Hunter v. State

Annotate this Case

Download PDF

Maurice Galen Hunter v. State of Maryland No. 63, September Term, 2006 Headnote: Under the circumstances of the instant case, the trial judge erred, as a matter of law, by permitting the State to ask the petitioner if other witnesses were lying. We are unable to say, beyond a reasonable doubt, that the error did not affect the verdict. Circuit Co urt for Baltim ore Cou nty Case # 02-CR-2380 IN THE COURT OF APPEALS OF MARYLAND No. 63 September Term, 2006 Maurice Galen Hunter v. State of Maryland Bell, C. J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Cathell, J. Harrell and Battaglia, JJ., diss ent. Filed: March 16, 2007 *Wilner, J., now retired, participated in the hearing and conf erence of this case w hile an active membe r of this Co urt; after being recalled pursuant to the Cons titution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. This case arises from the conviction of Maurice Galen Hunter, petitioner, for one count of first degree burglary under Maryland Code (2002), § 6-202 of the Criminal Law Article 1 for which he was sentenced to 15 years in prison. In an unreported opinion, the Court of Special Appeals, relying on Fisher v. Sta te, 128 Md. App. 79, 736 A.2d 1125 (1999), affirmed the judgm ent of the trial c ourt. This C ourt granted the petition fo r a writ of certiorari filed by petitioner s appellate counsel but denied both the petitioner s pro se petition for a writ of certiorari and the State s conditio nal cros s-petition . Hunter v . State, 394 Md. 478, 906 A.2d 942 (2006). Petitioner presents two questions for review: 1. In a criminal trial, is it error for the judge to allow the prosecutor to ask the defendant whether the police witnesses were lying? 2. If the answer to the preceding question is yes, did the Court of Special Appeals err in holding that the error was harm less, particularly where the underlying facts were con tested, the jury sent out notes suggesting that they were struggling with some of the factual issues, and the prosecutor s closing argum ent aug mente d the pr ejudicia l effec t of the e rror. We hold that, under the circumstances of the instant case, the trial judge erred, as a matter of law, by permitting the State to ask the defenda nt if other witnesses we re lying. We are unable to sa y, beyond a reaso nable dou bt, that the error d id not affe ct the verdict. I. Facts Late in the afternoon of April 10, 2002, Dorothy Johnson returned to her home on 1 § 6-202. Burglary in the first degree. (a) Prohibited. A person may not break and enter the dwelling of another with the intent to commit theft or a crime of violence. (b) Penalty. A perso n who v iolates this sectio n is guilty of the felony of burglary in the first degree and on conviction is subject to imprisonment not exceeding 20 years. 6707 Yataruba Drive in Baltimore County. She discovered that a basement window on the front of her house had been forced open while she was at work. After inspecting her house, she found that an engagem ent ring, a combination D VD-VC R player, three cameras, DVDs, CDs, food, money, a wedding band, and a cell phone were missing. On that same day, April 10, 2002, petitioner pawn ed Ms. Johnso n s engagement ring and other items not related to the 6707 Yataruba Drive address. On or about May 1, 2002, petitioner was arrested for the burglary at 6707 Yataruba Drive and other related crimes.2 He was tried, in the instant case, in the Circuit Court for Baltimore County on October 1, 2003, on the charge of burglary in the first degree. At trial, the manager of the pawnshop testified that petitioner was a long-time customer who usually retrieved the items he paw ned. The paw nshop mana ger was unaw are of the police coming to the pawnshop to look for anything petitioner had pawned on any prior occasion. Detective Tyrone Knox testified that after petitioner was taken into custody, he confessed to the burglary at 6707 Yataruba Drive. Detective Knox also testified that petitioner direc ted the detec tives to 6707 Y ataruba D rive and po inted it out as the location of th e burglary. At trial, petitioner denied committing the burglary at 6707 Yataruba Drive. He also 2 It also appears that petitioner was arrested for other burglaries which were n ot a part of the trial giving rise to this appeal. It is unclear on this record whether the other items pawned by petitioner were related to any of those burglaries. -2- denied confessin g to the burg lary and pointin g out the ad dress. On d irect examin ation, petitioner testified that he came into possession of the ring when he encountered a n old friend, Da vid Hairsto n, outside the pawnsh op. Acco rding to petitioner, he was on his way into the pawn shop to pa wn som e of his own item s when H airston gav e him the ring to pawn in exchange for half of the proceeds. Petitioner testified that he provided Hairston s name to the police. The relevant portions of the State s cross-examination ensued: [The State:]: Mr. Hunter, it is your testimony then that Detective Knox who just c ame in he re and testified lied, right? [Petitioner:]: I d idn t say that. [Defense Counsel:] Objection. [Petitioner:] I m not even going to say he lied. [Defen se Coun sel:] Mr. H unter, just a m oment. [The State:] I ll withdraw th e question, Your H onor. [The C ourt:] He an swered it. [Defense Counsel:] Move to strike. [The Court:] Move to strike the fact that he sa ys no, he didn t say that. It s okay with m e. I ll strike it. ... [The State:] And if the detective were to testify that Mr. Hairston, his name was never brought up to him, that