Peterson v. State

Jerrod M. Peterson v. State of Maryland
No. 13, September Term 2014
Criminal Procedure - Cross-Examination - Right of Confrontation - Standard of
Appellate Review. Under the rules of evidence applicable to criminal trials, a trial court has
discretion to limit cross-examination to avoid confusion, prejudice, waste of time, and
witness harassment; an appellate court reviewing such a decision applies an abuse of
discretion standard. A trial court may also restrict cross-examination based on its
understanding of legal standards of admissibility of evidence; an appellate court reviews such
legal decisions without deference to the trial court. To determine, in a criminal case, whether
a trial court’s decisions to limit cross-examination of a prosecution witness violated the
defendant’s constitutional right of confrontation, an appellate court reviews whether the
cumulative effect of those decisions prevented defense counsel from reaching a “threshold
level of inquiry” as to that witness.
Criminal Procedure - Cross-Examination - Factual Foundation, Proffers, and
Preservation of Issue. When a trial court sustains an objection to a line of questioning on
cross-examination, counsel must make clear to the trial court the factual foundation and legal
basis for the line of questioning by proffer or otherwise in order to preserve the issue for
appellate review.
Criminal Procedure - Cross-Examination - Expectation of State Witness of Benefit
from Testimony with Respect to Pending Charges. Pending criminal charges are not
ordinarily admissible to impeach the testimony of a witness. A prosecution witness,
however, may be cross-examined about whether the testimony is influenced by the witness’s
expectation of a benefit from the testimony, if there is a factual foundation for suggesting that
there is such an expectation. Pending charges against the witness, in conjunction with other
direct or circumstantial evidence suggesting that the witness might expect lenient treatment
with respect to those charges as a result of the witness’s testimony, may be the requisite
factual foundation. However, defense counsel must proffer the factual foundation for the line
of questioning in a timely manner in order to preserve the issue.
Criminal Procedure - Cross-Examination - Mental Health Status. A trial court has
discretion to decline to allow cross-examination of a witness about whether possible
hallucinations affected the witness’s perception of a crime when the factual foundation
offered for the line of questioning did not indicate that the witness had experienced
hallucinations at the time of the crime. An argument that subsequent hallucinations may
have affected the witness’s memory of the crime is not preserved when the proffer at trial
focused on the witness’s perception at the time of the crime.
Criminal Procedure - Cross-Examination - Maximum Sentence Faced by State’s
Witness Prior to Entering into Plea Agreement with Prosecution. A trial court may
restrict defense counsel at trial from cross-examining a prosecution witness about the
maximum sentence that the witness would have faced prior to entering into a plea agreement
with the prosecution when the defendant on trial is charged with identical offenses and
defense counsel is permitted to cross-examine the witness at length about concessions made
to the witness by the State in the plea agreement regarding charges and sentencing.
Evidence - Attorney-Client Privilege - Criminal Law. Questions and answers made at a
proffer session between the prosecution and a criminal defendant, which was a prerequisite
to a plea agreement under which the defendant would become a prosecution witness, are not
privileged under the attorney-client privilege, even if the cooperating defendant’s counsel is
present. Absent special circumstances, however, testimony concerning the order and length
of questions and other details of the proffer session are of minimal relevance at a subsequent
trial at which the cooperating defendant testifies. Calling the cooperating defendant’s
counsel to testify about such matters creates the possibility that questioning may intrude upon
matters covered by the attorney-client privilege or work-product privilege. The potential for
prejudice would outweigh the minimal probative value of such testimony, particularly when
it would be cumulative of the testimony of other persons who were present at the proffer
session.
Circuit Court for Prince George’s County
Case No. CT-090712-B
Argued: October 6, 2014
IN THE COURT OF APPEALS
OF MARYLAND
No. 13
September Term, 2014
J ERROD M. P ETERSON
v.
S TATE OF M ARYLAND
Barbera, C.J.
*Harrell,
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
Opinion by McDonald, J.
Filed: July 27, 2015
*Harrell, J., now retired, participated in the
hearing and conference of the case while an active
member of this Court; after being recalled
pursuant to the Constitution, Article IV, Section
3A, he also participated in the decision and
adoption of this opinion.
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 declined, on the basis of attorney-client privilege, to allow his
counsel to call to the stand the Assistant Public Defender who represented his co-defendant
(who had become a prosecution witness under a plea agreement) and question that attorney
about a proffer session that her client had with the Assistant State’s Attorney and police prior
to entering into the plea agreement.
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.
I
Background
A. Facts
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 pills1 from Mr. Gordon.
1
Ecstasy is the popular name for a drug otherwise known as MDMA (3,4-
methylenedioxymethamphetamine) that produces feelings of exhilaration, increased libido,
sensory distortion, and emotional openness towards others. Martin Blinder, Psychiatry in
the Everyday Practice of Law 591 (4th ed. 2006). Ecstasy is a Schedule 1 controlled
dangerous substance. 21 U.S.C. §812; 21 C.F.R. 1308.11(d)(11); Maryland Code, Criminal
2
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
Law Article, §5-402, Schedule I(d)(1)(xviii). It is usually taken in the form of a capsule or
tablet.
3
away, but was shot in the leg and fell to the ground. At some point during the struggle, Mr.
Rose ran back into his mother’s house to escape the range of fire and to call 9-1-1. The
encounter in the car and the street was observed by Mr. Rose’s sister, Cassandra, from a
second floor window in the Rose home.
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.
B. Charges
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
4
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.
C. Trial
Prosecution Case
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.
5
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 immediately behind him, but left the door open while Mr.
