Taylor v. State
Opinions
BATTAGLIA, Judge.
We are called upon to address the confluence of Maryland Rule 5-608(b),1 which allows impeachment by examination regarding the witness’s prior conduct but does not allow proof of the prior conduct by extrinsic evidence, and Maryland Rule 5-806,2 which allows the impeachment of a hearsay declarant [140] “by any evidence which would be admissible ... if the declarant had testified as a witness.”
Specifically, Todd Tyrone Taylor, Petitioner, was convicted of third degree sexual assault for engaging in anal intercourse with B.D., a 15 year-old boy, who did not testify at trial. B.D.’s version of events was presented through the testimony of the boy’s father and a detective; others testified, although their testimony is not relevant here.3 During cross-examination of the father and Detective Deana Mackie, Taylor’s counsel sought to impeach B.D.’s version of events, by eliciting from the father and detective that the story B.D. told about his encounter with Taylor was inconsistent, as well as that B.D. had lied about his prior sexual experience. The trial judge sustained the State’s objections, determining that Rule 5-608(b) would be violated because of the rule’s prohibition of extrinsic evidence.
The Court of Special Appeals affirmed the conviction in an unreported opinion, holding that the trial court did not err in curtailing B.D.’s impeachment, and, nevertheless, that if error had occurred, it was harmless. The court also declined to address a contention by Taylor that his probation order included an inappropriate condition, because the issue was not preserved for appeal. We granted certiorari, Taylor v. State, 404 Md. 152, 945 A.2d 1270 (2008), to consider two questions:
1. Did the trial court’s restriction upon the impeachment of the credibility of a hearsay declarant whose extrajudicial statements were central to the State’s case contravene [141] Petitioner’s rights under the Confrontation Clause and Maryland evidentiary law?
2. Did the trial court impose an overbroad condition of probation ordering Petitioner “to have no contact with any minors?”4
We shall hold the trial judge improperly applied the extrinsic evidence limitation in Rule 5—608(b), in violation of the defendant’s right to cross-examine the father and detective, when he prevented Taylor from impeaching the veracity of the hearsay declarant and his version of events regarding the sexual encounter in issue. We shall affirm the conviction, however, because the error was harmless.
I. Introduction
This case arises out of a sexual encounter between Taylor and B.D., a 15 year-old boy. On September 22, 2004, B.D.’s father, who was estranged from B.D.’s mother, arrived at the family home to take his son to a back-to-school event at the [142] high school. Shortly after the father and son left the house, B.D.’s mother received a phone call from an individual who said that B.D.’s school planner had been found at the Silver Spring Metro Station, where B.D. did not frequent. After the mother and father questioned B.D. about why he was at the Metro Station and B.D. initially obfuscated, B.D. then admitted to a sexual encounter with a man, later identified as Todd Tyrone Taylor, in Taylor’s apartment in Silver Spring that day, after B.D. had contact with Taylor on a chat line. After interviewing with Detective Maekie at the police station, B.D. was then referred to a hospital for a sexual assault examination, where he told a forensic nurse, Heidi Bresee, that he had had anal intercourse, and that he had engaged in fellatio; although there had not been any force, threats or weapons. Upon examination, Nurse Bresee observed an acute half-inch, exterior anal tear that she testified was consistent with anal intercourse. A DNA sample, taken by oral and anal swabbing and analyzed by a forensic scientist, matched that of Taylor.
Taylor was indicted by a grand jury on two counts of sexual offense in the third degree for engaging in anal penetration and fellatio,5 and one count of sexual offense in the fourth [143] degree, which was nolle prossed.6 At trial, the State did not [144] call B.D. to testify, instead relying on the testimony from the boy’s father and that of Detective Mackie to present B.D.’s version of events.
B.D.’s father testified that B.D. related to him that he had met Taylor over the Internet in a chat room on the day in question, that B.D. had traveled to Silver Spring where he had gone to Taylor’s apartment, and that once there, B.D. and Taylor had engaged in anal intercourse. The father also testified that when he had heard this, he had become enraged, grabbed B.D. by the throat and demanded that B.D. take him to Taylor’s apartment, where he attempted to enter, but, was deterred by a security guard and later by a police officer, who instructed him to go to the police station and meet with a [145] detective there. The father then testified that he had taken B.D. to the police station where both he and B.D. were interviewed by Detective Mackie, followed by a forensic examination of B.D. by Nurse Bresee at Shady Grove Hospital. The father also testified that B.D. was crying and visibly shaken.
During cross-examination of the father, Taylor attempted to impeach B.D.’s version of events, on the basis of B.D.’s alleged fear of physical harm at the father’s hand, and because B.D. allegedly had lied to his father about B.D.’s previous sexual experience. After eliciting that B.D. lied to the father about why his planner was in the Silver Spring Metro Station, the State objected to Taylor’s questions eliciting whether B.D. had been forthcoming with his father about his prior sexual experience; the trial judge sustained these objections:
[DEFENSE COUNSEL]: Well, what did he tell you when he started to tell the truth?
[FATHER]: He told us exactly where he had been, how he got there and what had happened.
[DEFENSE COUNSEL]: So when he told you that, did you believe him?
[PROSECUTOR]: Objection.
THE COURT: Overruled.
[PROSECUTOR]: Objection, Your Honor. May we approach?
THE COURT: Very well.
(Bench conference follows:)
[PROSECUTOR]: (unintelligible) can’t give an opinion as to whether or not he believed (unintelligible).
[DEFENSE COUNSEL]: I’m asking him about his experience as a father. He knows his son better than anyone else here and if his son has a history of lying, and he’s able to say that, I think that’s probative to the jury to consider.
