Washington v. State

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HEADNOTE: Brandon Washington v. State of Maryland, No. 1709, September Term, 2006 CLOSING ARGUM ENT; FINGERPRINTS; EXPERT WITNESS; HANDG UNS. The circuit court erred in construing the S tate s laboratory report to mean that it was negative for all fingerprin ts appellant s as well as the off icers who hand led the weapon . The report was ambiguous, and gave rise to competing interpretations. By stating that the test for latent prints was n egative , the report could have me ant that no p rints at all were recovered , or it could have meant that the weapon was ana lyzed for app ellant s prints, w ith negative re sults as to him. N otab ly, the State never called the examiner to establish the exact meaning of the words u sed in the rep ort. Nor did the State of fer expert te stimony to establish that the gun surface was of a kind from which p rints could n ot be lifted. Therefo re, the court er red in restrictin g defe nse cou nsel s cl osing a rgume nt. REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1709 September Term, 2006 BRANDON WASHINGTON v. STATE of MARYLAND Davis, Hollander, Moylan, Charles E., Jr. (Retired, Specially Assigned) JJ. Opinion by Hollander, J. Filed: July 1, 2008 Following a trial held in June of 2006, a jury in th e Circuit Court fo r Baltimore City convicted Brandon W ashington, appellant, of poss ession of a firearm by a prohibited person and wearin g and c arrying a h andgu n. See Md. Code (2003), § 5-101(g) and § 5-133 of the Public Safety Article ( P.S. ) (possession of a firearm by a prohibited person); Md. Code (2002), § 4-203 of the Criminal Law Article ( C.L. ) (wearing and carrying a handgun). 1 The court subsequently sentenced appellant to a mandatory term of five years for the offense of firearm possession by a prohibited person, and to a concurrent three-year term for the wearing and carrying offense. Appellant presents four questions, which we quote: 1. Did the trial court err in interrupting appellant s closing argument and precluding defense counsel from arguing a competing interpretation of the evidence to the jury because the judge agreed w ith the State s interpretation of one item of evidence? 2. Did the trial judge impermissibly usurp the jury s role as sole and exclusive triers of fact when she instructed the jury that they may not consider defense counsel s proffered interpretation of the evidence in any manner? 3. Whether the trial court co mmitted p lain error in allo wing the State to cross-examine appellant through a series of were they lying questio ns[.] 4. Whether the trial court im permissibly limite d the appe llant s right to cross-e xamin e his acc users[.] We conclude that the trial court abused its discretion by precluding appellant s closing argumen t. Therefore, we shall vacate the judgments of conviction and remand for further 1 Appellant was acquitted of possession of cocaine. 1 procee dings. F ACTUAL AND P ROCEDURAL S UMMARY2 Between 10:30 p.m., and 11:30 p.m. on November 12, 2005, Officer Earl Thompson and Detective Fabien Laronde of the Baltimore City Police Department FLEX Squad received a call from a known , confidential source informing them of a suspect in the 400 Block of Lyndhurst3 Avenu e in Baltimo re City who w as possibly arm ed with a handgun. In particular, Laronde testif ied that th e offic ers rec eived a call for d ischarg ing in th e area. Acc ordingly, Thompson and Laronde , accompanied b y Officer Lash, drove to Lyndhurst Aven ue, wh ere they sa w a su spect w hom th ey later ide ntified a s appel lant. At the time, the officers were in plainclothes and in an unmarked vehicle. Nevertheless, appellant spotted them as they drove into the area. According to Officer Thompson, appellant looked at [their] vehicle, started to walk away, and then began to run as they came near. Thompson explained that while the o fficers cha sed appe llant in their car, appellant made a gesture with his right arm as though he was throwing a metal object up into the air onto a roof in the block. Thompson also recalled that appellant traveled about 30 feet before the officers caught up with him. Laronde exited the car and apprehended 2 Appellant has not challenged eviden tiary suffi ciency. Therefore, we recite only the portions of the trial evidence necessary to provide a context for our discussion of the issues presented. Cf. Singfield v . State, 172 Md. App. 168, 170 (2006) (recitation of trial evidence unnecessary to address issue on appea l), cert. denied, 398 M d. 316 (20 07); Martin v. S tate, 165 Md. A pp. 189 , 193 (2 005) (s ame), cert. denied, 391 Md. 115 (2006); Pearlstein v. State, 76 Md. App. 507, 520 (1988) (finding no need to recapitulate ... the massive [trial] evidence presen ted ), cert. denied, 314 M d. 497 ( 1989) . 3 The street is sp elled Lind hurst in the tra nscript. 2 appellant. With the aid of Foxtrot, a police helicopter with a searchlight, the police located the suspicious object on the roof of a porch of an abandoned house. Laronde entered the building and retrieved the item -- a fully loaded handgun. Appellant was arrested and, in a search of his person incident to that arrest, the police recovered a ziplock bag containing cocaine. The police submitted the handg un for ba llistics and fing erprint testing, an d the State introduced the test results into evidence. In particular, State s Exhibit 1A is a Firearms Identification Unit - Firearms Report, which contains a physical description of the firearm, including its make, model, serial number. The report also notes that the weapon was test fired, found operable, and meets the definition of a handgun . State s Exhibit 1B is the report from the police Laboratory Section, titled Request for Firearms Examination. The form contains appellant s name, as well as the make and model of the weap on and the date of processing for latent prints (11/29/05). Moreover, it indicates that the Results of the latent fingerprint test were Negative. Officer Thompson was e xamined abou t both repor ts. The follo wing ex change is relevant: [PRO SECU TOR :] Directing your attention back to the firearms report [ i.e., Exhibit 1A]. What, if any other information is contained on that report below the comments section? [THO MPS ON:] The last checkmark states, this weapon meets the definition of a handgun as described in Annotated Code of Maryland, Criminal Law 4-201 and is operable and was test fired. [PRO SECU TOR :] Is that the handgun that you recovered on November 12th, 3 2005? [THO MPS ON:] Yes. [PRO SECU TOR :] Did you rec over it? [THO MPS ON:] No, Officer Laronde recovered it off the roof. [PRO SECU TOR :] Did he wear gloves when he recovered it, if you know? [THO MPS ON:] No. [PRO SECU TOR :] When he were you wearing gloves? [THO MPS ON:] No. [PRO SECU TOR :] Why not? [THO MPS ON:] I didn t put my [sic] on that d ay. *** I didn t put an y glov es on that d ay. *** [PRO SECU TOR :] State s Exh ibit 1B. Do you recogn ize that docu ment? [THO MPS ON:] Yes. [PRO SECU TOR :] What is it? [THO MPS ON:] for laten t prints. It s a laboratory section request for firearms examination [PRO SECU TOR :] And is there any information with respect to latent prints? First of all, what are latent prints? [THO MPS ON:] Latent prints is [sic] fingerprints that are leftover [sic] once a handgun is held. 4 [PRO SECU TOR :] And is there any information contained on that piece of paper with respect to latent prints? [THO MPS ON:] Yes. [PRO SECU TOR :] What, if any information is on there? [THO MPS ON:] By the technic ian that examined the weapon [it] came back for n egative prin ts. [PRO SECU TOR :] What does that mean? [THO MPS ON:] No prints could be lifted off the weapon. *** [PRO SECU TOR :] Did you handle that firearm? [THO MPS ON:] Yes. [PRO SECU TOR :] Were you wearing gloves? [THO MPS ON:] No. (Emphasis add ed.) The State did not call an expert witness to explain the process of gathering latent fingerprint evidence or the specif ics of how fingerprint te sting is conducted. Nor did the State produce expert evidence to explain that certain surfaces, such as the handgun in issue, may not yield fingerprints. The results of the fingerprint testing b ecame an issue during closing argum ent. The prosecutor s summation included the following comment with regard to the test results: The next form you have is State s Exhibit 1B and the important thing about 1B is this is basically the second page of the firearms report and down at the bottom it says processed for latent prints, and then it says who it was 5 processed by and it also says the results of the latent prints test were negative. Well, what does that mean? That means it was neg ative. (Inaud ible) Well, you would say the next question is, W ell, how could that be? We heard Officer Laronde testify that he picked up that handgun with his bare hands. We heard Officer Thompson say he picked up that handgun w ith his bare hands. So, if th ey picked it up, wh y would n t their p rints be o n it. Well, the reason that their prints weren t on it is that the surface of the handgun is such that there can t be prints that are obtained from it, because they were incapable of getting prints o ff of this handg un, becau se, surely, if they wou ld have gotten any prints, they would have gotten the prints of the two officers who admitted holding that handgun. (Emp hasis ad ded.) In her closin g argum ent, the defe nse attorney state d, in part: Now, ladies and gentlemen, we have a gun. We don t have a problem (inaudible). However and we also stipulated (inaudible), which you ll receive (inaudible), that the gun was submitted. The State would have you believe that wh en the g un wa s subm itted, the prints came back negative. Well, they did come back negative. They cam e bac k negativ e for the o ffic ers. W hy? Because they weren t looking for the office rs prints . They were looking for Mr. Wa shington s p rints. (Emp hasis ad ded.) The prosecutor objected, and the trial court sustained the objection. The prosecutor then asked the court to tell the jury . . . to disregard that[,] and a sidebar was convened. The following ensued: THE COURT: (Inaud ible.) [PRO SECU TOR :] Yes, that it just came back as negative as to any prints, meaning there were no prints even recovered from the handgun. There was nothing. So it s not even as if there were prints that they could have even analyzed to com pare to th e police office rs . The re was nothin g. [DEFE NSE C OUN SEL]: Well, Your Honor, the report says that it was negativ e. We h aven t h ad anyon e com e in and testify to th e contra ry. THE COURT: Does the report say that they couldn t get a latent print? [DEFENSE COUN SEL]: It says laten ts. That s what it says, Your Honor, 6 and the n it says d own a t the bott om, it says nega tive. [PROS ECUT OR]: Meaning that there were no prints. [DEFE NSE C OUN SEL]: It says up top who they w ere searching for; the defen dant s f ull nam e, Bran don W ashing ton. THE COURT: The defendant s full name identifies the case. [PROS ECUT OR]: Right. When they open up the gun, they have to THE COURT: (Inaud ible.) [PROS ECUT OR]: Right. THE COURT: I don t think a fair interpretation (inaudible) that even if there were la tents, none of the m matc hed B randon Wash ington . Your argument to the jury is that there were latent prints and none of them matched against Brandon Washington. That s not a fair interpre tation of this rep ort. So the objection is sustained because th at is not a fair inte rpretation of this report. [DEFE NSE C OUN SEL]: Well, Your Honor, there s nothing that indicates that it wasn t done either, that it wouldn t have been Brandon Washington. They would n t hav e looke d for th e offic er s prin ts. They re looking for Brandon Washington s prints on the gun, on the handgun. THE COURT: (Inaudible) processed for latent prints and the results are negative, that is, if they didn t have any prints to even put in to compare. (Inaud ible.) They didn t e ven com pare them to the gene ral public. So the objection is sustained. [PROS ECUT OR]: And I m asking that you instruct the jury to disregard the last statem ent that w as mad e to them . THE COURT: This is a motion to strike [PROS ECUT OR]: Yes. THE COURT: the statement concerning the fingerprint comparison? 7 [PROS ECUT OR]: Yes. [DEFE NSE C OUN SEL]: Then, Your Honor, I would still make the same, just for the record, the same objection. *** Or not ob jection, but THE COURT: The report is in evid ence. If an appellate authority has to review it, they ll see that it says there s a negative result for latent prin ts. I believe that s what the repo rt says. (Inaudible.) (Emp hasis ad ded.) As noted, the jury convicted appellant of two handgun offenses. Appellant filed a Motion for a Ne w Trial, arg uing that the court had impermissibly limited his closing argumen t. At the mo tion hearing , defense c ounsel m aintained tha t her argum ent was in response to the State s argument, explaining: And the State also hit on the point where it says th ere was n othing to ind icate that there was a comparison to any of the prints. However, the State used that in his closin g arg ume nt saying if the officer s prints had com e up then there would h ave been something to indicate tha t. And that s exactly what . . . we re arguing in this particular instance, Your Honor, that we don t know if there was the officer s -- th at the office r s prints were tested for because the document requested examination for Brandon Washington s prints. So we don t know if a compa rison -- or if the officer s prints would have c ome up or if they did com e up because w e didn t have the Examin er Turner to come an d sit in this seat to indicate that. We argued the four co rners o f the doc umen t, Your Hono r. (Emp hasis ad ded.) In denying the motion, the court stated: As to latent prints, the report states, processed for latent prints November 29 th , 2005 by T. T urner. Res ult - negative.[ ] Based on this single notation the Defense sought to argue in closing argument that there were 8 fingerprints recovered from the gun, that fingerprints on the gun came back negative after examination for Mr. Washington s fingerprint and that the request for examination of the fingerprints was exclusively for Mr. Washington. In opposition the State argued that the report simply stated that the gun had been processed for latent fingerprints with negative results, meaning that the gun ha d no late nt finge rprints re covere d from it. The State argued that State s Exhibit 1B failed to demonstrate any examination or fingerprints had been conducted and simply meant that the gun had been negative for latent fingerprints. The court agreed with the State s interpretation and held that the evidence did not wa rrant the argument attempted by the Defense attorney. The court affirms that holding today and hereby denies the motion for new trial. The court finds again that the evidence, State s Exhibit 1B simply does not warrant the argument attempted by the Defense in this case, that fingerprints from Mr. Washington were compared to fingerprints recovered from the gun and found to be negative and that the re was a so le comparison of fingerprints from the gun to known fingerprints of Mr. Washington. The evidence simply does not warrant this argu ment. The plain reading of State s Exh ibit 1B is that th e gun w as proces sed for laten t prints with negative results meaning no latent prints were found o n the gu n. (Empha sis added.) D ISCUSSION I. In a series of related contentions, appellant claims that the trial court abridg ed his constitutional right to present fair and reasonable closing argument to the jury by preventing defense counsel from arguing that the test for fingerprints on the firearm was negative for appellant s fingerprints. He maintains that counsel s argument was a proper interpretation of the record; that it was invited by the prosecutor s erroneous 9 characterization of the evidence (by which the prosecuto r argued tha t firearms seld om yield fingerprints); and that the trial judge overstepped her bounds by resolving the competing factual inferences in favor of the State. According to appellant, the jury was deprived [of] the a bility to assess appellant s guilt based on all the facts available, as key and relevant information was excluded from the jury s plenary consideration, ensuring only the State s version of events was put be fore the jury. He asserts: Reversib le error occurred when the trial judge sustained the State s objection during closing arg ument, interrupted defense counsel, disallowed the defense from submitting their competing , reasonable interpretation of one of the State s exhibits to the jury, and instructed the jury to disregard the defense argumen t. In so doing, the trial court deprived appellant of his right to unfettered, uninhibited , and robus t argumen t before the jury, precluded appellant from fairly and directly responding to the State s interpretation of that item of evidence, and impe rmissibly denied the jury their exclu sive ability to weigh and assess the evidence, and derive whatever inferences they deign reasonable. In addition, app ellant mainta ins that the d efense ha s the right to alert [the] jury to failings in the State s case by identifying holes in the State s evid entia ry edifice. He insists that it was patently inappropriate for the court to preclude the defense from submitting their interpretation of the evidence because the Court agree[s] w ith the State s interpretation of that e videnc e. . . . Appellant continues: It cannot be questioned that the defense was engaged in proper arguments when it sought to argue to the jury that the absence of a positive fingerprint match on the handgun - the negative result of the fingerprint analysis -militated in favor of acquittal. Therefore, the trial court erred in failing to per mit 10 the def ense to submi t the argu ment to the jury. In appellan t s view, the c ourt took dead aim at the defense s interpretation of the negative latent fingerprint results in evidence - that the gun was tested for appellant s fingerprints, and the test came back negative - and over defense objecti on told the ju ry to disregard the argument and not co nsider it for any purpose. (T1. 121; App. 7) Thus, the trial judge imp ermissibly identif ied one inf erence to be derived from the facts, and excluded it from the jury s consideration. The judge theref ore intruded upon, and denied the jury, their role to be the exclusive arbiter of the inferences derived from the evidence. This violated Article 23 of the Declaratio n of Righ ts, and com pels reversa l. Further, app ellant asserts: A trial judge may not grant the State a mo nopoly in the marketplace of ideas. Experience has long taught that the truth may often lie between the two competing versions thereof offered by parties to litigation. It is the role of the jury, as neutral lay fact-finders, to assess the competing interpretations offered by the party and deign the truth. The State responds that the trial judge correctly determined that defense counsel had no basis for arg uing that the evidence showed that fingerprints taken from the gun did not match Washington s prints, beca use [n]o evidence existed to ind icate that any fingerprints were taken off the gun. In its view, the trial c ourt prop erly exercised its d iscretion to bar defense counsel from arguing about facts not in evidence. Similarly, argues the State, the court s subsequent instruction to the jury to disregard the statement by defense counsel regarding fingerprints was an appropriate exercise of discretion. Further, the State disputes appellant s contention that the defense argument was an invited response to the prosecutor s allegedly impermissible argument regarding the absence of fingerprint evidence. It points out that appellant failed to object to the 11 prosecutor s explanation that the absence of fingerprints on the gun was du e to the nature of the surface of the gun. II. The right to counse l entails the op portunity to pres ent closing a rgumen t. See Holmes v. State, 333 M d. 652, 658 -59, (1994 ) ( It is well settled that a crimina l defenda nt s Sixth Amendment right to counsel guarantee s, in part, an opportunity of counsel to present closing argument at the close of the eviden ce. ) (citation o mitted); see also Cherry v . State, 305 Md. 631, 636 (198 6); Biglari v. State, 156 M d. App . 657, 67 3, cert. denied, 382 Md. 686 (2004). In Yopps v . State, 228 Md. 204, 207 (1962), the Court explained: The Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem, unless he has waived h is right to such arg ument, or unless the argument is not within the issues in the case, and th e trial court has no discretion to deny accu sed such rig ht. To be sure, atto rneys are affo rded great le eway in presenting closing arg uments to the jury. Degren v. State, 352 M d. 400, 429 (1999 ). See Sm ith v. State, 388 Md. 468 (2005); Trimble v . State, 300 Md . 387, 40 5 (198 4), cert. denied, 469 U.S. 1230 (1 985). In Herring v. New York, 422 U.S. 853, 862 (1975), the Supreme Court addressed the importanc e of closing argumen t: It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolutio n by the trie r of fac t in a crim inal case . For it is only after all the evidence is in that coun sel for the pa rties are in a po sition to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries positions. And for the defense, closing 12 argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the d efend ant s gu ilt. See In re W inship, 347 U.S. 358 [1970]. The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of the case will best pro mote the u ltimate objective that the guilty be convicted and the innocent go free. The Court of Appea ls outlined the contours o f permissib le summa tion in the seminal case of Wilhelm v . State, 272 Md. 404 , 412-13 (1972) (citations om itted): As to summation, it is, as a general ru le, within the ra nge of leg itimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range. Counsel is free to use the testimony most favorable to his side of the argument to the jury, and the evidence may be examined, collated, sifted and treated in his own way. Moreover, if counsel does not make any statement o f fact not fa irly deducible from the evidence his argument is not improper, although the inferences discussed are illogical and erroneous. Generally, counsel has the right to make any comment or argument that is warranted by the evidence proved or inferences therefrom; the prosecuting attorney is as free to comment legitimately and to speak fully, although harshly, on the accused s action and conduct if the eviden ce suppo rts his comm ents, as is accu sed s coun sel to comment on the nature of the evidence and the character of witnesses which the [pro secutio n] prod uces. . . . While argumen ts of coun sel are require d to be con fined to the issues in the cases on trial, the evid ence and fair and reasonable deductions therefrom, and to arguments of opposing counsel, generally speaking, liberal freedom of speech should be allowed. There are no hard-and-fast limitations within which the argument of earnest counsel must be confined no well-defined bounds beyond which the eloquence of an advocate shall not soar. He may discuss the facts proved or admitted in the pleadings, assess the conduct of the parties, and attack the credibility of w itnesses. He may indulge in oratorical co nceit or flourish and in ill ustration s and m etapho rical allus ions. Nevertheless, there are limitations as to proper argument. The Court said, id. at 413: As a limitation upon the g eneral scop e of perm issible closing argument 13 this Court in Esterline v. S tate, 105 Md. 629, 66 A. 269 (1907), cautioned that counsel shou ld no t be p ermitted by the cou rt, over prop er objection , to state and comment upon facts not in evidence or to state what he could have proven. Persistence in su ch co urse of co nduct ma y furnish good grounds for a new trial. The conduct of the trial must of necessity rest largely in the control and discretion of the presiding judge and an appellate court should in no case interfere with that judgment unless there has been an abuse of discretion by the trial judg e of a c haracte r likely to ha ve injur ed the c ompla ining p arty. As we have seen, a ppellant m aintains that h is counsel s p roposed s ummatio n with respect to the negative fingerprint results constituted a plausible interpretation of the report. The theory of the defense was that the latent fing erprint test wa s conduc ted to conf irm or rule out the presence of appellant s latent fingerprints, with negative test results fo r appellant s prints. In appellant s view, it was not the role of the court to interpret the report and conclu de that it m eant tha t no laten t finger prints w hatsoe ver we re recov ered. Con vers ely, the State contends that the proposed argument was improper because there was no eviden ce of the recovery of any finge rprints from the weapon. It trumpets the testimony of Officer Thompson, who stated that [n]o prin ts could b e lifted o ff the w eapon . Then, in its closing argument, the State suggested that no prints could be recovered from the gun because of the nature of the surface of the weapon. Thus, the State insists that the trial court properly determined that the test results set forth in the report necessarily meant that the weapo n was co mpletely nega tive for all prints ; the test results were no t limited to the presence or absence of appellant s fingerprints. Claiming that the defense s closing argument was at odds with the evidence, the State contends that the court properly limited defen se coun sel s sum mation . 14 In our view, there was no factual basis for the trial judge to declare, one way or the other, what the te xt of the rep ort definitively m eant, or to de termine that th e test yielded results that were negative for both appellant as well as the officers who also handled the firearm. We explain. As indicated, the report conta ined only appellant s name, and stated that the test results for latent fingerprints were negative, without further explanation. Notably, the State never called the examiner to establish the exact meaning of the words used in the report. In our view, the report was ambiguous; it gave rise to conflicting inferences. By stating that the test for la tent prints was negative, the report could have me ant that no p rints at all were rec overed, or it c ould have meant that the w eapon was an alyzed for appellant s prints, w ith nega tive resu lts as to h im. Moreover, Officer Thompson s testimony that [n]o prints could be lifted off the weapon was not clear. He could have meant that no prints could be lifted from the weapon, perhaps because of the nature of the surf ace of the g un. Yet, if the weapo n could no t yield fingerprints, as the State claims, the jury surely was left to wonder why the gun was even processed. Thompson also could have meant that no prints could be lifted because, for some unspecified reason, there were none to lift. Or, Thompson could have meant that the examiner looked for appe llant s prints, but there were no ne, and thu s none co uld be lifted. Nor did Thomps on s testimony reso lve the am biguity in the text of th e report; he d id not answer th e basic que stion whe ther the fing erprint analysis failed to detect appellant s 15 prints only or, instead, prints f rom all sources. In addition, Thompson was not offered as an expert, and did no t explain, as the State argue d in closing, that the gun surface was the kind that is no t suscep tible to fin gerprin t exam ination. Significantly, the State does not cite any authority for the proposition that lay jurors would be in a position to determine whether latent prints were recoverable from the surface of the gun in issue. Indeed, several cases suggest that expert evidence is necessary to make the point that the State advanced. For example, in Wise v. State , 132 Md. App. 127, 136, cert. denied, 360 Md. 276 (2000), the prosecution offered the testimony of an expert witness who testified at length about fingerp rinting and the difficulties of obtaining f ingerprints from gel capsules and vials. In United States v. Burdeau, 168 F .3d 352 , 357 (9 th Cir.), cert. denied, 528 U.S. 958 (1999), the government, over objection, elicited testimony that identifiable fingerprints are almost never found on guns and only rarely found on other objects submitted for testing. In response to Burdeau s challenge to this testimony on direct appeal from his convictions f or robbery and use o f a ha ndgun in the c omm issio n of a fel ony, the Ninth Circuit stated that it has in the past upheld the admission of expert testimony that explained the possible reasons w hy fingerprints would not be found on an object. Id. at 357 (citing United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir. 1987) and United States v. Feldman, 788 F.2d 544, 554 -55 (9th Cir. 1986)). See also United States v. Carpenter, 403 F.3d 9, 10 n. 1 (1s t Cir.) (noting that to meet defense argument about lack of fingerprints, the government adduced expert testimony to the effect that it is ex ceedingly diff icult to lift 16 viable fingerprints from the surfaces of this p articular weap on. ), cert. denied, 544 U.S. 1042 (2005 ). Therefore, we agree with appellant that the court made an impermissible decision of what was, and was not the . . . inference to be drawn from the evidence pres ented. As appellant posits, The trial judge is no t the arbiter of w hich argum ents are, and are not, logical, correct, or the more ava ilable. It is not the ro le of the trial jud ge to assess which of two competing interpretations of a piece of evidence is the better one, and deny the defense the opportunity to submit their interpretation of the evidence. . . . If the nega tive result of the fingerp rint test was am biguous, th e question remains as to whether defense counsel should have been allowed to argue tha t the fingerp rint analysis yielded negative results for appellant s prints. Given the failure of th e prosecu tion to introduce foundational evidence that the test w as negative in all respects, an d its failure to adduce expert testim ony to establish that no latent fingerprints could be recovered because of the nature of the gun s surface, the defen se s theory as to the meaning of the report was just as plausible as the State s, and defense counsel should have been permitted to so argue. Several cases shed light on the question of whether appellant s argument should have been permitted. We begin with Eley v. State , 288 M d. 548 ( 1980) . In Eley, the defendant was convicted for assault with intent to murder and robbery with a deadly weapon. He claimed on appeal that the trial court erred b y refusing to p ermit defen se coun sel to co mmen t during summ ation on the lack of any fin gerprin t eviden ce. 17 Eley was p rosecu ted for s hootin g Gary Jo hnson . Id. at 549, 5 51. After the shooting, the assailant stole an automobile and fled the scene. Ms. Jones, the driver of the car the assailant used to escape, was a witness. But, the State neither listed nor presented any witnesses to discu ss whe ther fin gerprin t tests had been p erform ed on th e Jones vehicle . Id. at 550. In his summ ation, defen se counse l sought to p oint out the evidence that didn t exist[.] Judge Cole s opinion for the Court outlined what happened at trial, id. at 550-51: [MR. BELSKY ]: We talked about the testimony of the Dorseys. We talked about all this testimony that was in. Let s talk about the evidence that didn t exist, that didn t happen. We talk about THE COUR T: You are treading on some d angero us grou nd, M r. Belsk y. We can be here for three months talking about what didn t happen. [MR. BELSKY ]: Well, Your Honor Your Honor, I want to THE COURT: You are not going to get a chance to talk about what d idn t happen. You m ust confine yourself to the a rgumen ts your argum ents about the evidence that existed. At the conclusion of defense argument counsel requested to approach the bench and made the following objection: [MR. BELSKY ]: Your Honor please THE C OURT : Yes sir. [MR. BELSKY]: I believe it is proper evidence to go into a proper closing argument to go into there was no fingerprint evidence done to the car. I think that s covered in your instructions and I would like to note my objection on the record. THE COURT: I don t think it is proper evidence to argue what wasn t. And 18 you got your objection on the record and your objection is duly noted and your objection is overruled. On appeal, Eley maintained that the trial judge improperly precluded counsel from from arguing the logical inferences from the f acts and the gaps in that evidence. Id. at 551 (emphasis in original). Th e Court of Appea ls agreed tha t the court erre d by prohibiting defense counsel from commenting on the une xplaine d absen ce of f ingerp rints. Id. The Court recognized that coun sel should n ot be perm itted by the court, o ver prope r objection, to s tate and comment upon facts not in evidence or to state what he could have proven. Id. (quoting Wilhelm , 272 Md. at 413). However, in reviewing the purpo ses and ap plication of th is limitation , id., the Court concluded that the trial court erred in finding the limitation applicable to the case at bar. [] Id. It said: The broad purpose of the rule is to prevent counsel for either the prosecution or the def ense from attem pting to introduce to th e jury matters which ought not to be considered in arriving at a determination of guilt or innocence. *** The rule [prohibiting argum ent based o n facts not in evidence ] is designed also to prevent counsel from suggesting evidence which was not presented at trial thereby providing additional grounds for finding a defendant innocent or guilty. See United States v. Garza, 608 F.2d 659, 66 3 (5th Cir. 1979). Enforcement of the rule prevents abuses such as where the prosecutor may merely intimate that he knows of additional evidence of defen dant s guilt which he did not presen t during his c ase, ... or whe re the prose cutor expre ssly argues that c ertain even ts did or did not happen when there is no evidence in the record to support such statements. *** 19 Perhaps a more cogent reason for enforcing the rule is that argu ments of counsel which a re outside the record are im proper be cause they allud e to sources which are not subject to cross examination and cannot be tested for relia bility. Permitting such argu ments den ies the defe ndant the rig ht to confront his accusers. Id. at 552- 53 (citat ions om itted). The Court concluded: We agree that, where there is unexplained silence concerning a routine and reliable method of identification especially in a case where the identification testimony is at least subject to some question, it is within the scope of permissible argument to comment on this gap in the proof offered.[] Here, Eley sought to argue that the State had a reliable method of proving he was the assailant by introducing evidence of his f ingerp rints on t he car. Since the State did not explain its failure to d o so, he sought to establish the adverse inference, through argument of counsel, that his fingerprints were not on the car and, therefore he was not at the scene. This seems to us to be permissible argument particularly in light of the fact that Ms. Jones cou ld not identify him as her assailant and that other witnesses may have been regard ed as bi ased by th e jury bec ause of their rela tion to Jo hnson . Id. at 555-56 (italics in Eley; boldface added). Sample v. State, 314 M d. 202 (19 88), is also instru ctive. Samp le was co nvicted of wearing, carrying, or transporting a handgun in a public place. A police officer stopped the automobile in which Sample had been riding. The officer went to the front passenger side door and ordered Sample out of the vehicle. Sample held a three-quarter length leather coat draped over hi s arm a nd, afte r he too k a step toward the off icer, turn ed and fled on foot. Id. at 205. During the pursuit, officers saw Sample s right arm move upward and saw a handgun hit the street. Id. At trial, Sample s defense counsel took aim at the holes in the State s case. Id. at 20 206. He told the jury in his opening statement that they would hear evide nce that the S tate could have taken fingerprints[.] Id. His closing argument, in which he attempted to exploit the lack of fin gerprint evid ence, wa s foreclose d after the p rosecutor o bjected. Sample challenged that ruling on appeal. We affirmed, but the Co urt of Appeals reversed. It rejected the State s argu ment that Eley was inapposite . Id. at 204 . Declini ng to apply Eley so narrow ly, the Co urt said, id. at 208-09: Even though Off icer Allen s testimony was not directly contradicted by another witness, that d oes not m ean it was u nchalleng ed. By his cross-examination of the off icer, and in h is opening statement as well as his closing argument, Sample s attorney made it abundantly clear that he was challenging Officer Allen s assertion that a gun had been dropped by Sample, or that any bullets were found in a coat pocket, or that if bullets we re so found, the coat was shown to have been Sample s. The jury was under no obligation to believe every fact testified to by Officer A llen, even tho ugh his testimony was not directly refuted by another witness. We m ay think the State s evidence was quite strong, as did the trial judge, but it is the jury who must evaluate the officer s credibility and determine what actually occurred. Under the circum stances , we conc lude that Sa mple sho uld have b een perm itted to comment upon the unexplained[] absence of fingerprint evidence. *** The prohibition of comment on the absence of fingerprint evidence in this case was error, and we reverse. (Emp hasis ad ded.) The C ourt ad ded, id. at 209 n.2: We do not sug gest that the ex planation [ that fingerprints were not discovered on an item] must always be explicit in order to justify limitation of argumen t. When the surface supposedly touched is such that a trial judge may judicially notice the fact that fingerprints could not be obtained from it, and the record demonstrates the basis for the judge s decision, a defendant may be precluded from arg uing that an inference of favorable fingerprint evidence may be drawn from the State s failure to introduce any fingerprint evidence. 21 Even in such a case, however, the defendant would not be precluded, in arguing the meaning of proof beyond a reasonable doubt, from gen erally contrasting the quality of fingerprint evidence or other highly reliable evidence with th e quality o f the ev idence presen ted in the case. United States v. Hoffman, 964 F .2d 21 ( D.C. Cir. 1992) (per curiam), is also note wor thy. There , the two defen dants w ere con victed o f narco tics off enses. Amtrak agents had discovered and seized narcotics from their luggage, but the items were not tested for fingerprints. On app eal to the U nited States C ourt of A ppeals for the District of Columbia, the defendants asserted that the trial court erred by preventing defense counsel from arguing to the jury that it should draw va rious adve rse inferenc es from the govern ment s failu re to introdu ce fing erprint e videnc e. Id. at 24. The appellate court disagreed. The court distinguished Eley, on wh ich the a ppellan ts relied. It said, id. at 25: We think that Eley may be disting uishable from the case at bar, because it appears that the defense lawyer s argument in that case was limited to the contention that the absence of fingerprint evidence weake ned the prosecution s case against his client an argument that the Government concedes to be appropriate. Howeve r, as Appellants point out, some of the language in Eley seems to go further, suggesting that the kinds of inferences urged by Hoffman s counsel in this case would be permissible even in the absence of any evidentiary foun dation. S ee Eley, [288 Md. at 553] (suggesting that unexplained absence of fingerprint evidence permit[s] the adverse inference that the evidence would have been unfavorable to the State ). To the extent that Eley so hold s, we p art com pany w ith the M aryland C ourt of Appe als[.] To be sure, the D.C. Circuit recognized that def ense cou nsel mus t be permitted to argue all reasonable inferences from facts in the record [,] inclu ding n egative inferen ces. Id. at 24. But, the court cautioned that counsel may not premise arguments on evidence that has not been admitted. Id. (quoting Johnson v. United States, 347 F.2d 803, 805 (D.C. 22 Cir. 196 5)). In our view, Hoffman is distinguishable from the case sub judice because there was no evidence in Hoffman that the governmen t had tested the contraband for fingerprints. It was on that basis that the appellate court upheld the trial court s refusal to permit the argument soug ht by the defense. The co urt explained, 964 F.2d at 25 (footnote om itted): ... Hoffman s attorney moved from arguing fair inferences from the record to arguing the existence of facts not in the record viz., that the police did not look for fingerprints , that fingerpr ints could ha ve been o btained fro m the plastic bags containing the narcotics and that standard police procedure required fingerprint analysis. Because neither defense attorney had laid any evidentiary foundation for thos e ass ertio ns b y, for example, asking one of the officers on cross-examination whether the plastic bag s were (or c ould have been) tested for fingerprints, and whether standard procedure required such testing Hoffm an s argument wa s improper. [] Accordingly, we hold that the District Court did not err, m uch less ab use its discretion , in refusing to permit the argum ent. United States v. Poindexter, 942 F .2d 354 (6th Ci r.), cert. denied, 502 U .S. 994 (1991), amended on other grounds sub nom. United States v. Day, 956 F.2d 124 (6th C ir. 1992), is also pertinent. Co-defendants Day and Poindexter were convicted of possession with intent to distrib ute coc aine an d use o f a firea rm in a d rug traf ficking schem e. They challenged the trial court s preclusion of closing argument on the lack of fingerprint evidence. The Sixth Circuit awarde d Da y a new trial but affirmed Poindexter s convictions. The distinction in the dispositions reflected the strength of the government s case against each. During closing argument, D ay s attorney pointed out that a police officer had testified that a shaving can, in which cocaine had been found, had been dusted for fingerprints. The 23 trial court sustained the government s objection to this summation, explaining that [f]ingerprint evidence can only be introduced by an expert [who could] explain ... the science, the identification by fingerprints and that an absence of fingerprint evidence did not prove anything. Poindexter, 942 F.2d at 358.4 On appea l, Day arg ued, inter alia, that the trial court erred by foreclosing his closing argument on the fingerprint issue. Of import here, the Sixth Circuit agreed, stating: In every criminal case, the mosaic of evidence that com prises the record before a jury includes both the evidence and the lack of evidence on material 4 This issue unfolded when Day s attorney addressed the lack of fingerprint evidence during closing arg ument, stating : Well, the next logical question that I pose to you, ladies and gentlemen of the jury is, whose fingerprints were found on that can? Id. at 359. The court su stained the gov ernme nt s obje ction, sta ting, id.: Let me just explain to the jury about fingerprints. Fingerprint evidence can only be introduced by an expert, and the expert would explain to you the science, the identification by fingerprints. So, it is improper to argue the absence of fingerprints proves anything. This should not be done. You certainly don t have any evidence to establish that fingerprints proved either of these defendants had anything to do with it, but [Day s counsel] is out of line when he argues that holds that up and says that you haven t proved my client guilty because there are no fingerprints. The expert will tell you that that isn t conclusive. At a bench conference following the ruling, defense counsel contended that it was indeed proper for him to argue that if the fingerprints had belonged to his client, the prosec ution lik ely wou ld have broug ht out th at infor mation . The co urt respo nded, id.: Don t you realize that th at s an unf air statement? You know that there could be no fing erprints on th ere, and it didn t prove that your client didn t handle them. I don t want you to get into that. That s not fair. That s below the belt for you defense lawyers to do it. . . . That s not a search for the truth. That s just trying to fudge on the rules. Yo u ought to be reprima nded for it. 24 matters. Indeed, it is the absence of evidence upon such matters that may provide the reasona ble doubt that moves a jury to acquit. The legitimacy of the inference Day s counsel wished to bring to the jury s attention the absence of evidence of Day s fingerprints on an article containing contraband that had been dusted for fingerprints and which Day was c harged w ith possessio n did not depend upon the conclusiveness of the inference. Neither did it depend upon the necessity that it prove anything, merely that it had the tenden cy to do so. Fed.R.Evid. 401. We think the court s refusal to permit the argument was an abuse o f discre tion. Id. at 360. Accord, United States v. Thompson, 37 F.3d 450, 453 (9th Cir. 1994). State v. Loyal, 899 A .2d 100 9 (N.J. S uper. A pp. Div .), cert. denied, 907 A.2d 1015 (N.J. 2006), is also helpful. After Loyal was convicted of aggravated manslaughter and related offenses, he appealed to the New Jersey intermed iate appellate court. He challenged the trial court s admonition that the jury must disregard defense counsel s closing statement that the prosecu tion failed to prove the offenses beyond a reasonable doubt because there was no evidence that tied Loyal to the murder weapon. The appellate court reversed. Agreein g with the C ourt s decisio n in Eley, supra, 288 Md. 548, it said: The right to comment on the lack of fingerprint evidence is, of course, not without limits. Thus, without evidence to support the contention, defendant cannot argue tha t the failure to o btain finge rprints did no t comply with good police practice, or tha t if fingerprin ts had been obtained, the y would have exculpated defendant. ... We concur with the views expressed by the Maryland Court of Appe als, that if the S tate fail[s] to pro duce [fin gerprint] evidence and fail[s] to offer any explanation for that failure ... it is not unreason able to allow the defenda nt to call attention to its failu re to do so. Eley, supra, 419 A.2d at 387. *** We do not mean to suggest, on the other hand, that the trial court is, 25 absent objection, powerless to intervene in the face of a clearly improper argument or question. *** Having concluded that defense counsel s remarks were proper, we must face whether the trial court s actions can be deemed harmless. There is no mathem atically precise formula for d eciding whether a trial error creates a reasonab le doubt that would not otherwise have existed concerning defenda nt s guilt. ... In our ju dgment, the error cannot be deemed harmless. *** While it is entirely possible the jury cou ld reach the same resu lt if defense counsel h ad been p ermitted to m ake his argument without the impact of the trial court s curative instruction, we cannot conclude that the error here did not have the capacity to lead the jury to a result it otherwise might not have reached. ... We thus reverse defendant s convictions and remand the matter for a new trial. It is unnecessary to address defendant s remaining contentions. Loyal, 899 A.2d a t 1016- 18 (citat ions om itted). Cf. Wheeler v. United States, 930 A.2d 232, 242, 245 (D.C. 2007) (trial court erred by instructing the jury that the absence of any fingerprint evidence, standing alone, does not constitute reasona ble doubt as to the firearm charge s, explaining that the instruction was erroneous because it was contrary to the elemental premise that a critical assessment of that evidence [the lack of fingerprints] was for the jury ... to make[.] ) We conclude that the trial court erred by drawing the inference from the report that the fingerprint test was negative for all latent prints. In doing so, it invaded the province of the jury to evaluate and construe the ev idence. It follows that the court abused its discretion when it foreclosed appellant s closing argument w ith respect to the defense s interpretation 26 of the report. As the Court said in Wilhelm, 272 M d. at 412: Counsel is free to use the testimony most favorable to his side of the argument to the jury, and the evidence may be examined, collated, sifted and treated in his own way. Moreover, if counsel does not make any statement of fact not fairly deducible from the evidence his argument is not imp roper, although the inferences discussed are illogical and erroneous. There fore, w e shall v acate ap pellant s conv ictions a nd rem and fo r a new trial. In view of our disposition , we need not addres s whethe r the court erre d in its instruction to the jury to disregard defense counsel s argument. Nor need we consider appellant s contention that counsel s summation was an invited response to the prosecutor s explanation as to why no fingerprints were on the weapon. Finally, we shall not address whether the trial court plainly erred when it permitted the prosecutor to crossexamine appellant by asking three were they lying questions. III. For the guidance of the trial court in the event of a new trial, we will briefly address the contention that the trial court abused its discretion by forbidding cross-examination of the State s law enforcement witnesses with respect to their assignment to the Baltim ore City South west D istrict FL EX S quad. The FLEX unit is a plain clothes squad w ithin the Baltimore City Police Department that responds to varying locations during different time pe riods de pendin g on cri me tren ds. Spain v. State, 386 M d. 145, 1 48 n. 1 ( 2005) . See Ran some v. S tate, 373 Md. 99, 119 (2003). The Southwest District FLEX Squad was the subject of scrutiny after a woman claimed that 27 she had be en rape d in the F LEX Squad office . See Sm ith v. Danie lczyk, 400 Md. 98, 106 (2007). In the process of investigating the assault, controlled dangerous substances were located in the of fices of the FL EX S quad. Id.5 On the second day of trial, the prosecutor made an oral motion in limine requesting an order to curtail any inquiry by the defense into the assignments of the law enforcement prosecutio n witnesse s with the F LEX S quad. Th e followin g exchan ge is relevan t: [PROS ECUT OR]: Your H onor, I wa nted to basic ally do a motion in limine to prevent any more any further questions regarding the Southwest District FLEX Unit or any other questions that possibly could come up in crossexamination or in the closing argument of defense counsel with respect to the Southwest District FLEX Unit investigation and also with respect to any sort of initiative that Commissioner Hamm had or anything that d oesn t pertain to this particular case with respect to investigations. THE C OURT : [Defense C ounsel]? [DEFENSE COU NSEL ]: (inaudible) c redibility of the of ficers as far as the directive by Commissioner Hamm. That is public that s public record. I think this door w as opene d up by cou nsel whe n he men tioned abo ut in his questioning about the officers getting if there was a quota o r if there were bonuses. THE COURT: He did not ask about quotas. He asked if there were any 5 In his brief, appellant cites three newspaper articles that appeared in the Baltimore Sun, which purport to detail improprieties and improper activities involving the FLEX Squad. He has not requested that we take judicial notice of the contents of the articles, however. Although it has been held that a court is not required to take judicial notice of newspaper articles, see United States v. Rutgard, 116 F.3d 1270, 1278 (9th Cir. 1997) , there is autho rity to the con trary. See Washington Po st v. Robinson, 935 F.2d 282, 291 (D.C. Cir. 1991) (stating court may take judicial notice of the existence of newspaper articles in the Washington, D.C., area that publicized ongoin g crimin al inves tigation of loca l politicia n.) (citing Agee v. M uskie, 629 F .2d 80, 8 1 n. 1, 90 (D.C. C ir. 1980 ), rev d on other grounds, 453 U.S. 280 (1981)). In view of the disposition of this appeal, we need not note the substance of the Baltimore Sun articles. 28 bonuses or promotions. He did not ask about any quotas. [DEFENSE COUNSEL]: Maybe my notes a re incor rect, Yo ur Ho nor. I have THE CO URT: Did you ask about quotas? [PROS ECUT OR]: The que stions that I ask ed about q uotas came in my redirect. The first qu estion aske d in cross-examination of Officer Thompson was whether or not he knew that the if he was a member of the Southwest District FLEX Unit that was under investigation. THE COUR T: Well, there are two issues with respe ct to the motion in limine, the investigation of the FLEX Unit and the introduction or cross-examination with respect to any quotas set by Commissioner Hamm. Do you wish to be heard? [DEFENSE COUN SEL]: Yes, Your Hono r. As far as that s the officer s patrol there. I don t hav e a problem with not m entioning a nything abou t if they re under investigation, but the officer indicated that he was a member of the Southwest FLEX U nit. That s what his assignment is. THE COURT: All right. The fact that the Southwest FLEX Unit may be under investigation is not relevant in any way to any of the issues in this trial. There is no factual information that has been proffered to this Court that either of the officers who testified are themselves personally under investigation. Even if they were, certainly a full hearing to determine the probative value of that informatio n as it wou ld pertain to the individual officers, which does not exist, versus the prejudicial nature of that information would be necessary. To simply ask the officers whether they are part of a unit that is under investigation by some law enforcement authority is impermissible. The motion in limine is granted with respect to that, as were any objections made by the State sustaine d by the Cou rt. Cross-examination is a right guaranteed by the common law. Myer v. State, 403 Md. 463, 476 (2008). Further, the Sixth Amendment right of confrontation includes the right to cross-examine about matters that affect a witne ss s bias , interest, o r motive to lie. 29 Leeks v. State, 110 M d. App . 543, 55 4 (199 6). See Md. Rule 5-616.6 See, e.g., Church field v. State, 137 Md. App. 668, 682-83 (2001) (stating that cross-examination with respect to potential bias is the most important impeachment technique because even an untruthful man will not usually lie without a motiv e. (quo ting Jos eph F. M urphy, Jr., Maryland Evidence Handbook § 1302(E) (2d ed.1993) (in turn quoting Gates v. Kelley, 110 N.W. 770, 773 (N. D. 1906))). As Judge Gilbert wrote for this Court in Deinha rdt v. State, 29 Md. App. 391, 39 7 (197 5), cert. denied, 277 Md. 736 (1976), [t]he opinion of the majority in Davis [v. Alaska, 415 U.S. 308 (1974)] makes clear that the refusal to allow the de fense to demons trate bias on the part of the prosecutor s principal witness through cross-examination is a denial of Due Process under the Fourtee nth Am endmen t as well as an infringement upon [the de fenda nt s] Six th Am endm ent righ ts. 7 Although appellant does not proclaim that these particular members of the FLEX Squad were biased, the thrust of his argument is that the jury wa s entitled to asse ss their credibility in light of the infamous reputation of the FLEX Squad. The cross-examination 6 Rule 5-616(a) governs impeachment by inquiring of a witness, and provides: The credibility of a witness may be attacked through questions asked of a witness, inclu ding ques tions that are d irected at: *** (4) Proving that the witness is biased, prejudiced, interested in the outcome of the pro ceedin g, or has a motiv e to testif y falsely[.] 7 The Sixth Amendment is made applicable to the States via the Fou rteenth Amen dment. Pointer v. Texas, 380 U .S. 400 , 403 (1 965). See Me rzbacher v. State, 346 Md. 391, 411-12 (19 97). 30 of a govern ment star w itness is impo rtant, and a presumption favors free cross-examination by a defendant of possible bias[.] United States v. Novaton, 271 F.3d 968 , 1006 (11th Cir. 2001) (citation omitted ), cert. denied, 535 U .S. 112 0 (200 2). See generally United States v. Abel, 469 U .S. 45, 5 2 (198 4). Thus, the absolute preclusion of cross-examination pertaining to a witness s motive for testifying would be an abuse of discretion[,] especially when the defense seeks to cross-e xamin e the pro secutio n s key w itness. Leeks v. Sta te, 110 Md. App. at 554 (citations omitted). The Court of Appeals instructs that trial courts retain wide latitude in determining what evidence is material and relevant, and to that end, m ay limit, in their discretion, the extent to which a witness may be cross-examined for the purpose of showing bias [or other disqualifying factors]. omitted). Merzba cher v. State , 346 Md. 391, 413-14 (1997) (citations But, it is also clear tha t a cross-ex aminer m ust be given wide latitud e in attempting to establish a witness bias or motivation to testify falsely. Id. (citations omitted) We turn to the requirement that the defense establish a foundation or basis for the cross-examination. The trial court in this instance did not abuse its discretion in forbidding the FLEX Squad cross-examination because, as conceded by appellant, no proffer was tendered. We note that the Confrontation Clause guarantees an opportun ity for effective cross-examination, not cross-ex amination that is effectiv e in whatever way, and to whatever extent, the defense might wish. Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam ). Thus, in the even t of a retrial, the defense must articulate how a particular witness s 31 assignment to the Southwest District FLEX Squad would jeopardize his credib ility with respect to the case at hand. The defense must also make an appropriate proffer with respect to the witness s participation in the FLEX Squad activities. In the final analysis, the defense must make a proper showing that evidence regarding a witness s assignment to the FLEX Squad is b oth relevan t and mate rial. JUDGMENTS OF CONVICTION VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER PROCEEDING S. COSTS TO BE P AID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE. 32

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