Jerrod M. Peterson
State of Maryland
Argued: October 6, 2014
Circuit Court for Prince George's County Case No. CT-090712-B
Barbera, C.J. [*] Harrell, Battaglia Greene Adkins McDonald Watts, JJ.
The underlying facts of this case are not complicated. The setting was a pre-arranged drug deal in Prince George's County. The two purchasers intended to steal the drugs without paying for them. The seller came with fake pills. As the ill-fated transaction proceeded inside a car, things went awry. A gun appeared and the seller was fatally shot in the driver's seat. The question at trial was whether Petitioner Jerrod M. Peterson, one of the purchasers, had pulled the trigger.
The prosecution presented the testimony of several eye witnesses – a man who had accompanied the deceased seller, the other purchaser who accompanied Mr. Peterson, the intermediary who introduced Mr. Peterson to the seller, and the intermediary's sister who was nearby when the incident took place – to prove that Mr. Peterson was the assailant. The defense attempted to create doubt about Mr. Peterson's guilt by cross-examining those witnesses about their perception and memory of the event, and their potential biases. While the trial court allowed the defense to pursue various lines of inquiry, it prohibited defense counsel from asking certain questions.
Mr. Peterson was convicted of first degree felony murder and related charges. He seeks reversal of those convictions on the ground that the trial judge unduly restricted his cross-examination of two prosecution witnesses. He asserts that the limits placed on his counsel's cross-examination not only exceeded the discretion normally accorded to trial judges, but also amounted to a violation of his right under the federal and State constitutions to confront the witnesses against him. As an additional ground for reversal, he asserts that the trial court erred when it declined, on the basis of attorney-client privilege, to allow his counsel to call to the stand the Assistant Public Defender who represented his co-defendant (who had become a prosecution witness under a plea agreement) and question that attorney about a proffer session that her client had with the Assistant State's Attorney and police prior to entering into the plea agreement.
We hold that the limitations placed on counsel's cross-examination – to the extent that Mr. Peterson preserved an objection to them – were within the discretion of the trial judge and did not violate Mr. Peterson's constitutional right of confrontation. While the attorney-client privilege did not apply to the discussion at the proffer session, the court properly refused to allow the testimony that counsel sought to adduce as it was of minimal relevance, cumulative, and the potential for straying into privileged areas outweighed any probative value.
In mid-March 2009, about one week before the shooting that is the subject of this case, Mr. Peterson was introduced to Domonique Gordon by Calvin Rose at the home of Mr. Rose's mother (where Mr. Rose resided) in Landover, Maryland. Mr. Gordon and Mr. Peterson arranged to meet at the same place during the following week in order for Mr. Peterson to purchase ecstasy pills from Mr. Gordon.
On the appointed date, late on the evening of March 27, 2009, Mr. Gordon and his friend James McLaurin drove from Washington, D.C., to Mr. Rose's neighborhood with a bag of imitation ecstasy pills. Mr. Gordon parked in front of Mr. Rose's house and sat in the driver's seat while Mr. McLaurin occupied the front passenger seat. Mr. Rose came out of his mother's house to speak with Mr. Gordon, who emerged from the car while Mr. McLaurin remained seated within.
Mr. Peterson and his acquaintance Thomas Hughes had driven separately to the neighborhood in a car provided by Alexis Brown, a friend of Mr. Peterson who accompanied them with her four-year old son. They parked a block from Calvin Rose's house. Ms. Brown and her child remained in the car a block away, out of sight of Mr. Gordon's car, while Mr. Peterson and Mr. Hughes walked back to meet with Mr. Gordon.
Once the men were together, at Mr. Gordon's suggestion, he and Mr. Peterson got into his car, with Mr. Gordon returning to the driver's seat and Mr. Peterson taking the rear seat on the driver's side, but leaving the door open. Mr. McLaurin had remained seated in the front passenger seat. Mr. Rose and Mr. Hughes were outside in front of the car.
