Washington v. State

• Decision Date: 27 May 1982
• Docket Number: No. 66,66
• Citation: 445 A.2d 684,293 Md. 465
• Parties: William Preston WASHINGTON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 465

293 Md. 465

445 A.2d 684

William Preston WASHINGTON v. STATE of Maryland.

No. 66.

Court of Appeals of Maryland.

May 27, 1982.

Louis P. Willemin, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Diane G. Goldsmith, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., SMITH, DIGGES, ^* ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

ELDRIDGE, Judge.

Certiorari was granted in this criminal case to decide an issue previously unaddressed by this Court. That issue is whether evidence of threats made to a prosecution witness, who has been impeached by prior inconsistent statements, is admissible for the purpose of explaining the inconsistency when the threats were not linked to the defendant. In addition, two secondary issues are presented: whether a pretrial photographic identification should have been suppressed as the fruit of a tainted arrest because an informant's tip allegedly did not furnish probable cause under the test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); whether the evidence was sufficient to sustain a conviction on a weapons charge under Maryland Code (1957, 1982 Repl.Vol.), Art. 27, § 36(a).

The defendant, William Preston Washington, was arrested for the murder of Anthony Lane. During the murder investigation an eyewitness, Bessie Williams, was discovered. Ms. Williams, when asked to identify Lane's assailant, selected from five photographs one of Washington which had been taken after his arrest. On the basis of this and other evidence, Washington was indicted for murder and for carrying a deadly weapon openly with intent to injure. At a pre-trial suppression hearing on the admissibility of the photographic identification, counsel for the defendant requested that Ms. Williams participate in an in-court identification. The request was made in hope of an unsuccessful identification that would cast doubt on the reliability of the previous photographic identification. Ms. Williams was unable to pick Washington from a group of five men.

The trial in the Criminal Court of Baltimore was held on the following day, and the State called Bessie Williams to testify. During direct examination she was once again asked to identify Lane's assailant, and she positively identified the defendant. On cross examination the defense brought out Ms. Williams's unsuccessful attempt at identification the previous day. The State, on redirect, asked her to explain the inconsistency. Over defense counsel's objections, Ms. Williams attributed her inability to identify Washington to fear invoked by anonymous "threat calls" that she had been getting at her job. The defense immediately moved for a mistrial, but the motion was denied. The trial court subsequently gave the jury the following cautionary instruction "Good afternoon, ladies and gentlemen. You will recall, ladies and gentlemen, when we ended on Friday afternoon there was testimony by the witness Bessie Williams, with regard to the fact that she had been threatened and was scared, and that was the reason why there was a difference in her identification testimony on a prior occasion than what she testified to on the witness chair before you.

That testimony is not evidence of guilt on the part of the Defendant since there is no connection of those threats, if any, with the Defendant. So, that is not evidence of guilt of the Defendant.

The only reason for its admissibility is to determine the credibility of the witness Bessie Williams, whether she is believable, credible or truthful on the witness stand before you or another time. So, it could only be considered for that purpose."

Washington was convicted of second degree murder and carrying a weapon openly with intent to injure. He appealed to the Court of Special Appeals, and this Court issued a writ of certiorari prior to argument in that intermediate appellate court.

I.

The principal issue in this case concerns the admissibility of evidence of threats as it relates to a witness's credibility. A different issue, not presented here, arises when similar testimony is offered as substantive evidence on the issue of guilt. ¹

When a witness is impeached by a prior inconsistent statement, evidence explaining the inconsistency is clearly admissible for the purpose of rehabilitating the witness's credibility. As Judge McWilliams pointed out for the Court in Virginia Freight v. Montgomery, 256 Md. 221, 226, 260 A.2d 59, 61 (1969), "a witness whose testimony has become suspect by a showing of prior inconsistent statements may rehabilitate himself ... by explaining the reasons for any such inconsistencies." Wigmore states the rule as follows:

"... the impeached witness may always endeavor to explain away the effect of the supposed inconsistency by relating whatever circumstances would naturally remove it. The contradictory statement indicates on its face that the witness has been of two minds on the subject, and therefore that there has been some defect of intelligence, honesty, or impartiality on his part; and it is conceivable that the inconsistency of the statements themselves may turn out to be superficial only, or that the error may have been based not on dishonesty or poor memory but upon a temporary misunderstanding. To this end it is both logical and just that the explanatory circumstances, if any, should be received."

3A Wigmore on Evidence § 1044 (Chadbourn Revision 1970)

See Wilson v. State, 261 Md. 551, 555-558, 276 A.2d 214 (1971); Reid v. Humphreys, 210 Md. 178, 186-187, 122 A.2d 756 (1956); Campbell v. State, 203 Md. 338, 344-345, 100 A.2d 798 (1953); Stoner v. Devilbiss, 70 Md. 144, 160-161, 16 A. 440 (1889).

Accordingly, a witness has been allowed to explain prior inconsistent statements by showing that they were induced by bribes, State v. Minton, 234 N.C. 716, 68 S.E.2d 844 (1952); that they were made while under sedation, Hodges v. Haverty, 115 Ga.App. 199, 154 S.E.2d 276 (1967); that they were made during a period of memory loss, State Automobile Mut. Ins. Co. v. Ropp, 7 Mich.App. 698, 153 N.W.2d 172 (1967); that they were made in an attempt to remain uninvolved in the proceeding, Tucker v. State, 5 Md.App. 32, 245 A.2d 109 (1968); or that they were induced by threats from the defendant, State v. Charles, 525 S.W.2d 360 (Mo.App.1975); Commonwealth v. Crow, 303 Pa. 91, 154 A. 283 (1931).

Pursuant to the rule permitting explanations of prior inconsistent statements, it is generally held that evidence of threats to a witness or fear on the part of a witness, in order to explain an inconsistency, is admissible in criminal cases for credibility rehabilitation purposes even if the threats or fear have not been linked to the defendant. E.g., United States v. Holladay, 566 F.2d 1018 (5th Cir.) cert. denied, 439 U.S. 831, 99 S.Ct. 108, 58 L.Ed.2d 125 (1978); United States v. Rivera, 513 F.2d 519 (2d Cir.) cert. denied, 423 U.S. 948, 96 S.Ct. 367, 46 L.Ed.2d 284 (1975); United States v. Cochran, 499 F.2d 380 (5th Cir. 1974) cert. denied, 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 825 (1975); United States v. Pritchard, 458 F.2d 1036, 1039-1040 (7th Cir.) cert. denied, 407 U.S. 911, 92 S.Ct. 2434, 32 L.Ed.2d 685 (1972); United States v. Scandifia, 390 F.2d 244, 251-252 (2d Cir. 1968), vacated & remanded on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969); Benefield v. State, 140 Ga.App. 727, 731, 732, 232 S.E.2d 89 (1976); State v. May, 587 S.W.2d 331 (Mo.App.1979); Commonwealth v. Carr, 436 Pa. 124, 259 A.2d 165 (1969); Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978) cert. denied, 444 U.S. 885, 100 S.Ct. 176, 62 L.Ed.2d 114 (1979).

Nevertheless, the defendant contends that this Court should reject the position taken throughout the country and hold that evidence of threats is not admissible for credibility rehabilitation purposes unless the threats are linked to the accused. It is argued that the admission of such evidence creates an unfair prejudice which outweighs the probative value of the evidence. We disagree.

The degree of prejudice caused by the evidence of threats is certainly less when the threats are not connected with the accused than when they are linked to him. As held in the above-cited cases, any unfair prejudice to the accused in this situation can be cured by his requesting a cautionary jury instruction, such as given in the present case, telling the jury to consider the evidence only for the purpose of assessing the witness's credibility and not as evidence of guilt. The defendant assumes that the jury will ignore such an instruction. However, we have pointed out on several occasions that "our legal system necessarily proceeds upon the assumption that jurors will follow the trial judge's instructions." State v. Moulden, --- Md. ---, 441 A.2d 699, 705 (1982), and cases there cited.

Furthermore, the anonymous source of the threats does not lessen the probative value of the evidence. As observed by the Missouri court in State v. May, supra, 587 S.W.2d at 336:

"The fact that defendant could not be linked to the threats, did not eradicate fear as the motive for the witness' inconsistent statements. The purpose of the testimony was not to show a consciousness of guilt but to explain the matters brought out on cross-examination."

Evidence of fear caused by anonymous threats obviously has very high probative value in explaining a prior inconsistent statement. Permitting one side to impeach a witness by showing a prior inconsistency, and not permitting the other side to explain the inconsistency by such probative evidence, does not comport with even-handed administration of justice. The comment by the Supreme Court of Arizona, in a case involving rehabilitation evidence just as prejudicial as the evidence here, is...