Wiggins v. State

¶1dissenting.

¶2I find myself in agreement with appellant and at variance with my colleagues. In my opinion, the trial court committed two errors that require reversal: (1) unduly restricting cross-examination of a key prosecution witness and (2) admitting into evidence certain objects unlawfully seized from appellant’s apartment or photographs thereof.

¶3I

¶4A brief restatement of some of the facts may help to explain my reasoning on the cross-examination issue.

¶5Bjorn Haug was robbed, kidnapped, and murdered, and his apartment was burglarized. Three people, Erik Jennifer, Juan Gough, and Jacquelyn Cooper, admitted that they had participated in the crimes; all three of them implicated appellant, who shared an apartment with Gough and Cooper, as the person who planned the robbery, committed the murder, and joined with them in the burglary. Jennifer did not testify against appellant; Gough and Cooper, who, pursuant to plea bargains pleaded guilty to crimes other than murder, testified against appellant at this trial as well as at the first trial.

¶6The error asserted by appellant occurred during the testimony of Ms. Cooper. The majority opinion states that Cooper’s plea bargain included an exchange of testimony against appellant for a lenient sentence. An inference may possibly be drawn to that effect, but there is nothing in the record of this case to support it, and that deficiency in the record forms a basis for appellant’s complaint. What the State brought out during direct examination of Ms. Cooper is that there was a plea agreement, under the terms of which she pleaded guilty to kidnapping, theft, and burglary, and her sentence was capped at 35 years. On cross-exami*578nation, Ms. Cooper testified that she had been informed by the State’s Attorney that the penalty for first degree murder was life imprisonment. Not a word was said about any obligation to testify against appellant as part of the plea bargain; all that the testimony discloses about the plea agreement is that pleas of guilty to crimes other than murder were exchanged for a sentence cap of 35 years.

¶7Continuing his cross-examination of Ms. Cooper, defense counsel established that the actual sentence imposed was 25 years, ten years less than the stipulated maximum. But when defense counsel asked whether that sentence was ever reduced, the State objected and the court sustained the objection. By that time, the witness had answered the question in the affirmative, and that answer stood because there was nó motion to strike it. What is important to the issue raised by appellant is the reason given by the court for sustaining the objection:

The only thing that goes to motivation is what she was promised. She was promised a cap no more than 35 years. It doesn’t make any difference what she got. The objection is sustained.

¶8Appellant was thus effectively precluded from pursuing the matter of the sentence reduction, because the court ruled that evidence pertaining to that matter was irrelevant.

¶9The majority concludes that the witness’s testimony— plea bargain, 35-year cap, 25-year sentence, “It [that sentence] was reduced” — can be interpreted in either of two ways: (1) her sentence was reduced from 35 to 25 years; (2) her 25-year sentence was reduced. With all due respect for my colleagues, I submit that Ms. Cooper’s testimony can only be interpreted as an acknowledgment that after she received a sentence of 25 years on her guilty pleas to kidnapping, theft, and burglary (the 35-year cap was not a sentence) that 25-year sentence was reduced. By how much? When? Before or after she testified against appellant? Why? As a quid pro quo for her testimony? Appellant was precluded from asking those questions by the court’s ruling that the only relevant evidence as to the *579witness’s motive to testify against appellant was the 35-year cap. That ruling was patently wrong!

¶10It is well established that a witness may be questioned regarding his credibility, his memory, his knowledge, or any possible bias. State v. Cox, 298 Md. 173, 468 A.2d 319 (1983). The United States Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 682-83 (1986), stated that the confrontation clause of the Sixth Amendment, made applicable to a state criminal defendant by the Fourteenth Amendment, allows a defendant the right to cross-examine witnesses regarding matters which affect the witnesses’ bias, interests, or motive to falsify. Article 21 of the Maryland Declaration of Rights affords the same protection. Hopper v. State, 64 Md.App. 97, 104, 494 A.2d 708 (1985). It is true that the trial judge retains wide latitude in imposing limits on cross-examination, based on concerns of harassment, prejudice, relevancy, confusion of the issues, and the witness’s safety. A trial judge may not, however, limit cross-examination before the defendant has reached his “constitutionally required threshold level of inquiry.” Brown v. State, 74 Md.App. 414, 419, 538 A.2d 317 (1988).

