Parker v. State

985 A.2d 72

189 Md. App. 474

Willie Lee PARKER v. STATE of Maryland.

No. 1351, September Term, 2006.

Court of Special Appeals of Maryland.

December 29, 2009.

Juan P. Reyes (Nancy S. Forster, Public Defender, on brief), for Appellant.

Robert Taylor, Jr. (Douglas Gansler, Atty. Gen., on brief), for Appellee.

Panel: SALMON, DEBORAH S. EYLER and MEREDITH, JJ.

Opinion by MEREDITH, J.

A jury in the Circuit Court for Washington County convicted Willie Lee Parker, appellant, of the crime of retaliation against a witness, in violation of Maryland Code (2002, 2005 supp.), Criminal Law Article ("CrL"), § 9-303. Parker raises four issues, which we quote in the order in which we will address them:

1. Is [CrL] § 9-303 unconstitutionally vague?

2. Was the evidence legally sufficient to sustain Appellant's conviction?

3. Did the trial court err in refusing to declare a mistrial [after the prosecutor alerted the jury to a prior conviction of the appellant]?

4. Did the trial court err in allowing the prosecutor to ask improper "were they lying" questions?

We conclude that the statute is not unconstitutionally vague, and that there was sufficient evidence to sustain appellant's conviction for threatening to harm another in retaliation for a witness's testimony. But we conclude that the prosecutor's reference to appellant's prior conviction was unduly prejudicial, and that appellant's request for a mistrial should have been granted. We vacate the judgment and remand for further proceedings. For the guidance of the trial court, we also agree with the appellant that it was improper for the prosecutor to ask appellant whether other witnesses had been lying when they testified.

Factual Background

Willie Lee Parker and Wendy Swan were arrested by Detective Todd Dunkle and charged separately with narcotics offenses. Swan had had a romantic relationship with Parker, and is the mother of his child. The two were prosecuted separately. Swan's case was tried before a jury in the Circuit Court for Washington County on January 10, 2006. Parker attended Swan's trial, at which Det. Dunkle was a principal witness. Throughout the day of Swan's trial, Parker appeared agitated and angry, and he glared at Det. Dunkle and other witnesses. At the end of the day, Swan was convicted.

After the conclusion of Swan's trial, Det. Dunkle left the courthouse, accompanied by Assistant State's Attorney Brett Wilson and two or three other police officers who had been involved in the case. When they walked out the front door of the courthouse, Det. Dunkle noticed Parker standing at the top of the steps. Their eyes met, and Det. Dunkle and his group walked past.

Det. Dunkle testified that, when he reached the bottom of the courthouse steps, he heard Parker say to him: "Now that you fucked with my family, I'll be fucking with yours." Det. Dunkle turned around and approached Parker. According to Det. Dunkle, he asked Parker: "What did you just say? Did you just threaten my family?" And he heard Parker respond: "Yes, you ruined my family, so I'll ruin yours. You made it personal first." Det. Dunkle became angry, and he acknowledged that he "had some colorful words to say back" to Parker "because [Parker] made the threat against my children and my wife." The others accompanying Det. Dunkle persuaded him to calm down and walk away from the confrontation with Parker.

Later that day, Det. Dunkle initiated charges against Parker for violating CrL § 9-303(a), which provides:

(a) Prohibited. — A person may not intentionally harm another, threaten to harm another, or damage or destroy property with the intent of retaliating against a victim or witness for:

(1) giving testimony in an official proceeding; or

(2) reporting a crime or delinquent act.

Three days later, on January 13, 2006, Parker went to the District Court of Maryland for Washington County and filed an application for statement of charges against Det. Dunkle, alleging harassment. In the application, Parker recited his version of what was said on the courthouse steps. Parker asserted that he was being harassed by Det. Dunkle on January 10, 2006, and that the officer had a history of harassing Parker. On January 17, 2006, Parker filed a similar application for statement of charges against Officer Robison, one of the officers who was with Det. Dunkle at the courthouse during the confrontation on January 10, 2006. No charges were issued for either police officer as a consequence of Parker's claims.

Parker was tried on the retaliation charge initiated by Det. Dunkle. At the conclusion of a jury trial in the Circuit Court for Washington County, Parker was convicted and sentenced to seven and one-half years of imprisonment. Parker noted this appeal. Additional details about the trial proceedings will be discussed below.