Rose stood near the front of the car. Mr. Rose turned away from the car to speak briefly to
Mr. Hughes who was standing farther away from the car. He saw Mr. Hughes’ eyes widen,
as though he were surprised to see something. When Mr. Rose turned to look back at the car,
he realized that Mr. Peterson had a gun, and that the men in the car appeared to be struggling.
Mr. Rose ran back into his mother’s house to get out of the range of the gun and to protect
his daughter, who was standing in the doorway. He testified that, as he reached the house,
he heard a gunshot and turned to see Mr. Hughes running toward the car. Then he heard a
second shot as he was calling 9-1-1 from inside the house.
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.
6
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
7
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 when her brother told her that the car parked in
front of the house belonged to Mr. Gordon. She said that she saw two men approach the car,
saw movement in the car, and heard a gunshot. She heard, but could not see who fired, the
first shot. She saw the passenger (Mr. McLaurin) get out of the car and flee. “And the guy
who was on the left side of the car ... reached over the car and shot.”
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
8
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.
Defense Case
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.
D. Verdict, Sentencing, and Appeal
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.2
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.
2
The jury acquitted Mr. Peterson of charges of first degree murder, attempted first
degree murder, attempted second degree murder, robbery, and theft.
9
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.
II
Discussion
A. Whether the Trial Court Improperly Limited Defense Cross-Examination
Mr. Peterson points to three areas of inquiry that he argues were improperly limited
by the trial court: (1) whether Mr. Rose expected a benefit from his testimony at Mr.
Peterson’s trial as to pending charges against him in Virginia and Maryland, in light of an
earlier agreement Mr. Rose had made to act as an informant for the Fairfax County, Virginia,
police, (2) whether Mr. Hughes had experienced hallucinations affecting his testimony
concerning the shooting, in light of medical records indicating that he had reported
hallucinations at a later date, and (3) whether Mr. Hughes’ testimony was affected by the
specific potential sentence for the murder of Mr. Gordon – a charge that, as to Mr. Hughes,
would be dismissed as part of his plea agreement with the State. Mr. Peterson contends that
these limitations cumulatively amounted to a violation of his right under the federal and State
constitutions to confront the witnesses against him. With respect to some of these
contentions, the State asserts that defense counsel failed to adequately apprise the trial court
10
of the nature of his proposed cross-examination or that the argument that Mr. Peterson makes
to us is not the same argument made to the trial court – in other words, that he failed to
preserve at least some of these issues for appeal.
1. Cross-Examination, the Right of Confrontation, and the Standard of
Appellate Review
It has long been recognized that cross-examination is essential to the truth-finding
function of a trial.3 A criminal defendant’s right to cross-examine the prosecution’s
witnesses is protected by the Confrontation Clause that appears in both the federal and State
constitutions.4 “The right of confrontation includes the opportunity to cross-examine
witnesses about matters relating to their biases, interests, or motives to testify falsely.”
Martinez v. State, 416 Md. 418, 428, 7 A.3d 56 (2010). That principle is incorporated in
Maryland Rule 5-616(a)(4), which provides that “The credibility of a witness may be
attacked through questions asked of the witness, including questions that are directed at: …
3
The Supreme Court and this Court have recognized cross-examination as “the
greatest legal engine ever invented for the discovery of truth.” California v. Green, 399 U.S.
149, 158 (1970) (quoting 5 J. H. Wigmore, Evidence in Trials at Common Law, §1367 (3d
ed. 1940)); Myers v. State, 403 Md. 463, 477, 943 A.2d 615 (2008) (same). The insight is
even more ancient than the Anglo-American legal tradition. See Proverbs 18:17 (“In a
lawsuit the first to speak seems right, until someone comes forward and cross-examines.”).
4
The Sixth Amendment to the United States Constitution, applied to the states
through the Fourteenth Amendment, guarantees: “In all criminal prosecutions, the accused
shall enjoy the right … to be confronted with the witnesses against him.” Article 21 of the
Maryland Declaration of Rights similarly provides: “That in all criminal prosecutions, every
man hath a right … to be confronted with the witnesses against him; to have process for his
witnesses; [and] to examine the witnesses for and against him on oath[.]” The two
constitutional provisions are interpreted in pari materia – i.e., to like effect. Derr v. State,
434 Md. 88, 103, 73 A.3d 254 (2013).
11
Proving that the witness is biased, prejudiced, interested in the outcome of the proceeding,
or has a motive to testify falsely.” To comply with the Confrontation Clause, a trial court
must allow a defendant a “threshold level of inquiry” that “expose[s] to the jury the facts
from which jurors, as the sole triers of fact and credibility, could appropriately draw
inferences relating to the reliability of the witnesses.” Martinez, 416 Md. at 428 (quoting
Davis v. Alaska, 415 U.S. 308, 318 (1974)).
Once the constitutional threshold is met, trial courts may limit the scope of cross-
examination “when necessary for witness safety or to prevent harassment, prejudice,
confusion of the issues, and inquiry that is repetitive or only marginally relevant.” Martinez,
416 Md. at 428; see also Lyba v. State, 321 Md. 564, 570, 583 A.2d 1033 (1991). As
Maryland Rule 5-611 provides, a trial court is to “exercise reasonable control over the mode
and order of interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless
consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”
Therefore, although the defendant has “wide latitude … the questioning must not be allowed
to stray into collateral matters which would obscure the trial issues and lead to the
factfinder’s confusion.” Smallwood v. State, 320 Md. 300, 307-08, 577 A.2d 356 (1990).
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
12
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.5 495 F.3d at 1102.
