McCray v. State

501 A.2d 856, 305 Md. 126, 1985 Md. LEXIS 894

• Court: Court of Appeals of Maryland
• Decided: December 24, 1985
• Docket: 31, September Term, 1985
• Status: Published

Opinions

COUCH, Judge.

We granted certiorari in this case to consider whether the trial court erred in refusing to allow a proffered defense witness to testify in his behalf on the basis of a violation of the sequestration rule¹ when there was no request for sequestration nor any such order. Under the facts and circumstances present we hold the trial judge did err.

Ernest McCray was charged with, inter alia, second degree rape and child abuse. He was tried in the Circuit Court for Baltimore City and convicted of these two charges. Upon appeal to the Court of Special Appeals that court affirmed the judgements; we issued certiorari to review that decision.

During the trial the State produced, in rebuttal, the thirteen year old victim, who on cross examination denied that in visiting the defendant² in jail awaiting trial, she told him she was going to drop the charges. The defendant, in his direct examination, had testified that she had so told him on her visit to the jail. The victim also denied that she told anyone else that she was going to drop the charges although, during the State’s case in chief, she, in answer to a question from the trial judge, stated that in a phone conversation with the defendant he had asked her “Was I going to let him go free and I told him yes. I told him yes. And I told him that he has to tell me something first before I go to Court. And I asked him, I said did you do that to me? He said yes.”

Thereafter defense counsel, in a bench conference, advised the trial judge he had “to ask some surrebuttal;” that the defendant’s sister, who had been sitting in the courtroom during the trial, was prepared to testify she was at the jail when the victim told the defendant she was going to drop the charges. Thereafter the following colloquy took place:

“MR. WOOD [State’s Attorney]: I believe she is in the courtroom.

MR. CAPLAN [Defense Attorney]: This is something I didn’t anticipate. You’re the one who brought up the question.

THE COURT: You brought it out. He didn’t bring it out. Your client brought it out.

MR. WOOD: It was implied in the defense counsel’s question.

MR. CAPLAN: No. Well, irrespective, in view of cross examination I am entitled to rebut what she said.

THE COURT: Well, why wouldn’t you have told us about that so that—

MR. CAPLAN: I had no idea she would deny it, why she would go over there.

THE COURT: You brought out for the first time that the victim had been to the Baltimore City Jail and she had said that she was going to drop the charges. You brought that out.

MR. CAPLAN: Right.

THE COURT: It surely is not unreasonable to assume that the victim was going to deny that. And yet, you knew that the sister was in the courtroom and you could reasonably anticipate putting her on to rebut what the sister said.

MR. CAPLAN: That’s not true. I didn’t know about the visit to the City Jail until the case was in the middle of it.

Secondly, I did not know she made mention to the sister.

THE COURT: Well, you brought this out when you were directly examining your client.

MR. CAPLAN: I didn’t know she was going to deny the statement.

THE COURT: Did you think she would admit it?

MR. CAPLAN: I thought that’s what she went over there for.

THE COURT: Simply because your client said—

MR. CAPLAN: No. Why would the girl go over there? Would you think that a girl would go over there and say I’m going to prosecute you? It’s always the other way around. And I assume that’s what it’s going to be.

THE COURT: Why would you think the victim went over there simply because your client said she did?

MR. CAPLAN: Why would he lie about it? I could get the record—

THE COURT: Do you want to know why people lie? I don’t have enough time to answer that question.

Just a minute. Let’s stop sparring. The point of it is you knew you were going to elicit testimony from your client that the victim visited him at the jail. You knew that the victim either was going to say yes, I did, and you knew further that the victim if she took the stand might well have denied that she had ever said she was going to drop the charges. So, you should have apprised this Court of that so we could understand whether the aunt or whoever it was, the sister was going to be a witness in this case. Now, having said that—

MR. CAPLAN: Your Honor, if I might interrupt.

THE COURT: Why should you interrupt? Having said that, the whole purpose of the sequestration rule is so that some person cannot hear what someone else is saying.

MR. CAPLAN: There was no motion that I recall.

MR. WOOD: There was no motion to sequester in this case because the defense said they had no witnesses at all in this case. Why should I make a motion to sequester if we have no witnesses?

THE COURT: Well, Mr. Caplan should have told this Court that the Defendant was going to say that the victim visited him in jail and that the victim said I’m going to drop the charges. And thus afforded the adversary an opportunity to determine who the adversary the State was going to put on the victim to deny these things. Whether the State would or wouldn’t have, it would have been preferable obviously to not have the sister of the Defendant in the Court during this critical testimony. Because Mr. Caplan specifically asked the Defendant on direct examination, is it true that there were other people present. And he elicited the answer that the sister was present. Now, right then and there Mr. Caplan knew that the sister was sitting in the very courtroom when that question was asked. Why did you not at that time as an officer of the Court say, Judge, I want to alert you to this and the sister shouldn’t be in this courtroom?

