Petition — Vernon Thaddeus Taliaferro v. Maryland

RECEIVED

» %a-64383

Misc. No. MAR 29 1993

OFFICE OF THE CLERK

SUPREME COURT, Us |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

VERNON THADDEUS TALIAFERRO,

Petitioner

Ve

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PETITION FOR WRIT OF CERTIORARI

Michael R. Malloy

Assistant Public Defender

Tower Brilding

222 E. Baltimore Street

Baltimore, Maryland 21202

(301) 659-4900

Counsel for Petitioner

Of Counsel:

Michael R. Braudes

Assistant Public Defender

Tower Building

222 E. Baltimore Street

Baltimore, Maryland 21202

(301) 659-4900

Misc. No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

VERNON THADDEUS TALIAFERRO,

Petitioner

Ve

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PETITION FOR WRIT OF CERTIORARI

Petitioner Vernon Thaddeus Taliaferro respectfully

requests that this Court issue a Writ of Certiorari to review the

decision of the Court of Appeals of Maryland in Taliaferro vy.

State, Md. ’ A.2d (No. 101, September Term,

1961, decided February 10, 1983).

QUESTION PRESENTED

Did the trial court's ruling that Petitioner's sole

witness would not be permitted to testify as a result of lack of

compliance with Maryland's "notice of alibi" rule constitute a

denial of due process and the right to compulsory process for

obtaining witnesses where the record affirmatively reflected that

any prejudice to the prosecution could be obviated by a short

continuance?

TABLE OF CONTENTS

Page

Question oo. sn ewccceccveses 1

Statement of Grounds for Jurisdiction.cccccccccccccceess 3

Pertinent Constitutional Provisions and Rulessecessscees 43

Statement of the CasC.recscsscsessvesesesesesvvsesssesesss 4

Reasons for Allowance of the Writ.ecccccccccscccessessess ©

RPE RUM EE ss ccc eS OC SEOSECEE CEO OOHHEOSCECEH OEE OE COLE OEEOO® 9

Appendix A: Opinions (majority and dissenting)

of the Court of Appeals of Maryland..cccess A-1

Appendix B: Opinion of the Court of Special

Appeals of Marylandecccccccccccsseseveccees A-48

Appendix C: Relevant Proceedings in the Circuit

Court for Prince George's County,

MAryland.ccccccccscssceseeseseseeseseeseere A-56

TABLE OF AUTHORITIES

Chambers Vv: Mississippi, 410 U.S. 284, 93 $.Ct.

1038, 5 L.Ed.2d 297 (1973) ee 7

State v. Martin, 165 Wash. 180, 187, 4

P.2d 880, BB2 (1931) eseeeeveeeveeeveeveevneevn eee eee eeeaeneveee 8

Wardius v. Oregon, 412 U.S. 470, 93 S.Ct.

2208, 37 L.Ed.2d A2 (1973) ee ee ewreeeeaeweeneeeweeneneeee 7,8

Washington v. Texas, 388 U.S. 14, 19, 87

S.Ct. 1920, 18 L.Ed.2d 1019 (1967) Ce 7

Williams v. Florida, 399 U.S. 78, 90 S.Ct.

1983, 26 L.Ed.2d 446 (1970) eeeeeweveeeeeeeeeeaeeeeeee 7

Constitution of the United States,

Amendment VI eoenreeeveee eee eeneneeneneaeweewr eer eaereewreeeeneeeee 3

Amendment XIV eoeeeeeeeenewweewreawreeeneweeawr ewe eeaneaeneeeeeeee 3

Maryland Rule 741(da)(3) eeeeeeeeeeeeeeeeveeeeteeeeeeeeeene >

OPINIONS BELOW

The Court of Appeals of Maryland filed a reported

(official) opinion on February 10, 1983, which is attached as

Appendix "A". The Court of Special Appeals of Maryland filed an

unreported (unofficial) opinion on July 31, 1981, which is attached

as Appendix "B". The relevant proceedings in the trial court,

attached as Appendix "Cc", contain an oral opinion delivered by the

trial judge.

JURISDICTLONAL STATEMENT

Petitioner seeks review of the decision of the Court of

Appeals of Maryland rendered February 10, 1983. The jurisdiction

of this Court is invoked under 28 U.S.C. 1257 (3).