would be a lie? [Defense Counsel:] Objection. [The Court:] Overruled. [The State:] Would that be a lie? [Petitioner:] I to be honest with you, I told him numerous people, numerous names. ... [The State:] You never told the police how you broke into that house, righ t? [Petitioner:] No. [The State:] And you definitely told them about Mr. Hairston? [Petitioner:] Yes. -3- [The State:] So if the de tective were to testify that Mr. Hairston s name th at you never b rought up Mr. Ha irston s nam e to him, that w ould be a lie? [Defense C ounsel:] Objection. Ask ed and answ ered, Your Ho nor. [The Court:] No, overruled. Cross examination. [Petitioner:] I guess it would be a lie. ... [The State:] Sir, you don t personally or didn t personally have anything against Detectives Ramsuer or Knox before this incident, did you? [Petitioner:] No, I didn t even know them. [The State:] So they wouldn t have anything personal against you, wou ld they? [Petitioner:] I w ould assum e not. [The Sta te:] Can t thin k of a reaso n that they wo uld come in and lie about you? [Petitioner:] Couldn t even tell you. ... [The State:] In 1992, isn t true that you were actually convicted of a firs t deg ree b urglary? [Petitioner:] Yes. [The Sta te:] And als o of a misd emeano r theft? [Petitioner:] Yes. [Th e Sta te:] B ut you r telli ng th e truth today? [Petitioner:] Yes, I m telling the truth. [The State:] And the detective was lying? [Petitio ner:] I m telling th e truth. Following petitioner s testim ony, the State ca lled Detective Ramseur as a rebuttal witness. Detective Ram seur testified th at petitioner ha d made s tatements to him abou t his involvement in a burglary at 6707 Yataruba, that he pointed out that address as the one he had burglarized and, to the best of the Detective s recollection, petitioner never mentioned the name David Hairston. Then, in its closing argument, the State made reference to the conflicting testimony -4- of the Detectives and petitioner on three separate occasions: You would have to believe that both of these detectives came in here and lied to you. . . . You would have to believe that these detectives[,] in some mass conspiracy to convict Mr. Hunter[,] have come in here and lied to you. ... Ladies and gentle men, you w ould have to believe tha t those two detectives are the biggest liars in the world in order to believe Mr. Hunter s story. Following closing arguments, the trial court charged the jury with instructions and the jury began to deliberate at 4:20 p.m. (the trial began shortly after lunch that same day). The jury concluded its deliberations at 7:40 p.m. that same night. In its three hours and twen ty minutes of deliberations, the jury sent four notes to the trial court. The first question was about pawnshop tickets and a po lice repor t not in ev idence . Then the jury, at 5 :05 p.m ., wanted to know whether petitioner had signed a statement or confession. The existence or non-existence of a signed confession was not in evide nce. The jury s third note came out at 6:45 p.m. and suggested that the jury could not reach a un animous verdict. The trial court brought the jury into the courtroom and encouraged them to try and reach a verdict. At 7:05 p.m., the jury asked a confusing question about possession of stolen property to which the court responded that it did not understand the question. No further communications between the court and ju ry took place u ntil, at 7:40 p.m., the jury returned a verdict finding petitioner guilty of burglary in the first degree. -5- II. Standard of Review In a criminal context, we will not reverse for an error by the lower court unless that error is both manifestly wrong and substantially injurious. Lawson v. State, 389 Md. 570, 580, 886 A.2d 876, 882 (2005) (quoting I.W. Berman Props. v. Porter Bros., 276 Md. 1, 11-12, 344 A.2d 65, 72 (1975) (quoting Rotwein v. Bogart, 227 Md. 434, 437, 177 A.2d 258, 260 (1962))). We have ofte n said that if a n appellan t or petitioner es tablishes erro r in a criminal ca se, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed harmless and reversal is mandated. Dorsey v . State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976); see State v. Logan, 394 Md. 378, 388, 906 A.2d 374, 381 (2006); Lawson, 389 M d. at 581, 88 6 A.2d a t 882; Spain v. State, 386 Md. 145, 161, 872 A.2d 25 , 34-35 (20 05); Archer v . State, 383 Md. 329, 361, 859 A.2d 210, 229 (2004); Merritt v. Sta te, 367 Md. 17, 31, 785 A.2d 756, 765 (2001). Thus, in a criminal case, upon a showing that an error is manifestly wrong and substa ntially injurious we will reverse the judgment of a lower court and, generally, we will only find the error to be harmless if we are convin ced beyond a reasonab le doubt tha t the error did n ot influenc e the verdic t. III. Discussion A. In a crim inal c ase tried befo re a ju ry, a fundamental principle is that the credibility of a witness and the weight to be accorded the witness testimony are solely within the -6- province of the jury. Bohner t v. State, 312 Md. 266, 277, 539 A.2d 657, 662 (1988) (citing Battle v. State, 287 M d. 675, 685 , 414 A.2d 1266, 12 71 (1980 )); Ware v. S tate, 360 Md. 650, 678-679, 759 A.2 d 764, 77 9 (2000); Conyers v. State, 354 Md. 132, 153, 722 A.2d 910, 921 (1999). Generally, the rule is that it is error fo r the court to p ermit to g o to the ju ry a statement, belief, or opinion of another person to the effect that a witne ss is telling the truth or lying. Bohnert, 312 Md. at 277, 539 A.2d at 662 (citing Thompson v. Phosphate Works, 178 Md. 305, 317-319, 13 A.2d 328, 334 (1940); American Stores v. Herman, 166 Md 312, 314-315, 171 A. 54, 55 (1934)). In Bohnert, we quoted fav orably language that the Co urt of Special A ppeals used in Mutyambizi v. State, 33 Md. Ap p. 55, 61, 363 A.2d 511 (1976): Whether a witness on the stand perso nally believes or disbelieves testimony of a previous witness is irrelevant, and que stions to that effect are imprope r, either on direct or cross-exam ination. 