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-
5
Under the Larson approach, the limitations about which Mr. Peterson complains –
questions concerning maximum sentences, pending charges, and hallucinations – would all
seem to fall “within an area of inquiry” and thus be subject to an abuse of discretion standard
of review.
13
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 which are judgment calls and some of which are legal decisions, denied the appellant
the opportunity to reach the “threshold level of inquiry” required by the Confrontation
Clause. To the extent that Mr. Peterson is suggesting that we apply a de novo standard of
review to each individual decision a trial court makes to limit cross-examination when a
Confrontation Clause challenge is raised, we reject that suggestion.
2. The Preservation Rule and its Purpose
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
14
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...”).6
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
6
On occasion, the admission or exclusion of evidence may be the subject of a pre-trial
motion in limine. This Court has held that a pretrial “ruling [on a motion in limine] in favor
of admitting evidence carries little weight with regard to evidence objections at trial. The in
limine ruling admitting evidence does not affect Rule[] … 4-323(a) … which ordinarily
require[s] contemporaneous general objections at trial.” Boyd v. State, 399 Md. 457, 478,
924 A.2d 1112 (2007) (emphasis in original).
15
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 must be followed in all
cases[.]” Grandison, 425 Md. at 69 (quoting Abeokuto, 391 Md. at 327). Put another way,
the rule exists “to prevent ‘sandbagging’ and to give the trial court the opportunity to correct
possible mistakes in its rulings.” Bazzle v. State, 426 Md. 541, 561, 45 A.3d 166 (2012)
(internal citations omitted); see also Robinson, 410 Md. at 103 (“Fairness and the orderly
administration of justice is advanced by requiring counsel to bring the position of their client
to the attention of the lower court at the trial so that the trial court can pass upon, and
possibly correct any errors in the proceedings.”) (internal citations and quotations omitted).
An appeal is not an opportunity for parties to argue the issues they forgot to raise in a timely
manner at trial. Nor should counsel “rely on this Court, or any reviewing court, to do their
thinking for them after the fact.” Grandison, 425 Md. at 70 (quoting Abeokuto, 391 Md. at
327).
3. Cross-Examination of Calvin Rose
Proposed Cross-Examination, Proffers, and Rulings
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
16
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.
Pre-Trial Agreement
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.7 The prosecutor and the hearing
judge cited this Court’s then-recent decisions in Martinez v. State, supra. and Calloway v.
State, 414 Md. 616, 996 A.2d 869 (2010), as the basis for allowing the questions.
Mistrial Motion after Opening Statement
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
7
As explained in some detail below, the defense later sought to include questions
related to a written agreement between Mr. Rose and the Fairfax County, Virginia, police
department under which Mr. Rose was to act as a confidential informant. However, the
agreement with the Fairfax police was not mentioned at this pre-trial hearing.
17
“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 in Prince George’s County, the court sustained the objection.
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:
[DEFENSE COUNSEL]: Judge Smith has already ruled that the burglary
tool conviction is admissible. That’s number one.
And Your Honor didn’t let me get into any of his
record. Number -- and then there’s a grand theft
and a motor vehicle theft in Prince George’s, I
think from 2007 or six, and then there is a grand
larceny in Virginia, maybe 2009. He has three
pending charges in Virginia; one in Fairfax, one
in –
[PROSECUTOR]: Exactly.
THE COURT: Do you believe that the law is that you can
impeach with a pending charge as well?
[DEFENSE COUNSEL]: It goes to -- we had lengthy discussions with
Judge Smith about being allowed to ask questions
of witnesses about their expectation of benefit
from the State as a result of cooperating with the
State on pending charges.
18
THE COURT: Pending here in Maryland or pending in Virginia?
[PROSECUTOR]: Both.
[DEFENSE COUNSEL]: He’s got three in Virginia. Just for the record,
he’s got one in Fairfax pending, one [violation of
probation] in Fairfax where he’s facing two and a
half years, and one, as we know, in Essex County,
Virginia, and one in the Circuit Court in Prince
George’s County. Just putting it on the record.
Number three, the confidential informant record,
and I’m going to move that into –
THE COURT: The confidential informant? What are you talking
about?
[DEFENSE COUNSEL]: He has a contract as a confidential informant with
the Detectives in Fairfax. I showed it to the State
ahead of time that I was going to –
[PROSECUTOR]: I provided it to you.
[DEFENSE COUNSEL]: No, I showed her that that was one of the exhibits.
She saw it. She didn’t make a Motion in Limine
ahead of time. I would also say that that’s
admissible evidence. And, again, it’s
circumstantial evidence about his experience with
expecting benefits from cooperating with the
State. And that is Defense Exhibit –
[PROSECUTOR]: What is the benefit in Virginia?
***
THE COURT: It’s not for the jury to see. Do you believe that
you’re going to use this when you present your
case?
[DEFENSE COUNSEL]: Yes. But, also, your Honor didn’t let me mention
the fact that he is a confidential informant.
19
THE COURT: No, I didn’t. I did not. My understanding is, you cannot
mention pending. And I understand what you said, it’s
all about what is in his mind, but we don’t know what is
in his mind until he takes the stand, and that’s why I
didn’t allow you to do it.
***
THE COURT: You know, it’s opening statement. It’s called a
thumbnail sketch of what you plan to introduce in trial.
I’m sure this is all – all these issues that you just
mentioned are going to come up during the course of the
trial.
[DEFENSE COUNSEL]: Right.
THE COURT: No doubt about it. So, based on that, I’m not going to
allow you to reopen.
Objection to Direct Examination of Mr. Rose concerning Expectation of Benefit
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
20
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.
