Simmons v. State
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McKim McKenney Simmons v. State of Maryland No. 57, September Term, 2005. CONSTITUTIONAL LAW - FIFTH AMENDMENT PRIVILEGE AGAINST SELFINCRIMINATION: The trial court has discretion to determine whether a witness may be allowed to invoke the Fifth Amendment privilege in the presence of the jury. The holding of Gray v. State, 368 Md. 529, 796 A.2d 697 (2002), that, under certain circumstances, a defendant may call a witness before the jury to have the witness assert the Fifth Amendment privilege against self-incrimination, in order to permit the jury to draw the negative inference that the witness was the perpetrator of the charged crime, does not provide a basis for the admission of evidence that another person would assert the Fifth Amendment privilege against self-incrimination if questioned about the events at issue in the defendant s case if the defendant does not follow the procedure set out in Gray, which requires calling the other person as a witness. EVIDENCE - CROSS-EXAMINATION - RELEVANCY: The trial court did not abuse its discretion in preventing the defense from questioning the expert witness as to his knowledge of a witness out of court purported assertion of the Fifth Amendment. In the Circu it Court for H oward C ounty Case No. 13-K-03-042581 IN THE COURT OF APPEALS OF MARYLAND No. 57 September Term, 2005 MCKIM MCKENNEY SIMMONS v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Filed: April 17, 2006 In this case, we must determine whether the trial court committed reversible error by refusing to permit appellant during cross-examination of the State s medical expert to ask the expert whether his medica l opinions co ncerning th e victim s inju ries would change if he knew that appellant s wife had written a letter in dicating he r intent to assert h er Fifth Amendment privilege against self-incrimin ation if called to testify in the case . We shall h old that the trial court acted within its discretion in prohibiting this proposed line of crossexamina tion, and aff irm the judg ment of th e trial court. I. Appellant McK im McK enney Simm ons was indicted by the Grand Ju ry for the Circu it Court for How ard Cou nty for the off enses of p hysical child abuse, second degree assault, and reckless endan germe nt. He proceeded to trial before a jury and was convicted on all counts. He was sentenced to a term of incarceration of ten years, four suspended, for the child abuse conviction, and a concurren t three year sentence for reckless endanger ment. Th e assault conviction was merged for sentencing purposes. Around 7:10 a.m. on March 18, 2003, paramedics arrived at appellant s a partment in response to a 911 call. The paramedics we re let in by appella nt, who told them that h is daughter Nyah had fallen off a bed. Appellant then led the paramedics to the bedroom, where they found Nyah lying on the bed. Paramedics found her to be unresponsive, with a weak pulse and shallow respiration. They transported her to Howard County General Hospital, ac compan ied in the am bulance b y appellant. Upon arrival at Howard County General, Nyah was examined by Dr. Nizhut Hando. Dr. Hando observed Nyah to be apneic, unresponsive, and breathing very shallowly. He believed she was suffering from intracraneal bleeding, but did not perf orm a CA T scan to confirm this because he believed Nyah was not stable e nough to unde rgo the scan. Dr. Hando regarded Nyah s condition as very critical, and arranged to have her transported to Johns H opkins H ospital. Ano ther physician a t Howa rd Coun ty General, D r. Jackson T sai, treated Nyah before she was transported to Johns Hopkins. Finding her vital signs unstable, he established an airway for her to breathe through, and gave her IV fluids, medications, and chest compressions in an effort to raise her heart rate. Nyah was transported to Johns H opkins, where she was diagnosed with right frontal epidural hema toma, a left frontal su barachno id epidural hemorrhage, right parietal subdural hematoma, right parietal bone fracture, and interhemispheric subdural hematomas. An opthalmologist examine d Nyah an d determin ed that she h ad retinal hemorrhages and macular folds in both eyes. Appellant related the following version of the events of March 18th in a statemen t to the police. Nyah fell asleep around 10 p.m. the night before. She slept on the floor because she had fallen out of bed before. Appellant awoke around 5:15 a.m. and helped his wife, Patricia Dockery, get ready for wo rk. Dockery left around 6:20 a.m. Nyah awoke some time after Dockery left. Appe llant noticed th at Nyah had what app eared to him to be vomit on her shoulder, so he decided to give her a bath. He laid Nyah on the bed, and left the room to get -2- a plastic bathtub. On his way