Judge's question gives grounds for new murder trial

Daily Record, The (Baltimore), May 4, 2004 by Ann Parks

A man convicted of killing his estranged wife's boyfriend will receive a new trial, owing to improper questioning by the judge at his first trial.

The Court of Special Appeals yesterday reversed James Johnson's conviction for the Nov. 4, 2001 murder of Matthew Boyd, holding that a Baltimore City Circuit Court judge impermissibly elicited information from a witness concerning Mary Blake Johnson's decision not to testify against her husband at trial.

[I]t was important that the fact of Mary's having invoked her claim of privilege not be put before the jury, Judge Deborah S. Eyler wrote for the court. Unfortunately, the trial judge's follow-up questions to [the witness] on redirect examination clarified that precise point.

Lisa J. Sansone, who represented Johnson, thought the court's analysis was absolutely correct.

The trial court's questions undermined the spousal privilege by implicitly suggesting that the reason Mary wasn't testifying was because [her testimony would be] adverse to the defendant, she said, adding that the issue of the murderer's identity was very hotly contested at trial.

Mary Johnson and Boyd, her boyfriend, were in Mary's Baltimore City apartment when Boyd was shot by an assailant. Although she witnessed the shooting, Mary merely told police that someone had broken in.

Three boys standing outside the apartment complex claimed to have seen a man exiting the building and getting into a distinctive- looking green-turquoise Mercury Sable, a vehicle James Johnson owned. An arrest warrant was issued for Johnson, who turned himself in to police on Feb. 18, 2002.

Before trial, Mary Johnson invoked her spousal privilege not to testify, and the jury was told that she was unavailable.

James Johnson's girlfriend, Constance Calloway, testified for the state.

Responding to a defense attempt to impeach her on the issue of whether she had seen James Johnson following his arrest, Calloway revealed that he had asked her not to see him because it would mess things up with Mary as far as her testifying. Following a redirect by the state, Judge John N. Prevas interjected his own question, asking Calloway if James Johnson had a specific reason for not wanting to get on Mary's bad side.

When Calloway indicated that James Johnson did not want Mary Johnson testifying against him at trial, defense counsel moved for a mistrial, which was denied by the court. Instead, the trial court instructed the jury at the close of all evidence that they were not to speculate on what Mary Johnson's testimony might have been had she been available to give it.

James Johnson was convicted and sentenced to 30 years in prison for second-degree murder, plus a consecutive 20-year term for handgun offenses. He appealed.

The Court of Special Appeals rejected the state's argument that the judge had acted within his discretion in questioning Calloway in order to clarify her testimony. Since Mary Johnson had witnessed the crime, the court noted, the mere fact that she had elected not to testify against her husband at trial - if brought to the attention of the jury - would give rise to an impermissible inference that her husband was in fact the shooter.

In some circumstances, a witness's invocation of a privilege in a criminal jury trial will give rise, naturally, to an inference by the jurors that, had the witness testified, his testimony would have been adverse to the defendant, Eyler wrote.

While the jury might not have understood the statements elicited from Calloway from defense counsel, the court stated, her meaning was made loud and clear following the questioning from the trial judge.

It was an improper exercise of discretion for the trial judge to pose questions that would elicit answers making it obvious that Mary had a choice not to testify, and therefore equally obvious that her absence from the trial was a product of her own choice, Eyler wrote.

Nor did the jury instruction cure the prejudice that was caused by the judge's questioning of Calloway, the court held. Since the evidence from other witnesses, however, was sufficient to support an inference that James Johnson was in fact the shooter, the court accordingly remanded the case for a new trial.

WHAT THE COURT HELD

Case:

James Johnson v. State of Maryland, CSA No. 192, Sept. Term 2003. Opinion by Eyler, Deborah S., J. Filed May 3, 2004.

Issue:

Did a trial judge improperly elicit information from a witness concerning a wife's decision not to testify against her husband in a murder trial?

Holding:

Yes; reversed and remanded. While a trial judge may question witnesses where their testimony is unclear or evasive, the judge improperly elicited information alluding to a wife's decision not to testify against her husband. This topic that should not have been put before the jury; since the wife was present at the shooting, the jury would have drawn an impermissible adverse inference that the husband was in fact the shooter.

Counsel:

Lisa J. Sansone for appellant; Zoe Gillen White for appellee.