Archer v. State

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Anthony Archer v. State of Maryland No. 119, September Term, 2003 DUE PROCESS RIGHT TO A FAIR TRIAL IMPARTIAL JUDGE A criminal defendant has the right to both a fair and impartial judge and a judge who has the appearance of being fair and impartial. Excessive threats or efforts to coerce a witness to testify may result in the loss of the appearance of impartiality required of the bench and amount to a due process violation. WITNESSES COMPELLABLE WITNESS CONTEMPT A judge should adopt a neutral and judicious manner when informing a recalcitrant witness of his or her obligation to testify and the consequences of his or her continued refusal. WITNESSES COMPELLABLE WITNESS JUDICIAL ADMONITION REVIEWING COURT A reviewing court should consider the record as a whole when determining the probability or possibility of a nexus between the judicial conduct complained about and the witness s testimony or refusal to testify. SUPERVISORY POWER COURT OF APPEALS The Court of Appeals, in the interest of justice, may exercise its inherent supervisory authority over the administration of justice in Maryland courts and reverse a criminal conviction resulting from a trial judge s improper use of judicial authority. In the Circu it Court for B altimore C ity Civil No. 199356026 IN THE COURT OF APPEALS OF MARYLAND No. 119 September Term, 2003 ______________________________________ ANTHONY RODNEY A RCHER v. STATE OF MARYLAND ____________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Greene, J. Raker, J. and Wilner, J., concur Harrell, J., dissent ______________________________________ Filed: October 7, 2004 Appellan t, Anthony Rodn ey Archer ( Archer ), asks this Court to determine the extent to which a trial judge may compel a recalcitrant witness to testify when that witness refuses to testify at trial. We revie w this ma tter in the conte xt of Arc her s appe al from his convictions for felony murder and attempted murder. He poses the following question for our review: [Did] the trial court err[] by threatening the reluctant State s witness Lewis Bailey with prosecution for contempt and by suggestion to Mr. Bailey and his counsel that he could avoid the contempt prosecution by testifying inconsisten tly with his prior testimony, thereby allowing the State to introduce that prior testimony under Nance.1 We shall hold that a trial court s warning to a reluctant witness concerning contempt sanctions or the p enalties of perju ry is not, per se, a due process violation. In this case, the trial judge s admonition to the witness was not given in a judicious manner and was otherwise excessive. Specifically, it was improper for the trial judge either to advise the witness on how he could testify or to orchestrate a hearing on contempt, by inviting another member of the bench to try and convict the witness for contempt of court, under circumstances that would undermine the impartiality of the judges and the integrity of our criminal justice system. We do not approve of the techniques employed by the trial judge to persuade the witness to testify. The trial judge s repeated admonition to a recalcitrant prosecution witness tha t he testify, irrespective of the witness s obligation to testify truth fully, coupled with threats of contempt and possible imposition of the longe st possible sentence the law allows, probably caused the witness to change his testimony. Because of 1 Nance and Hardy v. State, 331 Md. 549, 629 A.2d 633 (1993) (hereinafter Nance). the trial judge s be havior in this case, Archer s right to a fair trial was, therefore, violated. I. Archer was convicted by a jury in the Circuit Court for Baltimore City, (Prevas, J. presiding), and sentenced as follows: (1) life imprisonment for felony murder; (2) life imprisonment to be served consecutively for attempted first degree murder; and (3) two sentences of twenty years to be served consecutively for two counts of the use of a handgun in a crime of violence. The remaining convictions were merged for sentencing purposes. Archer s conviction s stem from an inciden t that occurre d in the early morning hours of September 12, 1997. Rudolph Lyons ( Lyons ), William Faulkner ( Faulkner ), and Eric Gardner ( Gardner ), were walking near Lexington Mark et in Baltimore City. They were returning to their car after g etting some thing to eat at Crazy John s when they noticed three men approaching. Th e three men appro aching were Archer, Lewis Bailey ( Bailey ), and Keith Edmonds ( Edmo nds ). A f ight ensued when A rcher pulled a gun, plac ed it to Lyons s stomach, and attempted to remove Lyons s necklace. Shots were fired by men on both sides. At Archer s trial, Lyons described the events as follows: As how w e were lin ed up, t hey were lined up the same way. As if we was playing basketball, was 3 on 3, m an on m an. It was a man on man situation. And I looked and I see the three people coming towards us. And I noticed one of them had a gun in their po cket, the guy in th e middle. I co uld see that he had a gun in his pocket. And when I saw that, I paused and I, after I paused, I kept walking and then, as we met up, I tried to walk through them. But the guy that was in the middle had gave me a shoulder as if to stop me and the guy that was in front of me had pulled his gun out and stuck it in my stomach and -2- told me you all know what time it is. And while he was sticking the gun in my stomach, he was reaching for my necklace to try to take my necklace off. And so, whereas he was turning my necklace, I grabbed his arm which he was holding the gun at my stomach and moved the gun away from my stomach because I knew th ey were goin g to shoot. So, as I got the gun away from my stomach and we got to tussling. And, as soon as that happened, shots just rang out and within the first couple of shots, I got hit and fell to th e ground and I busted my head on the concrete. And when I rolled over, I noticed that I was shot in my shou lder. I loo ked at my s houlder. Wh en I looked up, the guy I was tussling with was standing over the top of me he looked to his left and then he looked to his right, and looked me in my eyes and [] pulled the trigger and shot me in my face. And after he shot me, my head hit the ground and I opened my left eye. I looked at him he ran. After he shot me, he ran in the direction towards Crazy John s away from the 7-11, going in that direction. Lyons was treated at the Shoc k Traum a Unit at the University of Maryland H ospital. He identified Archer as the man who shot him in the fa ce. H is shoulder injury was later determined to have been caused by Ba iley. Gardner died at the scene. Faulkner testified that when he saw a gun he ran away from the scene. Someone shot after him but missed. He returned to th e scene w hen the po lice arrived an d gave a s tatement. Shortly after the shooting, the police received a call from Shock Trauma informing them that two men were seeking treatment for gunshot wounds. The police responded to the call and subsequently arrested Edmonds and Bailey. Archer was not arrested at that time. In 1999, Bailey and Ed monds we re tried as co-defendants for the events of September 12, 1997. Before th e trial was ov er, Bailey accep ted a plea ag reement a nd pled gu ilty to the murder and atte mpted robber y of Gar dner. He received a life sentence with all but 15 years suspended in exchange for agreeing to testify against Edmonds and Archer. Edmonds s trial continued and he was convicted of felony murder, attempted second degree murder, and -3- related charge s. Edmo nds v. State , 138 Md. App. 438, 771 A.2d 1094, cert. denied, 365 Md. 474, 781 A.2d 779 (2001). As part of his p lea agreem ent, Bailey info rmed the p olice that w hile he did not know the full name of the third assailant who pa rticipated in the crime with him and Edmonds, he was able to provide the police with a description and a location of where Archer might be found. On Decemb er 9, 1999, more than two years after the shooting, both Lyons and Faulkner identified A rcher, in a station -house line -up, as the third assailant. Initia lly, Archer was tried on February 15, 2001. That trial ended in a mistrial when Bailey refused to testify. His second trial, the one in question here, began on June 24, 2002. At the beginning of the trial, counsel for Bailey informed the trial court that Bailey was unwilling to testify. Bailey alleged that he had been stabbed in prison for having testified against Edmon ds and he was afra id to testify against A rcher. It is the ef forts of the trial court to persuad e Bailey to testify that is th e basis of th is appeal. The follo wing co lloquy occurre d prior to op ening statem ents in Arc her s trial: The Court: Before we make opening statements, we wanted to resolve the issue of Mr. Bail ey. The State: That s corr ect. The Court: Howard Cardin, who represents Mr. Bailey and who negotiated a plea agreeme nt, is present. Mr. Cardin, you want to indicate o n Mr. Bailey s behalf what he intends to do? Mr. Cardin: Good mo rning, your honor, How ard Cardin. I do represen t Mr. Bail ey. I did have th e opportu nity of speakin g to Mr. B ailey in the lineup[sic]. It is my understanding that Mr. Bailey refuses to testify because of fear -4- for his life. He s incarcerated and has been stabbed and he believes that The Co urt: He understands he has no privilege against self-inc rimination? He understan ds that, correc t? Mr. Cardin: I explained that to him, there might be a question as to the right against self-incrimination in the event his testimony is varied from the testimony from the previous trial. There might be a possibility of perjury. The Co urt: I don t think you can assert self -incrimination for perjury under the Troy case. He s immune fro m anything other than perjury and contemp t. Is th at co rrect, Ms . Handy? The State: That s my understanding , your honor. The Co urt: All right. If he refuses to testify, then I ll immediately have you and Mr. Bailey taken before Judge Themelis. Ms. Grunwell will be the prosecuto r and we ll try him for con tempt. The State: Actually, I had spoken w ith Mr. Co hen abou t it. The Co urt: Mr. Cohen will prosecute him before Judge Themelis and Judge Theme lis will give him the longest possible sentence the law allows him to give and then maybe he ll chang e his mind a bout