McCray v. State

McAULIFFE, Judge,

dissenting.

I respectfully dissent. The testimony offered by McCray did not address new facts developed by the State’s rebuttal witness, and it was therefore admissible only in the sound discretion of the trial judge. In the exercise of that discretion the judge properly considered the presence of the witness in the courtroom during all previous testimony bearing on the issue to which she would testify, and the decision to exclude the proffered evidence was not error.

I do not agree that Maryland Rule 813 a or our previous holding in 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), precludes us from considering the propriety of the proffered testimony as surrebuttal. The question before us was framed by the petition for certiorari in the following words:

Can a trial judge exclude the testimony of a crucial defense witness on the basis of her presence in the *138 courtroom when no sequestration order was either requested or in effect at the time of trial?

The answer to the question depends upon whether the testimony was necessary and proper surrebuttal, and therefore admissible as a matter of right, or was not proper surrebuttal and thus admissible only in the discretion of the court. If the testimony was not proper surrebuttal the trial judge could properly consider the presence of the witness in the courtroom as a factor in the exercise of his discretion. Whether the proffered testimony was proper surrebuttal is therefore a question inexorably intertwined with the question presented for review.

A basic rule relating to rebuttal evidence is that “evidence which ought to be offered in chief will be rejected when offered as rebutting testimony.” Davis v. Hamblin, 51 Md. 525, 539 (1879). In 2 J. Poe, Pleading & Practice at Law, Pr. § 287 (4th ed. 1969) the rule is well stated:

The rule is that the plaintiff will be required to go fully into his own case-in-chief on these issues as to which he holds the substantial affirmative, and where, therefore, the burden of proof rests on him; and hence, in reply to the case made by the defendant, he will ordinarily be limited to what is strictly rebutting evidence. Still, it is not always easy to draw the line between what is rebutting evidence and what is evidence properly adducible in chief. The subject is one which is addressed to the sound discretion of the court; and the appellate court will not reverse for an error on this point, unless the ruling of the court below was both manifestly wrong and substantially injurious. Indeed, as a general rule, in such cases no appeal will lie____ Trials would be greatly prolonged and great surprise and injustice would result if the practice in regards to rebutting evidence was not enforced; and hence, except where departures from the rule seem to be justified by the requirements of particular cases, the courts will not permit evidence to be offered in rebuttal, unless it is really in answer to something which was not properly part of the case-in-chief. If it is testimony *139 merely cumulative to, or corroborative of, that already offered in chief, it will be rejected. (Footnotes omitted.)

See also Huffington v. State, 295 Md. 1, 13-15 , 452 A.2d 1211 (1982); State v. Hepple, 279 Md. 265, 270 , 368 A.2d 445 (1977); Snowhite v. State, Use of Tennant, 243 Md. 291, 306 , 221 A.2d 342 (1966); Snowden v. State, 133 Md. 624, 636 , 106 A. 5 (1919).

A determination of whether the proffered testimony was proper rebuttal evidence requires consideration of its nature and the purpose for which it was offered. During the State’s case-in-chief the prosecutrix testified fully concerning the alleged offenses. McCray’s counsel cross-examined her at length, but did not ask her whether she had ever told McCray or anyone else that she intended to have the charges dropped. The first mention of that came during the presentation of McCray’s case-in-chief, when he testified the prosecutrix had visited him at the Baltimore City Jail approximately one and one-half weeks before trial, and told him she was “going to drop the charges” because “it’s not true.” On cross-examination McCray was asked whether anyone else was present at the time of the conversation and he testified that his sister, Fannie Mae Taylor, was there. The prosecutrix was recalled by the State, and testified in rebuttal that she had visited McCray at the jail about two weeks before trial, but that she had never told him she intended to have the charges dropped. On cross-examination she denied having told anyone else she was “going to drop the charges,” and when asked whether she told that to McCray’s sister, she said she had not. McCray’s counsel then asked to call Taylor in surrebuttal, stating “the sister is here ... [to testify] that she made [an] admission ... that she was going over to the jail to tell him she was going to drop the charges.” A proffer of Taylor’s testimony was taken at the bench, and it appeared she would testify that: 1) The prosecutrix had called her and asked to go to the jail with her because she was “going to drop the charges,” and *140 2) she had gone with the prosecutrix to visit McCray at the jail. 1

The second part of Taylor’s testimony concerning her presence at the jail and any conversation relating to the dropping of charges was not proper surrebuttal, and its exclusion was not error. When McCray testified in his case-in-chief, he intended to prove that the prosecutrix had come to the jail and stated her desire to drop the charges because the facts upon which they were based were not true. Taylor was available to corroborate that testimony, and should have been called as a corroborating witness during the defendant’s presentation of his case if that was the purpose of her testimony. The rebuttal testimony of the prosecutrix introduced no new issue; she simply denied the facts advanced by McCray. A mere denial of facts already in evidence is an insufficient basis for the introduction of surrebuttal testimony.

The first part of Taylor’s proffered testimony, dealing with the alleged telephone call, requires a more detailed analysis because it may have been offered under two distinct theories of admissibility: as a statement of intention offered to show a subsequent act, or as a prior inconsistent statement for purposes of impeachment.

