Dorsey v. State

350 A.2d 665, 276 Md. 638, 1976 Md. LEXIS 1109
CourtCourt of Appeals of Maryland
DecidedJanuary 9, 1976
Docket[No. 9, September Term, 1975.]
StatusPublished
Cited by658 cases

This text of 350 A.2d 665 (Dorsey v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dorsey v. State, 350 A.2d 665, 276 Md. 638, 1976 Md. LEXIS 1109 (Md. 1976).

Opinions

O’Donnell, J.,

delivered the opinion of the Court. Murphy, C. J., and Smith and Levine, JJ., specially concur in the result, and Murphy, C. J., filed an opinion specially concurring in the result, in which Smith and Levine, JJ., concur at page 661 infra.

Following a jury trial in the Criminal Court of Baltimore (Judge J. William Hinkel presiding), the appellant Donald Dorsey was convicted of robbery with a deadly weapon, of assault, and of the use of a hand gun in the commission of a crime of violence. His conviction was affirmed upon direct appeal to the Court of Special Appeals in an unreported per curiam opinion in Dorsey v. State, (No. 282, September Term, 1974, decided December 5, 1974). Upon the appellant’s petition we granted a writ of certiorari to that Court limited to the issues: (1) Did the trial court err in allowing Detective Richard Simmons, on cross-examination by the State, to answer the question: “And of the cases you have investigated, can you give us any idea of the percentage in which convictions resulted from your arrest?” and (2) If the court committed error in permitting such testimony, was the error prejudicial.

At about 11:30 P.M. on December 27, 1972, Mrs. Doris Fuller, the proprietress of the “Red Bull” carry-out shop, at [640]*6402301 East North Avenue, in Baltimore, was confronted by three young men, one of whom was arm.ed with a gun, and was told “This is a stickup.” Several patrons were directed to lie on the floor; she was ordered “not to move.” One of the robbers searched her pockets and relieved her of a .22 caliber pistol; another of the group, whom she identified at the trial as the appellant, ordered her to open the cash register and he removed its contents. She testified that as the bandits left the premises, the appellant had directed one of his confederates to “Fire on her, man, fire on her.” She however was not further harmed. The police were promptly called.

Shortly after the robbery she made a photographic identification of appellant’s brother Gary Dorsey as one of her assailants. In her trial testimony, in which she identified the appellant, Mrs. Fuller stated that she had known the appellant and his several brothers — all of whom looked somewhat alike — for a number of years and conceded a confusion with their names. She acknowledged that she had mistakenly identified Gary Dorsey as one of the robbers, but that on December 31, 1972, when her cousin William Alexander Jones, accompanied by the appellant, came to the carry-out shop.and returned the gun which had been taken from her during the robbery,1 she then realized that it was Donald Dorsey and not his brother, Gary, who had participated in the hold-up. This information was reported to the police.

Detective Richard Simmons, of the Baltimore City Police Department, testified that three days after the hold-up he presented Mrs. Fuller with a group of six photographs and from them she identified Gary Dorsey as one of the assailants, that a warrant was issued for his arrest; that he surrendered himself to the police and that when he was confronted by Mrs. Fuller at the police station she retracted her identification and he was released. It was further elicited that when a second group of photographs was shown her on January 5, 1973 she identified the appellant and also [641]*641identified him at a line-up held five months after the robbery.

Detective Simmons, recalled in the trial as a witness for the defense, was permitted — over objection by the State — to relate an exculpatory self-serving statement made by the defendant that, when he interviewed him, following his arrest, he denied any knowledge of the robbery and insisted that he was home because of an illness.2

The assistant prosecutor then by way of cross-examination of the detective developed the issues which we here examine. That cross-examination was as follows:

“BY MR. CLARK:
“Q. Detective Simmons, approximately how many armed robbery cases have you investigated in your experience with the Baltimore City Police Department?
“A. Robbery Squad or my experience with the police department?
“Q. Your experience with the police department?
“A. I have to take a very broad guess; I’d say somewhere in the neighborhood of about a thousand.
“Q. Of that approximate one thousand cases can you give us any idea of how often the person arrested denied any involvement in the crime?
“A. Percentage wise I would say about 80% of the time they deny any involvement.
“Q. And of the cases you have investigated, can you give us any idea of the percentage in which convictions resulted from your arrest?
“MR. HORNSTEIN: Objected to.
“THE COURT: Overruled.
[642]*642“MR. HORNSTEIN: Your Honor, I am profoundly impressed by Detective Simmons’ knowledge and talent; I don’t think that the outcome of cases is a yardstick that should guide us in trying evidence.
“THE COURT: Mr. Hornstein, he is trying to broaden the denial of the defendant. I think he should be permitted to do so. You can answer the question.
“MR. HORNSTEIN: I would respectfully except. The fact is that there could be testimony regarding denials, but not regarding the outcome of other cases. With respect to the outcome of cases, box scores, I certainly think that is not a yardstick of the, what shall I say, the weight of the evidence.
“THE COURT: You can answer the question.
“A. I’d say approximately 75 or 80 percent; and lam being very broad with my percentage.
“MR. HORNSTEIN: I respectfully continue the objection and move all the testimony regarding the outcome be stricken.
“THE COURT: Overruled.’ ”
(Emphasis added).

The Court of Special Appeals in finding that the ruling by the trial court was erroneous, pointed out that “there was absolutely no factual or statistical basis upon which to formulate such an opinion” and that “the officer’s opinion, under the circumstances, was completely unreliable and untrustworthy.” Citing Wharton’s Criminal Evidence, § 151 (13th ed. 1972), the court was further of the view that “even if the estimate had been based upon a wholly sound foundation the question itself would have been objectionable for it sought to inject into the case evidence which was entirely incompetent, irrelevant and extraneous to the issue of the appellant’s guilt or innocence.” We concur with the conclusion that the testimony was inadmissible.

We cannot agree however with the further conclusion that, though its admission was erroneous, there was “ample [643]*643evidence, legally sufficient to support the finding of appellant’s guilt and . . . such evidence was not dissipated by the erroneous admission of the officer’s testimony,” nor can we agree with that court’s view, upon the authority of Chapman v. California, 386 U. S. 18

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Cite This Page — Counsel Stack

Bluebook (online)
350 A.2d 665, 276 Md. 638, 1976 Md. LEXIS 1109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorsey-v-state-md-1976.