back with the tub, appellant heard Nyah scream. He then dropped the tub, ran into the bedroom, and discovered Nyah on the floor, noticing that she had a scratch on her face. Appellant placed Nyah on the bed, and calle d his wife, Dockery, around 7:03. When Dockery did not answer, he left a message. She did not call back, and appellant called her again around 7:10, reaching her this time. Dockery told him to call 911, which he did. After the police learned that Nyah s doctors believed that her injuries w ere nonaccid ental, they re-questioned appellant on several occasions concerning the events of the 18th, specifically confronting him with the diagnoses of the physicians an d their belief that Nyah s injuries were likely caused by nonaccidental trauma. Appellant consistently adhered to the version of events h e initially told police, ex pressly denying th at he shook Nyah. Prior to trial, the State made an oral motion in limine to preclude the defense from mentioning in opening statement the possibility that Dockery would assert her Fifth Amendment privilege against self-incrimination. The State relied upon Gray v. State, 368 Md. 529, 796 A.2d 697 (2002), and argued that whether Dockery could assert her privilege before the jury needed to be first decided by the trial c ourt, outs ide th e pre senc e of t he ju ry. Defense counsel indicated to the court that he had no intention of mentioning in opening the fact that my client s wife has now invoked her Fifth Amendment privilege against self- -3- incriminatio n. Defense counsel expounded on his theory as to the admissibility of the evidence as follows: My guess is, how the evidence is going to come o ut, that a missing witness instruction will not lie with respect to that [inaudible] . . . She s not un iquely available to the State. Whether her assertion is capricious or rea l, I don t think I ll ultimately get that instruction. However, the State s relying on experts in this case there w ere four peo ple with this v ictim in the last twenty-four hours before her injury. If the State s expert is relying on any information from Ms. Dockery . . . As a matter of fact, if the State s expert is relying on past O.B./G.Y.N. records, pediatrician s records, w hatever factors go in to their determination for the timin g of this injury, the cause o f this injury, clearly Ms. Dockery s assertion of her Fifth Amendment privilege goes to the heart of the matter that they must co nsider. And if tha t exp ert has no t con sidered it, this jury must know how that would change his or her opinion. I ll ask permission from the Court before I would c onfront one of the State s witnesses; howev er, if Ms. D ockery violently shook this baby and this expert does not know that, this jury must. And I understand what the State is saying, and I have no issue I was not going to utilize the two letters have, or a ctually, the one; I guess one was sent to the State, one wa s sent to me w herein . . . And again, I can mark it or introduce it for the Court s consideration she asserts her Fifth Amendment. I just believe that is a factor in an y experts determ ination of w ho cause d this injury, wh en the in jury was caused . . . . Defense counsel agreed not to mention anything during opening statement about Do ckery s intention to assert the privilege and the court reserved ruling on the issue, with the specific assurance from defense counsel that the issue will only come up during the expert s testimo ny, if at all. -4- At trial, the State called Dr. Allen Walker, a physician at Johns Hopkins. On direct examination, Dr. Walker began by explaining the nature of Nyah s injuries and the treatment she received for them. He then testified as to h is discussions with appellant an d Dockery during the course of treating Nyah: Q: [D]id you have occasion to meet at any time with Nyah Simmons parents? A: I did. Q: Now, can you tell us when you met with Nyah Simmons parents? A: I met with the p arents on M arch 20th a t about 4 o c lock in the afternoon. ****** Q: Now, can you describe what the purpose of the meeting on March 20th at 4:00 p.m. was? A: Yeah, several purposes. The first was simply to sit down and take what we call a history. Trying to understand Nyah as a child, and also u nderstand ing wha t lead to to her condition. Also to review w ith the parents what was going on. Because the pediatric intensive care unit or the PICU can be a very confusing place. There are lots of docto rs involved . And so w e try to make sure that parents understand w hat s happ ening. An d in particular what our thought processes are, what our opinions are, and what they might expect, at least from the point of view of the investigations to come, so that they at least don t have a lot of surprises in store for them. Q: Now, did you have occasion during the course