Martin v. State, No. 123

• Court: Court of Appeals of Maryland
• Writing for the Court: RAKER.
• Citation: 364 Md. 692,775 A.2d 385
• Docket Number: No. 123
• Decision Date: 09 July 2001
• Parties: Dorian J. MARTIN, v. STATE of Maryland.

775 A.2d 385
364 Md. 692

Dorian J. MARTIN,
v.
STATE of Maryland

No. 123, Sept. Term, 2000.

Court of Appeals of Maryland.

July 9, 2001.

775 A.2d 386

Nancy S. Forster, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner

Celia Anderson Davis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

RAKER, Judge.

Petitioner, a former Baltimore City police officer, appeals from his conviction for theft under the value of $300 and misconduct in office. He complains that the trial court abused its discretion in refusing to permit his attorney to cross-examine the complaining witness as to whether he had

775 A.2d 387

hired an attorney to file a lawsuit on his behalf against Baltimore City. We agree with petitioner and shall reverse the judgments of conviction. We shall hold that the trial court's denial of cross-examination regarding contemplated civil action was error and that the error was not harmless beyond a reasonable doubt

I.

Dorian Martin, petitioner, was indicted by the Grand Jury for Baltimore City for the offenses of robbery, theft and misconduct in office. A jury acquitted him of the robbery, but convicted him of theft under the value of $300 and misconduct in office.

Petitioner is a former police officer in Baltimore City. Felix Guevera was the complaining witness in the case. The incident that led to the criminal charges occurred while petitioner was an on-duty police officer. Petitioner's version of the incident differs markedly from Guevera's version.

At trial, Felix Guevera testified that on the evening of December 28, 1998, while he was walking home from work at about 8:30 p.m., he was approached on a residential street corner by petitioner, who was dressed in full police uniform. Upon request for identification, he handed petitioner his wallet. Petitioner then searched his pockets, finding $300 in U.S. currency in Guevera's front pocket. Petitioner took the $300, including a $100 bill, and placed it into his own pocket, then got into his police van and drove away. Through a friend, Guevera reported the incident to the police later that evening.

At the end of his shift, petitioner was detained at the police station and questioned about the incident by his superiors. The officers told him of Guevera's accusations against him, and he denied all involvement in the incident. In response to the officers' questions as to whether he had any money on him, he removed $347 from his pocket, including a $100 bill. He said that the money belonged to him and was to be used to pay for day care for his child. Petitioner denied Guevera's allegations, claiming that the money was his own. District commander Major George Klein testified that he informed petitioner of his mandatory suspension, advised him of his rights under the Law Enforcement Officers' Bill of Rights (LEOBR), and contacted counsel for him. Petitioner spoke to an attorney and resigned from the police force immediately following the conclusion of the phone conversation. The State placed his signed resignation form into evidence over defense objection.

Petitioner testified on his own behalf at trial. He stated that he was driving the police van that night when he saw several males standing on the corner, near a bar. He rolled down the window and told the men "we will have to clear this corner." He noticed that several men walked away, but that Guevera did not leave. Martin then got out of the police van and approached Guevera. He told Guevera that he had to leave the area; at that time, Guevera "pulled out a wad of money and put it in my face, waved it in my face, and in broken English said, `I can buy and sell you.'" Martin testified that he felt "disrespected" and acting "out of poor judgment," he took the money out of Guevera's hand. Martin then received a radio call for a "wagon run," and he left the area. He testified that, as he pulled away, he said to himself, "Oh shit, I got this guy's money." He returned to the area in an attempt to find Guevera, but he was unsuccessful.

Petitioner also testified that, when questioned by his superiors, he denied Guevera's allegations because of his fear that "when a black policeman is in a situation" similar to his, he "would not be given a fair

775 A.2d 388

shake in the end." He testified that Major Klein told him that Guevera refused to press charges. Major Klein also advised him that if he were to resign, "that would pretty much be the end of it, it would not be heard of." With his resignation, petitioner believed that he "pretty much could go to another police department and possibly get picked up."

Petitioner was convicted of theft under $300 and misconduct in office. He was sentenced to two concurrent terms of eighteen months imprisonment, all but six months of which were suspended, with one year supervised probation.

Petitioner noted a timely appeal to the Court of Special Appeals, which affirmed the judgments of conviction in an unreported opinion. This Court issued a writ of certiorari. See Martin v. State, 362 Md. 359, 765 A.2d 142 (2001).

II.

