Cox v. State

443 A.2d 607, 51 Md. App. 271, 1982 Md. App. LEXIS 264

• Court: Court of Special Appeals of Maryland
• Decided: April 6, 1982
• Docket: 928, September Term, 1981
• Status: Published

Opinions

Orth, J.,

delivered the opinion of the Court. Lowe, J., filed a dissenting opinion at page 286 infra. Wilner, J., filed a concurring opinion at page 296 infra.

I

Her alleged assailant had been released from prison that day. His assault on the 18 year old girl was barbaric. He forced her to engage in two acts of vaginal sexual intercourse, in sodomy and in fellatio. The duress he employed was a vicious physical beating about her face, head and body, leaving her bowed, bruised, bloody and battered. His excuse to her for his brutal conduct was, "I ain’t had a woman in six months.” As soon as she was able to drag herself the three blocks to her home, and while still suffering acute physical pain and under the severe emotional stress caused by her experience, she told her mother what had occurred and informed the police of the incident shortly thereafter upon their prompt response to a call to them. Her assailant was not unknown to her (he was an habitué of the neighborhood), and she identified him as Thomas Wayne Cox. Cox was arrested forthwith at the locale of the crime, which she pointed out on the way to the hospital. The ground at the scene appeared to be "disarranged,” and it was there that the police recovered her underpants, which had been stripped from her during the rape, and articles from her pocketbook. At the time of Cox’s arrest his clothes were dusty and "had a lot of loose dirt... like he just got down and rolled around on the ground.” There were grass stains on his jacket at the elbows and on his pants at the knees, and four "newly made” abrasions or scratches on his arm.

Cox was tried before a jury in the Circuit Court for Baltimore County. He was found guilty of rape in the first degree, a sexual offense in the first degree and common law assault. Under the concurrent sentences imposed he is to spend the remainder of his natural life in prison.

II

At his trial Cox did not dispute the testimonial and physical evidence establishing the corpus delicti of the crimes. He did, however, attempt to cast a reasonable doubt on the proof presented by the State to show that he was the criminal agent. He produced a parade of witnesses to establish an alibi. They placed him in the locality of the scene of the crime before, during and after the time the crimes were alleged to have been committed, but they attempted to account for his activities during the critical period so as to indicate that he could not have been the perpetrator. It is manifest that the jury discounted the testimony of the alibi witnesses, at least to the extent that it found that Cox had the opportunity to and did commit the criminal acts ascribed to him. We note that there was no evidence offered by Cox concerning the fresh scratches on his arm or to explain the condition of his clothing. Nor was there any evidence as to an-unworthy motive which may have prompted the victim’s designation of Cox as her attacker.

Beyond question, the evidence that went before the jury was legally sufficient for it to find that the crimes charged were committed and that Cox committed them. See Williams v. State, 5 Md. App. 450, 452-460, 247 A.2d 731 (1968), cert. den. 252 Md. 734 (1969). On appeal, Cox makes no suggestion to the contrary. Rather, he points to five errors that he alleges the court made during the course of the trial, any one of which, he urges, requires reversal.

The first alleged error arose during cross-examination of the victim. Defense counsel elicited that she used to go with one Donald Vrhovac. The defense asked:

"Did you ever make an allegation, a criminal charge against a Mr. Vrhovac claiming an assault on you?”

The State’s objection was sustained. A bench conference ensued. Defense counsel addressed the court:

"I think I should proffer in this fashion. I have information that the witness made a criminal charge against this Vrhovac of assault on her. And then subsequent during the course of the trial admitted that she did not tell the truth, that it was not an assault on her. And that he was, as a result of her recanting statement, found not guilty.”

The State asked how that was relevant, and defense counsel answered, "Credibility.” He characterized it as "false testimony that was recanted. . . . She first came into court and said that he did commit an assault, and then on cross-examination the information I have is that she then recanted it.” The court thought it was "an independent matter. And if it were more than one, but one isolated instance I don’t think it’s relevant to this, so I will sustain the objection.” The initial question is whether the court erred in sustaining the objection.

It is apparent from the comment and proffer of defense counsel that he was attempting to place the testimony of the adverse witness in its proper setting to impeach her. Impeachment is an attack on credibility, and it once was the way in which such an attack could be pursued under the common law principle which, for ease of expression, is hereinafter referred to as the "veracity rule.” It declared that

"[a] witness may be impeached by evidence impugning his character or reputation for truth and veracity. Evidence of particular acts or of particular facts, though tending to show untruthfulness, is not admissible for this purpose. But rather, the inquiry should relate to the witness’ general reputation for truth and veracity in the community in which he lives at the time of trial.” 2 Wharton’s Criminal Evidence, § 471 (13th ed. 1972) (footnotes omitted).