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BATTAGLIA, Judge.
We are called upon to address the confluence of Maryland Rule 5-608(b),1 which allows impeachment by examination regarding the witness’s prior conduct but does not allow proof of the prior conduct by extrinsic evidence, and Maryland Rule 5-806,2 which allows the impeachment of a hearsay declarant [140] “by any evidence which would be admissible ... if the declarant had testified as a witness.”
Specifically, Todd Tyrone Taylor, Petitioner, was convicted of third degree sexual assault for engaging in anal intercourse with B.D., a 15 year-old boy, who did not testify at trial. B.D.’s version of events was presented through the testimony of the boy’s father and a detective; others testified, although their testimony is not relevant here.3 During cross-examination of the father and Detective Deana Mackie, Taylor’s counsel sought to impeach B.D.’s version of events, by eliciting from the father and detective that the story B.D. told about his encounter with Taylor was inconsistent, as well as that B.D. had lied about his prior sexual experience. The trial judge sustained the State’s objections, determining that Rule 5-608(b) would be violated because of the rule’s prohibition of extrinsic evidence.
The Court of Special Appeals affirmed the conviction in an unreported opinion, holding that the trial court did not err in curtailing B.D.’s impeachment, and, nevertheless, that if error had occurred, it was harmless. The court also declined to address a contention by Taylor that his probation order included an inappropriate condition, because the issue was not preserved for appeal. We granted certiorari, Taylor v. State, 404 Md. 152, 945 A.2d 1270 (2008), to consider two questions:
1. Did the trial court’s restriction upon the impeachment of the credibility of a hearsay declarant whose extrajudicial statements were central to the State’s case contravene [141] Petitioner’s rights under the Confrontation Clause and Maryland evidentiary law?
2. Did the trial court impose an overbroad condition of probation ordering Petitioner “to have no contact with any minors?”4
We shall hold the trial judge improperly applied the extrinsic evidence limitation in Rule 5—608(b), in violation of the defendant’s right to cross-examine the father and detective, when he prevented Taylor from impeaching the veracity of the hearsay declarant and his version of events regarding the sexual encounter in issue. We shall affirm the conviction, however, because the error was harmless.
I. Introduction
This case arises out of a sexual encounter between Taylor and B.D., a 15 year-old boy. On September 22, 2004, B.D.’s father, who was estranged from B.D.’s mother, arrived at the family home to take his son to a back-to-school event at the [142] high school. Shortly after the father and son left the house, B.D.’s mother received a phone call from an individual who said that B.D.’s school planner had been found at the Silver Spring Metro Station, where B.D. did not frequent. After the mother and father questioned B.D. about why he was at the Metro Station and B.D. initially obfuscated, B.D. then admitted to a sexual encounter with a man, later identified as Todd Tyrone Taylor, in Taylor’s apartment in Silver Spring that day, after B.D. had contact with Taylor on a chat line. After interviewing with Detective Maekie at the police station, B.D. was then referred to a hospital for a sexual assault examination, where he told a forensic nurse, Heidi Bresee, that he had had anal intercourse, and that he had engaged in fellatio; although there had not been any force, threats or weapons. Upon examination, Nurse Bresee observed an acute half-inch, exterior anal tear that she testified was consistent with anal intercourse. A DNA sample, taken by oral and anal swabbing and analyzed by a forensic scientist, matched that of Taylor.
Taylor was indicted by a grand jury on two counts of sexual offense in the third degree for engaging in anal penetration and fellatio,5 and one count of sexual offense in the fourth [143] degree, which was nolle prossed.6 At trial, the State did not [144] call B.D. to testify, instead relying on the testimony from the boy’s father and that of Detective Mackie to present B.D.’s version of events.
B.D.’s father testified that B.D. related to him that he had met Taylor over the Internet in a chat room on the day in question, that B.D. had traveled to Silver Spring where he had gone to Taylor’s apartment, and that once there, B.D. and Taylor had engaged in anal intercourse. The father also testified that when he had heard this, he had become enraged, grabbed B.D. by the throat and demanded that B.D. take him to Taylor’s apartment, where he attempted to enter, but, was deterred by a security guard and later by a police officer, who instructed him to go to the police station and meet with a [145] detective there. The father then testified that he had taken B.D. to the police station where both he and B.D. were interviewed by Detective Mackie, followed by a forensic examination of B.D. by Nurse Bresee at Shady Grove Hospital. The father also testified that B.D. was crying and visibly shaken.
During cross-examination of the father, Taylor attempted to impeach B.D.’s version of events, on the basis of B.D.’s alleged fear of physical harm at the father’s hand, and because B.D. allegedly had lied to his father about B.D.’s previous sexual experience. After eliciting that B.D. lied to the father about why his planner was in the Silver Spring Metro Station, the State objected to Taylor’s questions eliciting whether B.D. had been forthcoming with his father about his prior sexual experience; the trial judge sustained these objections:
[DEFENSE COUNSEL]: Well, what did he tell you when he started to tell the truth?
[FATHER]: He told us exactly where he had been, how he got there and what had happened.
[DEFENSE COUNSEL]: So when he told you that, did you believe him?
[PROSECUTOR]: Objection.
THE COURT: Overruled.
[PROSECUTOR]: Objection, Your Honor. May we approach?
THE COURT: Very well.
(Bench conference follows:)
[PROSECUTOR]: (unintelligible) can’t give an opinion as to whether or not he believed (unintelligible).
[DEFENSE COUNSEL]: I’m asking him about his experience as a father. He knows his son better than anyone else here and if his son has a history of lying, and he’s able to say that, I think that’s probative to the jury to consider.