312 Md. at 277, 539 A.2d at 662. Finally, we have said: It is the settled law of this State that a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth. Testimony from a witness relating to the credibility of another witness is to be rejected as a matter of law. Id. at 278, 539 A.2d at 663 (emphasis added). Therefore, it is the well established la w of this State that issues of credibility and the appropriate w eight to give to a witness s testimon y are for the jury and it is impermissible, as a matter of law, for a witness to give an opinion on the credibility of another witness. Petitioner, while relying on Bohnert, supra, argues that it is error for the trial court to permit the prosecuto r to ask a def endant if h e is contending that other witnesses were lying. -7- He also points to on an out-of-state case, State v. Maluia, 107 Haw. 20, 24, 108 P.3d 974, 978 (200 5), to provide further reas oning fo r this argum ent: Such questions, referred to as were-they-lying questions, are improper for the following reasons: (1) they invade the province of the jury, as determinations of cr edib ility are for the jury; (2) they are argumentative and have no probative v alue; (3) they crea te a risk that the ju ry may conclud e that, in order to acquit the defendant, it must find that a contradictory witness has lied; (4) they are inherently unfair, as it is possible that neither the defendant nor the contradictory witness has deliberately misrepresented the truth; and (5) they create a no-win situation for the defendant: if the defendant states that a contradictory witness is not lying, the inferen ce is that the de fendant is lying, whereas if the defendant states that the witness is lying, the defendant risks alienating the jury (particularly if the contradictory witness is a law enforc emen t office r). Petitioner additionally relies on the Maryland Evidence Handbook to demonstrate that werethey-lying questions are impermissible: Impeachment techniques that have been disapproved should not be attempted. The most frequent impropriety seems to involve arguing the cred ibilit y of other testim ony. Q. Mr. Defendant, you heard Officer Dueright say that you were staggering and stumbling and falling down when you walked back to the intersection. A. Yes. Q. Are you saying that he was lying? Such interrog ation is to tally objec tionable . American Stores Co. v. Herman, 166 M d. 312, 3 14-15 , 171 A . 54, 55 ( 1934) . Joseph F. Mu rphy, Jr., Maryland Evidence Handbook § 1303 (3d. 1999). For the reasons stated by Bohnert, supra, the Maluia Court, and Ch ief Judge Murphy in his treatise on evidence, petitioner urg es this Court to ad opt a bright-line rule prohibiting were-they-lying questions. -8- Respondent argues that control over the extent and scope of cross-examination of witnesses has traditionally been left to the discre tion of trial judg es and that th is Court s case law does not prohibit were-they-lying questions. Moreover, according to respond ent, the Court of Special Appe als s cas e, Fisher v. Sta te, 128 Md. App.79, 736 A.2d 1125 (1999), 3 the lone case in this State squarely addressing the issue of were-they-lying questions, expressly permits them to be aske d as a mea ns of high lighting contradictor y testim ony. We agree with petitioner that Bohnert, supra, is controlling in the present case and will begin our discussion of the case l aw b y examining the two cases that provide the relevant foundation for Bohnert. Then we will examine Bohnert and explain how the Court of Special Appeals in Fisher, supra, misconstrued our holding in Bohnert. In American Stores Co. v. Herman, 166 Md. 312, 171 A. 54 (1934), we addressed the issue of whether a witness may characterize the testimony of another witness as true or false. In that civil case, H erman bro ught suit against American Stores and others to recover compensation for injuries she incurred as a result of the collision of a train, upon which she was a passenger, with an American Stores truck. The jury found for Herman and against American Stores, w hich the n appe aled the decisio n. The app eal was b ased, in part, on the 3 The issue of were-they-lying questions was not before this Court in our Fisher v. State, 367 Md. 218, 786 A.2d 706 (2001). Certior ari was granted in ord er to dete rmine . . . the applicability, in any way, of the common law doctrine of felony murder in [certain] homic ides. Id. at 225, 786 A.2d at 7 10. It was affirmed in part and reversed in part on complete ly different grounds than an issue of the appropriateness of were they lying questio ns. -9- trial judge s refusal to allow A merican Stores s attorney to ask the following questions to a witness for Herman: Q. about four or A. Q. Did you hear him say that your car passed the south-bound car five houses north of the building line? Yes, sir. Is that correct? American Stores, 166 Md. at 314, 171 A. at 55. W e agreed w ith the trial court th at this line of questioning was impermissible because the attorney was effectively asking the witness to say whether the w itness who gave [ the statement] [] testified falsely. . . . [O]ne witness cannot be asked to characterize the testimony of another (Misso uri, K. & T. R. Co. v. Lycan, 57 Kan. 635, 47 