In Md. Paper Products Co. v. Judson, 215 Md. 577, 590-91 , 139 A.2d 219 (1958) this Court approved the rule that evidence of declarations of a plan, design or intention presently entertained by the declarant is, subject to the usual limitations as to remoteness in time and apparent sincerity common to all declarations of mental state, admissible when offered as evidence that the design was carried *141 out by acts or omissions of the declarant. 2 If offered for this purpose, i.e., to show that the prosecutrix probably did go to the jail and tell McCray she intended to have the charges dropped, it again is nothing more than substantive evidence to corroborate McCray’s testimony to that effect. As such, it could have been introduced as a part of his case-in-chief, and it was not proper rebuttal.

If the testimony was offered for impeachment purposes as a prior inconsistent statement of the prosecutrix, a different situation is presented. Ordinarily, such evidence is properly offered as rebuttal because it is necessary first to elicit a denial or a claim of lack of memory of a statement from an opposing witness. In this case, an attempt was made to lay a foundation for impeachment, but the attempt fell short. This Court’s previous decisions make it clear that in order to establish a proper foundation for impeachment by way of a prior contradictory statement the witness must be asked on cross-examination whether the particular statement was made to a designated person, and the witness must be apprised of the time and place when the statement was supposed to have been made. State v. Kidd, 281 Md. 32 , 46 n. 8, 375 A.2d 1105 (1977); Campbell, etc. v. Patton, 227 Md. 125, 141-42 , 175 A.2d 761 (1961); Moxley v. State, 205 Md. 507, 516-17 , 109 A.2d 370 (1954); Baltimore Transit Co. v. Castranda, 194 Md. 421, 439 , 71 A.2d 442 (1950). In Baltimore Transit Co., supra, this Court said:

It is an invariable rule that in order to impeach a witness by proof of prior contradictory statements, a foundation for such impeachment must be laid by asking the witness on cross-examination whether he had made contradictory statements to a designated person and informing him of the place where and the time when the statements were supposed to have been made. [Citations omitted.] *142 “This,” Judge Robinson said in Brown v. State, 72 Md. 468, 475 , 20 A. 186, 188 , “is but fair and just to the witness, in order that he may be enabled to refresh his recollection in regard to such statements, and afforded the opportunity of making such explanation as he may deem necessary and proper.” 194 Md. at 439 , 71 A.2d 442 .

The attempt to establish a foundation for impeachment in this case consisted of the following:

Q Did you tell anybody else you were going to drop the charges?

A No, I didn’t.

Q How about his sister?

A No.

Q You sure of that?

A Yes.

This cross-examination failed to apprise the witness of the time and place when the statement was supposed to have been made, and thus deprived the witness of a fair opportunity to refresh her recollection and make such explanation as she might deem necessary and proper. If offered for purposes of impeachment, this portion of Taylor’s testimony was inadmissible for want of a proper foundation.

The broad discretion that is afforded a trial judge permits the admission of evidence that does not qualify as proper rebuttal. No such discretion exists to exclude evidence that would have been proper as rebuttal, and if a proper foundation had been laid for the introduction of evidence of a prior inconsistent statement, I would have agreed that its exclusion was error. Having analyzed the two parts of Taylor’s proffered testimony, however, and having determined that neither part may be considered proper rebuttal evidence, the only question that remains is whether the trial judge abused the very broad discretion given him to receive evidence not otherwise qualified for admission. I think it clear in the instant case that he did not.

*143 The record is clear that the trial judge and the parties were concerned with the exercise of the judge’s discretion to admit surrebuttal testimony, and not the imposition of a sanction for violation of a rule that had never been invoked. Early in the discussion, and before the proffer of testimony was received from Taylor, the following colloquy occurred between the court and defense counsel:

THE COURT: Why should I not [sic] 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 record discloses that the trial judge considered a number of factors before exercising his discretion to exclude the evidence. At a bench conference with Judge Levin, McCray’s attorney said that he had no knowledge before trial that Taylor had been present during the conversation at the jail. However, Taylor stated to the judge at the bench that she had informed counsel of that fact before trial. 3 Additionally, Judge Levin properly considered the close family relationship of the witness to McCray and the fact that she had been in the courtroom throughout the testimony of McCray and the prosecutrix, and thus was in a position to fashion her testimony, if she so desired, to precisely coincide with that of McCray. I cannot accept the suggestion, unsupported by the record, that this able and experienced trial judge acted upon the mistaken belief that he should exclude the testimony as a sanction for a rule never invoked. Rather, I think it clear he correctly determined the proffered testimony did not qualify as proper rebuttal, and in the exercise of his discretion he considered *144 the several factors to which I have referred, and elected not to receive the evidence. I would affirm the convictions.

Chief Judge MURPHY has authorized me to state that he concurs in the views here expressed.

. McCray’s attorney expressed surprise upon learning that Taylor would testify she was present at the jail at the time of the conversation. He stated he previously understood she would testify only as to a telephone call from the prosecutrix concerning her desire to visit McCray at the jail, and to drop the charges.

. This exception to the hearsay rule was approved by the United States Supreme Court in Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 , 12 S.Ct. 909 , 36 L.Ed. 706 (1892), and is presently codified as Fed.R.Evid. 803(3). See also McCormick on Evidence § 295 (E. Cleary 3d ed.1984); 6 Wigmore, Evidence §§ 17, 25-26 (Chadbourn Rev.1976).

. Because the proffered testimony was not proper rebuttal evidence, I do not reach the question of whether any deceit was practiced or intended in this case, or whether a trial judge may exercise discretion to exclude otherwise admissible testimony upon a showing that the decision of opposing counsel not to have witnesses excluded pursuant to Maryland Rule 2-513 was based upon a fraudulent representation that the witness would not be called.