Smith v. State

328 A.2d 274, 273 Md. 152
CourtCourt of Appeals of Maryland
DecidedDecember 19, 1974
Docket[No. 50, September Term, 1974.]
StatusPublished
Cited by43 cases

This text of 328 A.2d 274 (Smith 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
Smith v. State, 328 A.2d 274, 273 Md. 152 (Md. 1974).

Opinions

Levine, J.,

delivered the opinion of the Court. Smith and O’Donnell, JJ., dissent and Smith, J., filed a dissenting opinion in which O’Donnell, J., concurs at page 163 infra.

After being convicted of murder in the second degree in the Criminal Court of Baltimore, appellant took an appeal to the Court of Special Appeals. There, she unsuccessfully sought to attack her conviction on three grounds. The decision on one of those grounds has led to this further appeal. We granted certiorari to review “the question whether the trial court erred in refusing to permit [certain] testimony aimed at impeaching a key State’s witness.”

The major defense to the charge of homicide was that the sawed-off shotgun which caused the death of the victim appellant’s former husband — had been fired accidentally as she struggled to take the gun from him. Among the [154]*154witnesses testifying for the State was Officer Edward Brown, of the Baltimore City Police Department, who arrived at the scene before the victim, who was still alive, and appellant had been removed. When Officer Brown’s partner, Officer Brice, asked the victim who had shot him, he identified appellant. According to the police officers, she acknowledged rather emphatically that she had done so, saying “ ‘Yes, I shot the son of a bitch.’ and also that she had fully intended to do so. The underlying testimony from which the evidentiary issue arises occurred on cross-examination of Officer Brown when this exchange ensued:

“Q. . . . [W]hat did Mr. Smith say in response to any questions applied to him at that time about this altercation. A. He said that Frances had shot him and he would get her.
“Q. Do you recall Officer Brown approximately on January 23rd, 1973 receiving a telephone call from a Mr. James Watkins of the Public Defender’s investigative staff? A. Yes, I do.
“Q. Now in that conversation with Mr. Watkins, isn’t it true that you told him at that time that on your visit to the hospital this day in question that the deceased stated or Mr. Smith stated at that time that the shooting was accidental? A. I don’t recall saying that.
“Q. Are you positive of that, sir? A. That’s correct.
“Q. In other words you never said this statement to anyone or any relatives of Mrs. Smith, the accused or anyone in particular about this? A. No, I have not.”

At the conclusion of appellant’s case-in-chief, for the purpose of impeaching the credibility of Officer Brown with a prior inconsistent statement, her trial counsel tendered the following proffer:

“ . . . Your Honor, the defense would proffer that if [155]*155James Watkins of the Public Defender’s staff was allowed to testify he would state that on the date of January 26, 1973 he had a telephone conversation with Officer Edward Brown of the Baltimore City Police Department. In the course of that conversation Mr. Watkins was informed that the deceased Johnnie Smith, on visiting the hospital [sic], being confronted by Officer Brown, was told [sic] that this incident was an accident.
“THE COURT: I’ll sustain the objection. Do you object to the proffer?
“MR. WASE [State’s Attorney]: Yes, Your Honor. I do.
“THE COURT: I’ll sustain the objection to the proffer.
“THE COURT: I haven’t made my ruling yet. For the following reasons the testimony would be double hearsay and would be admissible only if it was shown that a statement made by the deceased, alleged statement made by the deceased was a dying declaration. There’s no evidence whatever to show that it was such. . . . For that reason the Court will not allow the witness to testify to the hearsay statements or to any statements, such statements made by the decedent on the grounds that they were a dying declaration. You now have an exception.”

On appeal to the Court of Special Appeals, the conviction was affirmed, Smith v. State, 20 Md. App. 254, 315 A. 2d 76 (1974), that court holding that the trial judge did not err in rejecting the proffered testimony. In essence, it rested this holding on the proposition that:

“The rule as to impeaching a witness by showing a prior inconsistent statement requires that the statement be with respect to ‘material facts (but not in respect to facts that are collateral, irrelevant [156]*156or immaterial).’” 20 Md. App. at 257 (citation omitted).

The court further stated:

“The cross-examination of Officer Brown in the first instance was undoubtedly proper, even if the ostensible statement made by him to James Watkins was as to a ‘collateral’ fact rather than a ‘material’ fact. With respect to merely ‘collateral’ matters, however, the cross-examiner must ‘take the answer.’ He may only introduce extrinsic evidence of contradiction where the statement in issue was as to a ‘material’ fact . ...” 20 Md. App. at 257 (emphasis added).

The Court of Special Appeals then correctly posited:

“The question at bar is whether the disputed conversation between Officer Brown and James Watkins dealt with a ‘collateral’ fact or a ‘material’ fact. ...” 20 Md. App. at 258 (emphasis added).

Relying heavily on McCormick on Evidence, § 47 (2d ed. 1972), 3A Wigmore on Evidence, § 1020 (Chadbourn rev. 1970) and the landmark case of Attorney-General v. Hitchcock, 1 Exch. 91 (1847), the court held:

“In the case at bar, the critical ‘fact, as to which the prior self-contradiction is predicated’ is an ostensible statement from the ultimate murder victim, from his hospital bed, to Officer Brown, in which he stated that the gun had gone off by accident. That statement was neither shown nor alleged to have been ‘a dying declaration.’ It did not, therefore, qualify as an exception to the hearsay rule, and was inadmissible as direct evidence. Since the appellant could not have offered evidence of such a statement ‘for any purpose independently of the self-contradiction [of Officer Brown],’ the fact of the statement was ‘collateral’ and not ‘material.’ Under the circumstances, Judge Harris ruled properly in refusing to permit extrinsic evidence for [157]*157the purpose of contradicting the trial testimony of Officer Brown that he had never heard such a statement. . . ’ 20 Md. App. at 260 (emphasis added).

Implicit in this opinion is a recognition that the proffered testimony was, itself, not hearsay, since it was being offered only to impeach a key State witness, and not for its truth. The court, however, affirmed the trial court on the ground that extrinsic evidence may not be used to impeach a witness on a collateral matter; that the test for determining when evidence is collateral is whether the fact upon which the prior inconsistent statement was predicated could have been shown in evidence for any purpose independently of the contradiction; and that since the fact upon which the prior statement was predicated — the victim’s statement to Officer Brown that the shooting was accidental — was not a dying declaration and, thus, hearsay, it would not have been admissible independently of the contradiction.

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Bluebook (online)
328 A.2d 274, 273 Md. 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-md-1974.