Shortly thereafter, a gun appeared – wielded by Mr. Peterson, according to prosecution witnesses at the trial. The three men inside the car began struggling. A shot was fired, striking Mr. Gordon inside the car. Mr. Hughes ran from the area in front of the car to the back of the car near Mr. Peterson. Mr. McLaurin got out of the car and tried to run away, but was shot in the leg and fell to the ground. At some point during the struggle, Mr. Rose ran back into his mother's house to escape the range of fire and to call 9-1-1. The encounter in the car and the street was observed by Mr. Rose's sister, Cassandra, from a second floor window in the Rose home.
Mr. Peterson and Mr. Hughes fled back to Ms. Brown's car with the pills and money and drove off. After the two men left the neighborhood, Mr. Rose stayed on the scene of the shooting and waited for the police to arrive. He received a call on his cell phone from Mr. Peterson, who told him not to say anything to the police. Mr. Rose hung up on Mr. Peterson and gave a statement to the police about what happened. Mr. Gordon died from his gunshot wound. But Mr. McLaurin survived and spoke with an officer on the scene before being transported to a hospital.
Mr. Peterson and Mr. Hughes were arrested the next day. Mr. Gordon's wallet was later recovered from the driver's side of Ms. Brown's car.
A statement of charges was filed against both Mr. Peterson and Mr. Hughes in connection with the shooting on March 28, 2009. Those charges were superseded when the grand jury returned indictments on May 19, 2009, against both men charging them with several offenses related to the incidents: first degree felony murder, two counts of use of a handgun during the commission of a felony or crime of violence, assault in the first degree, robbery with a dangerous or deadly weapon, conspiracy to commit murder, conspiracy to commit robbery, attempted first degree murder, and robbery. Circuit Court for Prince George's County, Case Nos. CT090712A, CT090712B.
Mr. Hughes later entered into a plea agreement with the State several months before his trial, agreeing to testify against Mr. Peterson in exchange for a sentence of 20 years' imprisonment, with all but eight years suspended.
After numerous motions hearings and postponements, Mr. Peterson's case came to trial in mid-August 2011. The prosecution theory of the case was that, after arranging for a drug deal with Mr. Gordon, Mr. Peterson planned to rob him; that, for that purpose, he enlisted Mr. Hughes; that Mr. Peterson obtained transportation from his friend Ms. Brown and, unknown to the others, brought a gun to the meeting with Mr. Gordon; and that, during the struggle in Mr. Gordon's car, Mr. Peterson shot him from behind and before he fled back to Ms. Brown's car, also shot Mr. McLaurin.
The State presented the testimony of four witnesses to the shooting: Mr. Rose, his sister Cassandra Rose, Mr. McLaurin, and Mr. Hughes.
Calvin Rose. Calvin Rose testified that he had been friends with Domonique Gordon, and that he knew Jerrod Peterson from living in the same neighborhood for many years. He testified that he had introduced Mr. Peterson and Mr. Gordon to each other the week before the shooting. On the evening of March 27, 2009, Mr. Peterson called him at his home to ask if he had seen Mr. Gordon. Mr. Rose looked outside while he was on the phone. He saw Mr. Gordon in a car outside his house, and informed Mr. Peterson that Mr. Gordon was there. Mr. Rose then went outside to talk to Mr. Gordon. He saw Ms. Brown's car pass by and shortly thereafter Mr. Peterson and Mr. Hughes (then unknown to Mr. Rose) walked up to them.
At Mr. Gordon's suggestion, Mr. Gordon got back into the driver's seat of the car and Mr. Peterson got in the back seat immediately behind him, but left the door open while Mr. Rose stood near the front of the car. Mr. Rose turned away from the car to speak briefly to Mr. Hughes who was standing farther away from the car. He saw Mr. Hughes' eyes widen, as though he were surprised to see something. When Mr. Rose turned to look back at the car, he realized that Mr. Peterson had a gun, and that the men in the car appeared to be struggling. Mr. Rose ran back into his mother's house to get out of the range of the gun and to protect his daughter, who was standing in the doorway. He testified that, as he reached the house, he heard a gunshot and turned to see Mr. Hughes running toward the car. Then he heard a second shot as he was calling 9-1-1 from inside the house.