MR. CAPLAN: I should not as an officer of the Court—

THE COURT: You should not?

MR. CAPLAN: In the interest of my client, I’m to protect his interest at all times. It does not call for me to tell you what I proffer as to—

THE COURT: Why should 1 not permit her testimony?

MR. CAPLAN: Because surrebuttal is in the discretion of the Court. I feel you would be abusing your discretion by not permitting me to put her on.

THE COURT: Even though you sandbagged this Court?

MR. CAPLAN: I didn’t sandbag the Court. Have no reason to alert the Court and State’s Attorney as to what my possible defenses or testimony are. There’s no motion in the discovery for discovery from the State except as to alibi witnesses. That is not the situation in this case. At no time do I have to make a proffer as to what my proffer might be.

THE COURT: You’re correct. You don’t have to make a proffer. When you get to the point where you know you’re going to be asking this man whether what he said was truthful because someone else was present at that time and you knew he was going to say the sister was present and you also knew the sister was in the courtroom. That creates a situation where when you now want to put her on you’ve done something in my viewpoint that’s somewhat questionable. Now, the question is whether to let her testify or not. I have these options: I can say no, she can’t testify; or I can say no, she can’t testify and the State cannot allude to that in its closing argument; or I can let her testify. If she does testify, she had the advantage of having heard everything that the Defendant has said and can pattern her testimony after his. Whereas had she not been in the courtroom, then she would have been just another witness to be cross examined not knowing precisely what the brother had testified to.

Ma’am, would you come up, please? This lady. Thank you.

What is your name?

MS. TAYLOR: Fanny May Taylor.

THE COURT: You’re the sister of the Defendant?

MS. TAYLOR: Yes.

THE COURT: Now, were you present at the time?

MS. TAYLOR: Yes.

THE COURT: Did you talk to Mr. Caplan about that?

MS. TAYLOR: Yes. I told him when I called him on the phone.

THE COURT: When did you call him on the phone?

MS. TAYLOR: That Sunday.

THE COURT: How long before today did you call, a week ago?

MS. TAYLOR: I’d say almost — Eleaisha, she went almost two weeks before Thanksgiving.

THE COURT: And you told Mr. Caplan you were at the jail?

MS. TAYLOR: Yes. He came that Saturday.

THE COURT: And that’s when she said what?

MS. TAYLOR: I told Mr. Caplan she said she’s going to drop the charges and she asked me could she go to Baltimore City Jail with me. Nothing else, could she go with me.

MR. CAPLAN: Let me ask you something: Did you tell me that she was over the City Jail with you when she said she was going to drop the charges?

MS. TAYLOR: Yes. We went there together. I told you that.

MR. CAPLAN: When did you call me?

MS. TAYLOR: Sunday night.

MR. CAPLAN: What did you say?

MS. TAYLOR: I told you Eleaisha said she was going to drop the charges.

MR. CAPLAN: Isn’t that exactly what you said?

MS. TAYLOR: Yes.

THE COURT: Sit down, ma’am, please.

I sustain the State’s objection and she will not testify. And I feel you misled this Court intentionally. You contended three minutes you knew nothing about it.

MR. CAPLAN: I still contend it. She said one time over the phone. What I gathered is a different story.

THE COURT: I order the State not to talk about that.”

The right of a defendant in a criminal trial to produce witnesses in his own behalf is a critical right, the implementation of which is guaranteed by Article 21, Maryland Declaration of Rights, and the Sixth Amendment to the United States Constitution. We recognize, of course, that trial judges have broad discretion in the conduct of trials in such areas as the reception of evidence, see Fleming v. Prince George’s County, 277 Md. 655, 358 A.2d 892 (1976); Telak v. Maszczenski, 248 Md. 476, 237 A.2d 434 (1968), and order of proof, see State v. Hepple, 279 Md. 265, 368 A.2d 445 (1977); Snowhite v. State, Use of Tenant, 243 Md. 291, 221 A.2d 342 (1966). Prior to the adoption of the exclusion rule it was within the discretion of the trial court whether to exclude a witness, although abuse of discretion was reversible error. See Gwaltney v. Morris, 237 Md. 173, 205 A.2d 266 (1964), and cases cited therein; Brown v. State, 272 Md. 450, 325 A.2d 557 (1974). Since the adoption of former Rules 536 and 755, now Md.Rule 2-513, however, it has been held that the rule is now obligatory and no longer discretionary. Gwaltney, 237 Md. at 176, 205 A.2d 266. Furthermore, it has been stated by our predecessors:

“As stated in Frazier v. Waterman S.S. Corp., 206 Md. 434, 446, 112 A.2d 221 [ (1955) ], ‘ “The ascertainment of the truth is the great end and object of all the proceedings in a judicial trial,” we think that the complete exclusion of the testimony of witnesses for a violation of the sequestration rule is not lightly to be imposed as a penalty upon even an offending party.’ ” Id. at 176, 205 A.2d 266.