P. 526, 52 8 [(18 97)]), since th at is excl usively the functio n of the jury. Id. at 314-15, 171 A. at 55. Thus, as early as 1934, we held that were-they-lying questions are impermissible in civil cases. A slightly different set of circumstances existed in Thompson v. Standar d Whole sale Phosph ate & Acid Works, Inc., 178 Md. 305, 13 A.2d 328 (1940), where suit was brought by the widow of John C. Thompson against his former employer for damages incurred as a result of his death. There, we addressed the ability of an expert witness to opine on the conflicting testimony of previous witnesses and said: All courts agre e that if there is any conflict between the witnesses as to facts on which an expert opinion is sought, the expert w itness cannot [in that situation], although h e has heard the testimon y, be asked to b ase his opin ion on that testimon y, because, to rea ch his conclusion, he must necessarily invade the province of the jury and pass on the credibility of witnesses and the weight of the evidence. -10- Thompson, 178 Md. at 318, 13 A.2d at 334 (quoting 20 Am. Jur., § 790) (emphasis ad ded). In other w ords, when conflicting testimony is given and an expert witness is asked to draw a conclusion as to which version of events actually occurred, his or her expert conclusion could influence the jury as to w hich witne ss s version o f events is more credible. This is not permitted because it is th e function al equivalen t of asking a we re-they-lying que stion to someon e who h as the additio nal influen ce of bein g an expe rt. Bohnert, supra, relied, in part, on American Stores and Thompson and is the controlling case under these circumstances. In Bohnert, Alicia, a child under the age of 14, accused her mother s boyfrien d, Boh nert, of s exual a buse. There was testimonial evidence tending to show that Alicia may have had improper motivations in accusing Bohnert and there was no physical evidence to support her allegations. Accordingly, the State s case hinged solely on the testimony of Alicia. 312 M d. at 270, 53 9 A.2d a t 659. The State produced a Department of Social Services investigator who the trial court ruled, over objection, was an expert in the field of child sexual abuse. Id. at 271, 539 A.2d at 659. The investigator testified that it was her opinion that Alicia was abused. Id. The investigator based her opinion on inform ation gathe red from interviews with individ uals other tha n Alicia and on her own personal sense about children. Id. at 271- 72, 539 A.2d at 660. The investigator admitted to not performing any type of obje ctive tes t on Ali cia. Id. at 272, 539 A.2d at 660. Bohnert took the stand in his own defense and categorically denied the allegatio ns. Id. at 273, 539 A.2d at 660. W e reiterated the importanc e of credib ility when -11- we said: It is perfectly clear, as we have indicated, that the outcome of this case depended on the jury s determination of the credibility of two witnesses, the accuser and the accused. It is equally clear that the opinion of the expert in the field of child sexual abuse was of utmost significance in that determination. If the child s allegations were believed, they would establish both the corpus delicti of the crimes charged and the criminal agency of Bohn ert. Id. In its closing argument at trial, the State repeatedly emphasized the importance of the expert witness s testimony to the effect that the child was abused. We concluded, under those circumstances, that the investigator s testimony was inadmissib le for tw o reaso ns. The first reason was that the expert s testimony was based on information taken solely from the child and wa s not based on objectiv e tests or med ically recognized syndrom es. Id. at 276, 539 A.2d at 66 2. Thus, the trial court abu sed its discretion when qualifying the investigator as an expert because her conclusion that Alicia had been abused was a mere guess and because the groundwork for the expert s opinion was inadeq uately sup ported . Id. Secondly, we also held that the expert s testimony was inadmissible as a matter of law because a witness, expert or otherwise, may not give an opinion on whether he believes a witnes s is telling the truth . Testimony from a witness relating to the credibility of another witness is to be rejected as a matter of law. Id. at 278, 539 A.2d at 663 (em phasis added). When the investigator gave her opinion that Alicia was abused, it was: [T]antamount to a declaration by her that the child was telling the truth and that Bohnert was lying. . . . The imp ort of the opinion w as clear Alicia was -12- credible and Bo hnert wa s not. Also, the [investigator s] opinion could only be reached by a resolution of contested facts Alicia s allegations and Bohne rt s denials . Id. at 278-79, 539 A.2d at 663. The investigator s testimony invad ed the province of th e jury in two ways: It encroached on the jury s function to judge the credibility of the witnesses and weigh their testimony and on the jury s function to resolve contested facts. Id. at 279, 539 A.2d at 673. Th us, in the criminal con text of Bohnert, we held that the investigator s opinion was improperly admitted as expert testimony and, even though we did not call them were-they-lying questio ns, we also h eld that the tria l court erred as matter o f law whe n it permitted the investigator to give her opinion on whether Alicia was telling the truth. With this background in m ind, the State s reliance on the intermed iate appellate court s discussion in Fisher, supra, is mispla ced. In that case, three adults were accused of abusing and killing a minor child w ho