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Preston v. State

Court of Appeals of Maryland

July 27, 2015


Argued: 6 May 2015

Circuit Court for Baltimore City Criminal Case No. 109113036

Barbera, C.J., [*] Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.


Harrell, J.

Witnesses in criminal trials have typically a variety of interactions with the State prior to testifying under oath before a judge and/or jury. Usually, a witness is interviewed initially by a police officer or detective after the commission of a crime. Witnesses might be offered a monetary reward in exchange for coming forward with information pertaining to a crime. Witnesses "with a past" might exchange their testimony for a favorable plea deal arising from the case in which they are to testify or a related matter, or qualified or absolute immunity. In some cases, a witness might fear for his or her life, or for the safety of an immediate family member, and be placed in some form of witness protection program prior to and/or after trial to ensure his or her safety. In the present case, a witness was placed in protective housing for several months leading up to a murder trial after she claimed that the defendant showed up on her doorstep, causing her to be in fear of retaliation for talking with the police. We consider here whether her placement in reasonable protective housing constitutes a "benefit" that would compel the trial judge, upon request by the defendant, to give a particularized jury instruction pertaining to that witness's credibility (Maryland Criminal Pattern Jury Instruction (2nd ed. 2012, 2013 Supp.) 3:13, "Witness Promised Benefit"). We conclude that it does not.

I. Statement of Facts and Procedural History

On the evening of 14 March 2009, Dontae Preston ("Preston"), Keon Barnes ("Barnes"), and Katrina Harrell ("Harrell") (no kin to the author of this opinion) attended an ill-fated co-ed "pajama party" at the home of Nichelle Payton ("Payton") at 1907 N. Pulaski Street in Baltimore City.[1] Shortly after the party got underway, Barnes was shot and killed on the premises. Seven shell casings were recovered from the scene. Sandra Bohlen, called at trial by the State as an expert in ballistics and firearms identification, testified that the bullets from all seven casings were fired from the same gun. Dr. Carol Allen, a medical examiner called also by the prosecution, testified that Barnes died from multiple gunshot wounds. No gun was recovered. None of the casings tested positive for fingerprints. Preston was charged with murder in the first degree, use of a handgun in the commission of a felony and crime of violence, and illegally carrying a handgun.

Two of the partygoers testified as eyewitnesses at Preston's trial in the Circuit Court for Baltimore City, which began on 21 May 2012. Harrell, the first eyewitness called, testified that, at some point at the beginning of the evening, she exited Payton's home and went to her car (parked two or three doors down from the home, on the same side of the street) in order to retrieve a CD. On her way to her vehicle, Harrell passed between Preston and Barnes as they were talking to each other on the top step leading to the front door of Payton's home.[2] Harrell did not hear the substance of their conversation, but testified that they did not "appear to be arguing." After she entered her car, she turned the key in order to unlock the CD player and remove the CD. As she pushed the eject button, she heard gunshots. She looked "up towards 1907, " and saw Barnes lying on the steps, with Preston standing over him holding a gun with "fire [coming] from it." She ducked "under the seat" on the passenger side for a few seconds, and then called 911. After identifying Preston from a photo array weeks after the shooting, Harrell identified also Preston (who she referred to as "Beefie" or "Beefy") in court as the individual that shot Barnes.

Payton was the second eyewitness (of a sort) to testify at Preston's trial. Payton heard gunshots while she was inside her home preparing for the party. As she walked downstairs, she heard initially "a pop." Payton assumed that one of the balloons she had inflated for the party popped, until she heard more "pops" and realized that they were gunshots. She ran upstairs, [3] screaming, and looked out her bedroom window. She saw Barnes lying on the porch steps while Preston (who she referred to as "Beefie"/"Beefy" or "Donnie") went to his car and left the scene. She ran downstairs, opened the front door, and attempted to revive Barnes. Payton did not testify to seeing a gun in anyone's possession.

Defense counsel attempted to establish through cross-examination that Payton cooperated fully with the State only because the police agreed to move her to free, protective housing for several months prior to trial, although she testified that her experience in temporary protective housing "d[id] not cause [her] to come in here and say something [she] otherwise wouldn't." Much time was spent determining what information she volunteered to investigating detectives prior to trial and when it was volunteered. It was learned that, on the night of the murder, Payton accompanied homicide detectives to the police station, but told them simply that she hosted the party and named the guests in attendance. No written statement was sought or taken from Payton that night or shortly thereafter as she claimed not to have seen the shooting. Payton was interviewed a second time, one or two days later, but no additional substantive information was given or obtained.

Payton testified that, some number of days after the murder, Preston came to her house and knocked on the door. She was home, looked out the window, and saw Preston, but did not answer the door because she was scared. Preston did not threaten her verbally or communicate with her in any way, other than knocking on her door. Sometime after this event, [4] Payton called Detective Michael Moran, told him that she "was scared to stay there, " and asked to be moved.

