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Editor: Colin Miller
Univ. of South Carolina School of Law

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Monday, November 1, 2010

Legally Blind, Take 2: Court Of Appeals Of Maryland Agrees With Me, Reverses Murder Conviction In Legally Blind Witness Case

Back in January 2009, I posted an entry about the retrial of Tony Williams for murder. Williams was convicted after a first trial based in large part on the testimony of eyewitness for the prosecution Brenda O'Carroll, the victim's neighbor. That conviction, however, was reversed after it was determined that the prosecution failed to disclose material impeachment evidence in violation of Brady v. Maryland, such as evidence that O'Carroll was legally blind. O'Carroll died before Williams' retrial, and, at that retrial, the prosecution successfully introduced O'Carroll's testimony from the first trial under Maryland Rule of Evidence 5-804(b)(1), which provides an exception to the rule against hearsay for

Testimony 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 the admission of this former testimony was erroneous because the prosecution's failure to disclose that O'Carroll was legally blind meant that he was not given a full and fair opportunity to probe and expose the infirmities of O'Carroll's testimony as is required under Rule 5-804(b)(1). The Court of Special Appeals of Maryland disagreed, concluding that

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.

In disagreeing with this conclusion, I posted:

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.

In its recent opinion in Williams v. State, 2010 WL 4231296 (Md. 2010), the Court of Appeals of Maryland did just that.

In finding that O'Carroll's testimony from the first trial was improperly admitted at the second trial because Williams was not afforded a full and fair opportunity to develop her testimony, the Court of Appeals of Maryland found that

although petitioner may have had an opportunity to cross-examine Ms. O'Carroll at the first trial, it was not an adequate one, because he had not been informed that Ms. O'Carroll was "legally blind," or at least considered herself to be so. As such, we cannot say that her testimony with regard to what she said she saw was reliable. Although petitioner had the incentive to question the witness' perception, without knowing her statement to the detective, he would have had no reason to believe that she was "legally blind."

Then, in finding that the admission of this testimony required reversal and a new trial, the court concluded that

Petitioner was prejudiced significantly by the State's nondisclosure of Ms. O'Carroll's statements about her vision, and he was prejudiced equally in his second trial when her recorded testimony was played for the jury. Ms. O'Carroll was the sole eyewitness identifying petitioner as Ms. Drake's shooter. She testified at petitioner's first trial to seeing petitioner chase Ms. Drake into her apartment building, fire a gun at her, and drive off in his car. Petitioner was deprived of the opportunity to cross-examine the only eyewitness identifying him about the quality of her vision, inquiring into what she meant when she described herself as "legally blind."

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/11/legally-blind-williams-v-state-a3d-2010-wl-4231296md2010.html

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