Petitioner argues that the trial court abused its discretion in prohibiting cross-examination regarding Guevera's intent to file a civil lawsuit against the city, thereby preventing the defense from exposing to the jury facts from which it might assess the witness's credibility and to show the jury that the witness was biased and had a motive to fabricate. The State argues that no lawsuit had been filed and that mere contemplation of a civil action is not relevant to the witness's credibility.

The Sixth Amendment to the United States Constitution¹ and Article 21 of the Maryland Declaration of Rights² guarantee a criminal defendant the right to cross-examine adverse witnesses, including "the right to cross-examine a witness about matters which affect the witness's bias, interest or motive to testify falsely." Marshall v. State, 346 Md. 186, 192, 695 A.2d 184, 187 (1997); see Merzbacher v. State, 346 Md. 391, 411-12, 697 A.2d 432, 442 (1997); cf. Maryland Rule 5-616(a)(4). The trial court has broad discretion in determining the scope of cross-examination, and we will not disturb the exercise of that discretion in the absence of clear abuse. See State v. Hawkins, 326 Md. 270, 277, 604 A.2d 489, 493 (1992). Nonetheless, the discretion is not unlimited, and "a cross-examiner must be given wide latitude in attempting to establish a witness' bias or motivation to testify falsely." Merzbacher, 346 Md. at 413, 697 A.2d at 443. The appropriate test to determine abuse of discretion in limiting cross-examination is whether, under the particular circumstances of the case, the limitation inhibited the ability of the defendant to receive a fair trial. See Ebb v. State, 341 Md. 578, 587-88, 671 A.2d 974, 978 (1996). In assessing whether the trial court abused its discretion in limiting the cross-examination of the attorney who wished to show bias or motives to fabricate, we look to see whether the jury had sufficient information to make a discriminating assessment of the particular witness's possible motives for testifying falsely in favor of the State. See Marshall, 346 Md. at 194, 695 A.2d at 188.

At trial, defense counsel asked Guevera, the sole witness to the incident, whether he had hired a lawyer to sue Baltimore City. The State objected to the

775 A.2d 389

inquiry. Defense counsel argued that, even though no lawsuit against the city had yet been filed,³ the fact that the victim had hired a lawyer to sue the city was evidence of motive to lie. The trial court sustained the objection on the ground that, in the absence of the actual filing of a civil suit, intent to sue was not relevant to the bias or motivations of the witness

The general rule is that evidence of a pending lawsuit by a witness in a criminal prosecution against the accused,⁴ arising from the same set of circumstances as the instant criminal prosecution, may reveal a potential source of bias, interest in the outcome of the proceedings, or motive to testify falsely. See Merzbacher, 346 Md. at 414, 697 A.2d at 443; see also Villaroman v. United States, 184 F.2d 261, 262 (D.C.Cir.1950); Malone v. State, 358 So.2d 490, 492 (Ala.Crim.App.1978); Wooten v. State, 464 So.2d 640, 641 (Fla.Dist.Ct.App. 1985); State v. Kellogg, 350 So.2d 656, 657-58 (La.1977); State v. Whitman, 429 A.2d 203, 205 (Me. 1981); Commonwealth v. Marcellino, 271 Mass. 325, 171 N.E. 451, 452 (1930); People v. Drolet, 157 Mich. 90, 121 N.W. 291, 291-92 (1909); State v. Williams, 16 N.J.Super. 372, 84 A.2d 756, 760 (App.Div. 1951); Cox v. State, 523 S.W.2d 695, 700 (Tex.Crim.App.1975); 3A John H. Wigmore, Evidence § 949, at 788 (Chadbourn rev. 1970); W. Foster, Annot., Criminal Law—Evidence—Pending Civil Suit, 98 A.L.R.3d 1060 (1980 & Supp.2000).

The State argues that because the lawsuit in this case was at best only a contemplated action, the trial court did not abuse its discretion in refusing to permit defense counsel to question the prosecuting witness about whether he intended to file a lawsuit. While we have not previously commented on whether contemplated civil lawsuits are relevant in examining witness bias, the majority view in this country is that questions on cross-examination to a witness regarding a contemplated civil action should be permitted. See State v. Arlington, 265 Mont. 127, 875 P.2d 307, 316 (1994) (adopting majority view that cross-examination as to contemplated civil lawsuits against the defendant is allowed on cross-examination). We find no meaningful distinction between contemplated and commenced lawsuits for cross-examination purposes. See Wooten, 464 So.2d at 642 (stating that, although litigation was merely contemplated, it is a distinction without a difference); People v. Richmond, ...