McDONALD, J.
The underlying facts of this case are not complicated. The setting was a pre-arranged drug deal in Prince George's County. The two purchasers intended to steal the drugs without paying for them. The seller came with fake pills. As the ill-fated transaction proceeded inside a car, things went awry. A gun appeared and the seller was fatally shot in the driver's seat. The question at trial was whether Petitioner Jerrod M. Peterson, one of the purchasers, had pulled the trigger.
The prosecution presented the testimony of several eye witnesses — a man who had accompanied the deceased seller, the other purchaser who accompanied Mr. Peterson, the intermediary who introduced Mr. Peterson to the seller, and the intermediary's sister who was nearby when the incident took place — to prove that Mr. Peterson was the assailant. The defense attempted to create doubt about Mr. Peterson's guilt by cross-examining those witnesses about their perception and memory of the event, and their potential biases. While the trial court allowed the defense to pursue various lines of inquiry, it prohibited defense counsel from asking certain questions.
Mr. Peterson was convicted of first degree felony murder and related charges. He seeks reversal of those convictions on the ground that the trial judge unduly restricted his cross-examination of two prosecution witnesses. He asserts that the limits placed on his counsel's cross-examination not only exceeded the discretion normally accorded to trial judges, but also amounted to a violation of his right under the federal and State constitutions to confront the witnesses against him. As an additional ground for reversal, he asserts that the trial court erred when it
We hold that the limitations placed on counsel's cross-examination — to the extent that Mr. Peterson preserved an objection to them — were within the discretion of the trial judge and did not violate Mr. Peterson's constitutional right of confrontation. While the attorney-client privilege did not apply to the discussion at the proffer session, the court properly refused to allow the testimony that counsel sought to adduce as it was of minimal relevance, cumulative, and the potential for straying into privileged areas outweighed any probative value.
In mid-March 2009, about one week before the shooting that is the subject of this case, Mr. Peterson was introduced to Domonique Gordon by Calvin Rose at the home of Mr. Rose's mother (where Mr. Rose resided) in Landover, Maryland. Mr. Gordon and Mr. Peterson arranged to meet at the same place during the following week in order for Mr. Peterson to purchase ecstasy pills
On the appointed date, late on the evening of March 27, 2009, Mr. Gordon and his friend James McLaurin drove from Washington, D.C., to Mr. Rose's neighborhood with a bag of imitation ecstasy pills. Mr. Gordon parked in front of Mr. Rose's house and sat in the driver's seat while Mr. McLaurin occupied the front passenger seat. Mr. Rose came out of his mother's house to speak with Mr. Gordon, who emerged from the car while Mr. McLaurin remained seated within.
Mr. Peterson and his acquaintance Thomas Hughes had driven separately to the neighborhood in a car provided by Alexis Brown, a friend of Mr. Peterson who accompanied them with her four-year old son. They parked a block from Calvin Rose's house. Ms. Brown and her child remained in the car a block away, out of sight of Mr. Gordon's car, while Mr. Peterson and Mr. Hughes walked back to meet with Mr. Gordon.
Once the men were together, at Mr. Gordon's suggestion, he and Mr. Peterson got into his car, with Mr. Gordon returning to the driver's seat and Mr. Peterson taking the rear seat on the driver's side, but leaving the door open. Mr. McLaurin had remained seated in the front passenger seat. Mr. Rose and Mr. Hughes were outside in front of the car.
Shortly thereafter, a gun appeared — wielded by Mr. Peterson, according to prosecution witnesses at the trial. The three men inside the car began struggling. A shot was fired, striking Mr. Gordon inside the car. Mr. Hughes ran from the area in front of the car to the back of the car near Mr. Peterson. Mr. McLaurin got out of the car and tried to run away, but
Mr. Peterson and Mr. Hughes fled back to Ms. Brown's car with the pills and money and drove off. After the two men left the neighborhood, Mr. Rose stayed on the scene of the shooting and waited for the police to arrive. He received a call on his cell phone from Mr. Peterson, who told him not to say anything to the police. Mr. Rose hung up on Mr. Peterson and gave a statement to the police about what happened. Mr. Gordon died from his gunshot wound. But Mr. McLaurin survived and spoke with an officer on the scene before being transported to a hospital.
Mr. Peterson and Mr. Hughes were arrested the next day. Mr. Gordon's wallet was later recovered from the driver's side of Ms. Brown's car.
A statement of charges was filed against both Mr. Peterson and Mr. Hughes in connection with the shooting on March 28, 2009. Those charges were superseded when the grand jury returned indictments on May 19, 2009, against both men charging them with several offenses related to the incidents: first degree felony murder, two counts of use of a handgun during the commission of a felony or crime of violence, assault in the first degree, robbery with a dangerous or deadly weapon, conspiracy to commit murder, conspiracy to commit robbery, attempted first degree murder, and robbery. Circuit Court for Prince George's County, Case Nos. CT090712A, CT090712B.
Mr. Hughes later entered into a plea agreement with the State several months before his trial, agreeing to testify against Mr. Peterson in exchange for a sentence of 20 years' imprisonment, with all but eight years suspended.
After numerous motions hearings and postponements, Mr. Peterson's case came to trial in mid-August 2011. The prosecution theory of the case was that, after arranging for a drug deal with Mr. Gordon, Mr. Peterson planned to rob him; that, for that purpose, he enlisted Mr. Hughes; that Mr. Peterson obtained transportation from his friend Ms. Brown and, unknown to the others, brought a gun to the meeting with Mr. Gordon; and that, during the struggle in Mr. Gordon's car, Mr. Peterson shot him from behind and before he fled back to Ms. Brown's car, also shot Mr. McLaurin.
The State presented the testimony of four witnesses to the shooting: Mr. Rose, his sister Cassandra Rose, Mr. McLaurin, and Mr. Hughes.