After Mr. Peterson and Mr. Hughes left the area, Mr. Rose went outside and saw Mr. McLaurin laying on the ground. After the police arrived, Mr. Peterson called Mr. Rose on his cell phone while Mr. Rose was talking with a police officer on the scene. Mr. Peterson told him not to say anything to the police. Mr. Rose testified that he replied, "What the f[---] did you do? I don't even know you, " and hung up. In an interview at the police station, he later identified Mr. Peterson as the man with the gun.
According to Mr. Hughes, he met Mr. Peterson a few days before the shooting through Mr. Hughes' cousin. Mr. Peterson told him that he knew someone who sold ecstasy pills, but that he thought they could easily steal the pills instead of paying for them. Mr. Peterson asked him to obtain a gun. Mr. Hughes could not find a gun and assumed they would attempt to steal the pills without a weapon. He also thought his cousin would be participating in the theft, but when Mr. Peterson picked him up, the only other people in the vehicle were a woman and child he did not know.
Mr. Hughes testified that they drove past Mr. Rose's house and parked down the street. They walked back up the street and, when they arrived at the Rose house, Mr. Peterson entered the back seat of Mr. Gordon's car while Mr. Hughes stood outside the car with Mr. Rose. He was surprised to see Mr. Peterson brandish a gun and, when a struggle broke out in the car, he ran to the side of the car to help Mr. Peterson. He reached into the car to try to pull Mr. Peterson out, but was unable to do so. Mr. Peterson then shot Mr. Gordon. As Mr. McLaurin fled the car, Mr. Peterson shot Mr. McLaurin in the leg. According to Mr. Hughes, he and Mr. Peterson then fled back to the car in which they had come.
Mr. McLaurin, who worked as a barber in the District of Columbia and had known Mr. Gordon for a number of years, met with Mr. Gordon on the day of the murder at his barber shop. He testified that, after drinking at the barber shop for a while, he and Mr. Gordon drove over the state line to buy more liquor at a Maryland liquor store. They then drove to Mr. Rose's neighborhood, an area unfamiliar to Mr. McLaurin. He testified that Mr. Peterson entered their car and, at some point afterwards, struck Mr. McLaurin with a metal object and demanded that he "give me your money." Mr. McLaurin was dazed, but he heard a struggle in the car and a gun shot. He got out of the car, but was struck by a bullet in the right thigh and fell to the ground. He said that someone grabbed his belongings and fled while he was on the ground. He crawled back to the car, but was unable to rouse Mr. Gordon. The police arrived shortly thereafter and he was taken to the hospital.
Mr. Rose's sister, Cassandra Rose, testified that she was looking out the second floor window of her home when her brother told her that the car parked in front of the house belonged to Mr. Gordon. She said that she saw two men approach the car, saw movement in the car, and heard a gunshot. She heard, but could not see who fired, the first shot. She saw the passenger (Mr. McLaurin) get out of the car and flee. "And the guy who was on the left side of the car ... reached over the car and shot."
Although she did not see the shooting, Alexis Brown testified about driving to the location with Mr. Peterson and Mr. Hughes that night, remaining in the car for 15 minutes when the two men went to their meeting, and departing after they returned with pills and money. Other prosecution witnesses included the police officers who responded to the shooting and crime evidence technicians who had collected and processed evidence from the crime scene. The technicians introduced photographs of the crime scene and items recovered at the scene that night, including money, drugs, clothing items, and bullets, as well as Mr. Gordon's wallet, which had been recovered from next to the driver's seat in the car Mr. Peterson had driven. An expert in forensic serology and DNA analysis from the county crime lab and a firearms examiner testified about their examination of the recovered items and established that Mr. Peterson's DNA was found on the steering wheel of Ms. Brown's car. The deputy chief medical examiner testified concerning the autopsy of Mr. Gordon.
