Pettie v. State

¶1dissenting.

¶2Evidence of the bias of a witness is always relevant. Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); Waldron v. State, 62 Md.App. 686, 695-96, 491 A.2d 595 (1985); Biggs v. State, 56 Md.App. 638, 645-46, 468 A.2d 669 (1983), cert. denied, 299 Md. 425, 474 A.2d 218 (1984). Consequently, matters which tend to prove a witness’ bias may be the subject of cross-examination or extrinsic evidence as to such matters may be admissible to impeach the witness. Biggs, 56 Md.App. at 646, 468 A.2d 669. Recognizing that this is so, but, analogizing bias evidence to evidence of a prior inconsistent statement and relying on McCormick on Evidence, § 40 (2nd ed. 1972) and a number of out-of-state cases, principally State v. Murphy, 59 Hawaii 1, 575 P.2d 448 (1978), the majority holds that the bias of a witness may not be shown unless that witness has first been cross-examined regarding the evidence proposed to be used to prove his or her bias. See op. p. 608. This “foundational cross-examination” is necessary, in the majority’s view, because it “gives the witness a fair opportunity to explain statements or equivocal facts which, standing alone, tend to show bias ... [and it] lends expediency to trials, for if the facts showing bias are admitted by the witness, the introduction of extrinsic evidence becomes unnecessary.” State v. Murphy, 575 P.2d at 459.

¶3Although I am aware that proof of a prior inconsistent statement requires that a foundation be laid before the inconsistent statement may be proved and I have read and considered the cases, cited by the majority, which constitute the majority view, I would not condition the admission of *613the evidence of bias in this case upon “foundational cross-examination.” I incline toward the minority view. See, e.g. State v. Kehn, 50 Ohio St.2d 11, 361 N.E.2d 1330, 1335 (1977); State v. Doughty, 399 A.2d 1319, 1324 (Me.1979). This view is more consistent with the rationale for recognizing that bias evidence is always relevant: such evidence is an important and probative element in the search for truth and in ensuring that a defendant receives a fair trial. As such, it ought not be easily excluded on the basis of procedural niceties.

¶4I disagree with the majority view and the majority opinion for other reasons. The analogy between proof of bias and proof of a prior inconsistent statement is far from true. Proof of a prior inconsistent statement does not necessarily, and I submit in most instances does not, prove that a witness is biased. Its chief value lies in showing an inconsistency between a witness’ testimony on the witness stand and that witness’ prior statements, which necessarily undermines the witness’ veracity and/or memory. Furthermore, the inconsistent statement sought to be proved is the statement made by the witness. Therefore, it is logical to require that the witness be confronted with it in advance of permitting extrinsic evidence to prove it because if the witness admits it, proof by extrinsic evidence is no longer required.1

¶5*614No such logic attaches to the evidence of bias sought to be introduced in this case. The evidence did not involve a prior statement or conduct by the witness whose testimony was sought to be impeached. Rather, the evidence was a statement made by the very witness called by appellant. And its probative value and relevance did not depend upon the witness to be impeached. The statement tended, inherently, to prove bias. I reject the notion that either of the rationales offered by the majority as justification for the foundational requirement is sufficient to warrant its exclusion. Neither fairness to the witness nor expediency justifies precluding appellant from presenting highly relevant evidence, necessary to assure him a fair trial. This is particularly the case since its admission would have worked no injustice on the State, which would have sought and, undoubtedly would have been granted, the right to recall the victim for the' purpose of addressing the evidence. An extra step would of course be required; however, that is preferable to the denial of a fair trial.2

¶6The result in this case is particularly egregious. Accepting for the moment that a foundational requirement is justified, appellant was entitled to call the victim as his witness for the purpose of laying the proper foundation. The court rendered that option unavailable. Assuming that *615the majority’s reasoning, that the State’s objection to the bias evidence as being “prejudicial” was not a specification of a particular basis for the objection, is correct, the trial judge sustained the objection on the basis of relevance and because he thought the proffered evidence, “confusing”. Because the ruling rested, at least in part, on relevance, it would have been futile for appellant to seek to lay a foundation and then to introduce the excluded evidence; appellant was afforded no opportunity to lay the foundation required by the majority. For this additional reason, I would reverse and remand for a new trial.

¶7The majority also holds that the trial judge did not abuse his discretion when he admitted evidence of appellant’s attempted suicide. It does so by analogizing attempted suicide to flight by an accused. Once again, the majority relies upon out-of-jurisdiction cases to support its holding.

¶8As the majority recognizes, evidence of flight as showing a consciousness of guilt has been criticized as being of slight probative value. See Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 415 n. 10, 9 L.Ed.2d 441 (1963); Vick v. United States, 216 F.2d 228, 232 (5th Cir.1954). Nevertheless, it extends the rule permitting the use of such evidence to include an attempted suicide. In so doing, it refuses appellant’s very reasonable request to require the State to lay a foundation to establish a connection between the attempted suicide and appellant’s guilt of the charged offense. In my view, where the probative value of evidence is slight and its prejudice great, we should be loathe to extend, even by analogy, the rule permitting evidence of such limited value to include situations not clearly encompassed by it. In my view, neither logic nor fairness ever justifies the use of evidence of attempted suicide to prove an accused’s consciousness of guilt of the crime on trial. In this case there is the added factor that the attempted suicide occurred when appellant was in administrative segregation. That factor buttresses my contention that the tendency of the evidence of attempted *616suicide to prove a consciousness of guilt is at best speculative. It should not have been allowed.