Calvin Rose. Calvin Rose testified that he had been friends with Domonique Gordon, and that he knew Jerrod Peterson from living in the same neighborhood for many years. He testified that he had introduced Mr. Peterson and Mr. Gordon to each other the week before the shooting. On the evening of March 27, 2009, Mr. Peterson called him at his home to ask if he had seen Mr. Gordon. Mr. Rose looked outside while he was on the phone. He saw Mr. Gordon in a car outside his house, and informed Mr. Peterson that Mr. Gordon was there. Mr. Rose then went outside to talk to Mr. Gordon. He saw Ms. Brown's car pass by and shortly thereafter Mr. Peterson and Mr. Hughes (then unknown to Mr. Rose) walked up to them.
At Mr. Gordon's suggestion, Mr. Gordon got back into the driver's seat of the car and Mr. Peterson got in the back seat
After Mr. Peterson and Mr. Hughes left the area, Mr. Rose went outside and saw Mr. McLaurin laying on the ground. After the police arrived, Mr. Peterson called Mr. Rose on his cell phone while Mr. Rose was talking with a police officer on the scene. Mr. Peterson told him not to say anything to the police. Mr. Rose testified that he replied, "What the f[---] did you do? I don't even know you," and hung up. In an interview at the police station, he later identified Mr. Peterson as the man with the gun.
Thomas Hughes. According to Mr. Hughes, he met Mr. Peterson a few days before the shooting through Mr. Hughes' cousin. Mr. Peterson told him that he knew someone who sold ecstasy pills, but that he thought they could easily steal the pills instead of paying for them. Mr. Peterson asked him to obtain a gun. Mr. Hughes could not find a gun and assumed they would attempt to steal the pills without a weapon. He also thought his cousin would be participating in the theft, but when Mr. Peterson picked him up, the only other people in the vehicle were a woman and child he did not know.
Mr. Hughes testified that they drove past Mr. Rose's house and parked down the street. They walked back up the street and, when they arrived at the Rose house, Mr. Peterson entered the back seat of Mr. Gordon's car while Mr. Hughes stood outside the car with Mr. Rose. He was surprised to see Mr. Peterson brandish a gun and, when a struggle broke out in the car, he ran to the side of the car to help Mr. Peterson. He reached into the car to try to pull Mr. Peterson out, but was unable to do so. Mr. Peterson then shot Mr. Gordon. As Mr. McLaurin fled the car, Mr. Peterson shot Mr. McLaurin in the leg. According to Mr. Hughes, he and Mr. Peterson then fled back to the car in which they had come.
James McLaurin. Mr. McLaurin, who worked as a barber in the District of Columbia and had known Mr. Gordon for a number of years, met with Mr. Gordon on the day of the murder at his barber shop. He testified that, after drinking at the barber shop for a while, he and Mr. Gordon drove over the state line to buy more liquor at a Maryland liquor store. They then drove to Mr. Rose's neighborhood, an area unfamiliar to Mr. McLaurin. He testified that Mr. Peterson entered their car and, at some point afterwards, struck Mr. McLaurin with a metal object and demanded that he "give me your money." Mr. McLaurin was dazed, but he heard a struggle in the car and a gun shot. He got out of the car, but was struck by a bullet in the right thigh and fell to the ground. He said that someone grabbed his belongings and fled while he was on the ground. He crawled back to the car, but was unable to rouse Mr. Gordon. The police arrived shortly thereafter and he was taken to the hospital.
Cassandra Rose. Mr. Rose's sister, Cassandra Rose, testified that she was looking out the second floor window of her home
Other testimony. Although she did not see the shooting, Alexis Brown testified about driving to the location with Mr. Peterson and Mr. Hughes that night, remaining in the car for 15 minutes when the two men went to their meeting, and departing after they returned with pills and money. Other prosecution witnesses included the police officers who responded to the shooting and crime evidence technicians who had collected and processed evidence from the crime scene. The technicians introduced photographs of the crime scene and items recovered at the scene that night, including money, drugs, clothing items, and bullets, as well as Mr. Gordon's wallet, which had been recovered from next to the driver's seat in the car Mr. Peterson had driven. An expert in forensic serology and DNA analysis from the county crime lab and a firearms examiner testified about their examination of the recovered items and established that Mr. Peterson's DNA was found on the steering wheel of Ms. Brown's car. The deputy chief medical examiner testified concerning the autopsy of Mr. Gordon.
The defense suggested, largely through cross-examination of the State's witnesses, that Mr. Hughes was the shooter. A ballistics expert testified about ejection patterns in modern pistols and concluded that the spent casing indicated that Mr. Gordon was shot from either behind or to the side. Several friends and family members of Mr. Peterson testified as character witnesses on his behalf. The defense also called the lead detective in the case and questioned him about proffer sessions between Mr. Hughes and the State before Mr. Hughes became a witness for the State, as well as the detective's interviews of James McLaurin and Calvin Rose.
The jury found Mr. Peterson guilty of first degree felony murder, first degree assault, robbery with a dangerous or deadly weapon, conspiracy to commit robbery, theft, and two counts of use of a handgun during the commission of a felony or crime of violence.
On September 2, 2011, Mr. Peterson was sentenced to life in prison, with all but 85 years suspended and including 10 years mandatory incarceration related to the two firearms convictions.
Mr. Peterson appealed. The Court of Special Appeals affirmed his convictions in an unreported decision. We granted a writ of certiorari to consider (1) whether certain limitations on defense counsel's cross-examination of Mr. Rose and Mr. Hughes exceeded the trial court's discretion and violated his constitutional right to confront the witnesses against him; and (2) whether the attorney-client privilege precluded the defense from calling Mr. Hughes' attorney as a witness to testify as to his proffer sessions with the prosecution.
Mr. Peterson points to three areas of inquiry that he argues were improperly
It has long been recognized that cross-examination is essential to the truth-finding function of a trial.
Mr. Peterson asks this Court to adopt a "two-tiered standard of review" when a defendant alleges unconstitutional limits on cross-examination. Under that approach, he argues, we should review the trial court's rulings with respect to cross-examination in his case under a de novo standard rather than an abuse of discretion standard. Mr. Peterson primarily relies on United States v. Larson, 495 F.3d 1094 (9th Cir.2007) (en banc), in which the Ninth Circuit Court of Appeals articulated the following approach to assessing claims that a trial court's restrictions on cross-examination violated the Confrontation Clause: If the defendant's challenge is based on "the exclusion of an area of inquiry," the court reviews de novo. If the limitation is on "the scope of questioning within a given area," the court reviews under an abuse of discretion standard. 495 F.3d at 1101.