refusing to testif y. Otherwise, all he has to do is get on the stand and answer the questions. If they are fav orable to the defen dant, then M s. Handy w ill just cross-exam ine him w ith anything he sa id unfavor able in the p ast. So, consult with him one last time as to whether he wants to have a contempt trial or wheth er he will tak e the stand, u nderstand ing his reluctance. And I can tell the jury how reluctant he is. **** Mr. Cardin: Mr. Bailey has asked me to ask the Court to explain the term, giving him the most time that is possible. The Co urt: There is no statu tory maximum for contem pt an d, ob viou sly, Judge Theme lis is not going to take a cou rt trial and limit him to six months. -5- He s going to give him, if the jury convicts him, a sentence I guess the only limitation is anything that is not cruel and unusual p unishme nt. So theoretically, Judge Themelis could give him a life sentence for contemp t. Whether the Cou rt of App eals wou ld allow it to sta nd is another story, but, theoretically, that is the longest sentence he can probably get. Whereupon, there was a pause in the proceedings. The Co urt: What is Mr. Bailey prepared to do? Mr. Cardin: Mr. Bail ey believes he w ill not testify. He be lieves it is in his best interest. That is his decision. The Co urt: Let me have the phone. Whereupon Judge Prevas called Judge T hemelis on the phone, in open court and on the record. Because the conversation took place over the phone, the transcript only indicates one half of the conversation. The Court: John, sorry to bo ther you. Can you, in the next day or so, interrupt what you re doing and try a contempt jury for me? Okay. Oka y. Bas ically, Mark Cohen will prosec ute for the State an d How ard Card in represen ts the defen dant. The def endant m ade a plea a greemen t in 1997 to testify against a third co-defendant in a murder case and got his time, life, serve the first 15, something like that. No w it s a couple of years later, he s been stabbed in prison and he doesn t w ant to testify. So I m going to start my opening s tatements in my trial and if you c an try him and sentence him on the contem pt, maybe he ll change h is mind after he s sentenced. Or, if he cha nges his mind bef ore trial starts, then he can com e bac k and testify. So, can I have Ma rk Cohen and Howard Cardin report to you? Whereupon there was another pause in the proceedings. The court continued: The Co urt: Even so, take that and do this first and do that seco nd. Yeah . Also, to get backgro und on th is case, look a t Edmonds v. State, [138 Md. App. 438, 771 A.2d 1094 (2001) ] That s a co-defendant that didn t plead -6- and that will give you the whole factual history of the case, okay? I ll send them over, thank you. Mr. Car din then inf ormed the court: Mr. Cardin: Your honor, w ith all due respect, I will ask Judge Themelis for the opportunity to prepare a defense. The Court: He s got to weigh that against the fact that I need to start thi s trial. And the only time that the contempt had been effective is if, in fact, if he s convicted and sent[enced], he may change his m ind before sentencing or af ter se nten cing , to testify. Mr. Cardin: I understand that, but since he is facing a significant sentence, he has a right to prepare a defense in his case. The question also might be whether or not I had been a witness in that particular case as opposed to counse l. The Co urt: You can litigate all of that before Judge Themelis. Mr. Cardin: I will be glad to take it up before Judge Themelis, I don t want your honor to think we re coming up with something. The Co urt: Let me advise him of one last thing that saves him and you all this trouble. You ve read Chie f Judge Murphy s pocket part on NanceHardy and the turn-coat witness. Basically, if he testifies favorably to the defendant, there is nothing anybody can do to punish him for that and the State still can cross-examine him about anything he might have said unfavor ably in the past. So, if instead of refusing to testify, he gets on the stand and tries to help the defendant, the defendant benefits and the State benefits. So, he may want to do that rather than run the risk of gettin g a life s entenc e from Judge Them elis. Mr. Du rkin 2 : At this poin t, Judge, I hav e to object. The Co urt: The basis? Mr. Durkin: Basically, you are trying to coach this defendant to say something that s 2 Mr. Durkin represented Archer during the trial. -7- not true. The Co urt: I don t know what s true and not true. Mr. Durkin: I would object, your hono r. The Co urt: He made a plea agreement. He swore under oath that a certain set of facts were true a nd the me chanism f or getting him to repeat tho se facts at this point, is to sente nce him f or contem pt. What I m saying is, if his fear is that he doesn t want to offend you, then he may be a ble to avoid the contemp t by doing som ething mo re favorab le to you. So, if th at coaching is illegal, then I ll take the opinion . I m only in dou bt as to what five jud ges of the Co urt of A ppeals will say. I know Bell and Eldridge will say it is. But, I think that they ll probably be overruled in a 5 to 2 m ajority. And if it says you can t do that, then I ll just pu t it over the head stand of my bed, and when I wake u p in the mornin g, I ll genuflec t before it. Mr. Durkin: What I m saying, Judge, I don t think that advice is proper coming from the bench. The Co urt: Let the Court of Appeals decide it. I think they ll decide it 5 to 2 against you. I ve given you the practical solu tion, and if it is unconstitutio nal, let s see how far we dig into the Magn a Carta to think up the reason why it is. Bailey refused to testify and wa s told by the court to report to Judge Themelis and report back here if he chan ges his mind or after he s co nvicted. T he record is unclear as to whether Bailey pled guilty to the contempt charge or if he chose to testify in lieu of the contempt proceedings. Bailey, how ever, returned to Judge P revas s court and a greed to testify bec ause he felt he had no choice but to tes tify. 3 Prior to Bailey taking the stand, counsel for Archer again objected to the earlier 3 Bailey testified that Judge Themelis informed him that unless he agreed to testify in Archer s trial, he would be prosecuted for contempt and could face 20 years if convicted. -8- colloquy regarding Bailey s options. The court reiterated that it believed the colloquy was within its authority and cited extensively from case law to support its position.4 The court conclude d that, as long as you have the right to confront the witness under the confrontation clause and cross-examine him, then whether I compel him by advising him he has no self-incrimination privilege or by giving him immunity or by trying him for contempt or by telling him the penalties of contempt that can be given by another judge after a full hearing on contempt, it seems to me that no due proc ess is violated and no right o f yours is im plica ted in any w ay. The cou rt overruled A rcher s obje ctions and d enied the m otion for a m istrial. Bailey then took the stand and testified inconsistently with his testimony in Edm onds s trial. The mo st notable distin ction was his testimony in A rcher s trial that it was Edm onds s idea to rob people that night, whereas in Edmonds s trial he stated that it was Archer s idea. On appeal, the Court of Special Appeals held that the trial court s comments w ere intemperate and may have been inartful, and capable of being misunderstood out of contex t, however, because the court correctly identified the law regarding Bailey s options, there was no reversible error. We granted Archer s petition for a writ of certiorari to review the impact of the trial judge s remarks and conduct on Archer s right to due process of law. Archer v . State, 379 M d. 224, 8 41 A.2 d 339 ( 2004) . II. 4 The case law cited by the court included cases discussing prosecutorial horse shedding of a witness before trial, applicability of the exclusionary rule and privilege against selfincrimination during grand jury proceedings, appropriateness of allowing a witness to invoke the Fifth Amendment before a jury, and Nance. -9- We begin by noting that Bailey was a compellable witness because no appeal or sentence review was p ending and the time for appeal and sentence review had expired. Ellison v. State, 310 M d. 244, 259 , 528 A.2d 1271, 12 78 (1987 ) (holding th at under the Fifth Amendment and Art. 22 of the Maryland Declaration of Rights, a witness who has been convicted and sentenced for a criminal offense is entitled to invoke the privilege against selfincrimination with regard to that offense during the thirty-day period for seekin g appellate review or sentence review by a three-judge circuit court panel or during the pendency of the direct appellate or sentence review proceedings). United Sta tes v. Gern ie, 252 F.2d 664, 670 (2d Cir .) (1958 ), cert. denied, 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed.2d 1073 (1958) (noting that the govern ment had a right to compel a witness to answer q uestions as h e pleaded guilty and could not be further incriminated by answering questions about where he obtained the drugs). Her e, Ba iley had been convicted, sentenced, and the time for filing an application for leave to app eal his guilty plea had e xpired. Th us, he had n o Fifth Amendment privilege to refuse to testify. Contem pt proceed ings were , therefore, an appropriate response to Bailey s refu sal to testif y. Gardner v. State, 10 Md. App. 691, 692-93, 272 A.2d 410, 411, cert. denied, 261 Md. 724, (1971) (A witness who makes an unprivileged refusal to testify offends the proce ss of the court and is subjec t to contempt proceed ings.). In State v. Roll a nd Scho ll, 267 Md. 714, 298 A.2d 867 (1973), we characterized contempt proceedings as [o]ne weapon in the court s arsenal useful in de fending its d ignity . . . . Roll and S choll, 267 Md. at 717, 298 A.2d at 870. Contempt proceedings a re -10- classified as either criminal or civil, although the two categories are not mutually exclusive. Roll and Sch oll, 267 Md. at 727, 298 A.2d at 875. There are two forms of contempt, direct and constructive. Direct contempt is committed in the presence of the trial judge or so near him or her as to in terrupt the co urt s procee dings, wh ile constructiv e contem pt is any other