Payton identified Preston on 8 April 2009 in a photo array as having attended her party that night. She reported that she saw him go to his car after Barnes was shot. She gave also a taped statement to the police detailing what she saw on the evening of Barnes's death. Payton testified on direct examination that when she provided her statement to the police and identified Preston in the photo array, the police had not moved nor promised yet to move her into protective housing. Later, on cross-examination, she admitted that she did not tell the police initially that she witnessed a portion of the aftermath of the shooting. Defense counsel and Payton had the following exchange:

[Defense Counsel]: And, in fact, you didn't cooperate or talk to the police or tell them anything about anything until after the point in time in which you say [Preston] came and knocked on your door? Is that correct?
[Payton]: Correct.
[Defense Counsel]: And that's when you then went and called the detectives and said I want to be moved, correct?
[Payton]: He came to my house again.
[Defense Counsel]: And you said that you wanted to be moved?
[Payton]: Right.
[Defense Counsel]: And on that day when they came to your house, you didn't give them a statement saying anything about anybody going across the street, did you?
[Payton]: No.
[Defense Counsel]: It wasn't until after you got assurances that they were going to move you, put you up and pay for you that you then gave a taped statement, isn't that correct?
[Payton]: Correct. No.[5]

Detective Moran testified at trial that he spoke to Payton several times during the course of his investigation because she was scared and volunteered only small amounts of information at each interview. The detective explained that, on 3 April 2009, Payton contacted him about how she was afraid for her life.[6] Detective Moran advised Payton to come to his office that day, but she declined, saying that she had something pressing to do with her children. Payton did not identify Preston from the photo array or give her taped statement to Detective Moran until five days later (on 8 April 2009). Six days after that, on 14 April 2009, Moran requested of the State's Attorney's Office that Payton be moved to protective housing.

Defense counsel questioned Detective Moran as follows:
[Defense Counsel]: So, Detective, when you first got this phone call talking about how scared she was, why wouldn't you make the request then?
Detective Moran: At that time, she was not completely honest as to what she saw. She was still really scared. She knows-
[Defense Counsel]: So it was not until she gave you-
COURT: Counsel.
[Defense Counsel]:-that you asked for it then?
COURT: Counsel. Counsel. I'm not saying it again, okay? Continue answering your question.
Detective Moran: Could you repeat the question, sir?
[Defense Counsel]: I'll rephrase the question. How come you waited until after she did a photographic array to put in that request to have her moved when she indicated that she was scared on April 3rd?
Detective Moran: I actually believe it was under her request. It's a lot for someone to move their life. You know, you got kids. She has a grandmother who was sick in the house. That's her neighborhood. That's her life. And that's a lot to move somebody. So I think it was under her request that she finally said, ok, I'm ready now.

The Baltimore City State's Attorney's Office paid ultimately $13, 530 to relocate Payton (with $400 of moving expenses facilitating the transition into-but not out of- temporary housing)[7] for a period of 7–8 months prior to trial.[8] Payton did not contribute to the expenses of her temporary housing situation. She was aware that the State's Attorney's Office paid for her protective housing, but did not know how much was paid. She testified further that she would not have asked the police or the State's Attorney's Office for assistance if she hadn't been afraid to continue to live at 1907 N. Pulaski Street.

Defense counsel requested that Maryland Criminal Pattern Jury Instruction (2nd ed. 2012, 2013 Supp.) ("MPJI-Cr")[9] 3:13, "Witness Promised Benefit" ("Jury Instruction 3:13"), be read to the jury. The requested instruction reads as follows:

You may consider the testimony of a witness who [testifies] [has provided evidence] for the State as a result of [a plea agreement] [a promise that he will not be prosecuted] [a financial benefit] [a benefit] [an expectation of a benefit].[10]However, you should consider such testimony with caution, because the testimony may have been influenced by a desire to gain [leniency] [freedom] [a financial benefit] [a benefit] by testifying against the defendant.

Defense counsel proposed initially, before Payton testified, that the court read Jury Instruction 3:13 to the jury at the end of the second day of trial. The State objected, arguing that Payton's free housing was not the sort of situation contemplated by Jury Instruction 3:13, but rather was a protective measure "as a result of [Preston] coming to her house after this incident, and [Payton] contact[ing] the detective to let him know she was-she was in fear." The State argued that Jury Instruction 3:13 was "geared more towards somebody who's like a paid confidential or a paid informant, something of that sort that gives testimony, and knows how much compensation they're going to get in return." The trial judge declined at that time to give the instruction, but indicated he would revisit the question at the end of the trial:

I'm going to say no right now, but depending upon how she testifies and what she says and whatever the other officers may say, I may revisit it.
But based on what you've proffered, I don't believe it's appropriate. I believe it would be a situation where every time a witness is relocated or something along those lines, we'd need to ...

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