resid ed in the ir house . One of the defendants took the stand, while ano ther defen dant soug ht to impea ch her cred ibility on cross-examination by asking were-they-lying questions. The testifying defendant s counsel objected to those questions and the trial court overruled those objections. The testifying defendant s counsel argued to the trial court that were-they-lying questions were impermissible under Bohnert. The trial court disagreed and distinguished Bohnert on factual grounds, saying: Bohnert talks about [] an expert witness giving an opinion that a witness who testified at trial was truthful or not truthful. Fisher, 128 Md. App. at 152, 736 A.2d at 1163. The Court of Special Appeals, agreed with the trial court, stating: -13- Bohnert was con cerned w ith a situation w here a non -eyewitness, g enerally an expert witness, is called for the primary purpose of offering a neutral assessment of the credibility of a testifying witness. That has nothing to do with challenging the veracity of a testifying eyewitness by demanding an explan ation of why oth er witn esses h ave giv en con tradicto ry accou nts. Id. The Fisher Court, however, misconstrued our holding in Bohner t. In Bohnert, we clearly stated that there were two reasons for concluding that the trial judge erred: Our discussion concerning the discretion of the trial judge regarding expert testimony wa s on the assu mption tha t there may be c ircumstanc es in which an expert in the field of child sexual abuse could properly voice an opinion that a ch ild had b een sex ually abu sed. Then the admissibility of such testimony would be within the sound discretion of the trial judge. We concluded [in the previous portion of the Bohnert opinion] that in the circumstances of this case, admitting the opinion in evidence was an abuse of discretion. We have an alternative reason, however, for concluding that, in the circumstances of this case, the trial judge erred in admitting the opinion. We think that the opinion was inadmissible as a matter of law. 312 Md. at 276-77, 539 A.2d at 662 (emphasis added). As mentioned above, the first reason for our reversal in Bohnert had to do with the trial judge s discretion when admitting expert testimony and the second reason , the one relevant in the instant case, had to do with the trial judge s erroneous decision, as a matter of law, to admit were-they-lying questions. Whatev er distinction th e Court of Special A ppeals w as trying to make between its Fischer and our Bohnert, does not apply in the present circumstances because the questions asked by the State clearly fell into the second category of Bohnert questions a nd were impermiss ible as a matter of law. Returning to the presen t case, petitione r was ask ed five qu estions that pu t him in a -14- position of characterizing the testimony of two other witnesses. He was asked five werethey-lying questio ns. These questions were impermissible as a matter of law because they encroached on th e pro vinc e of t he ju ry by as king petit ione r to ju dge the c redibility of the detectives and weigh their testimony, i.e., he was asked: And the detective was lying? The questions also asked petitioner to stand in place of the jury by resolving contested facts. Moreover, the questions were overly argumentative. They created the risk that the jury might conclude that, in order to acquit petitioner, it would h ave to find that the police officers lied. The questions were further unfair because it is possible that neither the petitioner nor the police officers deliberately misrepresented the truth. These questions f orced petition er to choose between answering in a way that would allow the jury to draw the inference that he was lying or taking th e risk of alien ating the jury by accusing the police officers of lying. Therefore, the trial court erre d in allowin g the State to ask petitioner were-they-lying questions. When prosecutors ask were-they-lying questions, especially when they ask them of a defe ndant, they, alm ost always, w ill risk reversal. B. Once error is established, the burden is on the S tate to show that it was harm less beyond a reasonable doubt. Denicolis v . State, 378 Md. 646, 658-59, 837 A.2d 944, 952 (2003). We said in Dorsey that: An eviden tiary or pro cedura l error in a trial is bou nd, in some fashio n, to affect the delicately balanced, decisional process. The abnegation of a particular rule upon which the defense intended to rely may often inflict more damage than initia lly app aren t; a m erito rious line of defen se may be -15- abandoned as a result; an important witness may not be called; strategies are often forsaken. The future course of the trial inevitably mus t be chang ed to accomm odate the rulings made. It is the impact of the erroneous ruling upon the defenda nt s trial and the effect it has upon the decisional process w hich is of prim ary conc ern . . . . Indeed, requiring the beneficiary of such error to demonstrate, beyond a reasonab le doubt, that th e error did n ot contribute to the verdict and is thus harmless is consistent with the test required in criminal cases for a resolutio n of gu ilt. 276 Md. a t 657-6 58, 350 A.2d a t 677. T hus, in th is case, the burden is on the Sta te to demonstrate to the review ing court that the error w as harmles s beyond a re asonable d oubt. The State argues that the trial judge s instructions to the jury, telling them that they were the sole judg es of credib ility, and the ove rwhelm ing evide nce that petitioner committed the burglary are sufficient factors to allow this Court to conclude that the error was harmless. We