[PROSECUTOR]: (unintelligible) and I think this witness can’t give an open opinion as to (unintelligible).
[146] THE COURT: (unintelligible) and you are objecting to that?
[PROSECUTOR]: (unintelligible) I just don’t know the rules on that, (unintelligible)
THE COURT: Objection overruled.
[DEFENSE COUNSEL]: Do you feel like you know your son very well?
[PROSECUTOR]: Objection.
THE COURT: Overruled.
[FATHER]: I feel I know him to a point.
[DEFENSE COUNSEL]: Okay. To a certain point, you don’t know him?
[FATHER]: Well, you know, just like any other child, you know, I can’t stand here and say that I know what my child is doing at all the time. But I know there are some things that, you know, he will do and he won’t do.
Taylor also sought to elicit additional testimony about whether B.D. previously had been candid with his father about his sex life:
[DEFENSE COUNSEL]: Okay. So, tell me this. [D]o you think your son would be completely honest with you in discussion [sic] his sex life?
[FATHER]: Since this incident, yes. He has been.
[DEFENSE COUNSEL]: Okay. So since this incident, you believe he’s been completely honest?
[FATHER]: Yes. I have.
[DEFENSE COUNSEL]: But before this incident, you believe he hadn’t?
[FATHER]: I think he was very vague about it.
[DEFENSE COUNSEL]: So, did you ever discuss his sex life with him?
[FATHER]: Yes. We did.
[DEFENSE COUNSEL]: And what did he say (unintelligible)?
[147] [PROSECUTOR]: Objection.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Well, tell me this. Why do you think that he’s telling you the truth since this incident?
[DEFENSE COUNSEL]: Because we’ve had very serious conversations and I’ve explained to him, you know, the downfalls and the pits of lying to your parents.
[DEFENSE COUNSEL]: Okay. And you think that from that conversation that now persuades him to be completely honest with you?
[FATHER]: Well, not just the conversation but the fact that what all he’s going through.
Cross-examination continued:
[DEFENSE COUNSEL]: Do you know if [B.D.] has a history of lying about his sexual past?
[PROSECUTOR]: Objection.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Your Honor, may we approach? THE COURT: No.
[DEFENSE COUNSEL]: Other than this incident, have you ever known [B.D.] to lie?
[PROSECUTOR]: Objection.
THE COURT: Sustained.
After the completion of the father’s testimony, there was a discussion at the bench concerning whether Taylor’s counsel would be permitted to question Detective Mackie about B.D.’s general tendency to lie about his prior sexual activity and about specific statements that tended to show that B.D. had not been truthful with Mackie about his encounter with Taylor: [148] he lies about. He lies about his age. He lies about what he has done. And I believe that’s probative for the jury to know about someone who’s claiming, I mean the second charge is based solely on what he’s claiming. And if we cannot show that when it comes to sexual matters, that this witness will lie, that I think the jury won’t have the full picture.
[147] [DEFENSE COUNSEL]: Your Honor, I wanted to revisit this matter regarding the testimony that I’m trying to elicit regarding his previous sexual experience. It is our intent to show that [B.D.], when asked about his sexual activities, that he will lie about that. And that’s one of the things that
[148] THE COURT: What’s your proffer?
[DEFENSE COUNSEL]: I want to ask him about—
THE COURT: Who? Ask who?
[DEFENSE COUNSEL]: Well, Detective Mackie. I wanted to ask the father about it but he’s gone. I guess I could call him back in during our case now.
THE COURT: What do you want to ask him?
[DEFENSE COUNSEL]: I want to ask, did [B.D.] ever lie about his previous sexual activity? Did he lie about what he did? Did he lie to that person? To show that this person when it comes to his sexual history, his sexual activity, he will lie about that.
THE COURT: [Prosecutor?]
[PROSECUTOR]: Your Honor, I think that’s specifically under the rape shield law were designed to protect. There’s no allegations in this case that anyone else other than defendant was the source of semen, was the source of injury. There’s an allegation that this child had a similar sexual encounter with someone that he met over this chat line during the month of July and he went to that individual’s home in Prince George’s County and identified that person by name. There’s no specifics that he lied about it. And Detective Mackie’s questioning of the defendant where we have this tape. We’ve had a transcript made of it, it appears that he gets confused when he’s asked about it. Have you ever done this before? No. Then he comes back and says, yes I did. I meet [sic] this guy Tony, but we didn’t engage in sex. And he knew how to get there, there was some discussion about it, but he tells Detective Mackie [149] exactly what happened. But it’s specifically what the rape shield laws (unintelligible).
THE COURT: We’ll cross that bridge when we get to it. We haven’t gotten to it and if he’s, his credibility is at issue based upon the prior consistent statements, then he’d be cross-examined on them. But we’re not just going to have open-ended [“]have [sic] he ever lied in the past[”] kinds of questions asked. This is not going to happen.
[DEFENSE COUNSEL]: I understand that. Also, Your Honor, (unintelligible) understand I asked him if [B.D.] ever told him that he used a condom (unintelligible) I believe, well according to the prior statement, he said he had. However, later on he told the police that a condom was not used. I wanted to elicit that. I was overruled by Your Honor when the objection was made by the State. But I need to show this jury that when it comes to sexual matters, that this complaining witness lies. And—
THE COURT: There’s got to be evidence to support that as opposed to a theory.
[DEFENSE COUNSEL]: Well, exactly. And I was trying to get that evidence by saying that he told, that [B.D.] told his father one thing, he told the police something else. Evidence of lying about sexual activity.
