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Anthony Archer v. State of Maryland No. 119, September Term, 2003 DUE PROCESS -- RIGHT TO A FAIR TRIAL -- IMPARTIAL JUDGE -- A criminal defendant has the right to both a fair and impartial judge and a judge who has the appearance of being fair and impartial. Excessive threats or efforts to coerce a witness to testify may result in the loss of the appearance of impartiality required of the bench and amount to a due process violation. WITNESSES -- COMPELLABLE WITNESS -- CONTEMPT -- A judge should adopt a neutral and judicious manner when informing a recalcitrant witness of his or her obligation to testify and the consequences of his or her continued refusal. WITNESSES -- COMPELLABLE WITNESS -- JUDICIAL ADMONITION -- REVIEWING COURT -- A reviewing court should consider the record as a whole when determining the probability or possibility of a nexus between the judicial conduct complained about and the witness's testimony or refusal to testify. SUPERVISORY POWER--COURT OF APPEALS-- The Court of Appeals, in the interest of justice, may exercise its inherent supervisory authority over the administration of justice in Maryland courts and reverse a criminal conviction resulting from a trial judge's improper use of judicial authority.

In the Circu it Court for B altimore C ity Civil No. 199356026 IN THE COURT OF APPEALS OF MARYLAND No. 119 September Term, 2003 ______________________________________ ANTHONY RODNEY A RCHER

v.

STATE OF MARYLAND ____________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Greene, J. Raker, J. and Wilner, J., concur Harrell, J., dissent ______________________________________

Filed: October 7, 2004

Appellan t, Anthony Rodn ey Archer ("Archer" ), asks this Court to determine the extent to which a trial judge may compel a recalcitrant witness to testify when that witness refuses to testify at trial. We revie w this ma tter in the conte xt of Arc her's appe al from his convictions for felony murder and attempted murder. He poses the following question for our review: [Did] the trial court err[] by threatening the reluctant State's witness Lewis Bailey with prosecution for contempt and by suggestion to Mr. Bailey and his counsel that he could avoid the contempt prosecution by testifying inconsisten tly with his prior testimony, thereby allowing the State to introduce that prior testimony under Nance .1 We shall hold that a trial court's warning to a reluctant witness concerning contempt sanctions or the p enalties of perju ry is not, per se, a due process violation. In this case, the trial judge's admonition to the witness was not given in a judicious manner and was otherwise excessive. Specifically, it was improper for the trial judge either to advise the witness on how he could testify or to orchestrate a hearing on contempt, by inviting another member of the bench to try and convict the witness for contempt of court, under circumstances that would undermine the impartiality of the judges and the integrity of our criminal justice system. We do not approve of the techniques employed by the trial judge to persuade the witness to testify. The trial judge's repeated admonition to a recalcitrant prosecution witness tha t he testify, irrespective of the witness's obligation to testify

truth fully, coupled with threats of contempt and possible imposition of the "longe st possible sentence the law allows," probably caused the witness to change his testimony. Because of

1

Nance and Hardy v. State, 331 Md. 549, 629 A.2d 633 (1993) (hereinafter Nance).

the trial judge's be havior in this case, Archer's right to a fair trial was, therefore, violated. I. Archer was convicted by a jury in the Circuit Court for Baltimore City, (Prevas, J. presiding), and sentenced as follows: (1) life imprisonment for felony murder; (2) life imprisonment to be served consecutively for attempted first degree murder; and (3) two sentences of twenty years to be served consecutively for two counts of the use of a handgun in a crime of violence. The remaining convictions were merged for sentencing purposes. Archer's conviction s stem from an inciden t that occurre d in the early morning hours of September 12, 1997. Rudolph Lyons ("Lyons"), William Faulkner ("Faulkner"), and Eric Gardner ("Gardner"), were walking near Lexington Mark et in Baltimore City. They were returning to their car after g etting some thing to eat at Crazy John's when they noticed three men approaching. Th e three men appro aching were Archer, Lewis Bailey (" Bailey"), and Keith Edmonds ("Edmo nds"). A f ight ensued when A rcher pulled a gun, plac ed it to Lyons's stomach, and attempted to remove Lyons's necklace. Shots were fired by men on both sides. At Archer's trial, Lyons described the events as follows: As how w e were lin ed up, t hey were lined up the same way. As if we was playing basketball, was 3 on 3, m an on m an. It was a man on man situation. And I looked and I see the three people coming towards us. And I noticed one of them had a gun in their po cket, the guy in th e middle. I co uld see that he had a gun in his pocket. And when I saw that, I paused and I, after I paused, I kept walking and then, as we met up, I tried to walk through them. But the guy that was in the middle had gave me a shoulder as if to stop me and the guy that was in front of me had pulled his gun out and stuck it in my stomach and -2-

told me you all know what time it is. And while he was sticking the gun in my stomach, he was reaching for my necklace to try to take my necklace off. And so, whereas he was turning my necklace, I grabbed his arm which he was holding the gun at my stomach and moved the gun away from my stomach because I knew th ey were goin g to shoot. So, as I got the gun away from my stomach and we got to tussling. And, as soon as that happened, shots just rang out and within the first couple of shots, I got hit and fell to th e ground and I busted my head on the concrete. And when I rolled over, I noticed that I was shot in my shou lder. I loo ked at my s houlder. Wh en I looked up, the guy I was tussling with was standing over the top of me

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