Cross-examination Concerning Perception, Motive, Bias, and Prior Convictions
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.
Transition to Questions about Expectation of Benefit
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
21
Fairfax, Virginia, and then the following exchange occurred:
[DEFENSE COUNSEL]: Okay. And if you violated probation, you know
that you can do more time –
[PROSECUTOR]: Objection.
THE COURT: Sustained. Sustained. No. No.
[DEFENSE COUNSEL]: Your Honor –
THE COURT: It’s impeachment. You can use the convictions.
That’s it.
[DEFENSE COUNSEL]: You expect to receive – you expect to use your
testimony in this case as a future benefit –
[PROSECUTOR]: Objection.
[DEFENSE COUNSEL]: – don’t you?
THE COURT: Sustained.
THE WITNESS: No, sir.
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:
[DEFENSE COUNSEL]: We just want to ask him about his –
THE COURT: It’s not admissible. Pending charges are not
admissible.
[DEFENSE COUNSEL]: Right. And we believe – I'm going to shut up
22
now, I’m sorry – that the jury has a right to see his
reaction, to hear his answers.
The bench conference moved on to other issues, Mr. Rose’s testimony continued, and the
trial ended for the day.
Proffers after Conclusion of Testimony
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.8 Then
counsel approached the bench again:
[DEFENSE COUNSEL]: … With the questions we wanted to ask about his
four pending cases, so, his two pending cases in
Virginia, his one pending [violation of
probation]–
THE COURT: Can I ask you something, [Counsel]?
[DEFENSE COUNSEL]: Yes.
THE COURT: What rule do you believe allows you to ask about
pending cases, or that you should even make it on
the record?
8
During that discussion defense counsel alluded to the fact that there might be an
extant bench warrant for Mr. Rose’s arrest in Maryland, apparently based on his non-
appearance for a court date while he was in custody in Virginia. There was some discussion
as to whether Mr. Rose would be returned to Maryland on that warrant even if released with
respect to the Virginia charges. Although counsel and the court referenced the possibility
of a pending charge in Maryland as part of that discussion, defense counsel did not indicate
to the court that he wished to cross-examine Mr. Rose about that otherwise unspecified
charge.
23
[DEFENSE COUNSEL]: Bias and expectation of benefits.
THE WITNESS9 : A bias from a pending case that doesn’t involve
your client?
[DEFENSE COUNSEL]: Right. Expectation of benefit.
THE COURT: What kind of bias would that be?
[DEFENSE COUNSEL]: To probe to see whether he has an expectation of
benefit. But, Your Honor --
THE COURT: But he has said he has no agreement with the
State of Maryland. State of Maryland. We don’t
have any jurisdiction over Virginia in what they
do. So, I’m not really clear. If, in fact, [the
prosecutor] had made a call to someone in
Virginia, then I could see where that would be
appropriate, but that hasn’t happened in this case.
[DEFENSE COUNSEL]: I understand. Our proffer is we just want to ask
him those questions about his expectation.
THE COURT: That’s not proper under the rules.
***
THE COURT: But you can’t ask pending.
[DEFENSE COUNSEL]: Okay. I’m just putting that on the record.
THE COURT: I would not allow that.
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
9
The trial transcript attributes this statement to “the witness” – at that time, Mr. Rose.
Given the context – a bench conference from which Mr. Rose was undoubtedly excluded –
and the substance of the statement, we surmise that it was most likely made by either the
court or the State.
24
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.” 10
Cross-Examination with Respect to Pending Charges
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;11 Maryland Rule 5-609.12 There is no
10
One week later during a discussion of the prosecution’s proposed cross-examination
of Mr. Peterson’s character witnesses, defense counsel made a comparison to his cross-
examination of Mr. Rose and alluded to his effort the week before to cross-examine Mr. Rose
about pending charges. Defense counsel stated that the purpose was “to probe ... his motive
to falsify ... and his expectation of benefit and expectation of hope.” The trial court
responded that she had not allowed the inquiry because “you’re only allowed to probe when
you have a good faith basis [and] Mr. Rose has no agreement with [the prosecution].” This
“proffer” and “ruling” came after Mr. Rose was long gone from the stand and not in the
context of any effort to recall him as a witness.
11
CJ §10-905 provides:
(continued...)
25
11
(...continued)
(a) Evidence is admissible to prove the interest of a witness in
any proceeding, or the fact of his conviction of an infamous crime.
Evidence of conviction is not admissible if an appeal is pending, or the
time for an appeal has not expired, or the conviction has been reversed,
and there has been no retrial or reconviction.
(b) The certificate, under the seal of the clerk of the court, of the
court in which the conviction occurred is sufficient evidence of the
conviction.
12
Rule 5-609 similarly provides:
Rule 5-609. Impeachment by evidence of conviction of crime.
(a) Generally. For the purpose of attacking the credibility of a
witness, evidence that the witness has been convicted of a crime shall
be admitted if elicited from the witness or established by public record
during examination of the witness, but only if (1) the crime was an
infamous crime or other crime relevant to the witness’s credibility and
(2) the court determines that the probative value of admitting this
evidence outweighs the danger of unfair prejudice to the witness or the
objecting party.
(b) Time Limit. Evidence of a conviction is not admissible
under this Rule if a period of more than 15 years has elapsed since the
date of the conviction.
(c) Other limitations. Evidence of a conviction otherwise
admissible under section (a) of this rule shall be excluded if:
(1) the conviction has been reversed or vacated;
(2) the conviction has been the subject of a pardon; or
(3) an appeal or application for leave to appeal from the
judgment of conviction is pending, or the time for noting an appeal or
filing an application for leave to appeal has not expired.