[PROSECUTOR]: And, Your Honor, [B.D.] can be questioned about that and the father can be brought back in, if we get to it. It’s [going] to have to be on a witness by witness basis. Not, the dad can’t be questioned about what [B.D.] told him and then for it later to be found out to be a lie.
The State called Detective Mackie to the stand, who testified that she interviewed B.D. and his father after they arrived at the police station, that she investigated telephone records and checked license plate numbers to identify Taylor as the suspect, and that she had accompanied the boy and the father to Shady Grove for the forensic examination. Specifically, with respect to what B.D. had told her about the encounter, [150] Detective Mackie relayed to the jury that B.D. said that Taylor was the assailant, that the encounter took place in Taylor’s apartment, and that it occurred on September 22, 2004.
During cross-examination, Taylor tried to show that B.D. had told inconsistent stories to Detective Mackie about his encounter with Taylor and that B.D. had a history of lying about prior sexual activity:
[DEFENSE COUNSEL]: Okay. Now, did you, when you were interviewing [B.D.] and his father, did you, you assumed that what they told you about the incident with Mr. Taylor was the truth, correct?
[DETECTIVE MACKIE]: Well, I had no reason to doubt , that until we do an investigation.
[DEFENSE COUNSEL]: Okay. All right. So when [B.D.] told you about the incident that night, you didn’t have an reason to question whether that really happened did you?
[DETECTIVE MACKIE]: No.
[DEFENSE COUNSEL]: Did he tell you the truth throughout the whole interview that you had with him?
[DETECTIVE MACKIE]: I believe he told me the truth.
[DEFENSE COUNSEL]: Did you catch him in any lies?
[DETECTIVE MACKIE]: I don’t recall catching him in any lies. It doesn’t stand out to me that he lied to me in any manner.
[DEFENSE COUNSEL]: All right.
[DEFENSE COUNSEL]: May we approach, Your Honor?
THE COURT: Very well.
(Bench conference follows:)
[DEFENSE COUNSEL]: Your Honor, I have on the tape when she interviewed him that she asked him why do you feel bad about this. She said do you feel bad about this incident. He said yes. He said because this is my first [151] time. Now she said, anal sex then? He said yes. [L]ater on in that interview he admits that he had anal sex with someone else previously to this. It shows that he lied about this incident, about his sexual activity.
THE COURT: That’s all (unintelligible).
[DEFENSE COUNSEL]: Yes.
[PROSECUTOR]: (unintelligible) [B.D.] takes the stand and denies having made the statement. That’s not proper impeachment to—
THE COURT: (unintelligible)
[PROSECUTOR]: (unintelligible)
(Bench conference concluded)
[DEFENSE COUNSEL]: (unintelligible) Detective Mackie, that you don’t know exactly what went on between Mr. Taylor and [B.D.] in Mr. Taylor’s apartment, do you?
[DETECTIVE MACKIE]: Just what I was told. I wasn’t there.
[DEFENSE COUNSEL]: Right. So you just believed what [B.D.] told you, correct?
[DETECTIVE MACKIE]:Yes. I suppose, yes.
[DEFENSE COUNSEL]: Okay. And you couldn’t testify today whether that was the truth or a lie, could you?
[DETECTIVE MACKIE]: Well, no. Because I wasn’t the one gathering evidence and I wasn’t there.
[DEFENSE COUNSEL]: You weren’t there?
[DETECTIVE MACKIE]: Correct?
After Detective Mackie testified, the State called Nurse Bresee, a pediatric nurse and forensic specialist, to testify about B.D.’s physical injuries and her professional opinion based on her observations. She testified that she observed B.D.’s injuries within 10 hours of the incident; that B.D. had an acute half-inch tear in the external surface of his anus consistent with penile but not necessarily digital penetration; and that she used a physical evidence recovery kit to take DNA samples. On cross-examination, Taylor elicited from [152] Nurse Bresee, without objection from the State, that, when she was filling out an earlier part of the intake form, B.D. informed her that Taylor had ejaculated in his mouth, and that he had been uncertain whether Taylor had ejaculated into his anus, but that B.D. had reversed the areas when he was questioned further.
The State called several other witnesses, including a DNA expert who testified that the DNA recovered from the anal swabs matched that of Taylor’s. The State rested, and Taylor took the stand, denying that he engaged in anal penetration or fellatio, but admitting to having left a message on an adult gay hotline. According to Taylor, B.D. had misrepresented himself as a 21 year-old college student during their telephone conversation. Taylor also asserted that after arranging to meet, he realized that B.D. had lied about his description; Taylor also testified that he had told B.D. to leave, but B.D. had refused, insisting on a sexual encounter. Based on B.D.’s persistence, Taylor explained that he had succumbed to B.D. and had agreed to watch pornography and to masturbate with him. Taylor also explained that B.D. had taken semen from Taylor’s body and put it into his own buttocks.
The jury convicted Taylor of one count of sexual offense in the third degree for engaging in anal intercourse, but acquitted him of the count involving fellatio. The trial judge then sentenced Taylor to five years in prison, suspending all but 10 days, and to 18 months of probation, during which Taylor was required to register on the sex offender list and to submit to mandatory blood testing, and was prohibited from contacting any minors, B.D. or his family. Taylor did not file a motion to alter or amend his sentence or to challenge the sentence as illegal under Maryland Rule 4-345(a),7 and noted his appeal to the Court of Special Appeals.
