Smallwood v. State, 141

CourtCourt of Appeals of Maryland
Citation320 Md. 300,577 A.2d 356
Docket NumberNo. 141,141
PartiesJerry SMALLWOOD, Jr. v. STATE of Maryland. ,
Decision Date01 September 1989

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, Nancy S. Forster, Asst. Public Defender, all on brief), Baltimore, for petitioner.

Jillyn K. Schulze, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.


COLE, Judge.

In this case we are asked to determine whether the trial court erred when it refused to allow cross-examination of a witness as to the outcome of charges she had filed against Petitioner on two previous occasions. Because we believe that the questions were intended to uncover prejudice and bias on the part of the witness, we conclude that it was reversible error for the court to prohibit cross-examination on this point.

The circumstances surrounding the crime and Petitioner's prosecution are essential to an understanding of the context in which the cross-examination was attempted. On Thursday, April 9, 1987, Charles G. Piercy was making a delivery to The Gap, a clothing store in Landover Mall specializing in jeans. He was informed that an individual, later adjudged to be Petitioner, was taking boxes out of his truck. Piercy confronted the man and demanded the return of the boxes. The individual struck Piercy and drove off with a number of boxes of merchandise. Piercy provided police with the license tag number of the car and later identified Petitioner from an array of six color photographs.

The police traced the car tags to Demetria Lomax, Petitioner's ex-girlfriend. The police questioned Ms. Lomax on June 12, 1987, the same day on which Ms. Lomax broke up with and filed assault charges against Petitioner. At trial in the Circuit Court for Prince George's County, Ms. Lomax testified that she had loaned her car to Petitioner each weekday during the month of April, 1987, and that on one Thursday in April, Petitioner had failed to pick her up from work. Later that same Thursday night, Ms. Lomax testified, Petitioner presented her with some clothing which still bore price tags from The Gap.

On cross-examination, Ms. Lomax was questioned regarding the warrant she swore out against Petitioner on June 12, 1987. When the questioning reached the disposition of this assault charge, the following occurred:

Q. [By DEFENSE COUNSEL] And Mr. Smallwood was found not guilty of that assault in court, was he not?


THE COURT: Sustained.


Q. Do you recall coming in--

ASSISTANT STATE'S ATTORNEY: Your Honor, may I interrupt? All I want is a cautionary instruction that a finding of not guilty does not necessarily mean he was not guilty.

THE COURT: Well, it's not relevant to this proceeding. I interrupted Mr. Neal in his opening statement and I made comments about it at that time. My feelings are still the same and if counsel still wants to proceed, then I'm going to have to take some sort of sanction, but it's not necessary for him to proceed to protect his record.

DEFENSE COUNSEL: Thank you, Your Honor. Perhaps I can approach the bench to [explain] what I think is a legal basis for it.

THE COURT: Not at this time.

DEFENSE COUNSEL: I would object.

* * * * * *

Q. [BY DEFENSE COUNSEL] And that's not the only occasion that you have charged him with an offense against you, is it?

A. No, it isn't.

Q. What happened on that occasion? What was the final disposition on that case?

ASSISTANT STATE'S ATTORNEY: Your Honor, I would object.

THE COURT: Sustained.

ASSISTANT STATE'S ATTORNEY: Not to the charge, but the final disposition, that it is not relevant and it doesn't indicate--

THE COURT: I have already ruled.


Petitioner was convicted of robbery and sentenced to ten years. He appealed and the Court of Special Appeals affirmed the conviction in an unreported opinion. We granted certiorari in order to address the important issue involved.

Petitioner maintains that it was prejudicial error for the court to prevent him from cross-examining a witness about matters which affected the witness's bias, interests, or motive to lie. Petitioner was not attempting to introduce evidence of the absence of convictions on the previous charges in order to prove his innocence of the instant charges nor to attack the witness's veracity. Rather, Petitioner sought to demonstrate to the jury that the witness's motivation for testifying as she did in the instant case stemmed from her failure to obtain convictions in the previous cases. Petitioner claims that it was the witness's vindictiveness which moved her to testify against him and that he had a right to demonstrate this prejudice to the jury so that the jurors could accurately weigh the witness's testimony.