(d) Effect of plea of nolo contendere. For purposes of this
Rule, “conviction” includes a plea of nolo contendere followed by a
(continued...)
26
requirement that the witness be asked about the prior conviction if the prior conviction is
established during the witness’s testimony by a self-authenticating public record. See
Maryland Rule 5-616(b)(6); Levy & Hornstein, Maryland Evidence: 2015 Courtroom
Manual at 205. The rule and statute are limited to final convictions and do not extend to
pending charges. Thus, pending charges themselves are not admissible to attack credibility.
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.
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. 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
12
(...continued)
sentence, whether or not the sentence is suspended.
27
custody,13 dismissal of charges,14 a decision to forgo charges,15 postponement of disposition
of a violation of probation charge16 ) that the witness has an expectation of benefitting from
the testimony with respect to the pending charges. The factual predicate for the question
becomes attenuated when the charges are pending in another jurisdiction, particularly another
state, or arose after the witness had provided the prosecution with the same information as
contained in his testimony.
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 substantially outweighed by the danger of undue
prejudice or confusion.” Calloway, 414 Md. at 638 (quoting Leeks v. State, 110 Md. App.
543, 557-58, 678 A.2d 80 (1996)) (emphasis in Calloway). When assessing the possibility
of prejudice or confusion, “the trial court is entitled to consider whether the witness’s self
interest can be established by other items of evidence.” Martinez, 416 Md. at 430 (quoting
Calloway, 414 Md. at 638). For example, in Calloway, this Court noted that, if it is obvious
that a witness has a motive to testify in a certain way, it would be permissible to exclude a
reference to a benefit from pending charges when “it is impossible to hypothesize a juror
who would have (1) believed [the witness’s] testimony in the absence of evidence that there
13
E.g.,Calloway v. State, supra.
14
E.g. Martinez v. State, supra; Calloway v. State, supra.
15
E.g., Calloway v. State, supra.
16
E.g., Dionas v. State, 436 Md. 97, 80 A.3d 1058 (2013).
28
were unrelated criminal charges pending against him at the time, but (2) rejected his
testimony upon learning about those charges.” 414 Md. at 639.17
Whether the Factual Predicate Based on Pending Charges was Preserved for Appeal
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
17
In Calloway, the Court offered an example drawn from Ebb v. State, 341 Md. 578,
671 A.2d 974 (1996):
[I]n Ebb, ballistics evidence established that the murder weapon
was the handgun that investigating officers seized from the
person of Todd Timmons. Because it was so obvious that Mr.
Timmons had the strongest of motives to testify that he was not
in possession of the murder weapon when the murders occurred,
it is impossible to hypothesize a juror who would have (1)
believed Mr. Timmons’ testimony in the absence of evidence
that there were unrelated criminal charges pending against him
at that time, but (2) rejected his testimony upon learning about
those charges.
414 Md. at 638-39.
29
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.
Pending Maryland Charges
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 – not his cross-examination – after the conclusion of his testimony and
30
the departure of the jury. It is not at all clear that defense counsel could have pointed to
additional circumstantial evidence of favorable treatment by Maryland prosecutors – as was
the case in Martinez and Calloway – in addition to the existence of pending charges alone.
In any event, we cannot find that Mr. Peterson preserved an appellate issue with respect to
questioning Mr. Rose on expectation of benefit as to pending Maryland charges when the
defense itself objected to that line of inquiry.
Cooperation Agreement with Fairfax County Police
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
31
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.
Pending Virginia Charges
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
32
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 explained
that the purpose of asking Mr. Rose about those two charges would be to allow the jury “to
see his reaction, to hear his answers.” Defense counsel did not relate the questioning to
whether Mr. Rose had an expectation of benefit from his testimony with respect to those
charges. The trial court, evidently under the impression that the defense was attempting to
admit the pending charges for impeachment – as opposed to relying on them as a factual
foundation for a question on expectation of benefits – stated that “pending charges are not
admissible.” Defense counsel only made clear that the pending charges were related to
questions about bias and an expectation of benefit after Mr. Rose’s testimony had been
completed, the jury was dismissed, and Mr. Rose was on his way back to Virginia’s custody.
The defense did not ask for Mr. Rose to be recalled. At that point the trial court indicated
that she would not have allowed such questioning because “you can’t ask pending.”
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
33
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. 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.
Summary
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
34
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 was a
sufficient factual foundation to ask a question concerning an expectation of benefit. Under
the relevant case law, pending charges alone are not an adequate foundation and, unlike
Calloway, Martinez, or Dionas, there was no other direct evidence (e.g., an agreement with
the prosecution to resolve charges in return for testimony) or circumstantial evidence (e.g.,
dismissal of charges, nolle pros, decision not to charge, postponement of a disposition
proceeding) that, in conjunction with the pending charges, would complete the factual
foundation to support a question whether Mr. Rose expected some kind of leniency from the
prosecution for his testimony. The defense attempted to rely on Mr. Rose’s earlier agreement
to act as an informant for a police department in another state, but it never asserted any
connection between that agreement and Mr. Peterson’s case, or even the pending charges that
Mr. Rose faced in Maryland.
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.
4. Cross-Examination of Thomas Hughes
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-
35
examination by Mr. Peterson’s counsel on topics such as:
• Mr. Hughes’ unsuccessful efforts to locate a gun for Mr.