In the Court of Special Appeals, Taylor argued that the trial judge erred when he curtailed the cross-examination of B.D.’s [153] father and Detective Mackie, that the probation conditions were “overbroad,” and that the trial judge should not have required him to register as a sex offender. The Court of Special Appeals affirmed Taylor’s conviction in an unreported opinion, holding that the trial judge did not err, but even if he erred, the error was harmless, that the probation conditions were not illegal nor preserved for appeal, and that the trial judge properly required Taylor to register as a sex offender. We granted certiorari and shall affirm the conviction.
II. Discussion
A.
The primary issue is whether the trial judge erred when he curtailed Taylor’s attempted questioning of two State’s witnesses to impeach the non-testifying declarant’s version of events and character for truthfulness. Taylor asserts that he should have been permitted to question the father and Detective Mackie regarding B.D.’s history of lying about his prior sexual experiences, because the questions had impeachment value bearing on B.D.’s veracity and therefore are not affected by the extrinsic evidence limitation of Rule 5-608(b) or by the fact that B.D. did not testify. Essentially, Taylor argues that Rule 5-806 treats non-testifying declarants and those that testify alike, for to do otherwise would allow the State to insulate key statements from prior act impeachment by presenting those statements through other witnesses rather than by calling the declarant to the stand. The State asserts that the trial court properly curtailed Taylor’s questioning, because Taylor’s questions constituted the introduction of extrinsic evidence in contravention of Rule 5-608(b).
Although we have not had occasion previously to address the confluence of Rules 5-806 and 5-608(b), because Rule 5-806 allows for the impeachment of a hearsay declarant “by any evidence which would be admissible for those purposes if the declarant had testified as a witness,” we necessarily must begin our analysis with the critical question: if B.D. had testified, would and should Taylor have been permitted under [154] Rule 5—608(b) to impeach him with the use of similar questions asked of B.D.’s father and Detective Mackie?
We had occasion to explore the origins of Rule 5-608(b) in the case of State v. Cox, 298 Md. 173, 468 A.2d 319 (1983). There, Cox was convicted of rape in the first degree, sexual assault in the first degree and common law assault in a trial in which the victim’s identification of Cox was the only direct evidence linking Cox to the crime. During cross-examination of the victim, Cox sought to establish that the victim was lying by asking her about a prior accusation of criminal assault that she had recanted, but the trial judge sustained the State’s objection. In determining that the trial judge erred, we discussed impeachment using prior acts and explained the extrinsic evidence limitation:
This Court has recognized as a general rule that a witness may be cross-examined “on such matters and facts as are likely to affect his credibility, test his memory or knowledge, show his relation to the parties or cause, his bias, or the like.” The exception to this rule is that cross-examination will not be permitted on matters that are immaterial or irrelevant to the issue being tried. In this regard, the trial judge plays a significant role; for he must balance the probative value of an inquiry against the unfair prejudice that might inure to the witness. Otherwise, the inquiry can reduce itself to a discussion of collateral matters which will obscure the issue and lead to the fact finder’s confusion. To assist the trial judge, our courts have recognized and enforced certain principles. We have permitted extrinsic evidence of a prior conviction of a character witness or the defendant himself to be introduced to question the veracity and credibility of the witness or the defendant. However, we have insisted that the prior conviction should be relevant to the inquiry. We have indicated that “infamous crimes, felonies, crimes involving moral turpitude, deceit, or dishonesty are ... admissible for purposes of impeachment____”
But generally, we have reposed the responsibility for determining the relevance of prior convictions used for impeachment in the discretion of the trial judge.
[155] We have also permitted a witness to be cross-examined about prior bad acts which are relevant to an assessment of the witness’ credibility. We have allowed such inquiry to be conducted when the trial judge is satisfied that there is a reasonable basis for the question, that the primary purpose of the inquiry is not to harass or embarrass the witness, and that there is little likelihood of obscuring the issue on trial. We recognize that in cases regarding prior misconduct, the cross-examiner is bound by the witness’ answer and, upon the witness’ denial, may not introduce extrinsic evidence to contradict the witness or prove the discrediting act. The witness is not disadvantaged because there is nothing for him to rebut. Thus, the inquiry virtually stops with the question and answer, except to the extent that the trial judge may allow further cross-examination to refresh the witness’ recollection.
We have also been steadfast in holding that mere accusations of crime or misconduct may not be used to impeach. The rationale for this viewpoint is obvious. First of all, accusations of misconduct are still clothed with the presumption of innocence and receiving mere accusations for this purpose would be tantamount to accepting someone else’s assertion of the witness’ guilt and pure hearsay. In the instant case, defense counsel was not inquiring into prior convictions or an accusation of misconduct but seeking to determine the fact of prior misconduct. Under such circumstances, it is the responsibility of the trial judge to determine the relevance and materiality of the alleged prior misconduct, for it is purely collateral to the issue on trial and should only be admitted if probative of a lack of credibility. The trial judge must constantly be alert to make certain that the probative value of the inquiry outweighs its potential prejudice to the witness and that the inquiry does not stem primarily from a desire to harass or embarrass the witness.
v w H*
The issue we must resolve is rather straightforward: to what extent may the testimony of a prosecuting witness in a [156] rape case be impeached on cross-examination? We have already stated the general rule that any witness may be cross-examined on matters and facts affecting his credibility, so long as such facts are not immaterial or irrelevant to the issue being tried.
Id. at 178-81, 468 A.2d at 321-22 (internal citations omitted). In language probative of the resolution of the conflict between the now-codified Rule 5-608(b) and Rule 806, Judge Harry A. Cole, speaking for the Court, determined that the trial judge had erred by limiting defense counsel’s inquiry:
Defense counsel’s inquiry focused on the fact of prior misconduct when the witness had actually lied under oath in a similar situation. Counsel’s proffer indicated a proper line of cross-examination since the information to be extracted from the witness would relate to her character for veracity and thereby allow the fact finder to assess her credibility. Of course, if the witness denied the prior misconduct, the examiner would be bound by her answer, in that, he could not introduce extrinsic evidence to prove the discrediting acts.
