Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Calloway v. State – Witness Testifying Against ME!

Calloway v. State, 414 Md. 616 (2010) 

Defendant was convicted of second degree assault. The State’s evidence included the testimony of Defendant’s former cell-mate.  Prior to Defendant’s trial and realizing witness was testifying against me, the cell-mate called the PG County State’s Attorney’s Office, and offered to testify about several incriminating statements Defendant had made to him. After his conversation with the State’s Attorney’s Office, the cell-mate’s charges for assault and reckless endangerment were nolle prossed, his bond was revoked and he was released from prison, and even though he had entered a guilty plea that constituted a violation of probation, no VOP charges were filed against him.

The State filed a motion in limine to prohibit the defense from cross-examining the cell-mate about the status of his charges and his possible motivation/bias in his testimony against Defendant. In an evidentiary hearing, the cell-mate testified adamantly that he had not asked the State for a deal and in fact did not want a deal because his only concern was to tell the truth. The cell-mate testified that he did not want the jury to infer an ulterior motive due to any deal he had made with the State. As a result of this testimony, the trial court found the cell-mate to be credible and therefore granted the State’s motion. The CSA affirmed in an unreported opinion.

The Defendant presented a single question on appeal to the COA: “Did the lower courts err in limiting defense counsel’s cross-examination of the State’s key witness regarding his expectation of leniency from the State?”

The COA held that “While it is clear that the trial judge is not obligated to allow cross-examination about every charge pending against a State’s witness, Md. Rule 5-616(a)(4) grants the criminal defendant the right to question a State’s witness about facts that are of consequence to the issue of whether ‘the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely.’” This includes circumstantial evidence.

It is the sole function of the jury, not the trial judge, to assess a witness’ credibility. Here, the trial judge improperly prevented the jury from determining whether the cell-mate called the State’s Attorney’s Office in the hopes of being released from detention, and whether he was testifying at trial in the hope of avoiding a VOP charge. The fact that the State had not made any offers to the cell-mate is irrelevant. It is also irrelevant that the trial judge believed that the cell-mate’s trial testimony would not have changed from his testimony at the hearing.

To the extent that this decision is inconsistent with Ebb v. State, 341 Md. 578 (1996), or Watkins v. State, 328 Md. 95 (1992), those cases are overruled.

The COA held that the “When determining whether a particular item of circumstantial ‘bias’ evidence should be excluded on the ground that it is unfairly prejudicial and/or confusing, the trial court is entitled to consider whether the witness’s self interest can be established by other items of evidence.” Here, there was a solid factual basis for questioning the cell-mate’s self interest, and circumstantial evidence of his self interest was not outweighed – “substantially or otherwise” – by a danger of confusion or unfair prejudice.

Reversed and remanded for a new trial.