Peterson
• why he said he could not find a gun when, a few months later,
he knew his sister had a gun
• the circumstances of the shooting
• the fact that Mr. Hughes had been smoking marijuana “all day”
on the date of the shooting
• his possession of 8 bags of marijuana and a bag of ecstasy pills
on his person when he was arrested the day after the shooting
• the various charges he faced prior to entering into a plea
agreement with the State
• the favorable plea deal that Mr. Hughes had obtained in return
for his cooperation with the prosecution and trial testimony
(including the dismissal of murder and other charges and a
recommendation to limit the period of incarceration)
• that the prosecutors would assess his truthfulness in determining
whether he had complied with his plea agreement
• whether he had shaped his proffered testimony to match police
reports of the crime
• prior statements made in a letter sent on his behalf to the judge
in his case about his drug problem
• whether he had initially attempted to enlist his girlfriend and
others in a false effort to establish an alibi
• the origin of his nickname “Tommy Gun” from his days as a
football quarterback
• an alleged infraction of prison rules
36
While the cross-examination was lengthy, wide-ranging, and, at least on paper, appears
effective,18 Mr. Peterson argues that the trial judge violated his right of confrontation as to
Mr. Hughes by limiting that examination in two respects. First, the trial court did not allow
defense counsel to ask Mr. Hughes whether he experienced hallucinations on the day of the
shooting. Second, it prohibited defense counsel from questioning Mr. Hughes about the
specific sentences, including life imprisonment, that he faced prior to entering into his plea
agreement with the State.
Cross-Examination about Hallucinations
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
18
Eliminating pages devoted to legal argument, Mr. Hughes’ testimony occupies more
than 180 pages of the trial transcript, of which approximately 46 pages are devoted to the
prosecution’s direct examination and nearly 140 pages to the defense cross-examination.
37
night of the crime from two entries in the notes: a notation that Risperdal19 had been
prescribed for Mr. Hughes on April 9, 2009, two weeks after the shootings, and a notation
from 11 months later that Mr. Hughes was “no longer” experiencing hallucinations. At a
bench conference, defense counsel explained that, if Mr. Hughes were experiencing
hallucinations at the time of the shooting, it would have affected his perception of what
occurred that night. The discussion focused on the interpretation and significance of the
three pages of the medical notes, which were marked as an exhibit for identification:
THE COURT: What is the relevance of this hallucination?
[DEFENSE COUNSEL]: His ability to perceive and report accurately.
THE COURT: He didn’t report anything at that time to anyone,
did he?
[DEFENSE COUNSEL]: I’m just saying, in the days after he’s reporting,
“I, Tommy Hughes, have hallucinations.”
THE COURT: You mean that he said he was having
hallucinations?
[DEFENSE COUNSEL]: Uh-huh. That’s what he was reporting. And I
want to ask him that.
***
THE COURT: But he doesn’t say when it started, the
hallucinations.
19
Risperidal is a brand name for a version of the drug risperidone, a drug that may be
prescribed for schizophrenia, bi-polar disorder, and autism, among other conditions. See

(last visited July 2, 2015). Defense counsel proffered to the court that it was an anti-
psychotic medicine, but apparently was unable to pinpoint the reason why it had been
prescribed for Mr. Hughes.
38
[DEFENSE COUNSEL]: Well, it’s as early as April, 2009. It’s as early as
April, 2009.
THE COURT: It says he no longer has hallucinations. That’s
what it says.
[DEFENSE COUNSEL]: Right. But, Your Honor –
THE COURT: This is a year later.
[DEFENSE COUNSEL]: – we don’t have the records from him reporting
what he says, but he’s being prescribed Risperdal.
THE COURT: No. I can’t – first of all, this is a year later.
The jury was then dismissed for lunch and defense elaborated on his proposed line of cross-
examination:
[DEFENSE COUNSEL]: – the authority that I wanted to do the authority
for what I wanted to do –
***
[DEFENSE COUNSEL]: … It was the same case that I had cited earlier
with respect to the drug use around the time of the
event, and it was [Lyba v. State, 321 Md. 564, 583
A.2d 1033 (1991)] going to the ability to
accurately perceive around the time of the event.
THE COURT: He admitted it. I let you get into his drug use.
[DEFENSE COUNSEL]: I’m talking about the hallucinations.
THE COURT: The year later?
[DEFENSE COUNSEL]: Being prescribed something –
THE COURT: I know, but we don’t know why he was
prescribed that. We don’t know –
39
[DEFENSE COUNSEL]: I can proffer that Risperdal is an antipsychotic.
THE STATE: Are you –
THE COURT: But it was February, 2010, and this incident
happened March, 2009.
[DEFENSE COUNSEL]: I understand. I’m not arguing. The Risperdal was
prescribed April 9, 2009.
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.”20 The only discussion by counsel and the court of
this new page was as follows:
[DEFENSE COUNSEL]: Defendant’s Exhibit 34 was the base file about
hallucinations. I had an extra – I’ve shown this to
20
Check marks on this page also indicated that Mr. Hughes was oriented as to
“person, place, and time,” was “coherent” in speech, and had a “normal” memory.
40
the State. I neglected to show Your Honor that
there is a checkmark for hallucinations on April
9th , whereas before I only had Risperdal on April
9 th .
THE COURT: Okay.
[DEFENSE COUNSEL]: The State doesn’t mind if I just staple it to the
exhibit and ask Your Honor to consider this as
part of the record –
THE COURT: Of the original exhibit?
[DEFENSE COUNSEL]: – per your ruling.
THE COURT: Okay.
[DEFENSE COUNSEL]: Thank you.
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 not request that Mr.
Hughes be returned to the stand or ask the court to reconsider the issue in light of the newly-
discovered fourth page of the medical notes.