form of contempt. Smith v . State, ___ Md. ___ __, ____ A.2d _____ (Septem ber Term 2003, Slip Opinion at 6, Filed July 29, 2004) (internal citations omitted) (holding that it was not error for the trial judge to find the same individual in direct contempt multiple times during the course of a single, continuous proceeding). Civil contempt proceedings were intended to preserve and enforce the right of private parties to a suit and to compel obedience to orders and decrees primarily made to benefit such parties. Roll and S choll, 267 Md. at 728, 298 A.2d at 876. Criminal contempt, historically, constituted positive ac ts which offended the dignity or process of the court. Holding an offending party in contempt of court wa s designed to vindicate the authority and power of the court and punish disobedience to its orders. Roll and S choll, 267 Md. at 727, 29 8 A.2d at 875. See Ashford v. State, 358 Md. 552, 750 A.2d 35 (2000) (discussing the nature of criminal contempt proceedings and the right to a jury trial). Whereas civil contempt must contain a purge provision, (Roll and S choll, 267 Md. at 728, 298 A.2d at 876), the o nly limit on the sentence for criminal contempt is that the sentence be within the reasonable discretion of the trial judge and no t cruel an d unus ual pun ishmen t. Gardner, 10 Md. App. at 693, 272 A.2d at 411 (quoting Lynch v. S tate, 2 Md. App. 546, 564, 236 A.2d 45, 56 (1967); Lloyd v. Sta te, 219 -11- Md. 343, 353, 149 A.2d 369, 375 (1959) (stating that there is no statutory limitation on the sentence for common law offenses beyond the requirement that they not con stitute cruel and unusual punishm ent)). The second option, according to the trial judge, for the witness to avoid offending Archer and the State, was for Bailey to take the stand and testif y favor ably to [A rcher], thereby, subjecting him to cross-e xamination about anything he might h ave said un favorably in the past including his prior testimon y from Edmon ds s trial. This sugg estio n, ap pare ntly, is based on our holding in Nance. In our view, the trial judge went too far in suggesting that Bailey take this course of actio n. The effect of the trial judge s admonition was to deny Archer his right to a fair trial. We shall explain. We originally characterized the Nance case as the classic evidentiary problem of the turncoat witnes s. Nance, 331 Md. at 552, 629 A.2d at 635. Two witnesses who had previously given statements to police regarding a murder, recanted their stories when called to testify at the murder trial. We held: [T]he factual portion of an inconsistent out-of-court statement is sufficiently trustworthy to be offered as substantive evidence of guilt when the statement is based on the declarant s own knowledge of the facts, is reduced to writing and signed or otherwise adopted by him, and he is subject to cross-examination at the trial where the prior statement is introduced. Nance, 331 Md. at 569, 629 A.2d at 643. This holding has since been codified in Md. R ule 5-802.1, w hich prov ides in pertine nt part: The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the -12- statement are not excluded by the hearsay rule: (a) A statem ent that is inconsistent with the declarant s testimony, if the statement was (1) given under oath subjec t to the pena lty of perjury at a trial, hearing or other proceeding or in a dep osition; (2) re duced to writing a nd si gned by the declarant; or (3) record ed in substantially verbatim fashion by stenographic or electron ic mean s conte mpora neous ly with the makin g of the stateme nt . . . . Judge Moylan, writing for the Court of Special Appea ls in a post-Nance case, Stewart v. State, 104 M d. App. 273, 655 A .2d 134 5 (199 5), affirmed 342 Md. 230, 674 A.2d 944 (1996), described the state of the law following the Nance case. He wrote: Post-Nance, it is no longer true that a party, anticipating that a prospective witness has already turned coat, will, thereby, be guilty of impermissibly calling a witness who it knows w ill contribute nothing to its case. (Internal citation omitted.) Pro vided that Nance s express prerequisites have been satisfied, a party may call a witness, fully anticipating (indeed, even hoping for) a miserable testimonial p erformance, for the exclusive purpose of using that performance, or non-performance, as the launching pad for the introduction of 1) evidence of a prior identification by that witness, 2) the witness s prior inconsistent statement to the po lice, 3) the witness s grand jury testim ony, or 4) any combination of the foregoing. It is no longer true that such a witness contributes no thing to the case. Und er Nance, even a perjurious witness may now, simply by serving as a vehicle or a medium for the introduction of other evidence, contribute a great deal to the case. Stewart, 104 M d. App . at 284- 85, 655 A.2d a t 1351. Based on the case law discussed above, we find that the trial court correctly identified Bailey s options: he could refuse to testify and be subje ct to contempt proceedings or he could testify and be subject to cross-examination. The trial judge, however, went beyond simply informing the witness , in a neutral manner, of his obligation to testify and the consequences of his refusal to testify. We disapprove of the manner in which the trial judge transferred Bailey to Judge Them elis for contempt procee dings, as well as the judge s -13- suggestions to Judge Themelis on how to proceed with the contempt case. Furthermore, we reject the trial judge s decision to advise Bailey about how he could avoid contempt by testifying favorably to the defense and the State. The trial judge departed from a neutral judicial role and acted as an adv ocate in expressin g an opinio n to Bailey abo ut how h e could testif y. Ultimately the trial judge s efforts to compel Bailey to testify were improper in that they influenced Bailey s decision to testify inco nsistentl y. If Bailey had remained steadfast in his re fusa l to te stify, h is former testimony would not have been a dmitted an d the State would not hav e been able to in troduc e Baile y s prior sta temen ts as sub stantive eviden ce. See Nance, 331 M d. at 569 , 629 A .2d 633 . In Tyler v. State , 342 Md. 766, 775, 679 A.2d 1127, 1131 (1996), w e held that a compella ble witness who refused to answer any questions when called by the State on direct examination was not subject to cross-examination, and therefore was unavailable because he refuse d to testif y. Under those circumstances, we reasoned that the witness s prior testimony could not be adm itted under the applicable hearsay exception because the defenda nt, Tyler, had no oppo rtunity to cross-examine the witness when the prior testimony was elicited at [the witness s] separate trial in 1993." Recently, the United States Supreme Court reaffirme d this principle in holding that the confrontation clause bars admission by the State of a witness s out-of-court, testimonial statement, unless the witness is un available to testify and the defenda nt had a prio r opportun ity to cross-examine the witness. Crawford v. Washington, ____ U. S. _____, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). -14- We further held in Tyler that neither Nance nor Md. Rule 5-802.1 applies to prior noninconsistent statements or to cases where the declarant is not available for cross-examination. In the present c ase, if Bailey had simply continued to refuse to testify, despite the bringing to bear upon him of all appropriate judicial pressures, he would have been deemed unavailab le for cross-examination despite his pres ence in court. Nance, 331 Md at 572, 629 A.2d at 645. Bailey s refusal to testify could not have been deemed inconsistent with his prior testimony in w hich he said it was Ar cher s idea to rob peop le that night, that Edmonds gave his gun to Archer after the shooting, and that Archer approached the victim, Lyons. As a result of Bailey s decision to testify in the present case, and to testify inconsistently, the court admitted portions of B ailey s prior recorded testimony. In closing argum ent to the jury the State emphasized that Bailey gave the police the identity of Archer, the third assailant. The State argued to th e jury that, during [Bailey s] prior testimony, you found out he gave additional information, information that led the police to Anthony Archer. And that once Anthony Archer s identification was determined, you know Lewis Bailey was shown a photo array and he, in fact, identified Anthony Arche r as the third person who was involved in the crime back when he was trying to cooperate. **** Well if it hadn t be en for Le wis Bailey telling us who this third person was, we would never have found out who the person was who sh ot Rudo lph Lyons in the eye. And that person would have forever been free, running the streets and not been brought to justice for what he did on September 12, 1997. That s why those kinds of deals sometimes have to be made. And that s why Judge Prev as made t hat o ffer of lif e sus pend all b ut fif teen years to Le wis B ailey. **** -15- [T]here seems to be some reason that [Bailey] can t admit his full involvement in this crime. But you did hear his prior testimony from the other trial and you heard w hat he s aid at the other tria l. Thus, it is clear that the State placed substantial reliance upon Ba iley s in-court testim ony, as well as his pr ior statem ents, in p resentin g its case agains t Arche r. III. Archer c ontends in this appeal th at Judge P revas imp roperly persua ded Baile y to testify and erred in admitting in to evidenc e Bailey s prior re corded testim ony. He asse rts that the trial judge s comments were an effort to overwhelm and reverse Bailey s decision not to testify. Further, he contends by analogy, primarily in reliance on State v. S tanley, 351 Md. 733, 720 A.2d 323 (1998), that the judge went beyond a general warning to the witness about the c onse quences of perjury and, in effect, e ncourag ed B ailey to commit per jury. Moreover, Archer suggests that it is possible tha t Bailey testified fa lsely at the Edm onds trial. Thus, Archer concludes that the trial judge s advisement in this case aided Bailey in committing a sec ond perjury and made it clear to him that he cou ld continue to falsely implicate Ar cher with impunity.5 The intermediate appellate court, in its review of the record, found