The defense suggested, largely through cross-examination of the State's witnesses, that Mr. Hughes was the shooter. A ballistics expert testified about ejection patterns in modern pistols and concluded that the spent casing indicated that Mr. Gordon was shot from either behind or to the side. Several friends and family members of Mr. Peterson testified as character witnesses on his behalf. The defense also called the lead detective in the case and questioned him about proffer sessions between Mr. Hughes and the State before Mr. Hughes became a witness for the State, as well as the detective's interviews of James McLaurin and Calvin Rose.
D. Verdict, Sentencing, and Appeal
The jury found Mr. Peterson guilty of first degree felony murder, first degree assault, robbery with a dangerous or deadly weapon, conspiracy to commit robbery, theft, and two counts of use of a handgun during the commission of a felony or crime of violence.
On September 2, 2011, Mr. Peterson was sentenced to life in prison, with all but 85 years suspended and including 10 years mandatory incarceration related to the two firearms convictions.
Mr. Peterson appealed. The Court of Special Appeals affirmed his convictions in an unreported decision. We granted a writ of certiorari to consider (1) whether certain limitations on defense counsel's cross-examination of Mr. Rose and Mr. Hughes exceeded the trial court's discretion and violated his constitutional right to confront the witnesses against him; and (2) whether the attorney-client privilege precluded the defense from calling Mr. Hughes' attorney as a witness to testify as to his proffer sessions with the prosecution.
A. Whether the Trial Court Improperly Limited Defense Cross-Examination
Mr. Peterson points to three areas of inquiry that he argues were improperly limited by the trial court: (1) whether Mr. Rose expected a benefit from his testimony at Mr. Peterson's trial as to pending charges against him in Virginia and Maryland, in light of an earlier agreement Mr. Rose had made to act as an informant for the Fairfax County, Virginia, police, (2) whether Mr. Hughes had experienced hallucinations affecting his testimony concerning the shooting, in light of medical records indicating that he had reported hallucinations at a later date, and (3) whether Mr. Hughes' testimony was affected by the specific potential sentence for the murder of Mr. Gordon – a charge that, as to Mr. Hughes, would be dismissed as part of his plea agreement with the State. Mr. Peterson contends that these limitations cumulatively amounted to a violation of his right under the federal and State constitutions to confront the witnesses against him. With respect to some of these contentions, the State asserts that defense counsel failed to adequately apprise the trial court of the nature of his proposed cross-examination or that the argument that Mr. Peterson makes to us is not the same argument made to the trial court – in other words, that he failed to preserve at least some of these issues for appeal.
1. Cross-Examination, the Right of Confrontation, and the Standard of Appellate Review
It has long been recognized that cross-examination is essential to the truth-finding function of a trial. A criminal defendant's right to cross-examine the prosecution's witnesses is protected by the Confrontation Clause that appears in both the federal and State constitutions. "The right of confrontation includes the opportunity to cross-examine witnesses about matters relating to their biases, interests, or motives to testify falsely." Martinez v. State, 416 Md. 418, 428, 7 A.3d 56 (2010). That principle is incorporated in Maryland Rule 5-616(a)(4), which provides that "The credibility of a witness may be attacked through questions asked of the witness, including questions that are directed at: …Proving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely." To comply with the Confrontation Clause, a trial court must allow a defendant a "threshold level of inquiry" that "expose[s] to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witnesses." Martinez, 416 Md. at 428 (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)).
Once the constitutional threshold is met, trial courts may limit the scope of cross-examination "when necessary for witness safety or to prevent harassment, prejudice, confusion of the issues, and inquiry that is repetitive or only marginally relevant." Martinez, 416 Md. at 428; see also Lyba v. State, 321 Md. 564, 570, 583 A.2d 1033 (1991). As Maryland Rule 5-611 provides, a trial court is to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." Therefore, although the defendant has "wide latitude … the questioning must not be allowed to stray into collateral matters which would obscure the trial issues and lead to the factfinder's confusion." Smallwood v. State, 320 Md. 300, 307-08, 577 A.2d 356 (1990).