This was usually done through another witness. Hochheimer, The Law of Crimes and Criminal Procedure § 322 (1st ed. 1897). See 2 Wharton, supra, § 472. It was long ago well settled in this State that the general rule was "that in order to impeach the credit or veracity of a witness the examination must be confined to his general reputation and not permitted as to particular facts.” Rau v. State, 133 Md. 613, 616, 105 A. 867 (1919). The rationale of this policy was that evidence of specific acts tends to confuse the issues and unfairly surprise the witness. 3A Wigmore Evidence § 979 (Chadbourn rev. 1970). See Richardson v. State, 103 Md. 112, 118, 63 A. 317 (1906); Wise v. Ackerman, 76 Md. 375, 392, 25 A. 424 (1892).¹

From the comments of the trial judge in sustaining the objection, it is manifest that he was guided by the common law veracity rule. His reliance on that rule was ill conceived for two reasons. First, clearly the defense was not seeking to impeach the prosecutrix by attempting to establish, pursuant to the veracity rule, that her reputation for truth and veracity, in the community in which she resides, was bad. Second, it seems that the common law veracity rule became defunct in this State upon the passage of ch. 760, Acts 1971, now § 9-115 of the Courts and Judicial Proceedings Article (Md. Code 1974, 1980 Repl. Vol.), subtitle, "Character witness.” ² Whether the statute served to modify the rule, as the Court of Appeals stated in Durkin v. State, 284 Md. 445, 449, 397 A.2d 600 (1979), or to abrogate it, as the Court later said in Kelley v. State, 288 Md. 298, 302, 418 A.2d 217 (1980), the declared purpose of the General Assembly as set out in the title to the Act was "to change the prior rule.” Kelley stated that "[t]he statute permits the admission of a broad range of testimony which may aid the jury in assessing the credibility of a witness. . . .” 288 Md. at 302. In any event, neither the common law veracity rule, whether abrogated or modified, nor the statute, governs the admissibility of the challenged question in the circumstances here.

The rule that in our opinion does govern the admissibility of the challenged question also comes from the common law. It is hereinafter referred to as the "credibility rule.” It applies upon cross-examination of the witness sought to be impeached; one of the main functions of cross-examination is "to shed light on the credibility of the direct testimony.” McCormick, Handbook of the Law of Evidence § 29 (Hornbook Series, 2 ed. 1972). In this context, "the test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and assessing the probative value of the direct testimony.” Id. The credibility rule is firmly established in Maryland and consistently followed. Characterized as "a fundamental concept in our system of jurisprudence” by the present Chief Judge of the Court of Appeals of Maryland, then speaking for this Court in DeLilly v. State, 11 Md. App. 676, 681, 276 A.2d 417 (1971), it declares:

"A witness generally may be cross-examined on any matter relevant to the issues, and the witness’s credibility is always relevant. Therefore, a witness, whether a party to the action or not, may be cross-examined on such matters and facts as are likely to affect his credibility, test his memory or knowledge, show his relation to the parties or the cause, his bias, or the like.”Smith v. State, 273 Md. 152, 157, 328 A.2d 274 (1974).

DeLilly explicated the rule:

"And cross-examination to impeach, diminish, or impair the credit of a witness is not confined to matters brought out on direct examination; it may include collateral matters not embraced in the direct examination to test credibility and veracity, it being proper to allow any question which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or which tends to test his accuracy, memory, veracity, character, or credibility.” 11 Md. App. at 681.

In Mulligan v. State, 18 Md. App. 588, 308 A.2d 418 (1973), we embraced and applied the teachings of 3A Wigmore, Evidence, § 983 (Chadbourn rev. 1970). Wigmore quotes from Territory v. Chavez, 8 N.M. 528, 532, 45 P. 1107, 1108 (1896):

"[A] clear distinction is to be taken between those matters called for on cross-examination which merely excite prejudice against the witness, or tend to humiliate him or wound his feelings, and those matters, on the other hand, which are calculated, in an important and material respect, to influence the credit to be given to his testimony. As to the latter class, the witness cannot be shielded from disclosing his own character on cross-examination, and for this purpose he may be interrogated upon specific acts and transactions of his past life; and if they are not too remote in time, and clearly relate to the credit of the witness, in an important and material respect, it would be error to exclude them.”