¶11The Court of Appeals, in Smallwood v. State, 320 Md. 300, 577 A.2d 356 (1990), recently discussed the issue of cross-examination of witnesses for matters affecting bias or prejudice:

In Franklin v. State, 239 Md. 645 [212 A.2d 279] (1965), we held that the right to cross-examine in general is inherent in the right to confront witnesses. More specifically, in Hopper v. State, 64 Md.App. 97 [494 A.2d 708] (1985), the Court of Special Appeals held that Article 21 of the Maryland Declaration of Rights affords defendants in Maryland the right to cross-examine for matters affecting bias or prejudice to the extent provided by the Sixth Amendment. See also, Brown v. State, 74 Md.App. 414, 419 [538 A.2d 317] (1988).

The right to cross-examine is not without limits, however, and “trial judges retain wide latitude insofar as the *580Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant____”

A judge must allow a defendant wide latitude to cross-examine a witness as to bias or prejudice ... but the questioning must not be allowed to stray into collateral matters which would obscure the trial issues and lead to the factfinder’s confusion____

An appellate court must therefore determine “whether, assuming that the damaging potential of the cross-examination were fully realized, ... the error was harmless beyond a reasonable doubt.” ... [A]n error will be harmless if the appellate court is “satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.”

¶12Id., at 306-308, 577 A.2d 356 (citations omitted). In Small-wood, the trial court prohibited questioning of a witness regarding the outcome of earlier charges wherein she had sworn out a warrant against the defendant. Defendant was attempting to prove that the witness had been unsuccessful in obtaining convictions of the defendant in previous cases, and thus had a motivation for testifying as she did in that case. The Court found error, and it found that error to be harmful. We had earlier held, in Brown v. State, 74 Md.App. 414, 538 A.2d 317 (1988), that for the purposes of cross-examination of a prosecution witness in order to show bias or motive, the crux of the inquiry insofar as its relevance is concerned, is the witness’s state of mind.

What is essential to the preservation of the right to cross-examine is that the interrogator be permitted to probe into whether the witness is acting under a hope or belief of leniency or reward.

¶13Id., at 420-21, 538 A.2d 317 (quoting Fletcher v. State, 50 Md.App. 349, 359, 437 A.2d 901 (1981)).

¶14*581In Fletcher, supra,the State’s witness claimed he was hired by the defendant to move a stolen vehicle. During Fletcher’s trial, the witness testified that he had been charged in the case, denied having made any deal with the state, and stated that he had already been tried. He was asked if he had been promised a “lesser sentence” to testify against Fletcher, and his reply was non-responsive. Upon further probing, he stated that he was not made any promises by the State. Counsel for Fletcher continued questioning the witness in an effort to determine whether his sentence was pending, but the trial court did not allow any questions regarding his sentence. We reversed Fletcher’s conviction, stating:

What counts is whether the witness may be shading his testimony in an effort to please the prosecution. “A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud perception.”

It is easy to see how the witness could have concluded logically that his failure to testify as he had promised or as was expected of him might have adverse consequences.

¶15Id., at 359, 437 A.2d 901.

¶16In the case sub judice, the jury heard the witness’s response, that she did in fact receive a reduced sentence. Inferentially, that was after she testified against appellant in the first trial. That response was not stricken. The court refused to permit the defense to explore the connection between that reduction of sentence and the witness’s testimony. It is true that the jury was aware of the plea bargain “cap” of a 35-year sentence, but on the basis of the evidence that “cap” does not appear to be a motivation to testify. The extent of her sentence reduction after her testimony, and whether the reduction was a reward for her testimony, are certainly relevant and do have a bearing on the credibility of her testimony. To the jury, the 35-year *582“cap” would seem to be a consideration for the guilty pleas, not for testimony.