PERTINENT CONSTITUTIONAL PROVISIONS

AND_RULE

Constitution of the United States, Amendment VI:

In all criminal prosecutions, the accused shall

enjoy the right ... to have compulsory process

for obtaining witnesses in his favor we. -«

Constitution of the United States, Amendment XIV:

[Nlor shall any State deprive any person of

life, liberty or property, without due proce:

of law; ee .

Maryland Rule 741 (in pertinent part):

d. Discovery by the State.

Upon request of the State, the defendant

shalls eee

3. Alibi Witnesses.

Upon designation by the State of the

time, place and date of the alleged occur-

rence, furnish the name and address of each

witness other than the defendant whom the

defendant intends to call as a witness to

show he was not present at the time, place

and date designated by the State in its

request.

g. Protective Orders.

Upon motion and for good cause shown, the

court may order that specified disclosures be

restricted. If at any time during the pro-

ceedings it is brought to the attention of the

court that a party has failed to comply with

this Rule or an order issued pursuant to this

Rule, the court may order that party to permit

the discovery of the matters not previously

disclosed, strike the testimony to which the

undisclosed matter relates, grant a reasonable

continuance, prohibit the party from introduc-

ine in evidence the matter not disclosed, grant

a wistrial, or enter any other order appropriate

under the circumstances. All material and in-

formation to which a party is entitled must be

disclosed in time to permit beneficial use

thereof.

STATEMENT OF THE CASE

PROCEDURAL HISTORY

Petitioner was charged by indictment with robbery with a

deadly weapon and use of a handgun in the commission of a crime of

violence. On May 21 and 22, 1980, he was tried by the Circuit

Court for Prince George's County, Maryland, During the course of

that trial, as set forth below, the federal due process issue

giving rise to this Petition was specifically considered and ruled

upon by the trial judge. Petitioner was convicted of both

offenses, and on August 18, 1980, was sentenced to incarceration

for a period of 12 years. On July 31, 1981, the judgment was

affirmed by the Court of Special Appeals of Maryland in an unre-

ported per curiam decision. On October 26, 1981, a Writ of

Certiorari was issued by the Court of Appeals of Maryland. On

February 10, 1983, that Court upheld Petitioner's convictions,

with three judges joining in a dissenting opinion,

RELEVANT FACTS

Petitioner's trial commenced on May 21, 1980, That

morning, defense counsel requested a continuance to obtain as a

witness one "Karen Bellamy” (referred to later in the trial as

"Caroline Bellamy"). Counsel proffered that Petitioner had pro-

vided Bellamy's name and telephone number earlier, but that she

(counsel) had been unable to get in touch with her. The requested

continuance was denied, and trial commenced that afternoon. There

was no proffer made as to Bellamy's testimony, and the denial of

this request for a continuance is not directly at issue on this

appeal.

The State's principal witness was John Parker, who was

on probation for storehouse breaking at the time of trial. Parker

testified that during the evening of September 1, 1979, he was

present in his residence at 6801 Walkermill Road in District

Heights, Maryland. A man whom he identified at trial as Appellant

-4-

.

knocked on the door and engaged him in conversation. Approxi-

mately five minutes later, a second man, armed with a handgun,

entered the residence. The two men proceeded to bind Parker's

hands, “ransack" the house, and steal various items including

jewelry and antiques valued at between £5,000 and $10,000.

In the aftermath of the offense, Parker was twice shown

photographic arrays by an investigating officer. The first array,

displayed on the night of the robbery, did not contain a photo-

graph of Petitioner. Parker selected the photograph of an alleged

"look-alike" named William Godwin Carter. On November 1, 1979,

Parker was shown a second array and selected a photograph of

Petitioner.