of the examination in preparation for your meeting to look at the history that had been provided from the parents? -5- A: Actually, we took yes, and then we took the history directly fro m the p arents a s well. Dr. Walker then offered his opinion as to the cause of Nyah s injuries, testifying as follows: Q: Dr. Walker, did you have occasion, after you reviewed the records and the examination, when you were meeting with the parents, and I guess at this point, I would say at this point, have you had an opportunity to form an opinion as to what caused injuries to Nyah Simmons? A: Yes. You know, after review of the CT scans and x-rays and the findings of the opthalmologist and some of our lab tests, yes. Q: And to a degree of medical certainty, Dr. Walk er, can you tell us what is your opinion as to the cause of Nyah Simmons injuries that exhibited themselves on March 18th? A: To a reasonable d egre e of m edic al ce rtain ty, the findings are diagnostic of of ab usiv e hea d trauma by shaking. And because of fracture, there was at least one impact. But these are really diagnostic of of physical child abuse in the form of shakin g, and a t least on e impa ct. Dr. Walker explained tha t his opinion was based on the fact that the injuries suffered by Nyah are caused almost exclusively by shaking, and that Nyah s injuries were too severe to have been caused by falling off a bed. Dr. Walker then testified as to the manifestation of Nyah s injuries: Q: C an you te ll us, Dr. W alker, a bit about w hen a child with the extent of Nyah s injuries would exhibit symptoms of these injuries, sir? A: With the extent of these injuries with the extent with injuries to this extent, w e would expect symptoms im mediately or certainly within seconds. -6- Q: And what type of symptoms would you expect based on the injuries that were inflicted upon Nyah? A: Typically, f irst, a change in consciou sness, a wh at we call a stupor where somebody doesn t quite know where they are or what s going on, and then very quickly a loss of consciousness, and then ultimately a loss of the reflexes that kind of keep the heart going, and keep breathing going, and that sort of thing. Q: Now, how long would a child be able to survive without medical intervention w ith these types of injuries, Dr. Walker? A: M inutes. On cross-exam ination, defense counsel asked whether Dr. Walker had reviewed Dockery s prenatal records in forming his opinion as to the cause of her injuries, and attempted to determin e the extent to which Dr. Walker was aware of pretrial statements made by appellant and Dockery. He then asked Dr. Walker whether Nyah s symptoms could have manifested themselves after a longer interval than he had previously indicated in his direct testim ony: Q: What are occult injuries, if you know that term? A: Occult injuries wou ld be injuries th at aren t imm ediately obvious on examination. Q: And are there occurrences in a shaken baby case or child abuse cases where there are lucid intervals for children or young children after trauma? A: That s currently a matter of investigation. Q: In the academic literature have you seen anything regarding lucid inter vals afte r inju ry? -7- A: Some people do describe them, yes. Q: Have you ever personally seen that after head trauma? A: After minim al he ad traum a, yes. After major head injury, no. Q: CPR can cause venous pressure and also cause retinal damage , or retinal hem orrhaging , correct? A: That s not been demonstrated, no. Q: In the academic literature, have you read anything about retinal hemorrhages coming or increasing from CPR use? A: I ve read fairly extensively in the literature about that question, and to my and in my opinion there is no evidence that supports the occurre nce of retin al hemorrh ages as a re sult of CP R. Defense counsel then inquired as to the basis of Dr. Walker s medical opinions: Q: The prosecutor . . . asked you if you looked at the whole injury when forming an opinion, and you indicated, you know, preg nancy, the vaccine, yes, yo u do look at everything; is that correct? A: We consider everything. Q: And the mother and father s commu nications to you are factors in your determination of what happened? A: Th at s corr ect. Prior to Dr. Walker s testimony, the court, out of the pres ence of th e jury, again considered whether appellant could ask Dr. Walker on cross-examination if his opinion as to the timing of the incident that caused Nyah s injuries would change if he knew that -8- Dockery had written letters to the parties lawyers stating that she refused to testify in the case on Fift h Am endm ent gro unds. Docke ry s letter to the State s Attorney read as follows: This letter is concerning the case of M aryland v s. Simm ons. I am the spouse of Mr. S immons and effe ctive imme diately choose to assert my 5th