¶17The majority notes that appellant did not proffer either the extent of the reduction of Cooper’s sentence or that he did not know the extent of the reduction. From that it concludes that it cannot tell whether the court’s ruling prejudiced appellant. I fail to see the logic of that conclusion. The court had ruled that any reduction in the witness’s sentence was irrelevant. In the face of that ruling, a proffer as to the extent of the sentence reduction would have been meaningless.

¶18Finally, the majority, in a footnote, refers to an instruction by the court, apparently referring to Gough and Cooper, to the effect that they pleaded guilty to various crimes as a result of a plea agreement, “that is, a promise was given by the State to them that certain things would be done if they would testify in this case.” The jury was told to consider such testimony with caution because it might be colored by a desire to gain leniency by testifying against appellant. I am not persuaded that that instruction cured the error in limiting cross-examination of Ms. Cooper. After all, as to that witness, the court had prevented the jury from hearing evidence of an agreement to testify as a quid pro quo for leniency or a reduced sentence. In the absence of such evidence, the court’s reference to a plea agreement involving an obligation to testify did not appear to apply to Ms. Cooper's testimony.

¶19The testimony of Jacquelyn Cooper and Juan Gough, two admitted accomplices, was crucial to the prosecution’s case because, as pointed out infra, only their testimony, and the admission of certain tangible items of evidence tending to corroborate it, connected appellant to the crime. Such being the case, I cannot be persuaded beyond a reasonable doubt that the court’s error in refusing to permit appellant’s counsel to explore a possible relationship between Ms. Cooper’s testimony and the reduction of her sentence was harmless error.

¶20*583II

¶21I agree absolutely with what the majority opinion sets forth under the headings “STANDARD OF REVIEW” and “PROBABLE CAUSE AND THE ‘PLAIN VIEW’ DOCTRINE.” I also agree that, on the basis of the officer’s testimony at the suppression hearing as to what he had learned before going to appellant’s apartment, what he saw in plain view inside the apartment, and what he believed when he saw the items he seized,1 Officer Noblitt had probable cause to seize the coin sets (only one of which, found on the floor in appellant’s bedroom, was of major significance); the military flashlights (one of which was found in appellant’s bedroom); the bottles of wine (only one of which was found in appellant’s bedroom); and the Norwegian postage stamp. I further agree that Noblitt had probable cause to seize the “second” telephone (the one not listed in the warrant); the safe, its contents, and its handle; and the bloody mattress cover.2 Since none of those items were found in appellant’s bedroom, however, their presence in the apartment, in Gough’s or Cooper’s room or in common areas, confirms the admitted guilt of the accomplices without corroborating their testimony as to appellant’s guilt. Finally, I agree with the majority that, although admission in evidence of the copper ashtray was error, that error, at least, was harmless.

¶22Where I disagree with the majority is with respect to the seizure and then the admission into evidence of the brass Viking ship that was found on a nightstand next to appellant’s bed; the Citizen watch, also found on a nightstand in appellant’s bedroom; and the stamp album, found under appellant’s bed.

¶23*584In view of the fact that none of the items seized (or photographs thereof) were exhibited to the suppression motion hearing judge, all he had to go on, just as all we have to go on, with respect to probable cause, was the testimony of Officer Noblitt. We give due deference to the judge’s first level fact-finding, which includes his total acceptance of the officer’s testimony as to what information he had, what he saw, and what he believed. We do not give deference to the judge’s conclusion, or the officer’s, that what the officer knew and saw constituted probable cause to believe that what he saw was evidence of crime. As to that, as the majority opinion points out, we must make our own independent constitutional assessment.

