Monday, January 5, 2009
Legally Blind? Court Of Special Appeals Of Maryland Makes Seemingly Misguided Hearsay Ruling In Murder Appeal
The recent opinion of the Court of Special Appeals of Maryland in Williams v. State, 2008 WL 5352283 (Md.App. 2008), contains what seems to me to be a horribly misguided evidentiary ruling.
In Williams, Tony Williams was convicted by a jury in 1998 of first-degree murder, the use of a handgun in the commission of a crime of violence, and carrying a handgun in connection with the fatal shooting of Dana Drake. That conviction, however, was subsequently reversed after it was determined that the prosecution failed to disclose material impeachment evidence, in violation of Brady v. Maryland Nonetheless, after a second trial, Williams was again convicted of the same offenses in 2007.
He subsequently appealed, claiming, inter alia, that the trial judge at his second trial improperly allowed the prosecution to introduce a videotape from the first trial of the testimony of the victim's neighbor, Brenda O'Carroll, who had passed away before the second trial. O'Carroll was a key prosecution witness:
"She claimed to have seen [Williams] get out of a red Corvette, chase the victim into the apartment building, and fire two shots at her. After she heard a third shot, she saw [Williams] run from the building and jump into his car. She then opened her door and saw the victim sitting on the third step of the stairway leading to the next floor, 'with her head on the side, dead.'"
O'Carroll was also one of two witnesses about whom the prosecution failed to disclose material impeachment evidence, leading to the Brady violation. Specifically, the prosecution failed to disclose that O'Carroll had told Detective Sergeant Darryl Massey that she was legally blind at the time of the murder and that Massey had observed behavior that suggested O'Carroll's sight was impaired.
So, how was O'Carroll's videotaped testimony admissible notwithstanding the rule against hearsay? Well, the trial judge found that it was admissible pursuant to Maryland Rule of Evidence 5-804(b)(1), which provides an exception to the rule against hearsay for:
"[t]estimony given as a witness in any action or proceeding or in a deposition taken in compliance with law in the course of any action or proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."
On appeal, Williams claimed that O'Carroll's videotaped testimony was improperly admitted because "he did not have the opportunity to cross-examine Ms. O'Carroll about her statement that she was legally blind." But the Court of Special Appeals of Maryland quickly disposed of this argument. According to the court,
"[t]he opportunity for cross-examination required by Rule 804(b)(1) 'is generally satisfied when the defense is given a full and fair opportunity to probe and expose [the] infirmities [of a witness' testimony]...thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony.'"
The court then quickly concluded that Williams "certainly had the opportunity to cross-examine Ms. O'Carroll at his first trial."
The Court of Special Appeals of Maryland then concluded that defense counsel had a similar motive to develop O'Carroll's testimony at the first trial. According to the court, another witness testified that it was "pitch dark" at the time of the murder, and O'Connell testified, inter alia, that she was taking "medicine," receiving radiation, and had had eleven operations. According to the court, this gave defense counsel a motive to question O'Carroll about her eyesight at the first trial, which he did not do.
I think that this analysis is wrong and that the Court of Special Appeals of Maryland placed the emphasis in the wrong place. Of course defense counsel in a first murder trial would have a similar motive to try to discredit the testimony of a witness for the prosecution as it would have if that witness were to testify at a second murder trial on the same charges. The real question in such a case is whether defense counsel had a sufficient opportunity to discredit the testimony of the witness at the first trial, and that is where the court should have done most of its heavy lifting.
And on that point, I will use the court's own words to challenge its ruling. According to the court, the "opportunity" requirement of Maryland Rule of Evidence 5-804(b)(1) is only satisfied
"when the defense is given a full and fair opportunity to probe and expose [the] infirmities [of a witness' testimony]" (emphasis added).
So, I ask readers: Do you think that Williams had a full and fair opportunity to challenge O'Carroll's testimony based upon her eyesight at the first trial? Or did the prosecution's failure to disclose evidence of her legal blindness render that opportunity something less than full and fair? I would argue the latter, and, I think that the Court of Appeals of Maryland might agree with me upon appeal.