It is patent that "the character of a witness for truthfulness or mendacity is material circumstantial evidence on the question of the truth of particular testimony of the witness.” McCormick, supra, § 41. This character trait is surely calculated, in an important and material respect, to influence the credit to be given to the witness’s testimony. And there is solid authority that particular facts or acts with respect to such matter may be elicited from a witness on cross-examination.³ Moreover, "[i]t is well settled law in this State that exploratory questions on cross-examination are proper when they are designed to affect a witness’ credibility. ...” Kruszewski v. Holz, 265 Md. 434, 440, 290 A.2d 534 (.1972). And "[o]f course, the right to cross-examine effectively necessarily includes the right to place the testimony of a witness in its proper setting to fairly enable the jury to judge its credibility.” DeLilly, 11 Md. App. at 681.⁴

This Court applied the credibility rule and recognized the admissibility of evidence as to specific acts in relation thereto in Mulligan v. State, supra. The case involved a hearing for the suppression of an oral confession relative to the murder of a child. The issue boiled down to one of choosing between the credibility of a police officer and that of the accused and a witness in his behalf. The defense, on cross-examination of the police officer, attempted to elicit that the officer had been found guilty by the police trial board of falsifying reports of the police department. The Court, deeming that the inquiry sought to be raised by the defense was "crucial” and that the alleged "misconduct” was "relevant to truthfulness,” held that the failure to allow the cross-examination constituted reversible error, the judge having abused his discretion. 18 Md. App. at 593-597.

This Court also applied the credibility rule in DeLilly v. State, supra. It concerned a prosecution for rape and the contention on appeal was that the trial court committed reversible error when it refused to permit the defense to cross-examine the prosecutrix, her husband and other witnesses with respect to a prior misidentification made by the prosecutrix and her husband of another man charged with and tried for the same offenses. The appellant proffered to show that the husband made an earlier identification of the other accused as one of four criminal agents, but then repudiated it during the course of that accused’s trial and as a result the charges were dropped. The court refused to permit the defense to cross-examine the husband on the point. The Court noted that the appellant was convicted mainly on the basis of the positive in-court identification made of him by the victim and her husband and "the believability of their identifications was the key consideration in the case.” The Court held that the trial judge had committed prejudicial error in unfairly circumscribing the appellant in his cross-examination. 11 Md. App. at 682.

Although the rule has been cited by the Court of Appeals on a number of occasions, we find no case in the precise factual posture of the one now before us. Smith v. State, supra, was concerned primarily with extrinsic evidence of a collateral matter and with a prior statement inconsistent with the trial testimony of a witness. There is no indication that an exploratory question of the witness on cross-examination to test his credibility was challenged. But implicit in the holding that the extrinsic evidence was admissible for the purpose of impeachment is that the question on cross-examination setting the stage for impeachment was proper. 273 Md. at 156 and 162-163. On appeal of the case to the Court of Special Appeals, it had explicitly so held. Smith v. State, 20 Md. App. 254, 257, 315 A.2d 76 (1974). More on point is Mahan v. State, 172 Md. 373, 191 A. 575 (1937). It concerned an action for damages incurred by the death of a child struck by an automobile. On cross-examination, the driver of the vehicle was asked if he had falsely stated his age in his application for a driver’s license. The Court, with little discussion, said that it "seems obvious enough” that the question was permissible. Noting that the witness had testified to his age in chief, it explained: "The fact that he had been willing to misstate it in order to obtain a chauffeur’s license did reflect on his credibility, and was therefore admissible.” Id. at 380. In Sappington v. Fairfax, 135 Md. 186, 108 A. 575 (1919), a witness had testified before a justice of the peace and the grand jury giving evidence which was intended to point to a certain person as having stolen a watch and jewelry. On cross-examination he was asked: " 'When you testified in those prosecutions, both before the justice of the peace and before the Grand Jury, you knew at the time that she hadn’t taken it, didn’t you?’ That was admitted, excepted to, and he answered: 'Yes, sir.’ ” The Court of Appeals said: "If for no other reason, it was at least admissible for the purpose of reflecting upon his credibility.” Id. at 192.⁵