Mr. Peterson asks this Court to adopt a "two-tiered standard of review" when a defendant alleges unconstitutional limits on cross-examination. Under that approach, he argues, we should review the trial court's rulings with respect to cross-examination in his case under a de novo standard rather than an abuse of discretion standard. Mr. Peterson primarily relies on United States v. Larson, 495 F.3d 1094 (9th Cir. 2007) (en banc), in which the Ninth Circuit Court of Appeals articulated the following approach to assessing claims that a trial court's restrictions on cross-examination violated the Confrontation Clause: If the defendant's challenge is based on "the exclusion of an area of inquiry, " the court reviews de novo. If the limitation is on "the scope of questioning within a given area, " the court reviews under an abuse of discretion standard. 495 F.3d at 1101.
Under this approach, the standard of review turns on how one distinguishes between what is an "area of inquiry" and what is "within an area of inquiry." In Larson, the court held that "the biases and motivations to lie of the Government's cooperating witnesses" constituted an "area of inquiry, " and that limitations on cross-examination of those witnesses about mandatory minimum sentences were "within" that area and therefore to be reviewed under an abuse of discretion standard. 495 F.3d at 1102.
The approach of the Ninth Circuit is perhaps one useful way of conceptualizing an appellate court's task in assessing a claim that a restriction on cross-examination violated a defendant's right of confrontation. However, we see no particular need to adopt it. In controlling the course of examination of a witness, a trial court may make a variety of judgment calls under Maryland Rule 5-611 as to whether particular questions are repetitive, probative, harassing, confusing, or the like. The trial court may also restrict cross- examination based on its understanding of the legal rules that may limit particular questions or areas of inquiry. Given that the trial court has its finger on the pulse of the trial while an appellate court does not, decisions of the first type should be reviewed for abuse of discretion. Decisions based on a legal determination should be reviewed under a less deferential standard. Finally, when an appellant alleges a violation of the Confrontation Clause, an appellate court must consider whether the cumulative result of those decisions, some of which are judgment calls and some of which are legal decisions, denied the appellant the opportunity to reach the "threshold level of inquiry" required by the Confrontation Clause. To the extent that Mr. Peterson is suggesting that we apply a de novo standard of review to each individual decision a trial court makes to limit cross-examination when a Confrontation Clause challenge is raised, we reject that suggestion.
2. The Preservation Rule and its Purpose
The Maryland Rules require that a party who objects to the admission or exclusion of evidence at trial must make the grounds for a different ruling manifest to the trial court at a time when the court can consider those grounds and decide whether to make a different ruling. In particular, to preserve an objection to the trial court's exclusion of evidence, the party must show both prejudice and that "the substance of the evidence was made known to the court by offer on the record or was apparent from the context within which the evidence was offered." Maryland Rule 5-103(a)(2). A similar requirement pertains to an objection to the admission of evidence. See Maryland Rule 5-103(a)(1) (in order to contest admission of evidence, party must show prejudice, a timely objection, and the specific ground, if requested by the court or required by rule); Maryland Rule 4-323(a) ("An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived...").
The preservation rule applies to evidence that a trial attorney seeks to develop through cross-examination. While counsel need not – and may not be able to – detail the evidence expected to be elicited on cross-examination, when challenged, counsel must be able to describe the relevance of, and factual foundation for, a line of questioning. See Grandison v. State, 341 Md. 175, 206-11, 670 A.2d 398 (1995).
The rules governing appellate review reflect the same principles. "Ordinarily, the appellate court will not decide any … issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal." Maryland Rule 8-131(a). Although this Court may "address the merits of an unpreserved issue, " that discretion "is to be rarely exercised and only when doing so furthers, rather than undermines, the purposes of the rule." Robinson v. State, 410 Md. 91, 104, 976 A.2d 1072 (2009); Conyers v. State, 354 Md. 132, 150, 729 A.2d 910 (1999). The purposes of Rule 8-131(a) are furthered in "cases where prejudicial error was found and the failure to preserve the issue was not a matter of trial tactics." Grandison v. State, 425 Md. 34, 69-70, 38 A.3d 352 (2012) (quoting Abeokuto v. State, 391 Md. 289, 327, 893 A.2d 1018 (2006)).