¶24The Watch

¶25Officer Noblitt had been told by a friend of the victim that the victim had recently purchased a Citizen watch. The friend described the watch, according to Noblitt, as gold in color, thin square face, brown leather band. Noblitt described what he saw on the nightstand in appellant’s bedroom merely as a Citizen watch. He seized that watch. Considering that Citizen is a very popular brand of wristwatch, it would not be reasonable for the officer to believe that a watch found in appellant’s bedroom probably had been stolen from Haug, merely because it was made by the same manufacturer. I would concede that, if the Citizen watch on appellant’s nightstand matched the description of Haug’s watch that the officer had received from Haug’s friend, Noblitt would have had probable cause, rather than mere suspicion or speculation, to seize it. Could the hearing judge infer or assume that if the officer seized the watch it must have matched the description he had been given? Can we, in the exercise of our constitutional duty to make an independent assessment of probable cause, make that assumption.3 I do not believe so. The testimony of *585Officer Noblitt that he saw a Citizen watch and seized it because he believed it had been stolen from the victim is simply inadequate to support a finding that the seizure was valid.

¶26The Viking Ship

¶27Officer Noblitt testified at the suppression hearing that he saw, in plain view, on a nightstand in appellant’s room, “a brass Viking ship.” He offered no further description. He seized the object because Haug was of Norwegian extraction and, to the officer, Viking equaled Norwegian. Contrary to the majority opinion, the object was never described as a model of a Viking ship, merely as a “brass Viking ship.” It was not described either as to size or as to any other feature that would suggest Norwegian memorabilia as distinguished from a brass knickknack or curio having no real association with Norway. Officer Noblitt did not testify at the suppression hearing that he saw any indication in Haug’s apartment that Haug was a collector of Viking or Scandinavian memorabilia. He said that Haug had “Norwegian things.” In my opinion, the connection between a brass object in the shape of a Viking ship and Haug’s Norwegian ancestry is far too tenuous to support probable cause to believe the object had been stolen from Haug’s apartment or was otherwise evidence of crime.

¶28The Stamp Album

¶29Officer Noblitt, searching for items listed in the warrant, looked under appellant’s bed. He said that he saw, under the bed, a stamp album, which he seized because he was aware that the victim, Haug, collected stamps and there was no indication that appellant was a stamp collector. If it were readily apparent to the officer, when he looked under the bed, that what he saw was a stamp album or, as he put *586it, a stamp collection book, I would agree that he had probable cause to seize it. But if he had to move the object, take it out from under the bed, before he could tell that it was a stamp album, the initial seizure — moving the object to examine it before he could tell it was a stamp album and thus probably evidence of or fruits of crime — was without probable cause, and thus unlawful. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).

¶30My analysis of Officer Noblitt’s testimony regarding his seizure of the stamp album, set forth in detail in the majority opinion, leads me to a different conclusion than that reached by the majority. Noblitt, when asked to state exactly what he observed when he looked under the bed, responded, “It’s a large loose-leaf notebook type.” Then in response to another question, he said that he could tell by looking at it, without moving it, that it was a stamp collection because:

It was about this thick [indicating] and we could see that there were envelopes in, apparently, plastic covers which would indicate a stamp collection.

¶31On cross-examination, Noblitt admitted that he had seen nothing like this “stamp collecting book” in Haug’s apartment. Haug’s stamp collection (or what was left of it) consisted of transparent envelopes or folders containing stamps.

¶32I must confess that I know very little about stamp collecting. Some fifty or more years ago, the stamp albums with which I was familiar were bound books, and stamps were attached to the pages by gummed hinges. Perhaps a loose-leaf type book with transparent (plastic or cellophane) pages, or pages into which transparent envelopes or covers are inserted, is a modem kind of stamp album. But loose-leaf books containing transparent type pages, the edges of which would have been visible to Officer Noblitt when he looked under appellant’s bed, are quite frequently used for photograph albums and for collections of baseball cards or similar items. Accepting the truth of Noblitt’s testimony and applying to it my own independent constitutional as*587sessment, I conclude that what Noblitt saw under the bed was a loose-leaf binder suitable for and probably containing a collection of some kind. Knowing that Haug collected stamps and that various things had been stolen from Haug’s apartment, Noblitt may very well have suspected that the blue loose-leaf book might be a stamp collection. I am not persuaded that he had a reasonable basis to believe that it was one until he removed it from under the bed and was able to verify his suspicion.