no basis for the conclusion that Jud ge Prev as coer ced B ailey s testim ony by thre ats. That court held that the trial judge did not err in admitting into evidence the prior recorded testimony because 5 Because of our conclusion that the trial judge s admonition to the witness was improper and prejudiced Archer s case, we need not address Archer s contention that the trial judge s advisement assisted Bailey in committing a second perjury. -16- Bailey s testimony at Archer s trial was, in part, inconsistent with his testimony at Edmonds s trial. Moreover, the court concluded that ev en if the trial judge s comm ents were in error, Archer was not prejudiced because Bailey s testimony tended to incriminate Archer and his testimony resulted in the introduction of Bailey s prior testimony, which further incriminated Archer. In conclusion, the intermediate appellate co urt held that, inculpatory evidence was bound to come into play either by Bailey on the stand or through Bailey s prior testimo ny. Our review of the record and the applicable law, however, mandates a different result. We find that the trial judge s efforts to persuade the w itness to testify went too far. If Bail ey persisted in his re fusal to testify, Jud ge Preva s had the o ption of eith er initiating direct contem pt proc eeding s or con structive contem pt proc eeding s. See Md. Rules §§ 15201 through 15-208. The authority to initiate contempt proceedings, however, is not a license to intimidate a witness into testifying. The p urpose of the contem pt powe r is to provide a means for a judge to uphold the dignity and integrity of the judicial process. Under the circumstances of this case, the phone call to another judge in the presence of the witness, the threat of life imprisonment as a sanction for contempt, and the suggestion that the other judge will give Bailey the longest possible penalty for contempt detracted fr om the dig nity and inte grity of the judicial p rocess r ather tha n upho ld it. Similarly, it was unnecessary and excessive to instruct Bailey on how he could testify -17- in the Archer case.6 Archer was represented by counsel who could have advised him concerning the various testimonial options if that was deemed necessary under the circumstances. Even if Bailey was unrepresented, it wa s not the pro vince of th e court to suggest to the witness how he could testify to avoid a contempt sanction or how to a llay his fears of testifying. In either case, it was not the function of the trial judge to suggest to the witness that he cou ld testify favorab ly to the defen dant, Archer. Specifically, Judge Prevas advised Bailey that he could testify favorably to the defendant and that there is nothing anybody can do to punish him for that. That admonitio n was inc orrect, becau se Bailey cou ld be prosecu ted for p erjury. State v. Mercer, 101 Md. 535, 61 A. 220 (1905); Md. Code (2002), § 9-101 of the Criminal Law Article. Furthermore, we disagree with the intermediate appellate court that the trial judge did 6 In Davis v. State, 334 So.2d 823, 826 (Fla. Dist.Ct.App. 1976), the District Court of Appeals for Florida held that the prosecuting attorneys improperly coerced a witness to testify for the State. The court explained that, while the prosecutor admonished the witness to tell the truth, it must have been obvious to the witness that the truth was that which she had testified to at an earlier deposition. By admonishing the witness as indicated, the prosecutor had exerted undue pressure on the witness by attempting to inject certain information and influenced or biased the testimony of the witness. The court reasoned that one who interviews a witness before trial must exercise the utmost care and caution to extract and not to inject information, and by all means to resist the temptation to influence or bias the testimony of the witnesses. (Internal citations omitted.) In Marshall v. State, 291 Md. 202, 434 A.2d 555 (1981), in the context of a case in which we were concerned with a trial judge s admonition that caused the defendant to testify a certain way, out of fear that if he did not, he would suffer severe, but unexplained consequences, Judge Cole writing for the Court stated: The need to maintain impartiality . . . demands that the court exercise its authority with care, and refrain from questioning which may pressure a witness to testify in a particular way . . . . In this manner, the judge is most likely to preserve his role as an impartial arbiter, because he avoids the appearance of acting as an advocate . . . . Most fundamental, a defendant in every case, whether a jury or not, is entitled to an impartial judge. -18- not coerce Bailey to testify with threats. Threatening comments must rise to the level of a threat over and above what the record indicate [s] wa s neces sary, and a pprop riate. United States v. Jackson, 935 F.2d 832, 847 (7th Cir. 1991) (alterations in the original) (quoting United States v. Simmons, 670 F.2d 365, 369 (D.C. Cir. 1982)). In our view, the entire process: the three w arning s of co ntemp t, the phone call to Judge Themelis in the presence of the witness, the threat of life imprisonment as a sanction for contempt, the threat that Judge Themelis will give Bailey the longest possible penalty for contempt, and the advic e on how he co uld testif y, was calcula ted to com pel B ailey s test imony. 7 The advisement was, therefore, excessive and improper. Even though the record is silent about what occurred when Bailey appeared b efore Jud ge Them elis, and Ba iley did not elect to te stify until he 7 On the issue of causation, the Court of Special Appeals failed to discuss the likely effect of Judge Prevas s remarks and conduct on Bailey s intended testimony. This omission may have resulted from the intermediate appellate court s determination that the trial judge s comments were a correct recitation of the law and that Judge Themelis s comments caused Bailey to take the stand and testify. The reviewing court, however, should consider the record and determine the probability or possibility of any nexus between the judicial conduct complained about and the witness s testimony or refusal to testify. See Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353, 34 L.Ed.2d 330, 333 (1972) (holding that the unnecessarily strong terms used by the trial judge could have exerted such coercion preventing the witness from making a free and voluntary choice whether or not to testify); Berg v. Morris, 483 F. Supp. 179, 184 (E.D. Cal. 1980) (holding that the witness need not establish that the judicial admonition was either the direct or exclusive factor in the witness s decision not to testify. The test is whether the record strongly suggests that the judge s comments were the cause ) (citing Webb, 409 U.S. at 97, 93 S.Ct. at 353, 34 L.Ed.2d at 333); North Carolina v. Locklear, 306 S.E.2d 774, 779 (N.C. 1983) (holding that it can be fairly inferred from the record that the trial judge s actions invaded the province of the jury and probably caused the witness to change her testimony); People v. Morley, 627 N.E.2d 397, 404 (1994) (holding that the trial court s admonition could have caused the witness to refuse to testify). -19- returned from Jud ge Them elis s courtroom, those factors do not persuade us that Judge Prevas s conduct h ad no influ ence on B ailey s decision to testify and to testify inconsistent with his prior testimony. When asked directly during Archer s trial what occurred in the other judge s courtroom , Bailey testified, T he only thing I heard him say wa s that if I don t testif y, it will be 20 years. I don t know if I w ould get the 20 years but if the jury found me guilty. We cannot say that Bailey s ultimate decision to testify rested solely on the perceived risk of imprisonment for twe nty years by the other judge if found guilty of contem pt by a jury. From our review of the record, we are persuaded that Judge Prevas s remarks and conduct likely caused Bailey to change his testimony to reflect the judge s opinion that he could te stify favorab ly to the defend ant and th at there is no thing anybod y can do to punish him for that. The trial judge appeared neutral in expressing his opinion that, I don t know what s true and not true . . . . He made a plea agreement. He swore under oath that a certain set of facts were true and the mechanism for getting him to repeat those facts at this point, is to sentence him for contempt. Nonetheless, the trial judge s limited and neutra l comme nts must be considered in the conte xt of his exc essive effo rts to compel Bailey to testify, the tenor of the warnings given, and the likely effect of the court s admonition on the witness s intended testimony. Here, Bailey refused to testify for the State in Archer s prior trial even though he had agreed to testify as part of his plea bargain. After several warnings in the present case, Bailey again refused to testify. Thus, -20- it can fairly be inf erred that the judge s co nduct and remarks c aused B ailey to change his decisio n not to testify and to testify di fferen tly. See North Carolina v. Locklear, 306 S.E.2d 774, 779 (N .C. 1983) (holding that the trial judge s admonishme nts to the State s principal witness about lying invaded the province of the jury because it probably caused the witness to change her testimony). 