Discussion

1. CrL § 9-303 is not unconstitutionally vague.

Parker contends that CrL § 9-303 is unconstitutionally vague on its face. Appellant maintains that § 9-303(a) is so general in the manner it proscribes threats of harm with the intent to retaliate that it (a) is fatally vague and ambiguous, and (b) does not provide fair notice as to precisely what actions are prohibited by the law. We disagree.

As the Court of Appeals explained in Galloway v. State, 365 Md. 599, 610-11, 781 A.2d 851 (2001) (internal quotation marks and citations omitted), cert. denied, 535 U.S. 990, 122 S.Ct. 1547, 152 L.Ed.2d 472 (2002): "In determining the constitutionality of statutes, [t]he basic rule is that there is a presumption that the statute is valid.... We are reluctant to find a statute unconstitutional if, by any construction, it can be sustained." When the challenge to a statute is based on vagueness, "[t]he party attacking the statute has the burden of establishing its unconstitutionality." Id. at 611, 781 A.2d 851.

"A penal statute is vague if it violates the cardinal requirement that it be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties." Eanes v. State, 318 Md. 436, 459, 569 A.2d 604 (1990) (citations omitted). A statute may be void for vagueness if it lacks fixed enforcement standards or guidelines. Id. "The touchstone is whether persons of common intelligence need reasonably guess at its meaning." Id. (quotation marks and citations omitted). See also Bowers v. State, 283 Md. 115, 125, 389 A.2d 341 (1978) (a statute is not unconstitutionally vague where the words used "possess a common and generally accepted meaning").

We summarized the principles governing review of a challenge to the vagueness of a statute as follows in Jeandell v. State, 165 Md.App. 26, 33-34, 884 A.2d 739 (2005), rev'd on other grounds, 395 Md. 556, 910 A.2d 1141 (2006):

In Williams v. State, 329 Md. 1, 616 A.2d 1275 (1992), the Court of Appeals discussed the void-for-vagueness doctrine, and noted that it "requires that a penal statute `be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.'" Id. at 8, 616 A.2d 1275 (quoting Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)). Quoting from Williams, supra, and Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978), the Court further elaborated upon the doctrine in Galloway v. State, 365 Md. 599, 615-16, 781 A.2d 851 (2001):

A well grounded principle in federal constitutional law is that, when considering the void-for-vagueness doctrine, courts consistently consider two criteria or rationales. See, e.g., Williams, 329 Md. at 8, 616 A.2d at 1278; Eanes [v. State], 318 Md. [436] at 459, 569 A.2d [604] at 615; Bowers, 283 Md. at 120-21, 389 A.2d at 345. The first rationale is the fair notice principle that "persons of ordinary intelligence and experience be afforded a reasonable opportunity to know what is prohibited, so that they may govern their behavior accordingly." Williams, 329 Md. at 8, 616 A.2d at 1278 (internal quotation marks omitted) (quoting Bowers, 283 Md. at 121, 389 A.2d 341); see Ferro v. Lewis, 348 Md. 593, 607, 705 A.2d 311, 318 (1998). The standard for determining whether a statute provides fair notice is "whether persons `of common intelligence must necessarily guess at [the statute's] meaning.'" Williams, 329 Md. at 8, 616 A.2d at 1278 (alteration in original) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 607, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1973)). A statute is not vague under the fair notice principle if the meaning "of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning." Bowers, 283 Md. at 125, 389 A.2d at 348 (emphasis added) (citations omitted); see Eanes, 318 Md. at 460, 569 A.2d at 615-16.

The second criterion of the vagueness doctrine regards enforcement of the statute. This rationale exists "to ensure that criminal statutes provide `legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation it is to enforce, apply and administer the penal laws.'" Williams, 329 Md. at 8[-]9, 616 A.2d at 1278 (quoting Bowers, 283 Md. at 121, 389 A.2d 341). To survive analysis, a statute must "eschew arbitrary enforcement in addition to being intelligible to the reasonable person." Williams, 329 Md. at 9, 616 A.2d at 1279. In Bowers, we determined that as to this standard, a statute is not unconstitutionally vague

merely because it allows for the exercise of some discretion on the part of law enforcement and judicial officials. It is only where a statute is so broad as to be susceptible to irrational and selective patterns of enforcement that it will be held unconstitutional under this second arm of the vagueness principle.

283 Md. at 122, 389 A.2d at 346; see Eanes, 318 Md. at 464, 569 A.2d at 617.

As a general rule, the application of the...