¶33The conclusion I reach, therefore, making my own independent probable cause analysis, is that Officer Noblitt had probable cause to believe that the following items were evidence or fruits of crime: the silver coin sets, because they were distinctive and Noblitt noticed some of the sets were missing from the victim’s apartment; the second telephone, because it bore the victim’s phone number, of which Noblitt had independent information; the Norwegian stamp, because it was distinctive in character, out of place in appellant’s bedroom, and obviously had a stronger connection to the victim than to appellant; the Roma champagne, because Noblitt had seen a rack of that very same type of champagne at the victim’s apartment, with bottles missing from it; and the safe, because Noblitt had a statement from a participant in the crime that a safe had been taken and there was evidence in the victim’s apartment that suggested that a safe had been removed.

¶34While it may be true that champagne bottles and a telephone are not so distinctive in character that they might immediately lead one to believe that they are stolen, these items should not be viewed in a vacuum.4 The facts available to Noblitt were sufficient to warrant him in the belief that those items had been stolen from Haug’s apartment.

¶35The warrantless seizure of some other items, however, was not or may not have been based on probable cause to believe that those items were evidence or fruits of crime: *588the blue, loose-leaf notebook, which may not have been readily identifiable as a stamp album while it was under the bed; the copper ashtray, which was clearly seized upon mere suspicion, there being nothing to suggest it was evidence or fruit of crime; the brass Viking ship, because the mere fact that the victim was of Norwegian extraction might give rise to speculation that the brass object in the shape of a Viking ship had been stolen from his home, but not probable cause to believe so; and the Citizen watch, because the mere fact that the victim had recently acquired a watch of a particular make furnishes no probable cause to believe that a watch described only as a watch made by the same manufacturer had probably been stolen from the victim.

¶36HARMLESS ERROR

¶37The fact that I believe the court erred in admitting the brass Viking ship, the stamp album, and the watch does not in itself warrant a conclusion that the convictions should be reversed because of such error. Only when error results in substantial prejudice to the accused is reversal required. The improper seizure of evidence, however, may not be taken lightly. If unconstitutionally seized evidence has been erroneously received at the trial on the merits, prejudice is presumed. The State will be able to avoid reversal only by satisfying the appellate court beyond a reasonable doubt that the error was harmless. Chan v. State, 78 Md.App. 287, 552 A.2d 1351 (1989); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705reh. denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967).

The presumption of prejudice and the requirement of strong persuasion to the contrary is, of course, a sensitivity to the jury trial and the inability to know with any real degree of sureness what contaminating effect the improper evidence may have had on the jury’s decision.

¶38Chan, 78 Md.App. at 312, 552 A.2d 1351. Necessarily, in determining whether the error was harmless, an appellate court must consider whether the unconstitutionally seized

¶39*589items were of any major significance to the prosecutor’s case. In doing so, it must view the case without that evidence. In the case sub judice, without any of the items seized from appellant’s room the State might not have sufficient evidence to support the convictions, because the only other evidence connecting appellant to the crimes was the testimony of appellant’s alleged accomplices in the crimes, Gough and Cooper, both of whom described in detail the role appellant played in the commission of the crimes.

¶40CORROBORATION

¶41A person accused of a crime may not be convicted upon uncorroborated testimony of an accomplice. Brown v. State, 281 Md. 241, 378 A.2d 1104 (1977); Luery v. State, 116 Md. 284, 81 A. 681 (1911); Turner v. State, 294 Md. 640, 452 A.2d 416 (1982). As pointed out by the Court of Appeals, there are two reasons for this rule: (1) the witness offering the testimony is admittedly contaminated with guilt, and (2) the possibility of an ulterior motive on the part of the accomplice who seeks to curry favor with both the prosecutor and the police in the hope of obtaining a lesser sentence or a reduced charge. Nevertheless, only slight corroboration is required. Turner, supra, at 642, 452 A.2d 416.