disagree. The possible pre judicial effe ct of the w ere-they-lying qu estions is demonstrated by the number and the combination of the questions themselves, the repeated emphasis on them during the State s clo sing argum ent, and, mo st importantly, the ju ry s behavior d uring its deliberations. The jury sent f our notes to the trial court. Three asked for additional information or clarification of certain information. One of the questions related to the pawnshop ticket and m ay have bee n related to a concern the jury had about the truthfulness of petitioner s testimony that he had pawned the ring for a friend. Another related to whether the petitioner had signed a confession, which may have been referring to the conflict between the officers an d the petitione r s testimony in respect to whether he had confessed and, thus, -16- this jury question may have directly related to the were-they-lying questions. Th e jury s question, in respect to possession of stolen property, may have related to a juro r s concern that by pawnin g the stolen p roperty for a frie nd, the petition er must ha ve assum ed that the property was stole n. Additiona lly, the jury sent one note telling the trial judge that they doubted their ability to reach a unanimous verdict. We are unable to say, beyond a reasonab le doubt, that the jury was not affected by the were-they-lying questions. Therefore, the trial court s error in allowing the questions was not harmless. IV. Conclusion For the foregoing reasons, we hold that, under the circumstances of the present case, the trial judge erred, as a matter of law, by permitting the State to ask the petitioner if other witnesses were lying. The error was harmf ul to the defendant be cause we are unable to say, beyond a rea sonable d oubt, that the e rror did not a ffect the ve rdict. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCU IT COURT FOR BALTIMORE COUNTY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY BALTIMORE COUNTY. -17- IN THE COURT OF APPEALS OF MARYLAND No. 63 September Term, 2006 Maurice Galen Hunter v. State of Maryland Bell, C.J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Battaglia, J., which Harrell, J., joins. Filed: March 16, 2007 __________________________________ * Wilner, J., n ow retired, p articipated in the hearing and conference of this case while an a ctive mem ber of this C ourt; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. I respec tfully disse nt. In this case the Petitioner, Maurice Gale Hunter, asks that we adopt a blanket rule prohibiting were they lying questions directed to one witness with regard to the testimony of another; the majority does so with its holding that such questions encroach the province of the jury. I disagree. As Judge Charles E. Moylan, Jr., so cogently stated in Fischer v. State, 128 Md. App. 79, 736 A.2d 1125 (1999), the purpose f or such qu estions is not to elicit an assessment of another witness s credibility; the purpose for were they lying questions is to focus the jury s attention on contradictions in the testimony of different witnesses and to cast doubt upon the credibility of the witness so questioned. In Fischer, Mary Utley, one of three defe ndants convicted of second-degree m urder, child abuse, and consp iracy to commit child abuse of Utley s daughter, Rita, challenged the perm issib ility of the f ollowin g colloquy: Q: You rem ember saying to the nurse at Northw est Hospita l, that you felt responsible for Rita s death? A: No. Q: So if a nurse testified to that, that nurse would be lying? [Counsel for Mary Utley]: Objection. The Court: Overruled. A: I don t remember saying that to the nurse. *** Q: Would you ever let [Rita] run around at night when she was a small child? Counsel for Mary Utley: Objection. The Court: Overruled. A: No. Q: Y ou re mem ber M rs. D eine r testifying the o ther day? A: Yes, I do. Q: So, she was not te lling the truth as well? A: Rita [Counsel for M ary Utley]: Objection, Your Ho nor. The Court: Overruled. A: Rita wasn t even, I don t believe, walking at that age. Q: Well, h ow ab out [you r other d aughte r] Geo rgia, w as she walking, was she lying about Georgia running around? A: As I just said, they would walk around at night like normal children, but again, I don t believe Rita was walking at the age that she said s he was o ut. Q: So then Mrs. Deiner was not telling the truth? A: Yes. *** Q: Now, Detective Walsh, she said, you heard her say that you were la ughing after R ita died, was she n ot telling the truth ? A: She was not telling the truth. Q: And Detective Hill A: He was not telling the truth. Q: I didn t ask the question yet. Was Detective Hill telling the truth when he said you were laughing and you thought Rita s death was a big joke? A: He wa s absolutely not telling the tru th at all. Q: So both of these detectives, have you ever met them before? A: Only at the hospital and at the building. Q: You know of any reason why these detec tives wou ld lie to the la dies and gentlem en of the jury? [Counsel for M ary Utley]: Objection, Your Ho nor. The Court: Overruled. A: I don t kno w. All I know is th at I didn t say wh at they said I said. Q: So, then they were not being honest with the jury? A: That s cor rect. *** Q: Rose, your other daug hter, said that sh e never loc ked you in -2- the room? [Counsel for M ary Utley]: Objection, Your Ho nor. The Court: Overruled. Q: Is Rose lyin g about th at? A: Yes, she is. Q: So all these people are lying but Mary Utley? A: That is corr ect. Id. at 149-151, 736 A .2d at 1162-63 (em phasis in original). Judge Moylan, writing for the Court of Specia