While the right to cross-examine is not absolute and may be restricted by the trial judge, such restriction should be manifested by the exercise of sound discretion. As Chief Judge Murphy (then Chief Judge of the Court of Special Appeals) said in DeLilly v. State[, 11 Md.App. 676, 276 A.2d 417 (1971)]:
We are, of course, mindful of the general rule so frequently cited that the allowance or disallowance of questions on cross-examination is normally left to the sound discretion of the trial judge. But where the limitations imposed by the court upon cross-examination are such as plainly inhibit the ability of the accused to obtain a fair trial, the general rule is manifestly inapplicable. The real object of cross-examination is “to elicit all the facts of any observation or transaction which has not been fully explained.” That a witness may be cross-examined on such matters and facts as are likely to affect his credibility, test his memory or knowledge or the like, is a fundamental con[157] cept in our system of jurisprudence. And cross-examination to impeach, diminish, or impair the credit of a witness is not confined to matters brought out on direct examination; it may include collateral matters not embraced in the direct examination to test credibility and veracity, it being proper to allow any question which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or which tends to test his accuracy, memory, veracity, character, or credibility. Of course, the right to cross-examine effectively necessarily includes the right to place the testimony of a witness in its proper setting to fairly enable the jury to judge its credibility.
Here the inquiry had substantial probative force and there was no indication that defense counsel was harassing the witness by asking an unfounded question or seeking primarily to embarrass the witness. Indeed, the proffered question would have gone to the very heart of the witness’ credibility. The evidence of the crime was extremely damaging and Cox’s defense necessarily rested on the fact finder not believing the prosecutrix’s statement that he was her assailant.
Id. at 183-184, 468 A.2d at 323-24 (internal citations omitted). Thereby, in Cox, we presaged our adoption of Rule 5-608(b), permitting the witness to be questioned regarding lies about prior misconduct, with the limitation that proof of the conduct itself, or extrinsic evidence, could not be introduced.
Subsequently, in Merzbacher v. State, 346 Md. 391, 697 A.2d 432 (1997), we had occasion to explore Rule 5-608(b), when we were confronted by the issue of whether a third party could testify that a victim, who had already testified, previously had reported another act of abuse by one other than Merzbacher, to prove the victim’s tendency to make such complaints. In that case, where the victim had not been questioned about whether she had falsely accused another, we were clear that Merzbacher could have questioned the victim about false accusations that may have been probative of lack of credibility, but could not have proven the prior misconduct extrinsically:
[158] Although Merzbacher believes his attempt to show Murphy’s propensity to falsely accuse others of sexual misconduct is supported by our holding in State v. Cox, we disagree. In Cox, this Court reversed a defendant’s conviction of rape and related offenses because the trial court erroneously precluded his defense counsel from asking the prosecutrix about an incident where that witness had allegedly lied under oath. Because the testimony of the witness was pivotal to the State’s case, we concluded that it was error to preclude the defense from questioning her about that specific instance of past misconduct which was highly relevant to her credibility. We also noted, however, that had that witness denied the prior misconduct, the examiner would have been bound by the answer and precluded from introducing extrinsic testimony to prove the discrediting acts.
In the instant case, Murphy was not questioned about whether or not she made false accusations against another person. Rather, Merzbacher attempted to impeach her credibility through the introduction of highly speculative and unproven extrinsic testimony suggestive of her tendency to make such accusations. Merzbacher failed to produce evidence of a complaint made by Murphy other than that made against Merzbacher, much less one that was false. This is precisely the issue our predecessors explored in Rau v. State[, 133 Md. 613, 105 A. 867 (1919)]. Rau, charged with having carnal knowledge of a women child under the age of fourteen years, asked the following question of the child’s father at trial:
I want to ask you, Mr. Lohmeyer [the victim’s father], if your daughter Martha, the prosecutrix in this case, didn’t tell you that a man by the name of Hutton, a neighbor across the road where you lived about a year ago, that about that time, that this Mr. Hutton had sexual intercourse with her, and if she didn’t thereafter tell you that it was not so and that she had told a lie on Hutton ... ?
The State’s objection to the question was sustained. In response, Rau asserted that “the question was proper be[159] cause [it] ... would have [had] a tendency to impeach her character,”—an assertion, we note, identical to Merzbacher’s.
In rejecting Rau’s argument, the Court noted that
the prosecuting witness was not asked on cross-examination whether she had told a lie concerning the alleged intercourse with Hutton, ... but whether or not she had told her mother a year ago that a man by the name of Horton, a neighbor of hers, had sexual intercourse with her.
The Court thus concluded that because “it is almost universally held that proof of particular facts is inadmissible in impeaching a witness ... there was no error in the [trial] [c]ourt in refusing to permit the question to be asked and answered.”
We noted in Cox that although Ran would have been well within his rights to ask the prosecutrix questions concerning her credibility on cross-examination, he was not permitted “to broach the subject through extrinsic testimony.” Nothing has changed since Ran. Indeed, Maryland Rule 5-608(b) codifies the rule applied in Cox and Rau\_.\
Assuming that he had a reasonable basis to do so, Merzbacher could have questioned Murphy about prior instances of her falsely accusing another individual of sexual misconduct. Although we agree that any such false accusation would have had a significant bearing on Murphy’s credibility, Merzbacher was not entitled to introduce extrinsic testimony to support his attempted exploration of Murphy’s character through prior bad acts evidence. The trial court did not err or otherwise abuse its discretion by excluding this line of questioning.