With this background we turn to the question here. It was apparent from the comment and proffer of defense counsel that he was attempting to place the testimony of the witness in its proper setting to test her credibility. The challenged question, considered in the light of the proffer, had no relation to the chastity or any sexual misconduct of the witness. It was not within the ambit of Md. Code (1957, 1976 Repl. Vol., 1981 Cum. Supp.) Art. 27, § 461A (admissibility in rape cases of evidence relating to victim’s chastity). The question did not tend merely to excite prejudice against the witness, or to humiliate her or wound her feelings. It was patently a step in setting the stage for an attempt to influence the credit to be given to the witness’s testimony. The defense sought inquiry into a matter relevant to truthfulness. That the witness may have testified in a criminal case, brought on her complaint, that Vrhovac, whom she admitted knowing, had assaulted her and that she then recanted that testimony in open court under cross-examination, would certainly be "likely to affect her credibility” in the eyes of the jury. The testimony of the prosecutrix was crucial. It was Cox’s position that even though the victim had been raped, sodomized, forced to perform fellatio and beaten, he was not the criminal agent. Her testimony pointed directly at him, but there were no other eyewitnesses. Although the condition of his clothes, the scratches on his arm and his proximity to the scene at the time of the attack provided some corroboration for her assertion that he was the felon, her testimony was essential. Her identification of him was the key consideration in the case. If the jury did not believe her, there could be no conviction. Cox attempted to sow the seeds of doubt as to his participation in the crimes through his alibi witnesses. But, in light of the evidence adduced, his best, if not only, realistic chance to be acquitted lay in the undermining of her credibility. This he was precluded from doing by the court’s ruling.

We are mindful of the general rule so often cited that the allowance or disallowance of questions on cross-examination is normally left to the sound discretion of the trial judge. Caldwell v. State, 276 Md. 612, 618, 349 A.2d 623 (1976), and cases therein cited; Mulligan v. State, supra, at 593. And we recognize that discretionary rulings by the trial court carry a presumption of validity. Mathias v. State, 284 Md. 22, 28, 394 A.2d 292 (1978), cert. denied, 441 U.S. 906 (1979). "But where the limitations imposed by the court upon cross-examination are such as plainly inhibit the ability of the accused to obtain a fair trial, the general rule is manifestly inapplicable.” DeLilly v. State, supra, at 681, citing Shupe v. State, 238 Md. 307, 208 A.2d 590 (1965).

Under the case law of this State, the challenged question was proper in the light of defense counsel’s explanation of why it was asked. The exclusion of it violated Cox’s right to present his defense fully. It follows that the trial court erred in circumscribing the cross-examination.

Ill

Having established that the trial court erred, we next consider whether the error may be deemed harmless.

"In modern times, appellate review in all jurisdictions is subject to tenets that a judgment may be affirmed, under certain circumstances, despite errors committed in the conduct of the trial.” Dorsey v. State, 276 Md. 638, 647, 350 A.2d 665 (1976). If an error was deemed to be "harmless,” the judgment need not be set aside. Prior to Chapman v. California, 386 U.S. 18, 87 S.Ct. 824 (1967), the Court of Appeals traditionally applied the same test in criminal causes as in civil actions — whether there was a reasonable probability that the error may have affected the determination of the case. In other words, "in making an appraisal of the effect of error, the determinative factor . . . [was] whether or not the erroneous ruling, in relation to the totality of the evidence, played a significant role in influencing the rendition of the verdict, to the prejudice of the [accused].” Dorsey v. State, supra, at 653. Moreover, the Court of Appeals required that the accused, "as the aggrieved party, establish not only error, but demonstrate as well some resultant substantial harm and prejudice.” Id. Chapman changed both the burden of proof and the burden of persuasion in criminal proceedings when the error was of constitutional dimension. The Supreme Court held that unless the appellate court could declare a belief beyond a reasonable doubt that there was no reasonable possibility that the error might have contributed to the conviction, it could not be deemed harmless. With respect to errors of nonconstitutional magnitude, Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239 (1946), had enunciated a test for harmless error in less stringent terms than that adopted in Chapman for an error of constitutional dimension. The Supreme Court in Chapman did not purport to override its own authority governing the test applicable to errors not involving the constitution. Dorsey, 276 Md. at 662 (Murphy, C.J., specially concurring). But the majority of the Court in Dorsey saw "no sound reason for drawing a distinction between the treatment of those errors which are of constitutional dimension and those other evidentiary, or procedural, errors which may have been committed during a trial.” Id. at 657. The Court concluded, with respect to evidentiary or procedural errors in which the constitution is not implicated, as well as errors of constitutional dimension, that:

"when an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed 'harmless’ and a reversal is mandated.”