l Appeals , held that the trial c ourt prope rly allowed the questions for the obvious reason that the cross-examination was doing exactly what cross-examination is designed to do , na mely, to e xpose fa lsehood . . . as d ramatica lly as possib le by highlighting the num ber of w itnesses, ideally neu tral witnesses with no reason to fabricate, who have given contradictory accounts, id. at 149, 151, 736 A.2d at 1162, 1163, and explicated that this line of questioning was permissib le because it required M ary Utley to asse ss he r ow n cre dibility: What Mary Utley was being asked to do was e ither 1) to acknowledge her own falsity or 2) to look foo lish in denying it. Once the final rhetorical question So all these people are lying but Mary Utley? was asked, the skillful cross-exam iner wou ld have been turning and walking disdainfully away without waiting for an answer. The answer no longer mattered. Id. at 152-53, 736 A.2d at 1163. Like Fischer, the purpose for the were they lying questions in the case at bar was not to elicit a credibility assessment of the Detective, but, rather, to draw the attention of the jury to the existing conflict between the testimony of Hunter and the Detective. Regardless -3- of how H unte r resp onded, th e questio n of who to be lieve was left to the jury. The majority, however, rejects the acumen of Fischer and relies instead on an erroneous application of our holdings in American Stores Co. v. Herman, 166 Md. 312, 171 A. 54 (19 34), Thompson v. Standard Wholesale Phosphate & Acid Works, Inc., 178 Md. 305, 13 A.2d 328 (1940), and Bohner t v. State, 312 Md. 266 , 277, 539 A.2d 6 57, 662 (1988). In American Stores Co. v. Herman, the trial judge sustained an objection to the following questions asked by the Ame rican Stores s attorney of one of Herman s witnesses: Q. Did you he ar him say that your car passed the south-bound car about four or five houses north of the building line? A. Yes, sir. Q. Is that cor rect? 166 Md. at 314, 171 A. at 55. We upheld the trial court s decision because [o]ne witness cannot be aske d to cha racterize the testim ony of an other, since that is exclusively the function of the jury. Id. at 314-15 , 171 A. at 5 5 (citations om itted). Unlike in Fischer and the case sub judice, however, the imperm issible questio n in American Stores Co. was clearly being utilized in order to assess whether another witness w as accurate in his testimony, which is not the situation before us. In Thompson v. Standar d Whole sale Phosphate & Acid Works, Inc., we determined that the following colloquy with an expert witness was inopportune: Q. Now I am asking the Doctor which testimony he is assuming to be true, whether the [employee] struck the radiator pipes or did not strike the radiator pipes? A. Well, to tell the truth, I do not know whether he did or not because the testimony at one time said he did and at another -4- time said he did not. 178 M d. at 318, 13 A.2d at 33 4, based up on the w ell-established rule that: if there is any conflict between the witnesses as to facts on which an expert o pinion is sou ght, the exp ert witness c annot, although he has heard the testimon y, be asked to b ase his opinion on that t estim ony, because, to reach his conclusion, he must necessarily invade the province of the jury and pass on the credibility of witnesses and the weight of the evidence. Id., quoting 20 Am .Jur. § 790 (em phasis ad ded). In the prese nt ca se, co nversely, Hunter was not asked to assess the Detective s credibility, nor opine about evidence. In Bohn ert v. Sta te, the defendant was accused of sexual abuse. A Department o f Social Services investigator, recognized by the trial court as an expe rt in the field of child sexual abuse, testified that the child had been sexually abused in contradiction to the defendant s denial. We held that the expert s testimony should not have been admitted because, as in Thompson, it invaded th e province of the jury by requ iring the exp ert to resolve conflicting evidence and also to assess the credibility of the child and th e defend ant. 312 Md. at 278, 539 A.2d 663. Obviously, in both Thompson and Bonhert, an expert witness was called upon to determine which of two witnesses was telling the truth, which is a prohibited practice . Stebbing v . State, 299 M d. 331, 349 , 473 A.2d 903, 911 (1984); Calder v. Levi, 168 Md. 260, 266, 177 A. 393, 394 (1935). This choice of truthfulness is not implicated in the present case. Many of our sister states addressing the issue of were the y lying questions c learly -5- have recognized their propriety. In State v. Hart, 15 P.3d 917 (Mont. 2000), the Supreme Court of Montana held that there was no prosecutorial misconduct implicated by were they lying questions. T he court rea soned tha t such que stions did no t invade the credibility assessment function of the jury anymore than those questions that elicited facts from the defenda nt s perspec tive: [T]he difference between the defendant testifying that yes, the victim lied, she attacked me or the defendant testifying that she attacked me is, for purposes of the jury s role in making credibility determinations, irrelevant. In either situation, the jury must still decide which witness is more credible. Id. at 923. Th e court w ent on to distin guish the w ere they lying que stions from a prosecutor s comments on an accused s guilt, which do[] invade the province of the jury and . . . usurp[ ] . . . its func tion bec ause th e jurors m ay simply a dopt th e prose cutor s v iews . Id. Further, in State v. Johnson, 681 N.W.2d 901 (Wis. 2004), the Supreme Court of Wiscon