Id. at 417-20, 697 A.2d at 445-46 (internal citations omitted) (footnote omitted) (emphasis added). In stating that “Merzbacher could have questioned Murphy about prior instances of her falsely accusing another individual of sexual misconduct,” but could not have introduced proof of the complaints, we [160] acknowledged that the purpose of the extrinsic evidence limitation in Rule 5-608(b) is to prevent a mini-trial regarding a collateral matter while permitting questions to impeach with prior false accusations. Id.; see also 6 Lynn McClain, Maryland Practice: Maryland Evidence State and Federal § 608:l(c) (2d ed. 2001, 2008 Supp.) (“Because the bad acts evidence is not central to the trial, the consumption of time and the distraction of the jury which would result from a mini-trial about whether the bad act took place dictate inadmissibility of extrinsic proof.”).
As a result, the resolution of the issue presented necessarily entails a determination of whether, under Rule 5-608(b), Taylor could have impeached B.D. with the same questions proffered to B.D.’s father and Detective Mackie, a prerequisite to any consideration of Rule 5-806. Here, Taylor attempted to question B.D.’s father about whether B.D. had a history of lying about his sex life, but the trial judge sustained the State’s objection before the father answered. As in Merzbacher, where we stated that Merzbacher could have asked Murphy whether she previously had made false accusations because the question implicated her credibility under Rule 5-608(b), had B.D. testified, Taylor would have had the opportunity to question B.D. about whether B.D. previously had lied about his sexual encounters. Similarly, under the extrinsic evidence limitation, if B.D. had answered “no,” Taylor could not have proven the misconduct itself.
Taylor also had proffered that he would have asked Detective Mackie whether B.D. ever had lied about prior sexual activity and whether B.D. had lied regarding the fact that his sexual encounter with Taylor was his first, although, on the tape of the interview, B.D. had been inconsistent about the encounter’s primacy. Again, had B.D. testified, Taylor could have asked B.D. whether he had lied about his sexual encounters or about this incident, because those questions would have borne directly on B.D.’s character for truthfulness—and again, if B.D. had answered “no,” Taylor would have been bound by that answer.
[161] B.D. did not testify, however, and Taylor was not afforded the opportunity to impeach B.D. under Rule 5-608(b), because the State introduced B.D.’s version of events through the father and Detective Mackie. In essence, we are concerned here with whether the State can successfully avoid the impeachment of B.D.’s veracity by never calling him to the stand. The answer is no, under the dictates of Rule 5-806, which allows the impeachment of a declarant “by any evidence which would be admissible ... if the declarant had testified as a witness.” For us, this is a question of first impression, although not so in a number of federal courts, which have had occasion to explore the scope of Rule 806 of the Federal Rules of Evidence, which is similar in important respects to Maryland Rule 5-806.8 In each of the cases, the courts have indicated that Federal Rule 806 would permit impeachment of a non-testifying declarant, but not proof of prior misconduct.
United States v. White, 325 U.S.App.D.C. 282, 116 F.3d 903 (D.C.Cir.1997), involved a complicated multi-defendant, multicount murder and conspiracy case, in which a key government witness, Williams, was allegedly killed by Hughes and White to prevent Williams’ cooperation with the police. Because Williams was killed, the trial judge permitted Williams’ police contact, Sergeant Sutherland, to testify as to drug transactions involving Williams and regarding what Williams had told [162] the officer about the “First Street Crew” drug organization, which consisted of co-conspirators White, Hicks, Hughes, Hutchinson, and Ballard, among others. Defense counsel attempted to impeach Williams’ version of events, using Federal Rule 806, by asking Sergeant Sutherland about Williams’ drug use, drug dealing and prior convictions, as well as about whether Williams had lied on an employment application or violated any court orders. The trial judge permitted questioning about drug use, drug dealing and prior convictions, but did not allow the introduction of the employment application or court order, and White appealed. In affirming the conviction, the United States Court of Appeals for the District of Columbia Circuit acknowledged that proof of prior acts was different than questioning a witness regarding whether Williams, the non-testifying declarant, had lied previously; the Court noted that Federal Rule 806 would have permitted the latter:
Although Fed.R.Evid. 806 provides that the credibility of a hearsay declarant “may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness,” counsel attacked Williams’s credibility using specific examples of misconduct, which, under Fed.R.Evid. 608(b), cannot be proved by extrinsic evidence. Accordingly, Hughes counsel could have asked Sergeant Sutherland only if Williams had ever lied on an employment form or violated any court orders, and could not have made reference to any extrinsic proof of those acts. Having known Williams for less than two months before his death, Sutherland may or may not have been able to answer those questions. In light of the damage already done to Williams’s credibility through Sutherland’s testimony about Williams’s drug use, drug dealing, and prior convictions, the district court was within its discretion to conclude that the questions were of little utility.
Id. at 920 (internal citations omitted).
In United States v. Saada, 212 F.3d 210, 221 (3rd Cir.2000), the United States Court of Appeals for the Third Circuit also had occasion to address the application of Federal Rule 806, [163] when a non-testifying declarant’s version of events is attacked. Saada involved a false insurance claim made by warehouse owners after of one of them allegedly broke a sprinkler-head to create a flood. The warehouse owners claimed that the flood was an accident and introduced, over the government’s objection, the utterances of a former New Jersey state court judge, who was in the warehouse at the time of the flood, and who had stated, “oh my God, Neil did something stupid ... now he’s got a mess ... I can’t believe it. He is so stupid. He threw it. He is stupid, he is dumb.” Id. at 218. The judge had died, and the government sought to impeach by asking the trial judge to take judicial notice of two New Jersey Supreme Court orders disbarring and removing the state judge from the bench for unethical conduct. Over defense counsel’s objection, the trial judge took judicial notice of the orders.