¶42While corroborative evidence need not be sufficient in itself to convict, it must relate to material facts tending either (1) to identify the accused with the perpetrators of the crime or (2) to show the participation of the accused in the crime itself. If either of these is established with some degree of cogency, the trier of fact may credit the accomplice’s testimony even with respect to matters as to which no corroboration was adduced. See, e.g., Woods v. State, 315 Md. 591, 556 A.2d 236 (1989); Brown, supra; Wright v. State, 219 Md. 643,150 A.2d 733, cert. denied, 361 U.S. 851, 80 S.Ct. 112, 4 L.Ed.2d 90 (1959). The first factor was explained in Samuels v. State, 54 Md.App. 486, 459 A.2d 213 (1983), wherein we stated:

*590With respect to corroborative evidence tending “to identify the defendant with the perpetrators of the crime, ‘[i]t would be sufficient by way of corroboration for the state to show, by non-accomplice evidence, that the appellant was in the company of the perpetrators of the crime in the general vicinity of the crime scene and at about the time when the crime occurred.’ ”

¶43Samuels, supra, at 492, 459 A.2d 213, citing Jeandell v. State, 34 Md.App. 108, 366 A.2d 79 (1976).

¶44This case is a classic example of why corroboration is required. The State’s principal evidence in the case sub judice was the testimony of two admitted participants in the murder, robbery, burglary, kidnapping, and theft, Cooper and Gough. Both may have testified against appellant in exchange for lenient sentences for their parts in the crimes. The State clearly met its burden of proving the corpus delicti. It established the fact that Haug was indeed dead, and that his death occurred under circumstances that indicated that it was caused criminally by someone. There is no question that the State corroborated the accomplices’ testimony as to their guilt with evidence found both inside and outside of their apartment. The victim’s body was discovered in the yard behind a building supply company, with a lead pipe embedded in his face, and with bloodied pipes nearby. Photographs of Haug’s automobile, a 1983 Honda Prelude, a portable radio recovered from Haug’s automobile, and gray work gloves identified by the alleged accomplices as having been worn by appellant on the night of the murder, were admitted into evidence.

¶45Clearly, there was no evidence that met the first corroborative factor, evidence tending to identify appellant with the admitted perpetrators of the crimes; there was no non-accomplice evidence placing appellant in the company of Gough and Cooper at or about the time they were committing any of the crimes.

¶46To establish the second corroborative factor, i.e., to show appellant’s participation in the crime itself, the State *591presented evidence found inside appellant’s apartment. We should be primarily concerned with those items, constituting fruits of the burglary committed after the murder of Haug, that were found in appellant’s room, because those items would tend to connect him with the crime itself. The items found in Cooper’s or Gough’s rooms, or in areas common to all three tenants, however, would certainly corroborate their testimony as to their own participation in the crimes but would not directly corroborate appellant’s involvement. Of the items seized from appellant’s room — flashlights, watch, copper ashtray, Norwegian stamp, stamp collection book, champagne bottle, bicentennial coin set, and brass Viking ship, none of which were listed in the search warrant — I would concede that Noblitt had probable cause to seize the stamp, the bicentennial coin set, and the champagne bottle. Those items were in themselves sufficient to connect appellant with the crimes and thus to corroborate the accomplices’ testimony. Nevertheless, I am not persuaded beyond a reasonable doubt that a jury would have convicted him on the basis of those items, without the other exhibits found in his room. Appellant might have been able to offer a plausible explanation for the presence of one of several bottles of stolen champagne, one of many stolen bicentennial coin sets, and one foreign stamp in his bedroom. These items, of no appreciable value, might have been given him by the admitted criminals after their successful raid on Haug’s apartment. Each item added to that list makes any attempted explanation less plausible. Hardest to explain would be the presence of the stamp album under the bed. Believing that there is some reasonable possibility that introduction of the watch, the Viking ship, and the stamp album may have prejudiced appellant’s defense, I am not persuaded that error in the introduction of those items was harmless.

¶47For the reasons set forth above, I would reverse the convictions and remand this case for a new trial.