At the commencement of the afternoon session of Thursday,

May 22, after the prosecution had rested its case, the defense

sought to call as an alibi witness Edward Rich. Counsel proffered

that for approximately three months following August 22, 1979,

Rich was confined to his home, under the care of two named physi-

cians, recovering from certain injuries. During the three or four |

weeks beginning August 22, specifically including the night of the

robbery, Petitioner visited Rich each evening, played chess with

him, and generally cared for him,

The prosecutor objected to permitting Rich to testify on

the conceded ground that the defense had failed to comply with

Maryland's "notice of alibi"® rule (Maryland Rule 741(d)(3)), which

requires that the defense disclose the names and addresses of

alibi witnesses prior to trial. During the lengthy ensuing bench

conference, the court and counsel discussed whether the es

resolution would be a continuance to permit the prosecutor to

investigate the alibi and Rich's background so as to permit effec-

tive cross-examination, or alternatively to refuse to permit Rich

to testify. In answer to the specific question of how long he

would need to prepare, the prosecutor responded "Monday. That

i The entire colloquy, Petitioner's testimony with regard to the

reasons for his failure to timely disclose Rich's identity, and

the trial court's ruling are reproduced in Appendix "C".

Pais |

.

would give me adequate time." While he continued his objection

and detailed the steps he would have to take to adequately prepare,

the prosecutor reiterated that he would be willing "to go along

with" a continuance,

During the course of the conference, the trial judge

stated that "I will admit that a strict enforcement of the rule

may interfere with due process, and that is what is bothering me."

Shortly thereafter, he changed his mind and ruled that Rich would

not be permitted to testify. In arriving at this ruling, the court

noted that the following Monday was Memorial Day, and that a con-

tinuance might disturb the vacation plans of jurors whose service

was due to end at the conclusion of Petitioner's trial, As the

dissenters in the Court of Appeals pointed out, the court never

questioned any of the jurors to determine whether or not this was

the case,

After the court rendered its decision and other matters

were briefly discussed, it was determined that Petitioner would

testify out of the jury's presence regarding his efforts to secure

the attendance of witnesses at his trial. Petitioner testified

that he had contacted Rich the previous December, and that Rich

had agreed to testify in his behalf. Rich then became ill and

changed his residence, and Petitioner was unable to get in touch

with him. The day before trial, Petitioner was finally able to

get in touch with him through Rich's mother. The trial judge ruled

that Petitioner had not demonstrated sufficient diligence, and

reaffirmed his earlier decision that the witness would not be pur-

mitted to testify. The defense then cested without calling any

witnesses, and Petitioner was convicted.

REASONS FOR ALLOWANCE OF THE WRIT

Petitioner asserts that his case presents an important

question of federal constitutional law which has given rise to

substantial litigation with conflicting results throughout the

United States. It is reasonable to anticipate that such litigation

,.

will continue, as this Court has twice noted that the question is

still an open one. As a result of the application of the law as

construed by the Maryland courts, Petitioner is serving a substan-

tial prison term following a trial at which the State was per-

mitted to put on a case, but he was not. Finally, the issue has

been perceived from the outset as a possible infringement upon

Petitioner's federal constitutional rights. For these reasons,

certiorari is appropriate under Rule 17(b) and (c) of this Court.

It is now axiomatic that the right of a criminal defend-|

and to call witnesses in his behalf is a basic component of due

process of law. In Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct.

1920, 18 L.Ed.2d 1019 (1967), this Court wrote that

The right to offer the testimony of witnesses,

and to compel their attendance, if necessary,

is in plain terms the right to present a de-

fense, the right to present the defendant's

version of the facts as well as the prosecu-

tion's to the jury so it may decide where the

truth lies. Just as an accused has the right

to confront the prosecution's witnesses for the

purpose of challenging their testimony, he has

the right to present his own witnesses to es-

tablish a defense. This right is a fundamental

element of due process of law,

See also Chambers v. Mississippi, 410 U.S. 264, 302, 93 S.Ct. 1044,

35 L.Ed.2d 297 (1973), where the Court wrote that "Few rights are

more fundamental than that of an accused to present witnesses in

his own defense.”

The justification for the infringement upon Petitioner's

right to call witnesses in the instant case was his non-compliance

with Maryland's “notice of alibi" rule. This Court has had occa-

sion to discuss in detail the characteristics and functions of such

rules. See Wardius v, Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.

Ed.2d 62 (1973) Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1963,

26 L.Ed.2d 446 (1970). In both cases, the Court expressly declined

to determine the constitutional ramifications of precluding rele-

vant evidence as a result of non-compliance with the rule. In

Williams, 399 U.S. at 83 n. 14, Justice White for the Court wrote:

-7- |

tele

C)

We emphasize that this case does not involve

the question of the validity of the threatened

sanction, had petitioner chosen not to comply

with the notice of alibi rule. Whether and to

what extent a State can enforce discovery rules

against a defendant who fails to comply, by

excluding relevant, probative evidence is a

question raising Sixth Amendment issues which

we have no occasion to explore. ... It is

enough that no such penalty was exacted here,

To the same effect, see Wardius, 412 U.S. at 472 n. 4.