Amendment rights and not testify for or against my husband in the afore mentioned case. F rom this point forward, I will not discuss any details of the allege d events that took place o n Ma rch 18, 2 003. Her letter to defense cou nsel was similar. Patricia Dockery was never called to testify at the trial. Defense counsel made clear to the court that he had no intention of calling Dockery to the stand to have her invoke her Fifth Amendment privilege in the presence of the jury. Defense cou nsel proffered D ockery s letters to show that he had a good faith basis for his proposed line of cross-examination. Defense counsel requested leave of the court to ask Dr. Walker in forming [his] opinion for this jury as the fact finder, one of the fac tors is, did someon e else do it. A nd if they don t know that someone else has invoked the Fifth, I think I have the right to ask them that. In addition, he told the court that he believed he was entitled to pursue this line of questioning because h e believed th at the exper t intended to rely at least in part on Docke ry s statements in order to o ffer an op inion on the timing of th e injuries, and that consequently the expert s opinion as to the timing of the injuries may change if he were to draw a negative inference about the v eracity of her p rior statements given he r intention to a ssert her Fifth Am endmen t priv ilege if ca lled t o testify. The State opposed the request, making the following points: -9- The doctor can t testify who he thinks did th is. Basically he s just going to come in, su mmarize the injuries, an d say this is [what] happened to this child. This is the cause of these injuries. He does not point a finger as to one person or the other. That would be impermissible. . . . Number two, for a Fifth Amendment issue to be asserted, the perso n has to co me into Court and do it. A nd obvio usly the State s no t going to ca ll her to do that and I think if the defense, in presenting the defense that somebody else did it, wants to do that, they have to call her to have her inv oke on the reco rd. (Empha sis added). The prosecutor explained to the court her reaso ns for offering D r. Walker s testimony: The State is offering [Dr. Walker] for explaining the nature of the injuries which have bee n stipulated to which were suffered by this child explaining the me chanis m of in jury to this c hild. . . . He will testify that once these injuries have been inflicted upon a child, the extent of these injuries is such that the symptoms that would have been seen by a person would have been almost automatic. . . . I will tell you we didn t send Dr. Walker all of the police reports and discovery materials because we were fo cusing on the child s injuries, the nature of the injuries, the mechanism of injuries and the timing of those injuries. A nd that is what h e is bein g called on. The trial cou rt agreed w ith the State tha t it was impro per to ask Dr. Walker s opinion as to who actu ally ca used the in jury. The court ruled that defense counsel could not ask Dr. Walker on cross-examination whether his opinion as to the timing of Nyah s injuries would be altered if he learned that Dockery intended to assert her Fif th Amen dment righ ts at trial if called to testify. The court based its ruling on its conclusion that appellant s cross-examination of Dr. Walker on the issue of the timing of the injuries would not be aided by the proposed line of questioning: -10- [THE COURT]: I don t see an y problem, I m ean I certainly don t see any problem and certainly it would be appropriate for you to cross-examine as to if the testimony s going to be that these symptoms would have occurred im mediately for you to challenge that and to question whether or not the injurie s could have occurred at an earlier time. I mean the jury already has the information that the mother was there until 6:30 that morning. I just, you know , the whole Fifth Amendment issue, I m just not sure how why that would m ake a difference with the physician. [Defense counsel]: I think it makes I think it would be a factor for the physician in telling this jury his opinion. [THE COU RT]: I don t know. I th ink you can still crossexamine. I don t think it [is] app ropriate . I think that it could be interpreted that this is being offered for some other reason to get this before the jury. And I don t think that that s appropriate. I think you can certainly challenge as to the timing without getting into the fact that she s asserted her Fifth Amendment right against self-incrimination. Appellant noted a timely appeal to the Court of Special Appea ls, and we is sued a w rit of certiorari on our own initiative prior to consideratio n by the interm ediate appe llate court. 