8 8 In Locklear, the defendant, Philip James Locklear, was charged with firing a weapon into the home of his former girlfriend, Mary Hunt Campbell. Ms. Campbell was called as a witness in the prosecution s case in chief. During her testimony she was hesitant and appeared to be trying to help [Locklear]. Locklear, 306 S.E.2d at 775. Initially, outside the presence of the jury, the judge admonished the State s witness to . . . sit up close to the microphone . . . take your hand away from your mouth . . . put your hands in your lap . . . speak up and answer the questions that are asked of you . . . . My observation is that the witness is being a, [sic] recalcitrant and hesitant and [sic] because of that I m going to allow you to explore this matter in the absence of the Jury at this time . . . . Id. Later the judge instructed the witness to answer the prosecutor s questions and to answer them truthfully. Subsequently, the court interrupted the examination and threatened the witness with contempt and admonished the witness concerning the penalty for perjury. Id. at 776. The judge informed the witness that she was not telling the truth and on several occasions directed her to tell the truth. Id. Although Ms. Campbell initially reported to the police that Locklear was parked outside her home at the time of the incident, her in-court testimony was equivocal as to whether or not the person parked outside her home at the time of the crime was Locklear. She testified it was dark and she could not tell who was inside the car, and refused to respond when asked on several occasions what she reported to the police. Id. After the last of many warnings by the trial court, the witness testified that it was [Locklear s] car outside her house and that [Locklear] was the person she saw outside her house at the time she heard the objects strike her home. Locklear, 306 S.E.2d at 777. Locklear was subsequently convicted. He appealed and the Court of Appeals found no error and affirmed the trial court. Id. at 774. The Supreme Court of North Carolina granted certiorari and answered Locklear s assertion that the trial court denied him due process of law. Id. at 775. The court reversed, holding that the trial judge s admonishment to the State s principal witness invaded the province of the jury and probably caused the witness to change her testimony. Id. at 779. The court reasoned that it can be fairly inferred that this testimony resulted from the admonitions of the judge to [the witness]. Id. (citing Webb, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330. -21- In State v. Stanley, 351 Md. 733, 720 A.2d 323 (1998), we held that the prosecutor s admo nishment prior to trial to a State s witness ab out the penalties of perjury was nothing more than a general warning and not a coercive attempt to prevent her from testifying even though that witness thereafter exercised her Fifth Amendment privilege agains t comp ulsory self -incrim ination a nd did n ot testify. Id. at 748, 7 20 A.2 d at 330 . Such a warning, therefore, was not a threat made to silence or coerce the witness or cause her to produc e specific testimony and did n ot violate Stanley s right to compulsory proces s. Id. at 749, 720 A.2d at 330. Further, in Stanley we discussed the seminal case of Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L .Ed.2d 330 (197 2). In Webb, the United States Sup reme Co urt held that the trial judg e s threatenin g remarks to refrain fro m lying, directed only at the sole witness for the defense, effectively drove that witness off the witness stand, and thus depriv ed the a ccused of due proces s of law under t he Fou rteenth A mend ment. Webb , 409 U.S. at 98, 93 S.Ct. at 3 53, 34 L .Ed.2d at 333. T he Co urt emp hasized that, the judge did not stop at warning the witness of his right to refuse to testify and of the necessity to tell the truth. Instead, the judge implied that he expected [the witness] to lie, and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury, that the sentence for that conviction would be added on to his present sentence, an that the result would be to impair his chances for parole. At least some of these threats may ha ve been b eyond the po wer of th e judge to c arry out. Yet, in light of the great disparity between the posture of the presiding judge and that of a witness in these circumstances, the unnecessarily strong terms used by the judge could well have exerted such duress on the witness s mind as to preclude him from making a free and v oluntary choic e whethe r or not to testif y. -22- Webb , 409 U.S. at 97-98, 93 S.Ct. at 353, 34 L.Ed.2d at 333. Stanley, although factually distinguishable from the present case, is relevant because it reaffirms the proposition that warnings to witnesses about the consequences of perjury must be general and not intimidating or coercive. Likewise, Webb is instructive becau se it illustra tes the d ue proc ess limita tions on judicial in timidatio n of a w itness. Although neither Stanley nor Webb invo lved a com pella ble w itnes s s re fusa l to te stify, we find that to be a difference without a distinction. Here there is no question that the witness ha d no legal rig ht or privilege to refuse to te stify. Bailey s only choic e was to testify or refuse to testify and face the sanction of contempt. Nonetheless, he had a right to make a free and voluntary choice whether or not to testify. He had the right to choose, free from judicial intimidation and improper advisements, whether to testify or face the consequences o f his failure to testify. The difference here is tha t the trial judge s admonitio n and con duct was so excessiv e that it likely caused Bailey to alter testim ony in violation of Archer s right to due process. In addition, in Webb , the judge implied that he expected the witness to lie and, in effect, drove the witness from the stand by threatening a conviction of perjury and incarceration. In the present case, the trial judge s remarks and cond uct drove th e witness to the stand ins tead of aw ay from it. Ag ain, we fin d this factual difference between Webb and the present case insign ificant in light of the court s overall affect on the outcome of the case and the introduction of judicially-induced, altered te stimon y. -23- It has often been s aid th at a d efen dant s du e pro cess right to a f air trial, m inim ally, means a fair and impartial judge. A criminal defendant has a Sixth Amendment right, to confront a witness for the prosecution for the purpose of crossexamina tion or to pres ent his ow n witnesse s to establish a defense. B oth rights are fundamental elements of due process of law, and a violation of either could hamper the free presentation of legitimate testimony . . . . If a defenda nt s attorney is intim idated by a trial jud ge s unw arranted or u nduly harsh attack on a w itness or the attorney himself, then the defe ndant s constitutiona l right to effec tive represen tation guara nteed by the S ixth Amendment is impinged . . . . A . . . final interest of a criminal defendant that may be affected by a trial judge s manner of warning a witness is the defenda nt s due pro cess right to trial b efore an im partial tribunal. A fair jury in jury cases and an impartial judge in all cases are prime prerequisites of due pr ocess. It is a m axim that [e ]very litigant, includ ing the State in criminal cases, is entitled to nothing less than the cold neutrality of an impartia l judge . . . . North Caro lina v. R hodes , 224 S.E.2d 631, 636-38 (N.C. 1976) (internal citations and quotes omitted). In Jackson v. State, 364 Md. 192, 772 A.2d 273 (2001), we reviewed the appropriate ness of a trial c ourt s com ments du ring a judicial h earing. In tha t case, this Court held that a trial court s comments at sentencing exceeded the outer limits of a judge s bro ad discretion in sentencin g when the comm ents could c ause a reas onable person to ques tion the j udge s impartia lity. Id. We noted that [a] defendant in a criminal case has a right to a fair trial. It is well settled in Maryland that fundamental to a defendant s right to a fair trial is an impartial and disinterested judge. Id. at 206, 772 A.2d at 281 (quoting Jefferson-E l v. State, 330 M d. 99, 10 5, 622 A .2d 737 , 740 (1 993)). Not only does a defendant have the right to a fair and disinterested judge but he is also -24- entitled to a judge who has the appearance of being impartial and disinterested. Jackson, 364 M d. at 207 , 772 A .2d at 28 1. See also, C rawford v . State, 285 Md. 431 at 451-52, 404 A.2d 244 at 254-55 (1979) (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) ( Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. )). Although we were discussing sentencing in the Jackson case, we th ink the stand ard we en unciated th ere is applica ble. If a judg e s comm ents during [the proceedings] could cause a reasonable person to question the impartiality of the judge, then the defendant has been deprived of due process and the judge has abused his or her discretion. Jackson, 364 Md. at 207, 772 A.2d at 281-282 (quoting Nebraska v. Pattno, 579 N .W.2d 503, 50 9 (Neb . 1998) ). In Jackson we were concerned that the language used by the sentencing judge when sentencing the defendant could lead a reasonable person to draw an inference that race was factored into the sentence imposed. We were most concerned with the sentencing judge s failure to perceive that his comments would lead a reasonable person to conclude that he took into consideration not only the race of the defendant but also the defenda nt s place of residence a nd origin. C learly, none of th ose factors constitute permissible sentencing criteria. In the present case, no such reasonable inference (the judge s consideration of the defendant s race, residence, or origin) could be drawn. The reasonable inference one could draw from the facts of this case, however, is that it did not -25- matter to the trial judge what facts (true or false) were elicited from Bailey, so long as he took the stand and testified. Our concern here is the manner in which the judge conveyed that view in the co ntext of Arche r s trial. We find, under the circumstances of this case, that the trial court strayed from the role of impartiality through its sustained efforts to force Bailey to testify. As a result of the trial judge s remarks to the witness and his conduct, the judge caused Bailey to give testimony inconsistent with his previous testimony and interfered with Archer s right to a fair trial. In an effort to promote fair and impartial judicial proceedings, we affirm and adopt the f ollowing guidelines e stablished b y the Suprem e Courts o f Florida an d North Carolina, an d we reco mmend that trial judges f ollow the g uidelines w hen conf ronted w ith a reluctant witness: When f aced with a reluctant w itness, the trial judg e should a void com ments that resort to unnecessarily strong terms. Faced with a recalcitrant witness who indicates a concern over testifying because of fear of safety or reprisal, the court could properly advise the witness of the legal consequences of the failure to testify. The trial court could explain that the witness is un der subpo ena and re fusal to testify co uld subject th e witness to being held in contempt of court, which could include the coercive sanction of incarceration. However, such reminders, if given, must be administered