A definitive resolution of the issue by this Court would

plainly be in the public interest because of the proliferation of

cases in lower courts which have produced conflicts both in result

and reasoning. The cases are collected and analyzed in the ma-

jority and dissenting opinions of the Maryland Court of Appeals,

and no purpose would be served in repeating that analysis here.

Suffice it to say that reported appellate decisions represent only

the tip of the iceberg, and provide strong evidence that the issue

recurs on a regular basis at ali levels of the criminal litigation

process. Definitive guidance from this Court is necessary to

supplant the numerous lists of criteria now applied by judges

throughout the nation faced with the problem of how to resolve a

conflict between a defendant's constitutionally-protected right to

call witnesses and the prosecutor's legitimate expectation that

the discovery rules will be complied with.

It is submitted that Petitioner's case presents an ideal

record for resolution of this issue. It is conceded that Peti-

tioner failed to comply with a rule that is typical of notice-of-

alibi rules throughout the nation. As a result, he was denied the

opportunity to adduce evidence through his only witness, and was

convicted after having rested without offering any defense at all.

It is also clear from the record that a continuance of a few days

would have cured any resulting prejudice to the State. The issue

is where to strike the balance. The basis of Petitioner's positi

on the merits is that the right to put on a defense is so essentia

to a determination that a criminal trial comported with due proces

that considerations of expense and inconvenience must be subordi-

nated, even under some circumstances where that expense and incon-

venience was caused by the failure of the defense to comply with a

rule of procedure. As the Supreme Court of Washington wrote in

State v, Martin, 165 Wash. 180, 187, 4 P.2d 880, 882 (1931),

an excellent record for this Court te resolve an open question

which has given rise to substantial litigation with conflicting

results and analysis. In the interests of fairness, uniformity,

and judicial economy, the Writ accordingly should issue.

requests that this Court issue a Writ of Certiorari to review the

decision of the Court cf Appeals of Maryland.

.

The constitutional mandate, which directs the

court to compel the attendance of witnesses

on behalf of a defendant charged with a crime,

is so strong that slight delays in the other-

wise orderly presentation of evidence must be

tolerated within the judicial system unless

they are occasioned by insufferable derelic-

tion of duty by those whose function it is to

assist the court.

Petitioner was denied a fair trial, and his case present¢

CONCLUS LON

By reason of the foregoing, Petitioner respectfully

Respectfully submitted,

Ichad he thle

Michael R,. Malloy

Assistant Public Defender

for the State of Maryland

Counsel for Petitioner

Misc. No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

VERNON THADDEUS TALIAFERRO,

Petitioner

Vv.

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

NOTICE OF APPEARANCE

MR. CLERK:

Please enter my appearance as counsel for Petitioner in

the above-entitled case.

tucker! h- hall

Michael R. Malloy

Assistant Public ce

Tower Building

222 E. Baltimore Street

Baltimore, Maryland 21202

(301) 659-4900

Counsel for Petitioner

‘i y ae

by se ee RO As

G20 wae 4

ee

Misc. No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

VERNON THADDEUS TALIAFERRO,

Petitioner

Ve

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

The Petitioner, Vernon Thaddeus Taliaferro, who is

indigent and who has been found to meet the qualifications for

representation by the Office of the Public Defender for the State

of Maryland at the time of his trial and at appellate proceedings

thereafter, asks leave to file the attached Petition for Writ of

Certiorari to the Court of Appeals of Maryland without prepayment

of costs and to proceed in forma pauperis pursuant to Rule 46.

The Petitioner's affidavit in support of this Petition

Ihueboal Rthakby

is attached hereto.

Michael R. Malloy

Assistant Public a A

Tower Building

222 E. Baltimore Street

Baltimore, Maryland 21202

(301) 659-4900

Counsel for Petitioner

a

RECEIVED

Misc. No.