sin distinguished between cases in which an expert witness was asked to decipher which of two witnes ses testif ied truth fully, and cases in wh ich one w itness was a sked if another was lying. The court held that, in the form er, the line of q uestioning is impermiss ible because it usurps the province of the jury, but in the latter, permissible because [t]he purpose and effect of the cross-examination of the second witness is to test that witnes s's credibility through his or her demeanor and answers to questions. It aids the jury in its truthfinding function. Id. at 908-09 (footnotes omitted) (emphasis added). T he court explained that were they -6- lying questions do not usurp the province of the jury because they [are] not placed before the jury to bolster the credibility of the other witnesses. Instead , cross-exam ination [i]s us ed to highlight the inconsistencies in the testimony, and give the witness an oppo rtunity to explain those inconsistencies. As the court of appeals concluded, the questions posed were so lely to impeach [the defendant's] credibility. Such questions may help the jury assess the credibility of witnesses. Id. at 909 (citations omitted) (emphasis add ed). See also W hatley v. State , 509 S.E.2d 45, 51 (Ga. 1998) (h olding th at the pros ecut ion s w ere th ey lying questions we re permissib le because they merely emphasized the conflict in the evidence, which it w as the jury s duty to resolve ) (internal quotations om itted). Many other courts also have refused to adopt a blanket prohibition of were they lying questions, acknow ledging the ir probative v alue in certain circumstances. In People v. Overlee, 666 N.Y.S.2d 572 (N.Y. App. Div. 1997), the court held that the prosecutor s questions on cross-examination of the defendant, wherein he repeatedly asked the defendant whether another w itness was lying , was app ropriate and explicated th at: Here, defendant testified that Santana and the other officers attacked him. The pros ecut ion w itnes ses te stified to defe ndant's assault of Santana and the other officers. The contradictory accou nts can not be b ased on mistake or hazy re collectio n. Id. at 576. Thus, the court reasoned, when such a cle ar contradic tion exists, the o nly inference that can be drawn is that someone is lying: In a situation where a defenda nt flatly denies the occurrence of events and his involvement in those events, as testified to by the -7- People's witnesses . . . the defendant ha s created a credibility contest. . . . A prosecutor, as with any advocate, may, provided he does not stra y from the rec ord or inject irre levant issues, cross-examine a defendant as vigorously as possible. Consistent with that right, the prosecutor may, where a direct contradiction . . . exists between a defendant's testimony and that of a prosecution witness, ask a defendant whether that witness has lied or is a liar. Id. at 577 (citations omitted). The court underscored that such questioning is not improper because it in no way signifies a shifting of the burden o f proof, but rather, emphas ized that, the resolution o f the conf lict turn[s] on issues of credibility, [and] depends, in large measure, on the testing for truth. Id. In State v. Pilot, 595 N.W.2d 511 (Minn. 1 999), the S upreme C ourt of M innesota also refused to adopt a blanket prohibition of were they lying questions, stating, we do not believe an inflexible rule prohibiting such questions is necessary or desirable because [s]ituations may arise where where they lying questions may have a probativ e value in clarifying a particular line of testim ony, in evaluating the credibility of a witness claiming that everyone but the witness lied or, as in Overlee, the witness flatly denies the occurrence of events . Id. at 518. In those circumstan ces, the court determined that such questions play a crucial role in assisting the jury in its search for the truth. Id. See also U nited States v . Harris, 471 F.3d 507, 512 (3d Cir. 2006) (holding that were they lying questions are appropriate if a defendant has opened the door by testifying on direct that ano ther witnes s is lying, or when it is necessary on cross-examination to focus a witness on the differences and similarities between his testimony and that of another w itness ); United States v. Bryant, 770 F.2d 1283, -8- 1291 (5th Cir. 1985) (holding that [w]hen the credibility of a witness is placed in issue the [] court has broad discretion concerning the extent to which cross-examination may exceed the scope of direct examination ); State v. Morales, 10 P.3d 630, 633 (Ariz. Ct. App. 2000) (refusing to adopt a bright line rule prohibiting were they lying questions because they may be appropriate when the only possible expla nation for th e inconsisten t testimony is deceit or lying or when a defendant has opened the door by testifying about the veracity of other witnesses on direct ex amination ). By holding as it does, the majority adopts an over-inclusive stance which prohibits, under all circumstances, were they lying questions, or any variation thereof, which serve to highlight, in oftentimes lengthy and complicated trials, the contradictions that the jury must consider in assessing credibility. Were they lying questions a re an invalua ble tool in our adversarial system which serve to aid the jury in its quest for the truth. Thus, I disagree with the majority s blanket prohibition and would affirm the judgment of the Court of Special Appeals. Judge Harrell has authorized me to state that he joins in this dissenting opinion. -9- -10-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.