388 Md. 40 4, 879 A.2d 10 86 (2005). II. Appellant s defense at trial was that the injury sustained by Nyah was caused by his wife, Patricia Dockery. He argues on appeal that the trial court erred in refusing to allow the defense to place before the jury the fact that Ms. Dockery asserted her Fifth Amendment privilege against self-incrimination in this matter and further erred in preventing the defense -11- to use this evidentiary fact as a basis on which to question the medical findings of the State s expert witness. Relying on our holding in Gray v. S tate, 368 Md. 529, 796 A.2d 697 (2002), that a criminal defendant can, under some circumstances , offer into evidence a witness assertion of his or her Fifth Amendment privilege, appellant argues that the trial court s refusal to permit his proposed line of cross-examination of Dr. Walker was erroneous.1 1 The Questions Presented section of appellant s brief contained a single question for our co nsideration o n appeal: Did the trial court err in not admitting into evidence the fact that appellant s wife exerted her Fifth Amendment privilege against self-incrimination as a reason f or her not testifying in this case? Appellant s argument section raises the additional issue of whether the trial court erred in prohibiting appellant s proposed cross-examination of Dr. Walker. If this case w ere before us pursuant to a grant of a writ of certiorari subsequent to decision in the Court of Special Appeals, we would ordinarily restrict ourselves to consideration of the questions presented in the certio rari petitio n. See Md. R ule 8-131 (b)(1); Wynn v . State, 351 Md. 307, 322-23, 718 A.2d 588, 595-96 (1998). In this case, however, because w e granted c ertiorari prior to decision in the Court of Special Appeals, we must consider those issues that would have been cognizable b y the Court of Special A ppeals. Md. R ule 8-131(b)(2). In Langw orthy v. State , 284 Md. 588, 399 A.2d 578 (1979), w e held that an appellant failed to adequately raise an issue in the Court of Special Appeals when the issue was neither raised in the que stions p resente d nor in the argu ment se ction of his brief . See id. at 595-96, 399 A.2d at 582-83 (c iting predecessors of Md. Rule 8-504(a)(3), requiring statement of questions presented in party s brief, and Md. R ule 8-504 (a)(5), requiring [a]rgum ent in support of the party s position in party s brief). We have not, however, held that a party fails to adequa tely raise an issue b efore the C ourt of Sp ecial App eals whe n the party fails to separately state the issue in the questions presented section of its brief, but raises the issue in the argument section of its opening brief. Consequently, we shall consider the issue of whether the trial court erred in limiting the scope of ap pellant s cross-examination o f Dr. Walker, despite the fact that appellant s only question presented does not raise this issue. Appellant also argues that the trial court erred by refusing to follow Gray and adm it Dockery s letters into evide nce. Altho ugh the letters were marked as defense exhibits, (contin ued...) -12- Appellee s reply is twofo ld. First, appellee contends that Gray is inapposite to the issue before the Cou rt. Appellee argues that Gray applies only w hen a def endant see ks to have a witness take the stand at trial and assert the Fifth Amendment privilege; appellant did not seek to do so and told the court he had no intention of calling Dockery as a witness. Second, appellee maintains that the trial court acted within its discretion to control crossexamination when it ruled that appellant could not pursue his proposed cross-examination of Dr. Walker. III. Appellant s first argum ent before this Court re sts entirely on Gray v. S tate, 368 Md. 529, 796 A.2d 697 (2002). Although at first glance this case may seem to present an issue concerning the scope of our holding in Gray, upon examination it becomes clear that it does not, as Gray is inapposite to the facts before us. Appellant s theory is apparently twopronged: first, in an effo rt to show th at someon e else other than the defendant shook the baby, the trial court erred in not permitting the def ense to place before the jury the fact that Dockery asserted her Fifth Amendment privilege against self-incrimination, and second, that the court erred in preventing the defense from using Dockery s assertion of the privilege to question Dr. W alke r s te stimony as to th e tim ing o f the shak ing o f the baby. 1 (...continued) appellant did not attem pt to offer them into evidence after the trial court ruled that he could not cross-examine D r. Walker about Dockery s purported assertion of her privilege against self-incrimination. -13- Appellant s argument that the trial court erred in refusing to allow the defense to place before the jury the fact that Dockery asserted her Fifth Amendment privilege against