MAR 29 1983

OFFICE OF THE CLERK

: IN THE SUPREME COURT, US.

SUPREME COURT OF THE UNITED STATES i

SEPTEMBER TERM, 1982

VERNON THADDEUS TALIAFERRO,

Petitioner

Ve

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

ON APPEAL IN FORMA PAUPERIS

I, Vernon Thaddeus Taliaferro, being first duly sworn,

depose and say that I am the Petitioner in the above-entitled casej

that in support of my motion to proceed on appeal without being

required to prepay fees, costs or give security therefor, I state

that because of my poverty I am unable to pay the costs of said

proceeding or to give security therefor; that I believe I am

entitle’ to redress.

I further swear that the responses which I have made to

the questions and instructions below relating to my ability to pay

the cost of prosecuting the appeal are true.

1. Are you presently employed? ye

(a) If the answer is yes, state the amount of

your salary or wages per month and give

the name and address of your employer.

(b) If the answer is no, state the date of your

last employment and the amount of the salary

and wages oh eonge which you received.

L229 AY, £00

i

,.

2. Have you received within the past twelve months any

income from a business, profession or other form of self-employ-

ment, or in the form wee ak payments, interest, dividends, or

other source? -

J

(a) If the answer is yes, describe each source

of income and state the amount received

from each during the past twelve months.

3. Do you own any cash or checking or savings account?

A/C

(a) If the answer is yes, state the total value

of the items owned.

4. Do you own any real estate, stocks, bonds, notes,

automobiles, or other valuable property Se | -~enaia ordinary house-

hold furnishings and clothing)? CA

(a) If the answer is yes, describe the property

and state its approximate value.

5. List the persons who are dependent upon you for

support and state your relationship to those persons.

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties for per-

jury.

Subscribed and sworn to before me, a Notary Public, this

JZ ¥* day of Biase , 1983,

OR ae

Let the appli sfoceed without prepayment of costs or

fees or the necessity of giving security therefor.

Misc « No.

IN THE

SUPREME COURT OF THE UNITED STATES

VERNON THADDEUS TALIAFERRO,

Petitioner

Ve

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PETITION FOR WRIT OF CERTIORARI

APPENDICES

APPENDIX A

Opinion of the Court of Appeals of Maryland.secscccceccsssesee cA)

APPENDIX B

Opinion of the Court of Special Appeals of Maryland......0+0+eA-48

APPENDIX C

Relevant Proceedings of May 22, 1980, in the

ircuit Court for Prince George's County, Maryland. .ecescseeeesA=56

Misc. No,

IN THE

SUPREME COURT OF THE UNITED STATES F

OCTOBER TERM, 1982

VERNON THADDEUS TALTAFERRO,

Petitioner

Ve

STATE OF MARYLAND,

Respondent

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

PETITION FOR WRIT OF CERTIORARI

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that on this Zot4 day of March, 1983,

copies of the foregoing Petition for Writ of Certiorari were

delivered to Deborah K. Handel, Esquire, Assistant Attorney General

of Maryland, The Munsey Building - 4th Floor, 7 North Calvert

Street, Baltimore, Maryland 21202, Attorney for the Respondent, thq

h. hilly

- Malloy ; V

Assistant Public Defender

Tower Building

222 E. Baltimore Street

Baltimore, Maryland 21202

(301) 659-4900

Counsel for Petitioner

State of Maryland,

IN THE COURT OF APPEALS OF 4ARYLAND

No. LOL

Sepcember Term, 1981

VERNON THADDEUS TALIAFERRO

STATE OF MARYLAND

Murphy, C.J.

Saich

Eldridge

Cole

Davidson

Rodows«y

Menchine, “%. Alber:

(retired, specially assignec)

ee

ww

Opinion Sy Rodowsk?7, J.

Sidridge, Ccle an

Davidson, cs., tissens.

Pitted: Feoruary 12, 2.383

4-]

Petitioner, Vernon Thaddeus Taliaferrto (Taliaferro), was

convicted on May 22, 1980, in a jury trial before che Cizcuic

Court for Prince George's County, of robbery wich a deadly

weapon and use of a handgun in the commission of a felony.