in a neu tral and o bjective mann er. Muhammad v. Florida, 782 So.2d 343 , 358 (Fla. 2001) (internal citations om itted). The presiding judge is given large discretionary power as to the conduct of a trial. Generally, in the absence of controlling statutory provisions or established rules, all matters relating to the orderly conduct of the trial or which inv olve the pro per admin istration of justic e in the cou rt, are within his discretion . . . . Thus a trial judge may, if the necessity exists because of some s tateme nt or acti on of th e witne ss, excu se the ju rors and , in a -26- judicious manner, caution the w itness to testify truthf ully, pointing ou t to him ge nerally the conseq uence s of pe rjury . . . . Locklear, 306 S.E.2d at 778-7 9 (internal citations omitted). Whether Judicial or prosecutorial admonitions to defense or prosecution witnesses violate a defendant s right to due process rests ultimately on the facts of ea ch case. Su ch admo nitions shou ld be adm inistered, if at all, judiciously and cautiously . . . . Witnesses should not be discouraged from testifying f reely nor in timidate d into alt ering th eir testim ony . . . . North C arolina v. M elvin, 388 S.E.2d 72, 79 (N .C. 1990). In all these kinds of cases the reviewing court should examine the circumstances under which a perjury or other similar admonition was made to a witness, the tenor of the warning given, and its likely effect on the witness s intended testimony. If the admonition likely precluded a witness from making a free and voluntary choice whether or not to testify, or changed the witness s testimony to coincide with the judge s or prosecutor s view of the facts, then a defendant s right to due process may have been violated. On the other hand, a warning to a witness made judiciously under the c ircumstanc es that reason ably indicate a n eed for it and which has the effect of merely preventing testimony that otherwise would likely have been perjured does not violate a defendant s right to due process. D efendan ts have no due proc ess or other c onstitutional rig ht to pres ent p erjured testim ony. Melvin, 388 S.E.2d at 79-80 (quoting Webb, 409 U.S. at 98, 93 S.Ct. at 353, 3 L.Ed.2d at 333 (other internal citations omitted). Even though the judicial statements and conduct calculated to compel Bailey s testimony occurred under circumstances in which the witness had no right or privilege not to tes tify, we fi nd the ju dge s o verall co nduct unnec essarily stro ng, th reatenin g, and prejudicial to the defendant. The tenor of the warnings to Bailey were not judicious in that the warnings were not neutral. The trial judge instructed a colleague to try and -27- convict the witness of contempt, and the trial judge advised the witness he could testify favorably to the defense, even though his prior testimony was to the contrary. The trial judge s admonitions were aimed at Bailey, an important witness for the State, after that witness expressed a reluctance to testify. The effect of the judge s comments to the witness resulted in the injection of information that improperly influenced the witness s decisio n to testif y, and, ultim ately, chan ged tha t witnes s s testim ony. For the foregoing reasons, we hold that Judge Prevas s warnings and conduct directed towards the State s witness were prejudicial to Archer and denied him a fair trial. We base our holding n ot only on Mr. Archer s constitutional right to due process but also upon our inherent superv isory auth ority over the adm inistratio n of jus tice in M aryland c ourts. See United States v. Hastings, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983) ( discussing the purposes underlying the use of the supervisory authority of the Court. They are: to implement a remedy for violations of recognize d rights, to pres erve judicial in tegrity by ensuring that a con victi on re sts on approp riate consideratio ns va lidly b efor e the jury, as a remedy desig ned to dete r illegal condu ct); State v. Ubaldi, 462 A.2d 1001, 1008 (Conn. 1983) (exercising the appellate court s inherent supervisory authority over the administration of justice in the trial courts below to reverse a criminal conviction because of prosecutorial miscon duct). Moreover, we conclude that under the circum stances of this case, as a matter of Maryland nonconstitutional criminal procedure, the trial judge s improper use of judicial authority compels that we reverse and remand for a new trial. See Mitchell -28- v. State, 320 Md. 756, 769, 580 A.2d 196, 203 (1990) (holding in a summary contempt proceeding, under M aryland nonc onstitutional criminal law, in the interest of justice the defendant was entitled to at least a brief opportunity for allocution before imposing senten ce ). In conclusion , because th e trial judge s admo nitions and c onduct co ntributed to Archer s convictions, we cannot say that Judge Prevas s errors were h armles s. See Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). In Dorsey we said: [W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review o f the record , is able to decla re a belief, be yond a reaso nable doubt, that the error in no way influenced the verdict, such error cannot be deemed harmless and reversal is mandated. Id. Because the trial judge encouraged Bailey to testify and to testify favorably to Archer, Bailey s prior testimony, including his initial identification of Archer as the third assaila nt, was adm itted into evidence. Prior to Bailey s identification, the identity of the third assaila nt was un known . Through Bailey s testimo ny, the State established Archer s identity, that Bailey assisted in Archer s apprehension, and the extent of Archer s complicity in the crimes. Thus, Bailey s testimony constituted both material and crucial substan tive evid ence o f Arch er s crim inal age ncy. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT FOR BALTIMORE CITY AND REMAND THE CASE TO THE CIRCUIT COURT FOR BALTIMORE CITY FO R A NE W TR IAL. COSTS IN -29- THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE. -30- IN THE COURT OF APPEALS OF MARYLAND No. 119 September Term, 2003 ANTHONY RODNEY A RCHER v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Conc urring O pinion by Rake r, J., which Wilner, J., joins Filed: October 7, 2004 Raker J., concurring, in which Wilner, J., joins: I concur in the judgment of the Court that reverses the judgment of the Circuit Co urt. I agree with the majority that the trial judge acted in a wholly inappropriate manner, and I do not believe, on this reco rd, that the erro r can be reg arded as h armless be yond a reaso nable doubt. I write separately to focus upon what I conceive to b e the prejudicial error in the case.9 I do not believe, as the Court seems to hold, that the harmful error as to Archer consisted in Bailey s being coer ced b y the tr ial ju dge to tes tify, when he desired not to do so. Bailey was a recalcitrant witness.10 The State, as well as the defendant, is entitled to have the admissible testimony of competent witnesses, absent just cause. Bailey was a competent and compellable witness who was properly ordered to testify and whose refusal to do so legitimately subjected him to all the penalties allowable for contempt of court. It is not error for a judge to threaten a recalcitrant witness such as Bailey with contempt, or to cause contempt proceedings to be initiated against the witness. Before a person m ay be held in contempt, civil or criminal, the person m ust have fa ir notice of the cou rt s comm ands bef ore being p unished f or failing to comp ly. Thus, the court 9 The majority seems to suggest that Archer would be entitled to a new trial merely because Bailey may have, and probably did, testify because of threats by the trial judge. The cases cited by the majority, see footnote 8, are inapposite and do not support that conclusion. In the cases cited, it was the defendant who was deprived of the witness s testimony as a result of the trial judge s admonition and thereby prejudiced. In my view, it is the totality of the circumstances presented in the instant case, but primarily the court s instruction as to how the witness should testify, that prejudiced Archer. 10 A recalcitrant witness has been defined as a witness before any . . . court or grand jury who refuses, without just cause shown, to comply with an order to testify or produce documents or other information. United States v. Rosa-Ortiz, 348 F.3d 33, 41, n.12 (1st Cir. 2003). has an oblig ation to m ake the order o f the co urt clear to the ind ividual. What a judge may not do, how ever, is to sugge st to a w itness th at, if the witness te stifies in a certain way, that witness may avoid c ontempt p roceeding s. That is error in any situation; a jud ge should never sugg est or pro pose to a w itnes s how that w itnes s saf ely ma y, or ought to, te stify. When a witness is instructed by the judge as to how that witness might testify, the witness s credibility is called into question. Here, possibly because of the trial judge s instructions, Bailey testified favorably to Archer in accord with the judge s suggestion. The State was there by allowed to offer Bailey s prior recorded testimony, which was inconsistent with his present trial testimony and was adverse to Archer. One obvious problem with doing that is that it w ould be difficu lt, if not impossible, for a jury ever to know whether the testimony given was indeed what the witness actually knew and believed, or whether it was more the product of judicial induce ment o r coerci on. In some settings, that kind of conduct can c ome perilous ly clos e to suborning perjury. The State argues, and Judge Harrell believes, that the error was harmless in that the testimony Bailey actually gave from the witness stand was more favorable to Archer than the testimony he was e xpected b y the State to give , and had h e testified con sistently with his earlier testimony, the jury would have heard the same story. I disagree, for several reasons, the most cogent of which is that, as a result of the change in his story, prompted by the judge, Bailey s previous testimony wa s admitted a s substantive evidence and his m ore favora ble testimony from the witness stand was thereby discredited. What the trial judge thus may have done was to su ggest testimony favorable to A rcher that the jury, once apprised