Under this approach, the standard of review turns on how one distinguishes between what is an "area of inquiry" and what is "within an area of inquiry." In Larson, the court held that "the biases and motivations to lie of the Government's cooperating witnesses" constituted an "area of inquiry," and that limitations on cross-examination of those witnesses about mandatory minimum sentences were "within" that area and therefore to be reviewed under an abuse of discretion standard.
The approach of the Ninth Circuit is perhaps one useful way of conceptualizing an appellate court's task in assessing a claim that a restriction on cross-examination violated a defendant's right of confrontation. However, we see no particular need to adopt it. In controlling the course of examination of a witness, a trial court may make a variety of judgment calls under Maryland Rule 5-611 as to whether particular questions are repetitive, probative, harassing, confusing, or the like. The trial court may also restrict cross-examination based on its understanding of the legal rules that may limit particular questions or areas of inquiry. Given that the trial court has its finger on the pulse of the trial while an appellate court does not, decisions of the first type should be reviewed for abuse of discretion. Decisions based on a legal determination should be reviewed under a less deferential standard. Finally, when an appellant alleges a violation of the Confrontation Clause, an appellate court must consider whether the cumulative result of those decisions, some of
The Maryland Rules require that a party who objects to the admission or exclusion of evidence at trial must make the grounds for a different ruling manifest to the trial court at a time when the court can consider those grounds and decide whether to make a different ruling. In particular, to preserve an objection to the trial court's exclusion of evidence, the party must show both prejudice and that "the substance of the evidence was made known to the court by offer on the record or was apparent from the context within which the evidence was offered." Maryland Rule 5-103(a)(2). A similar requirement pertains to an objection to the admission of evidence. See Maryland Rule 5-103(a)(1) (in order to contest admission of evidence, party must show prejudice, a timely objection, and the specific ground, if requested by the court or required by rule); Maryland Rule 4-323(a) ("An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived ...").
The preservation rule applies to evidence that a trial attorney seeks to develop through cross-examination. While counsel need not — and may not be able to — detail the evidence expected to be elicited on cross-examination, when challenged, counsel must be able to describe the relevance of, and factual foundation for, a line of questioning. See Grandison v. State, 341 Md. 175, 206-11, 670 A.2d 398 (1995).
The rules governing appellate review reflect the same principles. "Ordinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal." Maryland Rule 8-131(a). Although this Court may "address the merits of an unpreserved issue," that discretion "is to be rarely exercised and only when doing so furthers, rather than undermines, the purposes of the rule." Robinson v. State, 410 Md. 91, 104, 976 A.2d 1072 (2009); Conyers v. State, 354 Md. 132, 150, 729 A.2d 910 (1999). The purposes of Rule 8-131(a) are furthered in "cases where prejudicial error was found and the failure to preserve the issue was not a matter of trial tactics." Grandison v. State, 425 Md. 34, 69-70, 38 A.3d 352 (2012) (quoting Abeokuto v. State, 391 Md. 289, 327, 893 A.2d 1018 (2006)).
The purpose of the preservation rule is to "prevent[] unfairness and requir[e] that all issues be raised in and decided by the trial court, and these rules
A reading of the transcript reveals a zealous and talented defense attorney with a shotgun approach to objections and impeachment and a trial judge trying to maintain an orderly trial, growing impatient, and not always grasping what target the shotgun was aimed at. The discussion of the defense effort to impeach Calvin Rose's possible expectation of a benefit in relation to pending charges offers a case in point.
At a pre-trial hearing in November 2010 — before a different judge than the judge who ultimately presided over the trial — the prosecution and defense had agreed that defense counsel could ask Mr. Rose whether he expected to benefit from his testimony with respect to certain charges pending against him at the time of trial — in particular, an unspecified pending charge in Prince George's County, a pending misdemeanor charge in Fairfax, Virginia, and an alleged violation of probation in Virginia.
When the case came to trial the following year before a different judge, the agreement appeared to have broken down — or at least there were differences as to its interpretation. In opening statement, defense counsel sought to defuse the impact of the anticipated adverse testimony of Calvin Rose by advising the jury that Mr. Rose had prior convictions and also had "pending" charges. The mention of pending charges was not specifically related to a possible "expectation of benefit," although counsel did state that Mr. Rose had previously "work[ed] with the State" — apparently a reference to a cooperation agreement with the Fairfax County, Virginia, police. The prosecution objected at the mention of pending charges. After ascertaining from the defense counsel that he was not referring to any charges or agreements
After opening statements had concluded, but before testimony began, defense counsel asked for a mistrial or, alternatively, to supplement his opening statement, on the ground that that the trial judge had denied Mr. Peterson due process by sustaining objections to parts of the defense opening statement, some of which related to the anticipated impeachment of prosecution witnesses. Defense counsel asked to "make a record" in connection with the mistrial motion:
As the trial judge predicted, the issue concerning questioning Mr. Rose about whether he expected to benefit from his testimony in relation to pending charges came up later that day when Mr. Rose took the stand. This time, however, the defense objected to the testimony. When Mr. Rose testified on direct examination, the prosecutor sought, as experienced litigators often do, to anticipate and perhaps blunt the expected impeachment of the witness by questioning him about topics that might affect the jury's assessment of his testimony. In particular, she questioned Mr. Rose about his own run-ins with the law and whether he had any agreement with the State or expected any benefit from his testimony on behalf of the State. Defense counsel objected to this line of questioning, and his objections were sustained. Defense counsel thus successfully excluded Mr. Rose's testimony about whether he expected a benefit as to pending charges. Whether or not this was a waiver (as the State argues), the trial court might be forgiven if it gained the impression that the defense did not view Mr. Rose's answer to whether he expected a benefit from his testimony as useful to assess his credibility.
On cross-examination, defense counsel questioned Mr. Rose both about what he observed the night of the shooting and other matters designed to impeach Mr. Rose's credibility. He asked Mr. Rose about his role in introducing Mr. Peterson and Mr. Gordon, soliciting an admission that Mr. Rose "wasn't stupid" about why the men were meeting up, and implying that Mr. Rose was actually the one who arranged the drug transaction. He obtained an admission from Mr. Rose that he had not seen where Mr. Peterson had obtained the gun. He asked whether Mr. Rose held a grudge against Mr. Peterson for trying to break into Mr. Rose's car sometime prior to the shooting. He probed whether Mr. Rose had given inconsistent descriptions of the shooting in his 9-1-1 call and in his later statements to police and to a defense investigator. Defense counsel also obtained an admission from Mr. Rose that he had prior car theft convictions and that he was on probation in Fairfax, Virginia, for possession of burglary tools.
After obtaining admissions from Mr. Rose about his prior convictions, defense counsel then sought to pursue the same line of questioning that he had successfully objected to during direct examination. Defense counsel elicited that Mr. Rose was on probation in Fairfax, Virginia, and then the following exchange occurred:
At a bench conference moments later, defense counsel proffered what Mr. Rose's "testimony would have been had I been allowed to get into the probation[.]" Defense counsel listed Mr. Rose's pending violation of probation hearing in Fairfax, Virginia, and pending grand larceny charges in Essex County, Virginia, but did not mention any pending charges in Maryland. The discussion continued:
The bench conference moved on to other issues, Mr. Rose's testimony continued, and the trial ended for the day.
After the court dismissed the jury for the day, defense counsel asked the court to order that Mr. Rose be temporarily retained in custody in Maryland in case he needed to call him again later in trial. The court denied the request because Mr. Rose was to be returned to custody in Virginia where he was due for a court proceeding the following day.
Counsel and the court went on to discuss another area of cross-examination that defense counsel wished to pursue and then took up scheduling of witnesses for the next day of trial. At the conclusion of that discussion, defense counsel asked for an opportunity to proffer "the issue we forgot." For the first time since Mr. Rose took the stand defense counsel presented a written agreement between the Fairfax County police department and Mr. Rose under which Mr. Rose was to be a confidential informant. Defense counsel stated that it would be pertinent to Mr. Rose's "expectation of benefit" from his testimony in Mr. Peterson's case. The trial judge noted that it did not involve an expectation from the State of Maryland and stated that she "would have sustained any objection to you trying to get that in."
Before we address the particular argument made by Mr. Peterson, it is worthwhile to review the extent to which pending charges against a witness may — or may not — be a topic of cross-examination. Pursuant to statute and rule, the credibility of a witness may be impeached with evidence of certain types of convictions. See Maryland Code, Courts & Judicial Proceedings Article ("CJ"), § 10-905
What is admissible, however, in the case of a witness testifying for the State in a criminal case, is whether the witness expects some benefit with respect to pending charges as a result of testimony on behalf of the prosecution. It is the answer to such a question that is admissible when the question is permissible under Maryland Rule 5-616(a)(4), which allows a cross-examiner to ask questions "[p]roving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsify." See Calloway, 414 Md. at 637-39, 996 A.2d 869.
As with any question permitted by Rule 5-616(a)(4) suggesting that a witness is biased or has a motive to testify falsely, there must be a factual foundation for the question. Calloway, supra. The pending charges are not the impeachment evidence; rather, they are part of the factual predicate for asking the permitted question about bias or motive. But the existence of pending charges alone is not a sufficient predicate for such a question. Id. at 638, 996 A.2d 869. There must be some evidence — either direct (e.g., an agreement with the prosecution to resolve charges in return for testimony) or circumstantial (e.g., release of witness from custody,
Even if there is a factual foundation to ask a witness about the witness's expectation of a benefit with respect to pending charges, a trial court may limit such questioning if "the probative value of such an inquiry is
The discussion of the factual predicate for asking Mr. Rose about any expectation of benefit as to pending charges became somewhat confused because the topic was discussed at the same time when the defense told the jury about his prior convictions or asked him about those convictions. On more than one occasion, the trial court responded to defense counsel that "pending charges are not admissible" for impeachment — a statement that is indisputably true, as pending charges themselves are not admissible in the same way that a conviction may be for purposes of impeachment. But the defense effort, although not always clearly expressed, was to rely on pending charges as part of the factual basis for asking a question about any expectation of benefit that might influence Mr. Rose's testimony.
We turn to the particular items that Mr. Peterson contends provided a factual predicate for questioning Mr. Rose whether he expected to benefit from his trial testimony with respect to pending charges. It is undisputed that there was no agreement, written or oral, between Mr. Rose and the State, or other direct evidence of a benefit from his testimony. Rather, Mr. Peterson argues on appeal that there was circumstantial evidence that Mr. Rose would expect a benefit — consisting of pending charges against him in Maryland and Virginia, including a potential violation of probation charge, and a cooperation agreement he had with Virginia police in the past.
The existence of pending charges in Prince George's County could obviously help provide a circumstantial factual foundation for asking a question on expectation of benefit. However, in the context of cross-examining Mr. Rose, defense counsel never attempted to ask him about an expectation of benefit with respect to pending Maryland charges. Indeed, the closest anyone came to asking such a question was when the prosecutor attempted to ask Mr. Rose whether he expected to benefit from his testimony with respect to "anything in Prince George's County." However, the defense itself successfully objected to that question and prevented further inquiry.
The defense never brought up the topic of pending charges in Maryland while Mr. Rose was on the stand. It appears that the only time defense counsel mentioned the possibility of a pending Maryland charge to the trial judge was an allusion in an argument over the mistrial motion during opening statement and in the context of a discussion of Mr. Rose's custody status —
The closest that Mr. Peterson can claim to direct evidence of an expectation of a benefit from testimony for the prosecution was Mr. Rose's agreement to act as an informant for the Fairfax police. But, again, defense counsel never attempted to ask any questions about this agreement while Mr. Rose was on the stand. He only broached this area of examination with the court well after both the jury and Mr. Rose had departed. The judge's ruling — that she "would have sustained any objection" — was suitably hypothetical. Nor did the defense seek to recall Mr. Rose. Despite the trial judge's willingness to provide an advisory ruling, Mr. Peterson simply did not preserve this area of impeachment as an appellate issue.