Om che lase trial day pecicioner soughe co introduce che testimony

of an alibi wicness whose idencity was disclosed to the Scate for

che firse cime om chat date. Acting under Md. Rule 7a1,* the

ime rule, dealing with criminal causes, ia relevance part

provides:

Rule 741. Discovery and Inspection.

d. Oteccvery dy she Stcse.

Upom the request of che Stace, che defendane shall:

3. Alibi Wicnesses.

Upon designacion Sy che Stace of che size, place and

dace of che alleged occusrence, furnish che same and

address of each witness ocher chan che defendane whom che

defendant intends co call as a witness to show he was noc

present ac che time, place and dace designated by che Scare

ia ics request.

£. Continuing Susy co Disclose.

If, subsequence to compliance with a request sade uncer

chis Rule or wich any order compelling discovery, a part7

discovers addicional sacter previously sequescad and required

to Se furnished, se shall promptly furnish the maccer to the

other party or his counsel. [I che addicional aaccer is

éiscovered during trial, ‘a addicion co Susnishing she

matter prompcly co che ocher parcy or his counsel, he shall

nociZy che cours chac che saccer is Seiag Suraished so che

ocher part7.

A-2

crial cours excluded che proffered alibi evidence. Thera was

mo other proof from che defense. The conviction was alltiz=ned

by che Court of Scecial Appeals in an unraported opinion. We

granced certiorari to consider whecher “she coial court's szling

chac Pecicioner'’s sole wimmess would noc be permicced to cescit

conscicuce({d] an abuse of discrecion and/or a denial of cue 5ro-

cess." We shall hold chac, om che faccs of chis case, there vas

go abuse of discretion or denial of due process.

The viccim was Jotm Leo Packer (Parker), an adult, who

cesided ac his socher's home ac 6301 Walxernill Road, ‘a Disscict

Zeighes. On Sepcember 1, 1979, ac approximately 9:05 ?.M., Parker

was ac home, alcne. He answered a micck ac che door. If was a

san, who was unkcown to Parker, iaquising abcuc scmecne saced

"Billy". The light inside che house was on, as well as were csc

Lights oucside on che porch. Parker and che san conversed ‘ace

to face, ac a discance of swo feec, for an escimacad five ainuces.

Then a second aan came up Sehiad she fizsc and soinced a cocked

lL (Cons. )

‘ Crcere?.

g- Fretecsive

Upen sotion and for go0c cause skown, che csusc say

order chat specified discicsures se sesccictad. <5 ac any

cime during the sroceediags is is Sesughe So che atcancicn

of che cours chat a pasty fas failed co comply wisS <i

Rule or an coder issued sursuanc <5 chis Aule, <he csuss

may order shac party co permis che discovery of she xaccars

aot srevicusiy cisclosed, strike c= cascimony co which ch

undisclosed macces relaces, grant a ceascnable concincance,

groaibic che parcy focm ‘iaccccucing ‘a evicance sse <accer

soc disclosed, gzanc a =iscriai, or enter any coches cr<er

appropsiace =umce> che ciscumscsances. Ali aatertal anc ‘s-

formation co which a pascy is encisled suse be discicsed

‘3-cfme co peraie Secelicial use sherecs.

~

«j-

handgun at Parker over che shoulder of che fisset man. Parker

was spun around and led through che house Co his mother's room

which the sen ransacked. Jewelzy, Later valued at a sininum of

$5,000, was taken. Parker was left tied up. That evening che

police showed Parker

Taliaferro's picctuze.

alike.” On November

phocogzaphic array.

Parker identified as

a photographic array which did not include

Parker selected one photograph as a “Look-

1, 1979, che polices showed Parker anccher

Ic contained a piccure of Taliaferzo whom

che robber wich whom he had conversed. Ac

crial, Parker also made an idencification of Taliaferso in person.

Peticione> was arrested on November 28, 1979 and released

on cash bail the next

until his sentencing.

nan? was recurned Dec

for Taliaferzo on J

State filed a sotion

“nase and address of

che defendanct incends

present ac” 6801 walk

September 1, 1979, ac

day. He remained on dail continuously

An indiecmenc of Taliaferzo and a second

ember 19, 1979. Counsel entered her appearance

anuary 3, 1980. On February 1, 1980 she

for discovery Tequescing, inter alia, o2

each witness ocher cian the defendanc whom

to call as a witness ©° show he was 20°

ernill Road, