Gonzalez v. State

487 Md. 136

316 A.3d 484

Antonio E. GONZALEZ

v.STATE of Maryland

No. 23, Sept. Term, 2023

Supreme Court of Maryland.

May 29, 2024

Circuit Court for Montgomery County, Case No. 138036C, Jill Reid Cummins, Judge

Argued by Michael T. Torres, Asst. Public Defender (Natasha M. Dartigue, Public Defender of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Karinna M. Rossi, Asst. Atty. Gen. (Anthony G. Brown, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before: Fader, C.J., Watts, ^*Hotten, Booth, Biran, Gould, Eaves, JJ.

Watts, J.

[1] Impeachment of a witness involves the practice of questioning the witness to discredit or undermine the credibil- ity of the witness’s testimony. Demonstrating that a witness is biased or may have an interest in the outcome of a proceeding, and, therefore, a motive to testify falsely, is a common technique used by trial attorneys to attempt to discredit a witness. Maryland Rule 5-616(a)(4) provides that a witness’s credibility may be attacked through questions asked of the witness that are directed at "[p]roving that the witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely[.]" Cross-examination under Maryland Rule 5-616(a)(4) "should be prohibited only if (1) there is no factual foundation for such an inquiry in the presence of the jury, or (2) the probative value of such an inquiry is substantially outweighed by the danger of undue prejudice or confusion." Manchame-Guerra v. State, 457 Md. 300, 312, 178 A.3d 1, 8 (2018) (quoting Calloway v. State, 414 Md. 616, 638, 996 A.2d 869, 881 (2010)) (emphasis omitted).

The main question presented in this case is whether a trial court erred in precluding counsel for Antonio E. Gonzalez, Petitioner, from cross-examining a witness, who was the victim of an alleged assault, about the witness’s application for a U visa because the trial court found that defense counsel had failed to establish an adequate foundation for such inquiry. A U visa, which we describe in greater detail below, is a visa for noncitizens who are the victim of certain qualifying crimes and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. See U.S. Citizenship and Immigration Services, Victims of Criminal Activity: U Nonimmigrant Status (Apr. 2, 2024), available at https://www.uscis.gov/humanitarian/victims-of-criminal-activity-u-nonimmigrant-status [https://perma.cc/77SH-6AJE]. A U visa application is signed under penalty of perjury and submitted to the U.S. Citizenship and Immigration Services ("USCIS"), an agency of the U.S. Department of Homeland Security. See USCIS Form I-918, Petition for U Nonimmigrant Status at 1, 8, available at https://www.uscis.gov/sites/default/files/document/forms/i-918.pdf [https://perma.cc/V8AJXDZJ]. The application must contain a certification from an official confirming an applicant’s helpfulness in the investiga- tion or prosecution of criminal activity. See USCIS Form I-918, Supplement B, U Nonimmigrant Status Certification at 3-4, available at https://www.uscis.gov/sites/default/files/document/forms/i-918supb.pdf [https://perma.cc/Q76T-YF7L]. For a U visa to be approved, USCIS must determine, among other things, that the applicant "has been helpful, is being helpful, or is likely to be helpful" to officials investigating or prosecuting criminal activity. 8 U.S.C. § 1101(a)(15)(U)(i)(III); 8 C.F.R. § 214.14(a)(12), (b)(3), (c)(2)(ii).

In answering the main question in this case, we must address three specific issues, which are: (1) where a party seeks under Maryland Rule 5-616(a)(4) to cross-examine a witness about a U visa application, what must the party demonstrate to establish a sufficient factual foundation; (2) whether, under the circumstances of this case, defense counsel established a sufficient foundation for cross-examination of the witness in question about the submission of a U visa application; and (3) if the trial court erred in precluding cross-examination, whether the error was harmless.

According to testimony at trial, on the evening of March 13, 2020, Mr. Gonzalez assaulted his then-wife M. and their then-12-year-old son F.¹ in their home. When Mr. Gonzalez’s counsel attempted to cross-examine M. about her application for a U visa, the State, Respondent, objected. During voir dire, outside of the presence of the jury, M. acknowledged that she had an immigration attorney assisting her with a U visa application. When asked whether she understood that she needed to be helpful to the prosecutor to obtain a U visa, M. responded in the affirmative and stated that she would do what her immigration attorney told her to do. In response to other questions about the U visa application, M. stated that she did not understand what Mr. Gonzalez’s counsel was saying or what he wanted her to say and that Mr. Gonzalez’s counsel could contact her immigration attorney if he wanted more information. M. denied knowing that she would be unable to obtain a U visa if she did not cooperate with the State.

During voir dire, the Circuit Court for Montgomery County admitted into evidence a letter from M.’s immigration attorney to the Montgomery County State’s Attorney’s Office dated April 23, 2021, in which M.’s attorney advised that M. was pursuing a U visa and that, to qualify, M. needed "a certification from a law enforcement agency corroborating that she was the victim of a crime and that she was helpful to law enforcement in the investigation or prosecution of the crime." The circuit court also admitted a form titled "Supplement B, U Nonimmigrant Status Certification," USCIS Form I-918, which showed that, on August 4, 2021, the Chief of the Special Victims Division of the Montgomery County State’s Attorney’s Office signed it, certifying that M. was being helpful in the investigation and prosecution of criminal activity and was "currently cooperating" with the Office.²

The circuit court ruled that it would not permit cross-examination of M. concerning "her immigration status" because Mr. Gonzalez’s counsel had not established a "proper foundation[.]" The jury found Mr. Gonzalez guilty of two counts of second-degree assault of M. and one count of second-degree assault of F. In a split decision, the Appellate Court of Maryland affirmed the convictions. See Antonio E. Gonzalez v. State, No. 1075, Sept. Term, 2022, 2023 WL 5030170, at *14 (Md. App. Ct. Aug. 8, 2023). The Appellate Court reached two conclusions. First, the Appellate Court upheld the circuit court’s determination that there was an insufficient factual foundation for cross-examination of M. about her immigration status and U visa application. See id. at *6; id. at *18 (Fried- man, J., concurring). And second, the Appellate Court held that, even if the circuit court had abused its discretion in prohibiting the questioning, any error was harmless. See id. at *9; id. at *18 (Eyler, J., concurring).

In this Court, Mr. Gonzalez contends that his counsel established a sufficient factual foundation to cross-examine M. about her U visa application by proffering evidence of circumstances that demonstrated that M. had a motive to lie or embellish her testimony, which, according to Mr. Gonzalez, satisfied our holding in Kazadi v. State, 467 Md. 1, 52, 223 A.3d 554, 585 (2020). Mr. Gonzalez asserts that, because the Office of the State’s Attorney for Montgomery County provided M. with the certification necessary for a U visa application, there was a reasonable basis to believe that M. may have been tailoring her testimony to assist the State, and that the circuit court’s preclusion of cross-examination about M.’s U visa application was not harmless error.

The State responds that Mr. Gonzalez failed to establish " ‘additional circumstances—such as evidence of a quid pro quo³ arrangement or allegations of leniency in an immigration case’—that g[a]ve rise to a motive to testify falsely or bias" on M.’s part, as required by Kazadi, id. at 52, 223 A.3d at 585, and, therefore, failed to proffer a sufficient factual foundation to cross-examine M. about her U visa application. According to the State, Mr. Gonzalez’s counsel failed to establish that M.’s initial allegation of assault was motivated by the expectation of receipt of a U visa, that M. had an agreement with the State, that she expected to receive a benefit in exchange for her testimony, or that M. understood that her application for a U visa could be affected if she did not cooperate with the State. The State also asserts that any error was harmless beyond a reasonable doubt.

We hold that the circuit court erred in precluding Mr. Gonzalez’s counsel from cross-examining M. about her U visa application. We conclude that, given the nature of the requirement that, for a U visa to be approved, an applicant must be helpful in the investigation or prosecution of criminal activity and provide a certification from a law enforcement or government official to that effect, a sufficient factual foundation for impeachment of a witness concerning a U visa application is established under Maryland Rule 5-616(a)(4) where there has been a showing that a U visa application, based on the witness being a victim of a crime that the defendant is charged with, has been submitted to the government for approval. Additionally, evidence that the required certification has been provided on the witness’s behalf by the prosecutor’s office or law enforcement official responsible for investigating or prosecuting the defendant’s case is sufficient to establish the required factual foundation regardless of whether the application has been submitted by the witness. These circumstances are not intended to be exhaustive or all inclusive of the circumstances that may warrant cross-examination of a witness about a U visa application under Maryland Rule 5-616(a)(4). As with all determinations with respect to cross-examination under...