Even if defense counsel had attempted to ask questions related to the Virginia informant agreement while Mr. Rose was on the stand, the judge's predicted ruling would have been appropriate in light of the cryptic information provided in the proffer. The agreement in question is with a police department in another state and, in fact, disclaims any "explicit or implicit" promises of benefit regarding any pending charges, other than that the Fairfax police would arrange a meeting with prosecutors. Nothing in the agreement indicated any connection to the Peterson trial, or to Maryland at all. Moreover, the Virginia agreement was dated August 2010, more than a year after Mr. Rose had identified Mr. Peterson to Maryland authorities as the shooter. There was no indication that it was still in effect at the time of trial in August 2011. Even if the defense proffer of the agreement had been made while Mr. Rose was still available for questioning, there was an insufficient factual predicate for Mr. Peterson's counsel to ask questions based on that agreement.
To the extent the defense preserved this issue at all, it was with respect to whether Mr. Rose had an expectation of benefit with respect to pending charges in Virginia. But, once again, defense counsel's clearest proffer about his intended cross-examination with respect to the pending Virginia charges came, not when Mr. Rose was on the stand, but in another context. It was only in his argument for a mistrial on due process grounds following opening statement, in which he related such questions to an "expectation of benefit" on the part of Mr. Rose from his testimony in Maryland. At that time, the court ruled on the matter at hand — the motion for mistrial or reopening of opening statement — and indicated that it would deal with issues relating to cross-examination when Mr. Rose was on the stand.
When Mr. Rose did take the stand, defense counsel cross-examined him about a wide variety of matters. After obtaining admissions from Mr. Rose as to his prior convictions, defense counsel then appeared to ask about a hypothetical future violation of probation ("And if you violated probation...") and the use of his current testimony in that context. At a bench conference, defense counsel reported to the court that Mr. Rose had a pending charge of violation of probation in Virginia, as well as a pending grand larceny charge but
We are thus presented with circumstances where it is difficult to say that the defense actually preserved this issue at the time the witness was on the stand, but where the judge after the fact indicated that she would have refused to allow such questions simply because pending charges were involved. We need not resolve whether defense counsel adequately preserved the issue in these circumstances. Even in the after-the-fact proffer concerning the pending Virginia charges, defense counsel did not point to anything like a dismissal of charges, a decision not to charge, or a postponement of disposition of charges that was present in Calloway, Martinez, and Dionas. Moreover, the charges were pending in another jurisdiction and there was no direct or circumstantial evidence that would suggest Mr. Rose was to receive a benefit on the Virginia charges from his testimony in Maryland. Finally, it was undisputed that, on the night of the shooting when Mr. Rose called 9-1-1 and then identified Mr. Peterson as the shooter to the police, there were no charges pending against him in Virginia. As this Court explained in Calloway, a court would have discretion to exclude questioning about possible bias that may be confusing or prejudicial and when the witness's self-interest may be established by other evidence that is more probative on the point. 414 Md. at 638, 996 A.2d 869. The defense suggested in its cross-examination that Mr. Rose identified Mr. Peterson out of personal animus that existed at the time of the crime. Even if defense counsel had preserved the issue, the trial court would have had discretion to exclude questions based on the pending charges in Virginia.
The ruling of the trial judge that "pending charges are not admissible" was, strictly speaking, correct. But that was not what defense counsel was attempting to do. Rather, what the defense apparently sought to ask — and the answer that might have been admissible — was whether Mr. Rose had an expectation of benefit with respect to charges pending against him at the time of his testimony. However, the proffer that made defense counsel's intention clear emerged in pieces and spurts, some of it in the context of a legal argument about a different question before any witness had taken the stand and much of it after the witness was long gone. An appellate court has the leisure to stitch together different pieces of transcript and see where the defense wished to go. It is not surprising that the trial court did not. On this record, we cannot say that the defense adequately preserved the issue that it has raised on appeal as to the questioning of Mr. Rose about his expectation of a benefit.
In any event, even if it had been preserved, it is not at all clear that there
Finally, given the extent to which the defense was able to cross-examine Mr. Rose freely on alleged reasons he might be biased against Mr. Peterson or might shape his testimony adverse to the defendant, the defense cross-examination satisfied the "threshold of inquiry" into the witness's potential bias and motive to testify falsely.
Thomas Hughes was called as a prosecution witness and testified for most of one day of the trial. The vast majority of that testimony consisted of largely unimpeded cross-examination by Mr. Peterson's counsel on topics such as:
While the cross-examination was lengthy, wide-ranging, and, at least on paper, appears effective,
Mr. Peterson argues that the trial court erred in limiting the defense cross-examination of Mr. Hughes about hallucinations Mr. Hughes reported after his arrest. As a basis for asking such questions, defense counsel presented the trial court with three pages of handwritten medical records relating to Mr. Hughes, entitled Correctional Medical Services Inter Disciplinary Progress Notes. The notes appeared to relate to a period of time that Mr. Hughes spent at the Prince George's County Detention Center, between April 2009 — the month after the crime at issue in the trial — and March 2010.
Nothing in the three pages that defense counsel presented to the court actually indicated that Mr. Hughes had reported hallucinations near the time of the crime or his arrest. Defense counsel sought to infer that Mr. Hughes was suffering from hallucinations on the night of the crime from two entries in the notes: a notation that Risperdal
The jury was then dismissed for lunch and defense elaborated on his proposed line of cross-examination:
The issue was seemingly not resolved when counsel and the court also broke for lunch — or at least it appeared that defense counsel had not persuaded the judge that he had a good faith basis for asking questions about possible hallucinations at the time of the offense. When the trial resumed after lunch, defense counsel pursued a different line of cross-examination.
Nearly four hours later, after Mr. Hughes' testimony had concluded and the jury had left the courtroom, defense counsel asked to supplement the three pages of medical notes provided to the court during the discussion of the proposed cross-examination about hallucinations by attaching a fourth page. The supplement consisted of a single page entitled "Psychiatric Evaluation" dated April 9, 2009, with some indecipherable (to the appellate eye) handwriting, and largely consisting of a printed list of items with space for checkmarks — presumably part of the medical history taken from an interview with Mr. Hughes. Among the items checked was "hallucinations."
