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Court of Appeals limits jury instruction on witness’ credibility

Finding that ‘reasonable’ protective housing not a benefit from state draws ire of defense attorneys

The Courts of Appeal building in Annapolis. (The Daily Record File)

The Courts of Appeal building in Annapolis. (The Daily Record File)

Criminal-defense attorneys say they have lost an arrow in their quiver of methods to challenge the credibility of prosecution witnesses who receive benefits in return for their trial testimony.

Maryland’s high court this week held that prosecution witnesses who receive “reasonable protective housing” before trial have not received a “benefit” from the state. Thus, trial judges need not accede to defense counsel requests to tell jurors they can consider the state-provided housing in weighing the witnesses’ credibility, the Court of Appeals said in upholding a first-degree murder conviction.

Baltimore defense attorney A. Dwight Pettit said the high court’s limitation on jury instructions “takes away a major right of the defense: to challenge the credibility of witnesses.”

The determination of whether a witness’ testimony was influenced by being provided housing is “something that the jury should be allowed to consider” with the judge’s blessing, said Pettit, a solo practitioner not involved in the high-court case. “The point is it [housing ] is a benefit to the witness and the instruction should go to the jury.”

In the case before the Court of Appeals, Dontae Preston, through counsel, had sought an instruction that the jury could consider that the Baltimore city state’s attorney’s main witness in his 2012 trial had received eight months of housing at the state’s expense of $13,530.

But the trial judge, intermediate Court of Special Appeals and Court of Appeals concluded the instruction need not be given because the state’s provision of the protective housing to Nichelle Payton was “reasonable” in light of the danger she feared.

The high court did not define the term “reasonable,” saying that would have to be determined through future cases. However, as a guideline, the court said putting witnesses up in expensive hotels would presumably be unreasonable.

“We suggest that ‘reasonable’ protective housing implies that there is some rough correlation between a witness’s ordinary living arrangements and those provided to a witness while they are in protective housing,” Judge Glenn T. Harrell Jr. wrote for the unanimous court.

“It likely would not have been reasonable, for example, for the state to put Payton in The Plaza Hotel for the entirety of her stay in protective housing,” Harrell added. “In this case, the state paid less than $14,000 to house Payton (and, presumably her immediate family) for approximately eight months. Such an expense, in these circumstances, is not unreasonable.”

A quid pro quo?

But defense attorney Bruce L. Marcus disagreed with the court, saying the reasonableness of an expense is not a factor in a jury’s assessment of a prosecution witness’ credibility.

“Any kind of benefit, incentive or other value that is paid that can be construed as a quid pro quo may impact the witness’ credibility,” said Marcus, of MarcusBonsib LLC in Greenbelt.

Marcus suggested that one way to determine if it was reasonable for the state to provide housing to a witness would be to imagine the defense providing a similar benefit to one of its witnesses.

“Conferring benefits on witnesses oft times depends on which party is providing the benefit,” Marcus said. “Query what would have happened if the benefit had been conferred by defense counsel. Would the prosecution have been so charitable under those circumstances in characterizing it as no benefit — or potentially actionable?”

But Brian S. Kleinbord, of the Maryland attorney general’s office, said the court was correct not to require the jury instruction.

Providing housing “was not a benefit,” added Kleinbord, who heads the office’s criminal-appeals division. “This was a witness who felt threatened to testify and this was done for her safety.”

Preston’s appellate attorney, Assistant Maryland Public Defender Daniel Kobrin, declined to comment on the court’s decision.

First-degree murder conviction

Payton was scared and no longer wanted to live at 1907 N. Pulaski St., where Preston shot and killed Keon Barnes at a party Payton was hosting on March 14, 2009, according to trial testimony.

Baltimore law enforcement put her up in temporary housing, and she subsequently testified in Baltimore City Circuit Court that she was inside the Pulaski Street home when she heard gunshots, looked out her bedroom window, saw Barnes lying on the porch steps and Preston going to his car and leaving the scene.

During cross examination, Preston’s attorney pressed Payton on whether she was cooperating with prosecutors because she had been provided free protective housing. Payton said the housing had no influence on her decision to testify or the testimony itself.

Prior to jury deliberations, Preston’s attorney urged Judge Barry Williams to read Maryland Pattern Jury Instruction 3:13 to the jurors, which states they may consider testimony of prosecution witnesses who have received benefits.

Williams declined to give the instruction, saying he was not satisfied Payton’s testimony was “as a result of” the benefit. The judge ultimately told the jurors that, “in determining whether a witness should be believed, you should carefully judge all of the testimony and evidence and the circumstances under which the witness testified.”

The jury convicted Preston of first-degree murder, using a handgun in a crime of violence and wearing, carrying and transporting a handgun. He was sentenced to life in prison plus 20 years.

Harrell stepped down from the Court of Appeals on June 27, when he reached the mandatory judicial retirement age of 70. He was specially assigned to participate in the court’s decision and adoption of the opinion in the case, Dontae Preston v. State of Maryland, No. 80, Sept. Term 2014.