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
41
ability to recall, the events of that evening.”21 This revised argument perhaps better fits the
medical notes. Nothing in the medical notes, especially the three pages shown to the trial
judge while Mr. Hughes was on the stand, indicated that the witness had experienced
hallucinations on the day of the shooting – something that might affect his perception of
those events. But the medical notes, especially supplemented by the fourth page – the
psychiatric evaluation – may have indicated that Mr. Hughes had experienced hallucinations
sometime between April 9, 2009 (two weeks after the shooting) and the time of trial, which
arguably could have affected his memory of the shooting.
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
21
Mr. Peterson asserts that, when his counsel stated that cross-examination about
hallucinations would probe Mr. Hughes’ “ability to perceive and report accurately,” he meant
to encompass memory as well as perception in that proffer. However, as is evident in the
excerpt from the transcript quoted in the text, the discussion at the bench conference focused
entirely on how the report of hallucinations related to the day of the shooting and Mr.
Hughes’ perception. Moreover, defense counsel cited Lyba v. State, 321 Md. 564, 583 A.2d
1033 (1991) as authority for his proposed cross-examination concerning hallucinations. In
Lyba, this Court held that the defense had a right to probe the perception of the victim of an
alleged sexual assault by asking whether she had taken narcotics on the date of the incident
and whether she had been drinking alcohol at a later time when she identified the defendant
as her assailant. Thus, Lyba concerned cross-examination of a prosecution witness about the
effect of certain substances on her perception contemporaneous with the consumption of
those substances. Consistent with Lyba, the trial court in this case allowed Mr. Peterson’s
counsel to question Mr. Hughes about his use of drugs on the date of the shooting.
42
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 reportedly ended by March 2010.
The medical notes do not, at least to the lay person, indicate the reason why he was
prescribed Risperdal or what, if any, relation that prescription may have had to
hallucinations. Given the actual information provided to the trial court and the stated
rationale for questioning Mr. Hughes about possible hallucinations, the trial court did not
abuse its discretion in limiting defense counsel’s cross-examination on that particular topic.22
22
Mr. Peterson cites Illinois v. Flowers, 862 N.E.2d 1085 (Ill. App. 2007), in which
the intermediate appellate court in Illinois reversed a murder conviction on the ground that
the trial court improperly limited defense examination of an eye witness concerning both his
mental health history and expectation of leniency from the state with respect to his own
charges. It is notable that, in Flowers, the witness had admittedly told an investigator that
he had experienced hallucinations at the time of the shooting and that the defense sought to
introduce and question him about his mental health history after he denied at trial that he had
experienced hallucinations on the date of the crime.
43
Cross-Examination about Potential Sentence
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.23 The trial
judge sustained the State’s objection and declined to allow inquiry into specific sentences.
Nevertheless, the judge indicated that defense counsel could ask Mr. Hughes about the
23
Defense counsel also indicated to the trial judge that he wished to ask Mr. Hughes
about a mandatory minimum five-year sentence associated with one of the other charges that
the prosecution would dismiss under the plea agreement.
44
specific charges and whether he understood that he faced “a lot more time” if convicted of
the charges to be dismissed under the plea agreement and could identify some of the
dismissed charges as felonies while Mr. Hughes had been permitted to plead guilty to a
misdemeanor.
Mr. Peterson argues that this ruling was erroneous, especially because of the
significance of a life imprisonment sentence.24 This Court considered a similar argument in
Coleman v. State, 321 Md. 586, 608, 583 A.2d 1044 (1991). In that case an eye witness, who
had faced a possible sentence of life imprisonment without parole, had entered into a plea
agreement under which he agreed to testify at the defendant’s trial in return for a maximum
sentence of 18 months. The defense cross-examined the witness extensively concerning his
plea agreement and established that the witness was “well aware” of the considerably longer
period of time he could have spent in prison in the absence of the agreement. The trial court,
however, declined to permit the defense to ask specifically about the potential life without
parole sentence. 321 Md. at 608-9.
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. 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,
24
There is no dispute that this issue was preserved for appellate review.
45
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.
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
46
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 that excluding this information denied the jury important
information necessary to evaluate [the witness]’s credibility.” Id. at 1107.25 The concurring
opinion distanced itself from the per se rule that a mandatory life sentence is more significant
than other sentences, or sentence reductions. Id. at 1110. The concurrence in Larson is more
in line with Coleman, with the other federal circuits, and with this Court’s view.
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
25
In contrast to Larson, which concerned cross-examination about a mandatory
minimum sentence, Mr. Peterson’s counsel attempted to question Mr. Hughes about a
“maximum” penalty. On appeal, Mr. Peterson argues that his counsel actually intended to
question Mr. Hughes about a “mandatory” life sentence under Maryland Code, Criminal Law
Article (“CR”), §2-201(b), and analogizes his case to Larson. In any event, unlike the
mandatory minimum life sentence in Larson, any portion of a life sentence under CR §2-
201(b) may be suspended. See Greco v. State, 427 Md. 477, 505, 48 A.3d 816 (2012).
47
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 outweighed 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
48
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. The trial court did not abuse its discretion.
Summary
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 of Mr. Hughes about his plea agreement to avoid
questions that would reveal the maximum penalties associated with the crimes with which
Mr. Peterson was charged.
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
car26 and that four men were present at that location at that time. Two of the men, Mr.
Gordon and Mr. McLaurin, were shot. The shooter was thus either Mr. Peterson or Mr.
26
The State contended that Mr. Peterson shot from inside the car; the defense
presented expert ballistics testimony that suggested that the shots could also have come from
just outside the car.