Petitioner considers the weight given to Ms. Lomax's testimony to be crucial in light of the questionable identification of the criminal agent by Mr. Piercy from a photo array. Mr. Piercy testified at trial that he was initially shown six black-and-white pictures by the police detective investigating the case. From these six photos, Mr. Piercy testified, he picked one as possibly being the person who robbed and struck him. The police detective, however, testified that Mr. Piercy picked two photos from the black-and-white array as possibly looking like the perpetrator. One of these photos was of Petitioner. The detective later showed Mr. Piercy another photo array containing six color pictures. The detective testified that he repeated only the picture of Petitioner in the second photo array even though Mr. Piercy had selected two photos from the black-and-white array. Mr. Piercy again selected Petitioner's photo, but at no point was Mr. Piercy absolutely certain that the individual in the picture was the man who robbed him.

There was also testimony presented that Petitioner was not the only individual who drove Ms. Lomax's car during the month of April, 1987. Petitioner's brother testified that he had driven the car himself on several occasions. Petitioner contends that all of these facts raise doubts about the identity of the robber, and that the jury should have been exposed to Ms. Lomax's bias before it reached a guilty verdict based on her testimony.

The State counters by asserting that trial judges have broad discretion regarding the scope of cross-examination and that absent an arbitrary or capricious decision, such discretion should not be disturbed. The State maintains that the court was concerned that an extended digression into irrelevant charges filed against Petitioner would confuse the jury and obscure the issues which it had to decide. The State persists that sufficient evidence of the witness's possible prejudice or bias had already been presented and therefore any further discussion of the point was unnecessary.

Furthermore, according to the State, if the curtailment of the cross-examination was error, it was harmless error. The State cites two of our cases, State v. Collins, 318 Md. 269, 568 A.2d 1 (1990), and Bruce v. State, 318 Md. 706, 569 A.2d 1254 (1990), as illustrative of the premise that curtailment of cross-examination can be harmless error. Regarding the instant case, the State maintains that the witness's testimony was of minimal importance to the prosecution and that evidence of her bias had already been presented to the jury.

In Collins, the testimony of an accomplice contributed to the defendant's conviction. The trial judge limited the evidence which could be introduced regarding drug charges pending against the accomplice. We ruled that this limitation did not constitute reversible error because the accomplice's plea agreement with the State had been thoroughly outlined on direct examination. We concluded that the jury had received ample evidence from other sources with which to judge the accomplice's credibility and possible bias. 318 Md. at 282, 568 A.2d at 7.

In Bruce, which also involved a plea agreement in return for testimony, we concluded that the exclusion of a photograph of one of the weapons found in the witness's possession did not prejudice the defendant. In fact, we held that the defendant had been given the opportunity to expose in some detail the nature of the charges which were being dropped in exchange for testimony. Bruce, 318 Md. at 728, 569 A.2d at 1265.

We have not previously addressed the specific situation in which a judge prohibits cross-examination regarding the outcome of unrelated charges made by a witness against a defendant. Reviews of the limits placed on cross-examination have, however, been undertaken by the United States Supreme Court and by the appellate courts of this state. See State v. Cox, 298 Md. 173, 468 A.2d 319 (1983) and cases cited therein. Using the pertinent Supreme Court decisions as a guide, there has evolved a standard analytical framework for Maryland courts to follow when confronted with this situation.

In Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 682-83 (1986), and Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353-54 (1974), the Supreme Court set forth the general principle that the confrontation clause of the Sixth Amendment affords defendants the right to cross-examine witnesses regarding matters which affect the witnesses' bias, interests, or motive to falsify. In Franklin v. State, 239 Md. 645, 212 A.2d 279 (1965), we held that the right to cross-examine in general is inherent in the right to confront witnesses. More specifically, in Hopper v. State, 64 Md.App. 97, 104, 494 A.2d 708, 712 (1985), the Court of Special Appeals held that Article 21 of the Maryland Declaration of Rights affords defendants in Maryland the right to cross-examine for matters affecting bias or prejudice to the extent...

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