Id. at 659.

The Court commanded:

"Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty- verdict.” Id.

See Ross v. State, 276 Md. 664, 674, 350 A.2d 680 (1976). Such is the law as it now stands and governs our review of the case before us.

Applying the clear dictates of the harmless error test established in this State, upon our own independent review of the record we cannot declare a belief, beyond a reasonable doubt, that the error here in no way influenced the verdict. The State, as the beneficiary of the erroneous ruling, did not meet its burden of demonstrating the innocuous nature of the transgression. Hillard v. State, 286 Md. 145, 155, 406 A.2d 415 (1979). We are unable to be satisfied, in the circumstances, that there is no reasonable possibility that the error may have contributed to the rendition of the guilty verdicts. See Brafman v. State, 276 Md. 676, 349 A.2d 632 (1976), in which the Court of Appeals observed in regard to the erroneous admission of hearsay evidence that the possibility that the error in any way influenced the jury to the detriment of the defendant was particularly acute, "when, as [in that case] there is little doubt that a rape took place; the only contested issue being who was the real culprit.” Id. at 680. Even if the evidence tending to prove Cox’s guilt is considered to be overwhelming, it is overwhelming only if the prosecutrix is credible. It may well be that the jury would have believed her despite the admission of the evidence proffered, but that is not subject to speculation on our part. The short of it is that the error here cannot be deemed harmless, and a reversal is mandated.⁶ The judgments of the Circuit Court for Baltimore County are reversed, and the case is remanded for a new trial.

In view of the reversal of the judgments, the other contentions of Cox are not addressed.

Judgments reversed: case remanded for a new trial; pursuant to Maryland Rule 1082f costs shall not be reallocated.

1 . For discussions of the rule and its history, see Taylor v. State, 278 Md. 150, 155, 360 A.2d 430 (1976); Comi v. State, 202 Md. 472,478, 97 A.2d 129, cert. denied, 346 U.S. 898 (1953); Berger v. State, 179 Md. 410, 412-413, 20 A.2d 146 (1941).

2 . The statute provides:

"Where character evidence is otherwise relevant to the proceeding, no person offered as a character witness who has an adequate basis for forming an opinion as to another person’s character shall hereafter be excluded from giving evidence based on personal opinion to prove character, either in person or by deposition, in any suit, action or proceeding, civil or criminal, in any court or before any judge, or jury of the State.” (Md. Code, 1974, 1980 Repl. Vol.) § 9-115 of the Courts and Judicial Proceedings Article.

3 . 3A Wigmore, Evidence, § 981 (Chadbourn rev. 1970) declares that the reasons of confusion of issues and of unfair surprise underlying the prohibition of evidence of particular facts or acts in connection with the rule concerning general reputation for truth and veracity do not operate to forbid extraction of relevant facts of misconduct from the witness himself upon cross-examination.

"(a) There is no danger of confusion of issues, because the matter stops with question and answer; (b) there is no danger of unfair surprise, because the impeached witness is not obliged to be ready with other witnesses to answer the extrinsic testimony of the opponent for there is none to be answered, and because, so far as the witness himself is concerned, he may not unfairly be expected to be ready to know and to answer as to his own deeds.” Id.

“Thus,” concludes Wigmore, "neither of the reasons has any application, and hence, so far as they are concerned, the opponent is at liberty to bring out the desired facts by cross-examination and answer of the witness himself to be impeached.” Id.

4 . Cross-examination is, of course, not without limitations. "There may be cases where the subject-matter has no relevance at all, not even to impeach the witness’s credibility.” Smith v. State, 273 Md. 152, 157-158, 328 A.2d 274 (1974). For an example see Sloan v. Edwards, 61 Md. 89 (1883). "[E]vidence which is otherwise irrelevant cannot become relevant simply because it is capable of being contradicted, and.will thereby impeach the witness.” Smith at 158.

5 . A number of the decisions of the Court of Appeals which refer to the credibility rule turn on the inadmissibility for the purpose of impeachment of extrinsic evidence on a collateral or irrelevant matter. See, for example, Harris v. State, 237 Md. 299, 206 A.2d 254 (1965); Howard v. State, 234 Md. 410,199 A.2d 611 (1964); Kantor v. Ash, 215 Md. 285,137 A.2d 661 (1958); Panitz v. Webb, 149 Md. 75, 130 A. 913 (1925).