49
Hughes. The defense theory at trial was not that Mr. Hughes mis-perceived or mis-
remembered Mr. Peterson as the shooter, or even that the plea bargain had influenced him
to identify someone other than himself as the shooter.27 The defense theory was that Mr.
Hughes perceived, remembered, and knew all too well who the shooter was, and was lying
to deflect blame from himself.
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.
B. Whether the Defense Was Entitled to Call Mr. Hughes’ Attorney to Testify
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
27
For example, defense counsel had effectively established on cross-examination that
Mr. Hughes had smoked marijuana “all day” on the date of the shooting – a fact that could
have affected his perception. But defense counsel never mentioned it in closing argument.
50
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.
The Moving Target
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
51
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
52
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 judge also pressed Mr. Peterson’s counsel on
what he hoped to elicit from Ms. Skopp and its relevance. Defense counsel responded that
he would ask about:
what the sequence of when the proffer was made, when the
initial letter went out, how long was the proffer, was Tommy
[Hughes] speaking in full sentences, was he answering in one
word questions, were questions led to him, were questions or
ideas given to him, what was in front of him presented by [the
53
prosecutor] ... or the Detective. And then the same type of
questions with respect to the second proffer.
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.28 Eventually, defense counsel called the detective as a witness and questioned him
about a number of topics, including the proffer. Apart from the length of the session and the
identification of those present, he apparently decided not to ask about the details he said he
wanted to question Ms. Skopp about.
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.
28
The argument concluded with the following exchange:
Court: I’m sure if it had been [defense counsel’s] client, he
would want the same rights that Ms. Skopp is asserting
in terms of attorney-client privilege, so I don’t even
know why we’re going down that road again.
[Defense Counsel]: Thank you. That’s a good point because it’s our position
that I didn’t have to proffer anything to put her on the
stand ... I think we have a right to just put her on the
stand. But Your Honor has quashed the subpoena so that
will be the end of that argument.
54
Peterson’s counsel limited the scope of his proposed questioning of Ms. Skopp to what she
heard and observed at the proffer sessions.
Analysis
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 (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, 409, 26 A.3d
955 (2011) (citing Harrison v. State, 276 Md. 122, 135, 345 A.2d 830 (1975)) (alterations
in Greenberg).
55
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; 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
56
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.29 However, “[t]here is a critical distinction … between confidentiality required by
ethical rules and the evidentiary basis of the attorney-client privilege.” Parler & Wobber v.
Miles & Stockbridge, 359 Md. 671, 689, 756 A.2d 526 (2000). As this Court stated in
Newman:
Rule 1.6 also is not limited to “matters communicated in
confidence by the client but also to all information relating to
the representation,” whether obtained from the client or through
the attorney’s independent investigation, MLRPC 1.6, cmt.,
whereas the attorney-client privilege only protects
communications between the client and the attorney. Therefore,
Rule 1.6 prohibits the disclosure of any information pertaining
to the representation of a client, but does not operate to render
information inadmissible at a judicial proceeding. Only
communications subject to the attorney-client privilege cannot
be disclosed under judicial compulsion.
384 Md. at 304-5 (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 for purposes of MLRPC 1.6, they were not protected by attorney-client
privilege.
29
MLRPC 1.6(a) provides, in relevant part:
A lawyer shall not reveal information relating to representation
of a client unless the client gives informed consent, the
disclosure is impliedly authorized in order to carry out the
representation, or the disclosure is permitted by paragraph (b).
57
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 outweighed 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.” 30 The proffered
testimony apparently would have concerned not the substance of the proffer but the sequence
of questions, whether the participants spoke in full sentences, and similar nuances. Even if
the participants could recall such details, the probative value of such information appears to
be minimal. Moreover, it appears almost certain that Ms. Skopp’s testimony would have
been cumulative. Defense counsel himself conceded during one of the motions hearings that
the proposed testimony was unlikely to cover anything not covered by the detective’s
testimony.31 Given the minimal probative value of the proposed testimony, its cumulative
30
Although the trial court did not rule on the basis of Rule 5-403, it questioned the
relevance of the proposed testimony. In these circumstances, given the proffer of the
anticipated questions and defense counsel’s concession that the testimony was likely to be
cumulative, the underlying facts pertinent to application of that rule are essentially
undisputed and we can appropriately assess whether that rule supports the trial court’s
decision to exclude the evidence.
31
In the end, defense counsel cross-examined Mr. Hughes at some length and also
questioned the detective about the proffers in the defense case. Their testimony did not differ
materially and defense counsel did not suggest anything that Ms. Skopp’s testimony would
add to what the other two witnesses already said. “Where competent evidence of a matter
is received, no prejudice is sustained where other objected to evidence of the same matter is
(continued...)
58
nature, and the danger that questions might well have strayed into areas covered by the
attorney-client or work-product privilege, the trial court would not have abused its discretion
to exclude it under Rule 5-403. See Morris v. State, 418 Md. 194, 223, 13 A.3d 1206 (2011)
(“The former point is cumulative evidence … and so we consider it no further in our harm
analysis.”).
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.
III
Conclusion
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.
31
(...continued)
also received.” Yates v. State, 429 Md. 112, 120, 55 A.3d 25 (2012) (quoting Jones v. State,
310 Md. 569, 588-89, 530 A.2d 743 (1987)).
59
(2) The defense failed to preserve the issue of whether Mr. Hughes could be
questioned as to whether any hallucinations he experienced after the shooting affected his
memory of the event.
(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.
J UDGMENT OF THE C OURT OF S PECIAL
A PPEALS AFFIRMED. C OSTS TO BE PAID
BY PETITIONER.
60