selfincrimination is not properly before this Court because he never attempted to hav e Dockery assert her Fifth Amendment privilege before the jury. As a result, the issue is not before us because it was not raised in or decided by the trial c ourt. See Md. R ule 8-131 (a); Walker v. State, 338 Md. 25 3, 262, 658 A.2d 239, 243 (1995 ). On the merits, appellant s argument fails for several reasons. His first argument is meritless because this case does not fall within the reasoning of Gray. His second argument is specious as well, because Dockery s so-called assertion of the privilege h as nothing to do with Dr. Walker s medical opinion as to the timing of the injury to the baby. In addition, Dockery never exerted her Fifth Amendment privilege against self-incrimination. She only expressed an intention to do so in letters mailed sometime before the trial, notwithstanding the trial court s characterization of these letters as a bona fide assertion of the privilege. A. The Applicability of Gray v. S tate In Gray, we considered the ques tion of w hether a trial co urt had disc retion to determine whether a witness should be allowed to invoke the Fifth Amendment privilege in the presen ce of th e jury. Gray, 368 Md. at 532-33, 796 A.2d at 699. In that case, we considered a limited exception to the general rule in criminal cases that a witness may not invoke the Fifth Amen dment before the jury. We held that under certain circums tances, a -14- defendant in a criminal case may ca ll a witness at trial before the jury to invoke the privilege agains t self-inc riminatio n. Id. at 564, 769 A.2d at 717. We stated as follows: We believe that a trial court has some discretion to consider permitting a defenda nt in a crimin al case to call a witness to the stand to invo ke his Fifth Amendment privilege in the presence of the ju ry if the trial court first determines whether sufficient evidence has been presented, believable by any trier of fact, of the possible gu ilt of the witness the defen dant wan ts to cause to invoke his Fifth Amendment privilege before the jury. The court, in the ex ercise of tha t discretion, m ust conside r, as well, the prejudice to the defen se of not allo wing th e potentially exculpatory witness to invoke his Fifth Amendment privilege in the p resence o f the jury. In opining that such discretion exists, we note that such testimony, if permitted, might be subject to the same restraints that a trial jud ge norm ally may exercise a s to relevan cy, repetitiv eness, a nd the lik e. Id. at 558-59, 796 A.2d at 714 (emphasis added). Judge Cathell, writing for the Court, set out a general procedure to be followed: When a defendant proffers a defense that the crime was committed by another person and the defendant wants to call as a witness that person only to invoke his Fifth Amendment privilege against self-incrimination on the witness stand in the presence of the jury, the trial court, on the record, should make a determination of whether sufficient other evidence has been proffered that, if believed by any trier of fact, might link the accused witness to the commission of the crime. If the trial court finds that such sufficient evidence, linking the accused witness to the crime and b elievable by an y trier of fact, exists that could pos sibly cause any trier o f fact to infer that the witness might have committed the crime for which the defendant is being tried, then the trial court has the discretion to permit, and limit as norm ally may be appropriate, the defendant to question the witness, generally, abou t his involvem ent in the offense and have him invoke his Fifth Amendment right in the jury s pres ence. -15- Id. at 564, 796 A.2d at 717. Appellant s reliance upon Gray is misplaced. Defense counsel made clear to the trial court, over and over again, that he had no intention of calling Dockery as a witness. He never asked the court for permission to question D ockery abou t her alleged in volveme nt in the offense a nd to have her in voke her Fifth Amendmen t priv ilege befo re the jury.2 There is simply no error and no Gray violation. 