¶1dissenting.
¶2I respectfully dissent. By affirming the court below, the majority minimizes the damage and harm that the denial of the right to cross-examine a critical witness had upon appellant’s trial. The State presented Jesse Johnson to the jury as its very first -witness. He declared that he was one of two people who committed an armed robbery, but then refused to answer any questions about his accomplice. The appearance *320of that witness, the set of questions posed to him, and the court’s treatment of his recalcitrance, without a doubt, permitted the jury to infer that Larry Somers was his one accomplice. There is no other conclusion that the jury could reach. Somers could not impeach the witness or cross-examine him in any way, so the damaging inference of his guilt lingered untouched throughout the trial.
¶3Wigmore wrote that cross-examination is “the greatest legal engine ever invented for the discovery of truth.” 5 John Henry Wigmore, Evidence § 1367, at 32 (James H. Chad-bourn rev. ed., 1974). The right of cross-examination is firmly rooted in our constitutional law. See Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In a recent decision from the Supreme Court of the United States, Justice Antonin Scalia, characterized cross-examination to be as important as the fundamental right to trial by jury, and just as indispensable. See Crawford v. Washington, 541 U.S.-, 124 S.Ct. 1354, 1371, 158 L.Ed.2d 177, 2004 WL 413301, at *15 (U.S.Wash.2004).
¶4In Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), the Supreme Court reversed a Virginia state murder conviction that derived from an accomplice’s confession, and remanded it to the state for a determination of harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Justice Stevens, however, *321doubted that an accomplice’s confession implicating an accused, without the balancing effect of cross-examination, could ever pass constitutional challenge. See Lilly, 527 U.S. at 137, 119 S.Ct. 1887. In light of the emphasis in Crawford as to the importance of the right of confrontation to the structure of a fair trial, a finding of harmless error seems even less likely today than when the Supreme Court decided Lilly.
¶5Vandegrift v. State, 237 Md. 305, 308-09, 206 A.2d 250 (1965), clarified that calling a witness, who refuses to testify, to allow jurors to infer from the refusal the substance of the unrevealed testimony is a forbidden trial tactic that may warrant a new trial. As the majority sets out in its opinion, maj. op., at 294, 846 A.2d 1073, Vandegriji identified five factors, the presence of which could establish prejudicial error for the calling of the witness. An important point is that the defendant need not meet all five factors to demonstrate reversible error. See Adkins v. State, 316 Md. 1, 13, 557 A.2d 203 (1989). Indeed, to my mind, this case exemplifies how a strong showing of an improper inference of complicity, the Vandegrifl factor one, can be enough to warrant reversal, even without a showing of prosecutorial bad faith, factor two, or the existence of the right to invoke the privilege against self-incrimination, factor three. Neither bad faith nor the right to invoke the privilege really affects the determination of, or the harm from, a prejudicial inference of guilt.
¶6The fact of the matter is that, after learning of Johnson’s hostility, the prosecutor continued, intentionally, to propound questions that allowed the jurors to conclude that Somers was the second robber. Nothing is so illustrative of this intent as the particular question to Johnson about whether his accomplice was “in the courtroom today.” See maj. op., at 289, 846 A.2d 1070-71. It was perfectly clear to the jury by then, if it had not been before, that the prosecutor wanted Johnson to identify Somers, and no one else.
¶7Once the court excused the jurors and questioned Johnson out of their presence, all participants knew that further questioning would lead to nothing except more refusals to testify. When the prosecutor resumed his questioning in front of the *322jury, he accented the improper inference one more time. It was hardly acting in bad faith for the prosecutor to ask the questions, having obtained the court’s permission to do so, but the effect upon the trial and Somers’s rights were exactly the same as if the State had defied the court and deliberately fostered the improper inference. I find the majority’s conclusion that the inference from the refusal was possibly ambiguous somewhat strained. See maj. op., at 309-10, 846 A.2d 1082-83. The sum total of the interchange was the un-cross-examined testimonial inference that Somers robbed the store.
¶8Whether or not to declare a mistrial is clearly a decision that ordinarily falls within the broad discretion of the trial court and should not be second guessed on appeal, except in rare occasions. See Hudson v. State, 152 Md.App. 488, 521, 832 A.2d 834 (2003). Nevertheless, Johnson was the first witness in this trial, so the presiding judge and the jury had invested only a short time in the proceedings. Relative to other criminal cases of alleged error that we see on appeal, Johnson’s behavior was the kind of extraordinary occurrence that a declaration of mistrial could have quickly and effectively cured. I would hold therefore that, under the circumstances, the trial court’s refusal to declare a mistrial was an abuse of discretion. I take no issue with the majority’s treatment of the other issues raised in the appeal.
¶9. The Court remarked: "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes." Crawford, 541 U.S. -, at-, 124 S.Ct. 1354, 1371, 158 L.Ed.2d 177, at-, 2004 WL 413301, at *15.