of -2- Bailey s earlier te stimon y, likel y would find incredible and disregard, to Archer s obvious detriment. In these circumstances, there was demonstrable prejud ice to Archer. In the case before us, there was not simply a pa ssing sugg estion for B ailey to consider, which would have been bad enough. The trial judge offered that suggestion as a way out of an immedia te trial for criminal contempt, to be followed by the most severe sentence that the law allows. The specter of the trial judg e sitti ng on the bench, in fron t of B ailey, arranging with Judge Themelis over the telephone to immediately try, and even before any trial commenced, to convict and sentence Bailey, followed b y a suggestion that Bailey cou ld escape that prospect by testifying inconsistently with his previous testimony is something which, due process considerations aside, this Court cannot tolerate. The conduct o f the trial judge was prejudicial error and Archer is entitled to a new trial. Judge Wilner has authorized me to state that he joins in this concurring opinion. -3- IN THE COURT OF APPEALS OF MARYLAND No. 119 September Term, 2003 ANTHONY RODNEY A RCHER v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Harrell, J. Filed: October 7, 2004 Petitioner, Anthony Rodney Arche r, was convicted of f elony murder, attempted first degree murder, and two counts of the use of a handgun in a crime of violence. We granted certiorari to determine whether Archer should receive a new trial because the trial judge erred when he threatened a reluctant State s witnes s, Lewis Bailey, with possible contempt and imprisonm ent, and advised the witness that he, contrary to his prior testimony in a codefendant s trial and befo re the Gran d Jury that indicte d Petitioner, co uld testify in favor of the Petitioner, thus permitting the State to introduce any earlier inconsistent statements as substantive evidence of A rcher s culpability. The Majority and Co ncurring opinions here hold that Archer s due process rights were offended by one or more aspects of the trial judge s injudicious and excessive comments. Though I agree there was error, the error was harmless on this record. Thus, I respectfully dissent. I would affirm the judgment of the Court of Special Appeals. What About the Other Evidence? The testimony of Lewis B ailey, the reluctant witness, was not the only inculpatory evidence presented to the jury at Archer s trial. The State also presented eyewitness testimony from the two surviving victims of the robbery-homicide, Rudolph Lyons and William Faulkner. Lyons was adamant in his identification of Arch er as the ma n with whom he first struggled, and who subsequently shot him in the eye as he lay on the sidewalk: -2- [Prosecu tor:] Now, the person that you said approached you and put the gun in your stomach and tussled with you, that s the same person that stood over you and shot you in the face? [Lyons:] Yes. [Pro secu tor:] Is tha t person i n the courtroo m today? [Lyons:] Yes. [Prosecutor:] Where is that person seated? [Lyons:] Right there. That s the person that shot me in my eye and tried to kill me. He thought he killed me but he didn t. You just took my eye. That s all you did. And you scarred me for life. [Prosecutor:] Indicating the defendant for the record. *** [Prosecutor:] How many times did you actually see his face? [Lyons:] When he got up on me and he--when he put the gun in m y stomach, I m looking him right in his eyes. And he grabbed for my chain. That had to take a few seconds. I got the gun aw ay from him and wh en we g ot to tussling, I m still looking at him. And then when I get shot in my shoulder and I fall an d turned aro und, this is the same person standing over the top of me looking me dead in my eye and pulled the trigger. The apparent certainty of Lyons identification was unshaken during cross-examination. The second victim, William Faulkner, also testified that he recognized Archer as one of the three m en involved in the robbery-homicide. Although Faulkner saw Archer s face only after he ran across the street once the shooting began, he positively identified Archer at trial. Add ition ally, two years prior to Archer s trial on 9 December 1999, both Lyons and Faulkner independently picked out Archer in a live police line-up. What to M ake o f the Evid ence Add uced Through Ba iley? A. -3- I agree that the trial judge in Archer s case, Judge Prevas, made unduly heavy-handed comme nts to Bailey an d his lawyer in an effort to induce B ailey to testify at Arch er s trial, as Bailey had promised to do in his earlier plea agreement with the State. Petitioner contends, and the Majority accepts, that, but for Judge Prevas s comments during Archer s trial, Bailey would have stood firm on his refusal to testify and, therefore, the jury would not have heard Ba iley s live testimony, no r excerpts fr om his videotaped testimony from the codefendant s trial on 30 August 1999. I am not convinced, on this record, that Judge Prevas s comments at Archer s trial necessarily were the clear, procuring cause of Bailey s dec ision to tes tify. 1 Although inapprop riate in context, the judge s threat of life imprisonment for contempt was moderated more than Petitioner would have us believe.2 More impo rtantly, even after these dire admonitions, Bailey nonetheless refused to tes tify, choosing in stead to take his chance s in a conte mpt trial b efore J udge T heme lis. 1 The Concurring opinion, at slip op. 3, also seems to accept that Bailey s ultimate decision to testify, albeit in a somewhat less unfriendly tone towards Archer than previously set, was prompted by the judge [Judge Prevas]. 2 Contrary to Petitioner s assertion at oral argument before this Court, Judge Prevas did not guarantee that Bailey would be convicted of contempt. Rather, he indicated that a sentence would be imposed upon Bailey only if he were convicted of contempt. Additionally, the judge s statement that Bailey could receive life imprisonment for contempt was couched in theoretical terms. He also indicated that he was somewhat uncertain whether this Court would allow to stand such a punishment, if imposed. As Bailey was represented at the time by experienced and competent counsel, it is less likely that Judge Prevas s remarks alone, as inappropriate, injudicious, and excessive as they were, bullied Bailey into submission. -4- There is no credible record of what transpired before Judge Th emelis. It is a fac t, however, that only after appearing before him did Bailey agree to testify in Archer s trial. When asked directly during Archer s trial what occurred in Judge Themelis s courtroom, Bailey testified, The only thing I heard him say was that if I don t testify, it will be 20 years. I don t know if I would g et the 20 years b ut if the jury foun d me gu ilty. (emphasis added). Bailey s ultimate decision to testify, therefore, was not based necessarily on the prospect of a summary conviction for contempt with a punishment of life imprisonm ent as supp osedly theorized by Judge Prevas, but more likely because he perceived a risk of imprisonment of perhaps up to twenty years from Judge Themelis if he wer e fou nd guilty o f con temp t by a jury. For all we know on this record, whatever Judge Themelis said to Bailey could have conform ed to the id eals urge d by th e Majority (see Maj. slip. op. at 24-26). Petitioner further contends that Bailey s testimony also was procured by Judge Prevas effectively granting Bailey a license to commit perjury. I am not convinced that the inapprop riate suggestion to Bailey that he may choos e to testify more favorably (or at least friendlier ) to Arche r than in his prior testimony was a determ inative factor in Bailey s election to testify. Bailey s stated reason fo r his reluctanc e to testify stemmed from a jailhouse assault upon him, which he attributed to retribution for his earlier testimony at the co-defendant s trial and inferentially as a warning regarding further testimony about the crimes. Yet, at Archer s trial, Bailey, supposedly freed by Judge Prevas of any fear of a perjury charge, nonetheless provided substantial and relevant inculpating testimony against -5- Archer, stating that Archer joined in the conspiracy to commit robbery; that he armed him self for that purpose; and, that he participated in the attempted robbery and shooting. These elements of his testimony at Archer s trial were consistent with his earlier testimony at Edmo nds s tria l. Let us consider for a m oment the asserted inco nsistencies between B ailey s testimony at the co-defendant s prior trial and that given at Archer s trial. First, at the prior trial, when asked by the State how he and the co -defenda nts reached the decision to comm it robbery, Bailey testified, [Archer] seen some nice chains that he wanted so he told us, we got to go out the way to get some guns to come back d own h ere and get som e chain s. . . . But at Archer s trial, when asked whose idea it was to commit the robbery, Bailey testified, It was Keith [Edmonds] out there. When confronted by the State about this inconsistenc y, Bailey testified, W e all said that [w e should c ommit robber y], so that a in t noth ing. The second inconsistency was premised on, at the prior trial, Bailey testified that Archer approached Lyons at the start of the robbery. At A rcher s trial, however, Bailey testified that he didn t see whom Archer approached: I wasn t paying nobody no mind. I wasn t paying [Archer] no mind. When confron ted about th e vaguen ess of this testim ony, Bailey said of his prior testimony, I gues s that s w ho we had. I didn t know who had who for real. When pressed further by the State, Bailey testified, It was that [ the events were fresher in his mind at the prior trial]. But not really though. Because I forget things. You understand, I was going to . . . a slow education school. The final inconsistency in Bailey s testimony was -6- whether he observed, after the robbery-homicide, Edmonds hand his gun to Archer. At the prior trial, Bailey admitted to seeing the transfer; but at Arch er s trial, when asked if observed the transfer o f the gun, B ailey testified, . . . I ain t see [sic] that. Give the gun? I don t recall. These so-called inconsistencies do not amount to perjurous testimony given under the implied immunity that Petitioner asserts Judge Prevas effectively extended. To the contrary, it is just as likely that Bailey gave testimony to the best of his present recollection, given the lapse of five years since the shooting and the fact that Bailey was a self-described slow learner who lacked the reading skills necessary to refresh fully his recollectio n with the transcript o f his testimon y at the prior trial. 