I do not have the discretion to do that--certainly a defendant doesn't have a right to unlimited cross-examination.

The reason why I have exercised my discretion in cutting off cross-examination is because it has been repetitive. It hasn't gone directly to issues relating to credibility of the witnesses. I have certainly given counsel abundant opportunity to make choices into areas of inquiry. You had about 45 minutes from the time of my warning if you had desired to reach the areas that you wanted. You could have very easily, in my judgment, have not used some of the repetitive nature of the questioning that you did.

So, for those reasons, your motion to reconsider is denied. Your motion for mistrial is denied. The court excused the jury and called a recess until the following day. The next morning, the State recalled Pamela Valentine for re-direct examination. Appellant re-cross-examined the witness but did not inquire into matters precluded by the court's ruling of the previous day.

Simply stated, shortly after counsel began cross-examination of the State's key witness, the trial judge sua sponte imposed a one-hour limitation on that questioning. When counsel exceeded his hour, the court terminated the unfinished examination because the court believed counsel's inquiry was repetitive and circuitous. The court remained steadfast in its ruling despite counsel's proffer that he intended to move on to areas covered on direct examination related to the witness's credibility.

(b) The Law

The United States Supreme Court has unambiguously declared that the right to cross-examination is part of a defendant's right of confrontation:

It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him. And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case. See, e.g., 5 Wigmore, Evidence § 1367 (3d ed. 1940). The fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and safeguards that confrontation was a fundamental right essential to a fair trial in a criminal prosecution. Moreover, the decisions of this Court and other courts throughout the years have constantly emphasized the necessity for cross-examination as a protection for defendants in criminal cases.

Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965) (footnote omitted); see also Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965) (a primary interest secured by the confrontation clause is the right to cross-examination).

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), however, the Supreme Court noted that the exercise of this right is not unlimited. Rather, the right to cross-examine an adverse witness is "[s]ubject always to the broad discretion of a trial judge to preclude repetitive and unduly harrassing interrogation...." 415 U.S. at 316, 94 S.Ct. at 1110. See also, Delaware v. Van Arsdall, 475 U.S. 673, ----, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). That discretion notwithstanding, if the limitations imposed upon cross-examination inhibit the ability of the accused to obtain a fair trial, the rule vesting the court with discretion to disallow questions on cross-examination is "manifestly inapplicable." State v. Cox, 298 Md. 173, 183, 468 A.2d 319 (1983), quoting DeLilly v. State, 11 Md.App. 676, 681, 276 A.2d 417 (1971).

(c) Did the court abuse its discretion?

In setting a prospective time limit to appellant's cross-examination, the court acted arbitrarily. When it imposed the limit, the court did not know where appellant's inquiry might lead or what unexplored, pertinent matters the witness might, if prompted, disclose. Cross-examination is, to some degree, exploratory and a certain amount of latitude must be afforded. While trial courts have broad discretion to control the extent of cross-examination upon a particular topic, Johnson v. State, 30 Md.App. 512, 515, 352 A.2d 371 (1976), prospective time constraints will be reviewed more closely. Such a ruling precludes inquiry into topics unknown to the court. Yet, "[t]he essence of discretionary power in a trial court is 'that the judgment and discretion must be exercised in solving the exact problem of the law, upon all the considerations which properly enter into the...