On appeal, Saada argued that the judicially noticed orders constituted proof of the judge’s misconduct, which was barred under the extrinsic evidence limitation of Federal Rule 608(b). The Court of Appeals for the Third Circuit, relying on White, held that the orders were extrinsic evidence, and therefore, should not have been admitted; although the judge’s version of events and veracity could have been impeached by more specific questioning regarding veracity:
[T]he unavailability of the declarant will not always foreclose using prior misconduct as an impeachment tool because the witness testifying to the hearsay statement may be questioned about the declarant’s misconduct—without reference to extrinsic evidence thereof—on cross-examination concerning knowledge of the declarant’s character for truthfulness or untruthfulness.
Id. at 221. See also United States v. Friedman, 854 F.2d 535, 570 n. 8 (2d Cir.1988) (noting the tension between the extrinsic evidence limitation in Federal Rule 608(b) and Federal Rule 806 when the declarant does not testify).9
[164] Within this framework, based upon our determination that Taylor could have asked BJD. under Rule 5-608(b) whether he had lied about sexual matters on previous occasions, we hold that Rule 5-806 would permit the same questions to be addressed to B.D.’s father and the detective. To hold otherwise, would be to permit the State to insulate a non-testifying declarant from impeachment, by presenting his statements through other witnesses, instead of by calling the declarant to the stand; this we will not permit under Rule 5-806.
B.
Having concluded that the trial judge erred, we now turn to whether the trial judge’s error was harmless. We recently addressed the application of the harmless error rule in Bellamy v. State, 403 Md. 308, 332-33, 941 A.2d 1107, 1121 (2008) (internal citations omitted), when Judge Glenn T. Harrell, Jr., writing for the Court, noted:
In Dorsey v. State, ... we adopted the test for harmless error announced by the Supreme Court in Chapman v. [165] State[, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)].... As adopted in Dorsey, the harmless error rule is:
When an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated. Such reviewing court must thus be 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.
In performing a harmless error analysis, we are not to find facts or weigh evidence. Instead, “what evidence to believe, what weight to be given it, and what facts flow from that evidence are for the jury ... to determine.” “ ‘Once it has been determined that error was committed, reversal is required unless the error did not influence the verdict; the error is harmless only if it did not play any role in the jury’s verdict. The reviewing court must exclude that possibility beyond a reasonable doubt.’ ” “ ‘To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed by the record.’ ” The “harmless error rule ... has been and should be carefully circumscribed.” Harmless error review is the standard of review most favorable to the defendant short of an automatic reversal.
Application of these tenets to the present case, leads us to the conclusion that the trial judge’s error was harmless.
Taylor was acquitted of the fellatio count and convicted of the anal intercourse count. To split the verdict and to acquit Taylor of the fellatio count, the jury must have disbelieved B.D. regarding the fellatio count. It is noteworthy that Taylor’s counsel, when explaining to the trial judge why he should have been allowed to probe into prior occasions in which B.D. had lied, stated, “I mean the [fellatio] charge is based solely on what [B.D. is] claiming. And if we cannot [166] show that when it. comes to sexual matters, that this witness will lie, that [sic] I think the jury won’t have the full picture.”
Taylor’s counsel clearly had ample opportunity to impeach B.D.’s version of events and his character for truthfulness. During cross-examination of B.D.’s father, Taylor elicited that B.D. lied about his whereabouts after his school planner had been discovered in a Silver Spring Metro Station. Taylor also questioned the father about whether B.D. had been honest with him in the past about his sexual experiences:
[DEFENSE COUNSEL]: Okay. So, tell me this. [D]o you think your son would be completely honest with you in discussion [sic] his sex life?
[FATHER]: Since this incident, yes. He has been.
[DEFENSE COUNSEL]: Okay. So since this incident, you believe he’s been completely honest?
[FATHER]: Yes. I have.
[DEFENSE COUNSEL]: But before this incident, you believe he hadn’t?
[FATHER]: I think he was very vague about it.
When cross-examining B.D.’s mother, Taylor was permitted to ask her whether she believed that B.D. told her everything that night, to which she answered that she did not believe that B.D. had told her everything. Taylor intimated throughout the cross-examination of both the mother and father and in closing, that B.D. had fabricated or changed his version of events for fear of physical confrontation with his father. Moreover, during the cross-examination of Detective Mackie, Taylor questioned her about whether B.D. had “told her the truth throughout the whole interview with him.” Taylor also had the opportunity to impeach B.D.’s version of events when cross-examining Nurse Bresee, by eliciting B.D.’s inconsistent version of events regarding oral or anal ejaculation.
In convicting on the anal intercourse count, the jury not only had B.D.’s statements about anal intercourse, but also had evidence of Nurse Bresee’s physical examination, in which she observed a half-inch tear on the exterior of B.D.’s anus, along with Taylor’s DNA, recovered from the swabs of B.D.’s [167] anus. The substantial physical evidence on the anal intercourse count distinguished that count from the fellatio count and led the jury to convict on the anal intercourse count. The trial judge’s error, therefore, was harmless.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.
Dissenting opinion by BELL, C.J., which ELDRIDGE, J., joins.
Footnotes
963 A.2d 197 (Taylor v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.