3 3 The so-called inconsistencies between Bailey s testimony at Archer s trial and that given at Edmonds s trial seem relatively insignificant. Which of the alleged criminal Svengali s hatched the original plan to rob, whether Archer approached Lyons early or later in the criminal episode, and whether Edmonds passed his weapon to Lyons after the crimes transpired are of minimal or no significance to the elements of the crimes for which Archer was convicted and figure only in the overall credibility assessment assigned to the jury. Other than his important role in identifying to police Archer as the third miscreant, Bailey s trial testimony regarding Archer was either favorable to Archer (in that it was less culpable than before) or, in terms of culpability, cumulative to that of Lyons and Faulkner. If Bailey s reasons for his reluctance to testify had substance, it is ironical in the extreme that Archer shall prevail here, considering the jailhouse intimidation of Bailey, because Judge Prevas assertedly counter-intimidated Bailey into testifying. The Concurring opinion, concerned about the potential harm to Archer s ability to receive a fair trial in the face of the testimonial inconsistencies, frets that it would be difficult, if not impossible, for a jury ever to know whether the testimony given was indeed what the witness knew or believed, or whether it was more the product of judicial inducement or coercion. Concurring slip op. at 2. Notwithstanding my explained view as to the relative triviality of these inconsistencies, I also conclude that resolution of what parts of Bailey s testimony (current and former) to believe and what parts to discredit was a routine function that this jury was not hampered in doing, or confused about, on this record. The Concurring opinion assumes that the jury in fact discredited or likely would find incredible and disregard Bailey s testimony favorable to Archer. Id. at 3 (emphasis added). I make no such unwarranted assumption (continued...) -7- In Brown v. State, 339 Md. 385, 663 A.2d 583 (1995), a prosecutor s statement was held to be error where, in her closing argument to the jury, she argued that if it found the defendant guilty, it could r ecom mend mercy. Id. at 395-96, 663 A.2d at 588-89. The jury found the def endan t guilty, but d id not re comm end m ercy. Id. at 396, 663 A.2d at 589. The majority in Brown could not conclude, beyond a reasonable doubt, that the jury, after considering the prosecutor s remark, had not convicted Brown based on a lesser standard of proof. Id. at 397-98, 663 A.2d at 589. Writing in dissent, Judge Rodowsky, joined by Judges Chasanow and Raker, opined that because the verdict was unqualified, the prosecutor s error was harmle ss. Id. at 398, 663 A.2d at 590 (Rodow sky, J. , diss entin g). S ome wha t similarly, the record in the present case does not compel the conclusion that Bailey relied on the comme nts of Judge Prevas in Archer s case to reach his decision to testify. As did the Majority in Brown, the Majority here engages in an interesting, but irrelevant, discussion of a problem in the abstract. Id. at 398, 6 63 A.2 d at 590 . B. Even if Bailey s testimony in Archer s trial was procured solely or was caused proximate ly by Judge Prevas s comments, the errors committed by Judge Prevas were harmless. 3 (...continued) because there were lots of reasons, other than the mere inconsistencies, for the factfinder to believe or discredit any portion or all of the evidence attributable to Bailey. See Fn. 4 infra. -8- When a reviewing court finds trial error, the appellate court must reverse the judgment below unless it concludes the error was harmless. See Dorsey v . State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). In making that determination, the reviewing court conducts an independent review of the record w ith the end o f determin ing whe ther it is satisfied beyond a reasonable doubt that the error in n o way in fluenc ed the v erdict. Id. In other words, there must be no reasonable possibility that the decision of the finder of fact would have been different had the tainted evidence been excluded. Ross v. Sta te, 276 Md. 664, 674, 350 A.2d 680, 687 (1976). In the present case, a reasonable fact-finder could have found Archer guilty, absent Bailey s testimony, because there was overwhelming other evidence supporting the convictions. The oft-repeated test for sufficiency is whether, after viewing the evidence in the light most favo rable the pro secutio n, any rational trier of f act could have found the essential elements of the crime beyond a reasonable doubt. Tichnell v. Sta te, 287 Md. 695, 717, 415 A.2d 830, 842 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 995 S.Ct. 2781, 2789 (1979)). In the present case, Lyons provided strong and unshaken eyewitness testimony that he got several g ood look s at Arche r s face du ring the rob bery-homicid e. Lyons positiv ely identified Archer as the man who shot him on the night o f 11 Se ptemb er 1997 . In addition to Lyons s testimony, the jury also heard from a second eyewitness, Faulkner. Faulkner testified that he too re cognized Archer s f ace from the robbery-h omicide, alb eit he saw Archer s face only when running from the scene; thus, his testimony may have commanded -9- somewhat less persuasive force than that of Lyons. In considering the sufficiency of evidence, however, it is not the role of the appellate court to re-weigh evidence or determine the credibil ity of a w itness. See, e.g., Jon es v. State, 343 Md. 448, 465, 682 A.2d 248, 257 (1996) (citing State v. Raines, 326 Md. 582, 590 , 606 A.2d 265, 268 (1992); Wilson v. Sta te, 319 Md. 530 at 535, 573 A.2d 831, 833-34 (1990)). Rather, due regard must be given to the jury s findings of fact and its opportun ity to observe and assess the credibility of witnesses. See, e.g., White v. Sta te, 363 Md. 150, 162, 767 A.2d 855, 861 (2001) (and cases cited therein). Although Faulkner s testimony was not as uneq uivocal as th at of Lyons, h is testimony provided a second positive identification of Archer. The record before us shows Lyons s and Faulkner s testimony was uncontr adicted, and therefore, under the Jackson analysis, we must assume was believed by the jury. Thus, the jury had befo re it on wh ich to base its verdict the tes timony of tw o eyewitness es who s aw Arc her attempt to rob them at gunpoint and shoot Lyons in the eye. Furthermore, both Lyons and Fau lkner indep endently identified A rcher in a live police line-up two years prio r to the trial. 4 4 Archer raises no appellate issue before this Court that Bailey s identification of him to police tainted the line-up. Moreover, the jury was aware that Bailey s testimony at Archer s trial, watered-down or otherwise, was subject to a plea agreement regarding his role as a confederate of Archer s in the crimes. Judge Prevas, in his final instructions to the jury, gave the following specific direction as to Bailey s testimony: You ve heard testimony from Lewis Bailey who was an accomplice. An accomplice is one who knowingly and voluntarily cooperated with, aided, advised or encouraged another person in the commission of a crime. You must first decide whether the testimony of Lewis Bailey was corroborated before you may (continued...) -10- It is the well-establish ed rule in Maryland that the testimony of a single eyewitness, if believed, is su fficient evid ence to support a conv iction. See Branch v. State, 305 Md. 177, 502 A.2d 49 6 (1986); Walters v. S tate, 242 Md. 235, 237-38, 218 A.2d 678, 680 (1966) (stating, identification by the victim is ample evidence to sustai n a con viction. ). This Court has held that even when a witness cannot identify the defendant at trial, evidence of the witness s previous identification of the def endant in a line up is suf ficient to susta in a verdict. See, e.g., Nance v . State, 331 Md. 549, 560-61, 629 A.2d 633, 639 (1993); Bedford v. State, 4 (...continued) consider it. The defendant cannot be convicted solely on the uncorroborated testimony of an accomplice. However, only slight corroboration is required. This means there must be some evidence in addition to the testimony of Lewis Bailey tending to show, either one, defendant committed the crime charged. Or, two, the defendant was with others who committed the crime at the time and place the crime was committed. If you find the testimony of Lewis Bailey has been corroborated, it should be considered with caution and given such weight as you believe it deserves. If you find the testimony of Lewis Bailey has not been corroborated, you must disregard it and may not consider it as evidence against the defendant. Remember, the defendant cannot be convicted solely on uncorroborated testimony of an accomplice. You also heard testimony that Mr. Bailey has pleaded guilty to a crime arising out of the same events for which the defendant is now on trial. The guilty plea of this witness must not be considered as evidence of guilt against the defendant. You may consider the guilt of the witness in deciding whether the witness is telling the truth, but for no other purpose. You may consider the testimony of a witness who testifies or has provided evidence for the state as a result of a plea agreement, or a promise that he will not be prosecuted, or a financial benefit, or a benefit. However, you should consider such testimony with caution because the testimony may have been influenced by a desire to gain leniency or freedom or financial benefits or a benefit by testifying against the defendant. -11- 293 Md. 172, 443 A.2d 78 (1982). With the overwhelming evidence provided by Lyons and Faulkner alone, looked at in a light most favorable to the prosecution, a rational trier of fact could have fou nd Arch er guilty beyond a reasonab le doubt. Judge Prevas s errors, therefore, were harmless. T he judgm ent of the C ourt of Sp ecial App eals should be affirmed. Anthony Archer v. State of Maryland No. 119, September Term, 2003 -12-

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