It is clear that the rule contemplates an order of sequestration before any sanction for a violation of the rule may be applied. Section (c) of the rule specifically provides for exclusion of all or part of the testimony of the witness who receives information in violation of an order under the rule. Obviously since the matter is no longer discretionary with the trial court, and there must be an order of sequestration before exclusion may occur, it follows that in the absence of such an order, as here, exclusion of the witness was error.

The State nevertheless argues that the witness in this case was excluded not because of a sequestration rule violation, but because the testimony of the witness was not proper surrebuttal. It is also argued that the admission of the witness was within the court’s discretion. The defendant contends at oral argument, rightfully so, that this was not raised in the trial court, nor by cross petition for certiorari, and therefore we should not address it.

We disagree with the State’s contention that the witness was not excluded because of a violation of the sequestration rule. In our view, a fair reading of the trial judge’s comments, as set forth above, clearly leads to the conclusion that he excluded the witness because he felt the court, and the State, had been “sandbagged” and the witness privy to the in-court testimony.

It is also clear that the issue whether the proffered testimony was proper surrebuttal was not raised before the trial court nor did the court use improper surrebuttal as a ground for excluding the witness. Our reading of the record persuades us the exclusion was based solely on a violation of the sequestration rule.

The State urges, however, that on the basis of Robeson v. State, 285 Md. 498, 403 A.2d 1221 (1979), cert. denied, 444 U.S. 1021, 100 S.Ct. 680, 62 L.Ed.2d 654 (1980), we can affirm under the exception to the usual rule that an appellate court will not ordinarily consider an issue that has not previously been raised, where the record adequately demonstrates that the decision of the trial court was correct although on a ground not relied on by the trial court. We believe the State’s reliance on Robeson to be misplaced as that case is distinguishable on its facts. In Robeson, on his appeal to the Court of Special Appeals, the defendant argued, inter alia, that he had a Fifth Amendment right to pre-arrest silence, and the admission of testimony demonstrating such silence over his objection was in violation of that constitutional right. Judge Eldridge, in writing for this Court, stated:

“The defendant petitioned this Court for a writ of certiorari, raising solely the question of whether the trial court erred in admitting evidence of his pre-arrest silence. The State filed an answer and conditional cross-petition for a writ of certiorari, arguing that certiorari should be denied because the testimony was clearly admissible and, even if not admissible, the error was harmless. The State requested that, if the defendant’s petition were granted, we should grant the State’s conditional cross-petition to consider the harmless error question.” 285 Md. at 501, 403 A.2d 1221.

* J)C * JfC * *

“The principle that a court exercising discretionary certiorari jurisdiction will ordinarily consider only those issues presented in the certiorari petition, a cross-petition or the court’s order granting certiorari, is based upon the nature of such discretionary jurisdiction. As observed in Walston v. Sun Cab Co., supra, 267 Md. [559] at 569 [298 A.2d 391 (1973)], ‘the statute [delineating this Court’s certiorari jurisdiction] contemplated that the desirability and public interest involved in granting certiorari are shown to us by petition and the matters presented to us by petition should logically be those considered by us unless we limit those matters for consideration in our order granting certiorari.’ However, as further pointed out in Walston, id. at 567-568 [298 A.2d 391]: ‘In short, we have treated the [certiorari] procedure as affording a discretionary appeal; and when the discretion to grant the petition is exercised, the case is treated like every other appeal.’ Since the State presented the harmless error issue to us in a cross-petition, and as we exercised our discretion to grant the cross-petition, with regard to that issue ‘the case is treated like every other appeal.’ And, as in every ordinary direct appeal, the rule is well established that an appellate court will normally affirm a trial court on a ground adequately shown by the record, even though that ground was not the one relied upon by the trial court.” 285 Md. at 503-04, 403 A.2d 1221.

Thus it is clear that factors were present in Robeson that are not present here. In this case there was no conditional cross-petition filed raising the surrebuttal issue, and the question raised in the defendant’s petition did not encompass the issue now sought to be raised by the State.

Finally we note that Rule 813 a provides that this Court will ordinarily consider only the issues which have been raised in the petition and any cross-petition for certiorari which have been preserved for appellate review, unless otherwise provided by the order granting the writ of certiorari; the order here has no such provision.

Accordingly, we do not address whether the proffered testimony was proper surrebuttal. See Coleman v. State, 281 Md. 538, 380 A.2d 49 (1977). Furthermore, we hold that the trial court had no discretion with respect to whether to exclude the witness for violation of a non-existent sequestration order; thus the trial judge erred.

JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTION TO REVERSE THE JUDGMENTS OF THE TRIAL COURT AND REMAND TO THAT COURT FOR A NEW TRIAL. COSTS TO BE PAID BY THE MAYOR & CITY COUNCIL OF BALTIMORE.

RODOWSKY, Judge.

I concur in the result only.

1 . See present Md.Rule 2-513.

2 . The defendant was referred to as the victim’s stepfather.