2 Because we reversed Gray s conviction on other grounds, we did not opine on the proper procedure to be followed when a defendant desires to present a witness whom the defendant asserts is the perpetrator of the crime for which the defendant is charged, and that witness desires t o exerc ise the rig ht to rem ain silen t. Id. at 558, A.2d at 714. Judge W ilner, in his concurring opinion , joined by Judges Raker a nd Harrell, discussed the trial court s exercise of the discretion to admit such testimony. His suggestion as to the best course of action for the trial court bears repeating: In many instances, perhaps in most, the best course of action would be to have the witness invoke the privilege and make clear his or her u nwilling ness to tes tify, outside the presence of the jury, and for the court then to inform the jury that (1) the witness was called to testify, (2) the witness invoked his or her right not to answer questions, (3) the witness may not be compelled to give testim ony that migh t be self-incrim inating, and (4) it is for that reason that the jury will not be hearing from the witness. E xcept in tho se situations w here it is particu larly important for the witness to be called to the stand before the jury where, for example, the witness is w illing to testify to some matters but not to others this procedure not only informs the jury of the true state of affairs but gives the defendant the full prospect of the desired inference without the danger of unfair p rejudice either to the witn ess or to the State . Id. at 583, 796 A.2d at 729. -16- B. The Cross-Examination of Dr. Walker The only proper ques tion before this Court on appeal is whether the trial court abused its discretion in preventing the de fense from qu estioning Dr. Walker a s to his knowledge of Dockery s purported assertion of her Fifth Amend ment privilege as expresse d in her letters and whether his knowledge of Dockery s purported assertion of the privilege would affect his opinions as to the nature and timing of Nyah s injuries. Managing the scope of cross-examination is a matter that falls within the sound discretion of the tr ial court . See, e.g., M arshall v. Sta te, 346 Md. 186, 193, 695 A.2d 184, 187 (1997). A trial court does not abuse that discretion when it excludes cross-examination that is irrelevant. See Md. R ule 5-402 (irrelevant ev idence is ina dmissible). E vidence is relevant if it has any tend ency to mak e the existen ce of any fac t that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Md. Rule 5-401. The Fifth Amendment states in part that No person . . . shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V. This prohibition permits a person to refuse to answer official questions at any procee ding wh ere his answers might incriminate him in future criminal proceedings. Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141, 79 L. Ed. 2d 409 (1984). To invoke the privilege, the witness need not be guilty of a crime. Th e privilege extends not only to answ ers that wo uld in themselves support a criminal conviction but also includes those answers that would furnish -17- a link in the chain of evidence needed to prosecute the person for a crime. The constitutional protection is conf ined, however, to those circu mstances where th e witness h as reasona ble cause to apprehend dan ger from a direct answ er. Mason v. United States, 244 U.S. 362, 36465, 37 S. C t. 621, 62 2, 61 L . Ed. 1198 (1917). Significantly, it is not for the witness or counsel to de term ine w heth er a w itnes s can prop erly assert the privilege against selfincrimination; the witness s merely saying that he or she would be incriminated does not excuse the witness from answering the questions. It is the duty of the trial judge to determine whether the witness can properly assert the privilege against self-incrimination and whether the witnes s s silenc e is justifi ed. See Rogers v. United States, 340 U.S. 367, 374, 71 S. Ct. 438, 442, 95 L . Ed. 344 (1 951); Bhagwat v. State, 338 M d. 263, 2 72, 658 A.2d 2 44, 248 (1995). To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered m ight be dangerous b ecause injurious disclosure could result. See Bhagwat, 338 Md. at 272-73, 658 A.2d at 248. The trial judge in appraising the claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. Hoffman v. United States, 341 U.S. 479, 487, 71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951) (quoting Ex Parte Irvine, 74 F. 954, 960 (C.C.S.D . Ohio 18 96) (Taft, J.)); see also State v. Williams, 511 A.2d 1000, 1004 (Conn. 1986) (quoting Ex Parte Irvine, 74 F. at 960). In Bhagwat, we reiterated the test for the witness s entitlement to invoke the Fifth Amendment privilege as follows: -18- The test of the witness s entitlement to invoke the privilege against self-incrimin ation (1) wheth er there is a rea sonable basis for the invocation of the privilege; and (2) whether the privilege is invoked in good faith, was well stated in Choi v. State, 316 Md. 52 9, 560 A.2d 11 08 (1989). It is whether the witness has reasonable cause to apprehend danger from a direct answ er, and whether it is evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be d angerou s because injurious disclosure could result. Bhagwat, 338 Md. at 272 -73, 658 A.2d at 24 8 (internal citations omitted). Applying these we ll-settled principle s, it is clear that Dockery s letters do not amount to a bona fide assertion of her Fifth A mendm ent privilege a gainst self-inc rimination. Dockery was never actually called as a witness