Impeachment crossed line into prosecutorial vouching

A Montgomery County prosecutor's tactics in questioning her own witness deprived a defendant in a drug case of his right to a fair trial, the Court of Appeals held yesterday.

The decision reverses Earl Walker's conviction on cocaine-related charges and remands the case for a new trial.

"In the end, it was an abuse of discretion for the trial judge to deny Walker's request for a mistrial...," Judge Glen T. Harrell Jr. wrote. "[T]he prejudicial remarks made by the prosecutor in this case tainted the fairness of Walker's trial."

Although the prosecution did not have to prove surprise in order to impeach its own witness, the court held, it did have to abide by the rules when questioning that witness.

The appeals court found that the prosecutor was, in essence, testifying as she questioned a witness, Gerald Myrick, about a meeting in her office before the trial and insinuated that Myrick had been threatened not to testify.

"The prosecutor's improper conduct in this case clearly prejudiced the defendant unfairly by undermining Myrick's testimony beneficial to the defendant and by getting before the jury the prosecutor's personal belief that Walker was guilty and her further assertions that someone, likely Walker, threatened Myrick to change his testimony," Harrell wrote.

The attorney who handled Walker's appeal defended the prosecutor's professionalism, but praised the appeals court for recognizing limits on how prosecutors may act in the courtroom.

"This is one of the most honorable of prosecutors who I'm sure just overstepped bounds because of the heat of battle," Walker's attorney, David Martella, said. "I'm glad the court recognized there are limits about what a prosecutor can elicit in a witness's testimony."

The prosecutor of record in the case, according to the Montgomery County Circuit Court, is Assistant State's Attorney Deborah Armstrong. An experienced prosecutor, Armstrong is the Rockville Team Leader of the state's attorney's community prosecution teams.

Kathryn Grill Graeff, chief of the attorney general's criminal appeals division, said the opinion "shed light" on how the court will rule in an area where she said there have been disputes in the case law.

Montgomery County Deputy State's Attorney John McCarthy said his office will use the case as an instructional tool for prosecutors.

"What the court has done is given us some clear guidance as to how prosecutors should proceed," McCarthy said.

Walker had been identified as the driver of a car used in a crack cocaine drug buy during a police undercover operation.

Myrick, a passenger, was identified as the person who handed three rocks of crack cocaine to police. He was given federal and state immunity for his testimony at Walker's trial.

When Myrick testified that Walker did not give him cocaine, the prosecutor tried to impeach him based on statements he made to police.

She also asked questions about a meeting she and Myrick had in her office before the trial. The defense moved for a mistrial, claiming those questions transformed the prosecutor into a witness.

The trial court denied the motion. The Court of Special Appeals affirmed.

The Court of Appeals reversed, finding that "prosecutorial vouching" prejudiced Walker's case.

"The prosecutor's use of Myrick to put her version of certain events before the jury crossed over the line," the opinion says. "Her 'testimony' was unassailable by Walker's counsel as she technically was never sworn as a witness."

WHAT THE COURT HELD

Case: Earl Walker v. State of Maryland, CA No. 53, Sept. Term 2002. Reported. Opinion by Harrell, J. Filed March 12, 2003.

Issue: (1) Did the court err in ruling that the state must prove surprise in order to impeach its own recanting witness?(2) Did the trial judge abuse his discretion in denying defense counsel's request for a mistrial?

Holding: (1) No. Proof of surprise is not required under Md. Rule 5-607 analysis. (2) Yes. The prosecutor's cross-examination of a witness was improper prosecutorial vouching affecting Walker's right to a fair trial.

Counsel: David Martella for petitioner; Stephen Holcomb for respondent.

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