As best we can tell from the record, after the lunch break, defense counsel never renewed his effort to ask about hallucinations and, as the transcript indicates, did
Between the trial and this appeal, it appears that the focus of Mr. Peterson's efforts to ask questions about hallucinations has shifted. At trial, defense counsel argued to the trial judge that his questions concerning hallucinations were intended to probe Mr. Hughes' perception of the events of March 27, 2009. The entire discussion before the trial judge centered on Mr. Hughes' perception at the time of the shooting.
Before us, Mr. Peterson makes a different argument as to the relevance of such cross-examination — that any hallucinations would have affected Mr. Hughes' memory of, "or ability to recall, the events of that evening."
This revised theory of cross-examination, like the fourth page of the medical notes, was not presented to the trial judge at the time Mr. Hughes was on the stand. We are hard put to say that it was preserved as a basis for overturning Mr. Peterson's conviction on the ground that the trial judge failed to allow his counsel to pursue it. A trial court is not required "to imagine all reasonable offshoots of the argument actually presented to [it] before making a ruling on admissibility." Sifrit v. State, 383 Md. 116, 136, 857 A.2d 88 (2004) (holding that a proffer based on one theory of admitting evidence did not preserve more detailed, and perhaps meritorious, theory); cf. Brecker v. State, 304 Md. 36, 39-40, 497 A.2d 479 (1985) ("[W]hen an objector sets forth the specific grounds for his objection[,] ... the objector will be bound by those grounds and will ordinarily be deemed to have waived other grounds not specified") (alterations added).
With respect to the proffer that was actually made to the trial court — to question Mr. Hughes' perception with the suggestion that he may have been hallucinating at the time of the shooting — there is no evidence of when Mr. Hughes' hallucinations started. The medical notes only indicate that, whenever they started, they had
Mr. Hughes entered into a plea agreement with the State under which he agreed to plead guilty to a charge of conspiracy to commit robbery with a dangerous weapon — an offense that carried a maximum penalty of 20 years imprisonment — and to testify truthfully before the grand jury and at trial. In return, the State agreed to dismiss the remaining charges against him, including a first degree murder charge that carried a potential sentence of life imprisonment, and to request the sentencing court to impose a sentence of 20 years with all but eight years suspended and with credit for time served.
While defense counsel was permitted to cross-examine Mr. Hughes at length about his plea agreement and the charges he faced prior to entering into that agreement, Mr. Peterson argues that the trial court improperly limited his cross-examination about the potential sentences associated with those charges. During cross-examination of Mr. Hughes concerning his plea agreement, defense counsel established that Mr. Hughes knew that he had been indicted for first degree murder and sought to ask him about his understanding of the maximum penalty for that charge. The prosecution objected to the question on the ground that the jury should not be told the penalties associated with the charges against Mr. Peterson — which were identical to the charges originally faced by Mr. Hughes.
Mr. Peterson argues that this ruling was erroneous, especially because of the significance of a life imprisonment sentence.
This Court affirmed, noting that the defense's extensive cross-examination of the witness about his criminal history and plea agreement gave the jury "ample opportunity to make a reasoned determination of [the witness's] truthfulness vel non and of the trustworthiness of his accounting of [the victim's] murder." Id. at 610, 583 A.2d 1044. Even had the witness testified that he understood he was avoiding a life sentence, in light of the other evidence brought out on cross-examination, it would have been of "minimal significance, if any at all, and certainly would not be essential for the jury to appreciate fully the `sweetness' of the deal made by the State to encourage him to testify." Id. at 611, 583 A.2d 1044.
The reasoning in Coleman is consistent with that of several federal courts of appeals that have also addressed whether a defendant is entitled to cross-examine a cooperating witness about a specific sentence the witness might have received in the absence of a plea agreement. See, e.g., United States v. Foley, 783 F.3d 7, 18-19 (1st Cir.2015) (when jury was aware that cooperating witness was expecting leniency as to his own sentence in exchange for his testimony, "[m]ore detail concerning the respective statutory maxima of the two crimes was neither necessary nor even particularly relevant"); United States v. Mussare, 405 F.3d 161, 169-70 (3d Cir. 2005) (no "categorical right" for defense counsel to ask cooperating witness about maximum penalty he could have received when defense was permitted to cross-examine about terms of plea agreement, dismissed charges, and other benefits from plea deal); United States v. Chandler, 326 F.3d 210, 221 (3d Cir.2003) (holding that defense was entitled to cross-examine cooperating witnesses concerning "magnitude" of sentence reduction under their plea agreements, but declining to hold that Sixth Amendment categorically entitled an inquiry into the precise sentence that could have been imposed); United States v. Arocho, 305 F.3d 627, 635-37 (7th Cir.2002) (trial court did not abuse discretion in prohibiting testimony about specific sentencing guideline ranges applicable to witnesses before and after they entered into plea agreements when defense was able to elicit sufficient information for jury to assess their credibility); United States v. Cropp, 127 F.3d 354, 359 (4th Cir.1997) (holding that defendant not entitled to inquire into specific sentences that cooperating witnesses might have received so long as the jury can make a "discriminating appraisal" of the possible biases and motivations of the witness) (quoting United States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir.1995)).
Mr. Peterson relies primarily on the Ninth Circuit's decision in United States v. Larson, 495 F.3d at 1104-6. The majority in Larson held that the trial court abused its discretion when it precluded the defense from asking about a witness's potential mandatory life sentence. The court acknowledged that a trial court ordinarily has discretion to prohibit cross-examination regarding the potential maximum sentence that a testifying witness would have faced. Id. at 1106. But it reached a different conclusion when a witness would have faced a mandatory minimum sentence: "any reduction from a mandatory life sentence is of such a significant magnitude
The key question is whether the jury was made aware of the witness's potential motive to testify in a particular way, including a desire for leniency in sentencing, and whether the added information about the specific sentence that the witness might have received in the absence of the plea agreement would have changed the jury's perception of the witness's credibility. In this case, Mr. Peterson's counsel thoroughly questioned Mr. Hughes concerning his plea agreement with the State. On cross-examination, defense counsel elicited that: (1) Mr. Hughes' sentencing date was scheduled for a date after he testified in Mr. Peterson's case, and depended on his testimony, (2) Mr. Hughes had been indicted for first degree murder, attempted first degree murder, conspiracy, two counts of robbery with a dangerous weapon, and two counts of use of handgun in the commission of a crime of violence, (3) Mr. Hughes' maximum sentence, under the plea agreement, was 20 years' imprisonment, with all but eight years suspended, (4) Mr. Hughes would have faced significantly more than eight years for the charges against him in the absence of the plea agreement, and (5) Mr. Hughes experienced fear when he thought about being sentenced for first degree murder.
It is evident that the trial judge carefully weighed the value of the jury knowing Mr. Hughes' specific potential sentence absent the plea agreement, with the prejudice of the jury learning of Mr. Peterson's potential sentence from a guilty verdict, and determined that the prejudice out-weighed the probative value. Mr. Peterson requested a limiting jury instruction to cure any potential prejudice, but the court did not agree that a limiting instruction was enough. The judge noted that most people understand that a conviction of first degree murder may entail severe punishment, and the jury was made aware that Mr. Hughes had instead pled guilty to a misdemeanor with the expectation of receiving only eight years' imprisonment.
In sum, it can hardly be said that the trial court "left the jury ill-informed about Hughes' credibility," as Mr. Peterson contends. To the contrary, the jury heard enough to make a "discriminating appraisal" of Mr. Hughes' credibility in light of the plea agreement. The jury had a clear picture of "how sweet it was" for Mr. Hughes to testify. Coleman, 321 Md. at 608, 583 A.2d 1044. The trial court did not abuse its discretion.
Given the proffer actually made to the trial court concerning the proposed cross-examination, the trial court acted within its discretion when it restricted defense counsel from asking Mr. Hughes about hallucinations. The trial court also had discretion to limit the otherwise extensive cross-examination
The significance of the trial court's rulings on these two areas of potential cross-examination must also be considered in the context of the other evidence in the case and Mr. Peterson's defense. It was undisputed that the shooting took place at or in Mr. Gordon's car
The trial court did not abuse its discretion in limiting the cross-examination of Mr. Hughes concerning hallucinations or the specific sentence he faced prior to his plea agreement. The extensive cross-examination of Mr. Hughes concerning his motives and potential bias more than met the "threshold level of inquiry" required by the Confrontation Clause.
Over the course of several motions hearings and the trial, Mr. Peterson's counsel raised a series of issues testing the limits of confidentiality of communications involving a co-defendant who becomes a State witness and the attorney representing that witness. Mr. Hughes had been represented, with respect to the charges against him, by Bethany Skopp, an Assistant Public Defender. Mr. Peterson's counsel issued two subpoenas to her in connection with Mr. Peterson's trial. The subpoenas led to a series of discussions among counsel, Ms. Skopp, and the court over the course of several hearings and the trial concerning the admissibility of the evidence the defense sought to obtain from her. Ultimately, the trial court declined to allow Mr. Peterson to call Ms. Skopp to the stand as a defense witness on the basis That the questioning would violate the attorney-client privilege of Mr. Hughes.
The information that Mr. Peterson sought to elicit from Ms. Skopp changed over the course of the proceedings, as did the evidentiary privileges and principles that applied to each iteration. At times, there was confusion about what permutation was being raised or whether it had been resolved by the judge who had presided at the pre-trial motions hearing. While this would make for a good issue-spotting law exam question, in the end the testimony ultimately sought by the defense in its last iteration was not protected by attorney-client privilege, but also was of minimal relevance and properly excluded. Placed in the position of an after-the-fact grader of the trial court's response to the last limited thrust of defense counsel, our assessment is, in essence: right answer, wrong reason.
At first, Mr. Peterson's counsel issued a subpoena for Ms. Skopp's notes of the proffer sessions between Mr. Hughes and the prosecution that occurred on December 7, 2009, and January 6, 2010. Ms. Skopp moved to quash the subpoena on the basis that her notes were protected from discovery under the attorney work-product doctrine. At a pre-trial hearing in July 2010, defense counsel conceded that those notes were likely protected by the work-product doctrine or attorney-client privilege, but argued that he should be permitted to review them or, alternatively, that the hearing judge should review them in camera to determine whether they could be disclosed to the defense. At that hearing, Mr. Peterson's counsel also indicated that he wished to question Mr. Hughes about conversations that Mr. Hughes had with Ms. Skopp, which led to a discussion as to whether Mr. Hughes had waived the attorney-client privilege. The hearing judge agreed to review the notes in camera and deferred a determination on waiver of the attorney-client privilege until Mr. Hughes was called to the stand at trial.
Four months later, at another pre-trial hearing in November 2010, the issue was raised again. The same judge again deferred ruling on the matter until trial when Mr. Hughes would be present and could decide whether to waive a privilege and when the relevance of, and need for, the proposed evidence could be considered in the context of the other evidence at trial.
By the time the case came to trial in August 2011, a different judge had been assigned to the case. The defense effort to call Ms. Skopp as a witness appeared to have broadened beyond her notes. Shortly before the trial, Mr. Peterson's counsel served a subpoena on Ms. Skopp to appear as a defense witness at trial. Ms. Skopp filed a motion for a protective order on the ground that she had no knowledge of the facts of the case other than her communications with her client and that those communications were protected by the attorney-client privilege.
On the first day of trial, before jury selection, defense counsel raised the issue of Ms. Skopp's testimony again. The parties agreed that the judge who had presided at the motions hearings in 2010 had never resolved the issue relating to the first subpoena to Ms. Skopp for her notes. Defense counsel indicated that he now wished to question her, after Mr. Hughes testified at trial, as to whether Mr. Hughes made statements at the proffer sessions that were inconsistent with his trial testimony. Unlike the discussion in the prior motions hearing, this proffer did not appear to involve asking Ms. Skopp about conversations that she and her client had in private, as both a prosecutor and police detective had attended the proffer sessions. Defense counsel conceded that "I doubt there will be anything that Ms. Skopp could provide that [the detective] couldn't provide" and noted that the detective would also be a witness at trial. In the end, defense counsel asserted that he wished to be able to call Ms. Skopp if the detective's memory failed as to the content of the proffer session. The trial judge indicated that she would not allow defense counsel access to Ms. Skopp's notes or to undertake such questioning on the ground that "[t]his is attorney-client privilege" and that the privilege had not been waived.