The statement in State v. Giles, 239 Md. 458, 472-473, 212 A.2d 101 (1965), vac. 386 U.S. 66 (1967), that "we have held that specific acts of misconduct are not admissible to affect the credibility of a witness, for credibility must ordinarily be attacked by evidence of general reputation for truth or veracity or material contradictory facts,” simply ignores the credibility rule. And in any event, the statement must now be read in the light of the character witness statute as construed in Kelley v. State, 288 Md. 298, 302, 418 A.2d 217 (1980).

Rau v. State, 133 Md. 613, 105 A. 867 (1919), a carnal knowledge case, was decided under the veracity rule requiring evidence as to general reputation for truth and veracity, rather than specific acts, in order to impeach. But the Court noted, at 617: "It will be seen that the prosecuting witness was not asked on cross-examination whether she had told a lie concerning the alleged intercourse with [another person! . . . .” In the context in which the statement was made, the implication is that the Court thought that such a question would have been proper for the purpose of impeachment. 3A Wigmore, Evidence, § 963, n. 2 (Chadbourn rev. 1970) states that Rau erroneously applied the veracity rule instead of the credibility rule.

6 . The strictures of the harmless error rule are reflected in the decisions of the Court of Appeals. For example, the Court found that the error was not harmless in Ross v. State, 276 Md. 664, 674, 350 A.2d 680 (1976) (improper testimony of prior criminal conduct); Brafman v. State, 276 Md. 676, 680-681, 349 A.2d 632 (1976) (admission of hearsay testimony); Dempsey v. State, 277 Md. 134, 355 A.2d 455 (1976) (improper jury instruction); Crawford v. State, 285 Md. 431, 456, 404 A.2d 244 (1979) (error in placing challenged portions of recordings of interrogations before jury); Hillard v. State, 286 Md. 145, 154-159, 406 A.2d 415 (1979) (receipt of confession in evidence); Green v. State, 286 Md. 692, 696-697, 410 A.2d 234 (1980) (error regarding absence of counsel at a preliminary hearing not harmless even though no evidence or statements from the hearing were introduced at trial); Lansdowne v. State, 287 Md. 232, 247-248, 412 A.2d 88 (1980) (failure to instruct jury on reasonable doubt); Sherman v. State, 288 Md. 636, 640-642, 421 A.2d 80 (1980) (violation of procedural rule that dead counts of indictment not go before jury). Although not discussed explicitly in terms of "harmless error,” improper jury instructions were held to be prejudicially erroneous in Squire v. State, 280 Md. 132, 135, 368 A.2d 1019 (1977); McKnight v. State, 280 Md. 604, 615, 375 A.2d 551 (1979). And in State v. Huston, 281 Md. 455, 379 A.2d 1027 (1977), it was held to be prejudicial error not to admit the previous conviction of a witness.

We notice three cases in which error was deemed to be harmless. Each is marked by unusual circumstances. In Taylor v. State, 278 Md. 150, 360 A.2d 430 (1976), the trial court erred in permitting character witnesses to be cross-examined with respect to the defendant’s prior convictions with no proof or proffer of the convictions. It was not clear that there had been proper objection. The Court said that even had there been objection, it would have regarded the questions as harmless because the calling of the character witnesses was to establish the defendant’s reputation as a "peaceful” man. The witnesses denied knowledge of the convictions, but said that if they had been aware of them their opinion of the defendant’s reputation as a "peaceful” man would have remained unchanged. "Thus,” the Court concluded, "the State’s use of the prior convictions failed to produce the desired result.” Id. at 158-159.

In Johnson v. State, 283 Md. 196, 388 A.2d 926 (1978), the Court held that a violation of the sequestration of witnesses rule was harmless because it "in no way contributed to the conviction. For the error to have contributed to the conviction, it would have been necessary for [a certain witness] to have been 'taught or prompted’ by the testimony which he heard. There is no way in which that prior testimony could have been helpful to [that witness] in his testimony.” Id. at 203.

In Robeson v. State, 285 Md. 498, 403 A.2d 1221, cert, denied, 444 U.S. 1021 (1979), admission of testimony concerning pre-arrest silence was held to be harmless where the witness later gave testimony, without objection, to the same effect as earlier testimony to which an objection was erroneously overruled. Id. 504-507.