at trial. Consequently, no questions regarding the events surrounding Nyah s injuries were ever posed to her in an official proceeding, and there was no determ inati on by the trial court that she had reasonable cause to apprehend a danger of self-incrimination by answering such questions. Thus, Dockery did not assert her privilege against self-incrimination, as she was never placed into a position in which the privilege would potentially be assertable. There fore, he r letters ar e, at best, a statement of her intention to as sert her privileg e against self -incrimination if called to testify at appellant s trial, not a genuin e assertio n of the privileg e. Despite the fact that Dockery s intention to assert her Fifth Amendment privilege against self-incrimination does not satisfy legal requirements to invoke the privilege, the trial judg e see med to tre at the m as such . Accord ingly, we will consider the correctness vel non -19- of the trial judge s ruling. As explained infra, the trial judge s exclusion of the proposed cross-examination based up on the letters o n ground s that the letters w ere not relev ant to challenging the bases of his opinions was proper. Appellant attempted to question D r. Walker regarding D ockery s intention to assert her privilege against self-incrimination purported ly for two purposes: (1) to challenge the basis of Dr. Walker s opinions concerning the causes of Nyah s injuries; and (2) to challenge the basis of Dr. Walker s opinions concerning the timing of the manifestation of Nyah s symptoms . Dockery s in tention to assert her Fifth Amendment privilege is simply not relevant to Dr. Walker s bases for these opinions. Consequently, the trial judge did not abuse her discretion by preventing appellant from cross-examining Dr. Walker regarding Dockery s intention to assert the privilege. As appellant s attorney made clear, his actual purpose for his proposed line of crossexamination of Dr. Walker was to challenge Dr. Walker s opinion concerning who caused Nyah s injuries. Appellant s attorney presupposed that Dr. Walker had formed such an opinion, and that this opinion provided a basis for the opinions he had concerning the nature and causes of Nyah s injurie s. As he ex plained to th e court, he b elieved that D r. Walker, in forming [his] opinio n for this jury . . . one of the f actors is, did so meone e lse do it, and that, for this reason, he was entitled to ask Dr. Walker whether his opinions about the nature, causes, and timing of Nyah s injuries would change if he knew that Dockery had expressed her intention to assert her p rivilege again st self-incrimin ation if called to testify at trial. -20- Appellant s supposition here concerning the basis for Dr. Walker s opinion about the nature, causes, and timing of Nyah s injuries is simply mistaken. Dr. Walker did not rely on any opinion ab out who actually caused Nyah s injurie s in forming his opinion about the nature, causes , or timin g of the se injurie s. As his testimony, both on direct examination and cross-examination, makes clear, the bases for his opinions about the nature of the injuries Nyah suffered were the medical reports of the other doctors who examined and treated Nyah, his own ex amination of Nyah, an d Nyah s m edical history, w hich he learned in part from Doc kery. His opinion that Nyah s injuries w ere caused by shaking w as based o n his conclusion that Nyah suffered certain types of injuries, along with his expert opinion that injuries of this sort are almost exclusively caused by shaking. Similarly, Dr. Walker s opinion that Nyah s sym ptoms w ould have manifested shortly after the injuries were caused was based on his conclusions about the types of injuries Nyah suffered. As a result, D r. Walker s opinions concerning the nature, causes, and timing of Nyah s injuries were not based on any opinion concerning who inflicted the injuries. Consequently, evidence of Dockery s intention to assert her Fifth Amendment privilege against self-incrimination would not tend to undermine the bases for Dr. Walker s opinions concerning the nature, causes, or timing of Nyah s injuries by undermining his opinion concerning who inflicted Nyah s injuries, as Dr. Walker s opinions about the nature, causes, and timing of Nyah s injuries were not based on any such opinion about who inflicted the injuries. Therefore, it was not relevant for the purpose for which it was offered, and the trial court properly prohibited -21- appellant from asking Dr. Walker about this evidence on cross-examination. Moreover, the trial court correctly observed that Dr. Walker c ould not testif y as to who caused the injuries. JUDGMENTS OF TH E CIRCU IT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE P AID BY APPELLANT. -22-
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