On the sixth day of trial, during the defense case, defense counsel revived the question of calling Ms. Skopp to the stand. On this occasion counsel made clear that his questions to Ms. Skopp about the proffer sessions would not extend to any private conversations between her and her client. The judge again expressed the view that the proposed testimony would be covered by the attorney-client privilege;
The Assistant State's Attorney objected to the proposed testimony on the ground of relevance and pointed out that it would be cumulative of the testimony of the detective. The court again confirmed that it would not permit Ms. Skopp to be called to the stand and appeared to rely again on the ground that such testimony would be covered by the attorney-client privilege.
Thus, Mr. Peterson's effort to make Ms. Skopp a witness began with a subpoena for her notes — material that the defense conceded was protected by work product privilege. It later was supplemented by a subpoena for her to appear as a witness at trial concerning statements of her client — which clearly implicated attorney-client privilege. Eventually, Mr. Peterson's counsel limited the scope of his proposed questioning of Ms. Skopp to what she heard and observed at the proffer sessions.
The attorney-client privilege is a longstanding common law privilege essential to the functioning of the legal system. Newman v. State, 384 Md. 285, 300-3, 863 A.2d 321 (2004); see also Zook v. Pesce, 438 Md. 232, 240-42, 91 A.3d 1114 (2014). Consistent with the common law evidentiary privilege, the General Assembly has provided that "[a] person may not be compelled to testify in violation of the attorney-client privilege." Maryland Code, Courts & Judicial Proceedings Article, § 9-108. It is left to the courts to define its contours. The attorney-client privilege "is ... `a rule of evidence that prevents the disclosure of a confidential communication made by a client to his attorney for the purpose of obtaining legal advice.'" Newman, 384 Md. at 302, 863 A.2d 321 (quoting E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 414, 718 A.2d 1129 (1998)). This Court has adopted Professor Wigmore's definition, which describes the contours of the privilege: "(1) Where legal advice of [any] kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection [may] be waived." Greenberg v. State, 421 Md. 396,
The testimony that defense counsel proposed to obtain from Ms. Skopp — at least in its final iteration and if carefully limited to that subject matter — would not be protected by attorney-client privilege. First, Mr. Peterson's counsel made clear that he did not intend to ask Ms. Skopp about any communications "made in confidence" between her and Mr. Hughes. The testimony would have related solely to statements made by or to the prosecution — an adverse party to Mr. Hughes in his own criminal case. In particular, defense counsel stated, "We're not going to ask her any questions about anything her client said to her outside the presence of [the prosecutor and the detective]." Second, the communications at issue were not made for the purpose of Mr. Hughes obtaining legal advice from Ms. Skopp. What Ms. Skopp may have recalled about the State's questions, the length of the meeting, and how Mr. Hughes responded are not the legal advice that Mr. Hughes requested or that she provided.
The State argues this is protected disclosure to a third party consistent with disclosures to potential expert witnesses or friends, see Newman, 384 Md. at 306, 863 A.2d 321; State v. Pratt, 284 Md. 516, 521-24, 398 A.2d 421 (1979); Rubin v. State, 325 Md. 552, 566, 602 A.2d 677 (1992); Davis v. Petito, 197 Md.App. 487, 515-16, 14 A.3d 692 (2011). But when a criminal defendant like Mr. Hughes discloses information to the Assistant State's Attorney prosecuting his case, that communication is fundamentally different from disclosing information to someone working on the defendant's behalf.
The State also argues that the proposed testimony would have violated Ms. Skopp's ethical duties. The State appears to equate the attorney-client privilege with the ethical obligation, under Rule 1.6(a) of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC"), to maintain the confidentiality of information relating to the representation of a client.
384 Md. at 304-05, 863 A.2d 321 (internal citations omitted). Moreover, under MLRPC 1.6(b)(6), even information that is confidential under the ethical rule may be disclosed pursuant to a compulsory process, such as a subpoena. Even if the events of the proffer session were confidential
Thus, we conclude that the trial court was mistaken when it excluded the proposed testimony of Ms. Skopp — at least the last iteration of the proposal — on the ground of attorney-client privilege. But that does not mean that it was error to exclude the proposed testimony. Under Maryland Rule 5-403, proffered evidence may be excluded, even if relevant, when "its probative value is substantially out-weighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Ms. Skopp's testimony would have been cumulative and marginally relevant to the question of Mr. Hughes' credibility. Although the legal basis stated for excluding it was technically incorrect, the trial judge's instinct to resist calling a defense attorney to the stand to testify as to statements made by her client was appropriate. The trial judge properly declined to conduct what would have amounted to a discovery deposition or mini-trial on the conduct of the proffer sessions, without any stated basis for believing that anything untoward had occurred.
For the reasons explained above, we conclude:
(1) The defense failed to preserve the issue of whether Mr. Rose could be questioned about an expectation of benefit with respect to pending charges and, in any event, did not proffer an adequate factual foundation for such questioning.
(3) The defense was not entitled, as a matter of law, to cross-examine Mr. Hughes about the maximum sentence he faced prior to his plea agreement with the State when the defendant on trial had been charged with identical offenses.
(4) The limitations on cross-examination described above did not violate Mr. Peterson's right of confrontation as to Mr. Rose or Mr. Hughes.
(5) While the proposed testimony by the Assistant Public Defender assigned to Mr. Hughes about his proffer session with the prosecution was not protected by the attorney-client privilege, it was of minimal or no relevance to the issues at trial and any probative value was outweighed by the possibility that such questioning could intrude on privileged information, particularly when the defense was able to question two other participants in the proffer session. Thus, it would not have been an abuse of discretion to preclude the questioning under Rule 5-403.
414 Md. at 638-39.