The purpose of the preservation rule is to "prevent unfairness and requir[e] that all issues be raised in and decided by the trial court, and these rules must be followed in all cases[.]" Grandison, 425 Md. at 69 (quoting Abeokuto, 391 Md. at 327). Put another way, the rule exists "to prevent 'sandbagging' and to give the trial court the opportunity to correct possible mistakes in its rulings." Bazzle v. State, 426 Md. 541, 561, 45 A.3d 166 (2012) (internal citations omitted); see also Robinson, 410 Md. at 103 ("Fairness and the orderly administration of justice is advanced by requiring counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings.") (internal citations and quotations omitted). An appeal is not an opportunity for parties to argue the issues they forgot to raise in a timely manner at trial. Nor should counsel "rely on this Court, or any reviewing court, to do their thinking for them after the fact." Grandison, 425 Md. at 70 (quoting Abeokuto, 391 Md. at 327).
3. Cross-Examination of Calvin Rose
Proposed Cross-Examination, Proffers, and Rulings
A reading of the transcript reveals a zealous and talented defense attorney with a shotgun approach to objections and impeachment and a trial judge trying to maintain an orderly trial, growing impatient, and not always grasping what target the shotgun was aimed at. The discussion of the defense effort to impeach Calvin Rose's possible expectation of a benefit in relation to pending charges offers a case in point.
At a pre-trial hearing in November 2010 – before a different judge than the judge who ultimately presided over the trial – the prosecution and defense had agreed that defense counsel could ask Mr. Rose whether he expected to benefit from his testimony with respect to certain charges pending against him at the time of trial – in particular, an unspecified pending charge in Prince George's County, a pending misdemeanor charge in Fairfax, Virginia, and an alleged violation of probation in Virginia. The prosecutor and the hearing judge cited this Court's then-recent decisions in Martinez v. State, supra. and Calloway v. State, 414 Md. 616, 996 A.2d 869 (2010), as the basis for allowing the questions.
Mistrial Motion after Opening Statement
When the case came to trial the following year before a different judge, the agreement appeared to have broken down – or at least there were differences as to its interpretation. In opening statement, defense counsel sought to defuse the impact of the anticipated adverse testimony of Calvin Rose by advising the jury that Mr. Rose had prior convictions and also had "pending" charges. The mention of pending charges was not specifically related to a possible "expectation of benefit, " although counsel did state that Mr. Rose had previously
"work[ed] with the State" – apparently a reference to a cooperation agreement with the Fairfax County, Virginia, police. The prosecution objected at the mention of pending charges. After ascertaining from the defense counsel that he was not referring to any charges or agreements in Prince George's County, the court sustained the objection.
After opening statements had concluded, but before testimony began, defense counsel asked for a mistrial or, alternatively, to supplement his opening statement, on the ground that that the trial judge had denied Mr. Peterson due process by sustaining objections to parts of the defense opening statement, some of which related to the anticipated impeachment of prosecution witnesses. Defense counsel asked to "make a record" in connection with the mistrial motion:
[DEFENSE COUNSEL]: Judge Smith has already ruled that the burglary tool conviction is admissible. That's number one. And Your Honor didn't let me get into any of his record. Number -- and then there's a grand theft and a motor vehicle theft in Prince George's, I think from 2007 or six, and then there is a grand larceny in Virginia, maybe 2009. He has three pending charges in Virginia; one in Fairfax, one in –
THE COURT: Do you believe that the law is that you can impeach with a pending charge as well?
[DEFENSE COUNSEL]: It goes to -- we had lengthy discussions with Judge Smith about being allowed to ask questions of witnesses about their expectation of benefit from the State as a result of cooperating with the State on pending charges.
THE COURT: Pending here in Maryland or pending in Virginia?
[DEFENSE COUNSEL]: He's got three in Virginia. Just for the record, he's got one in Fairfax pending, one [violation of probation] in Fairfax where he's facing two and a half years, and one, as we know, in Essex County, Virginia, and one in the Circuit ...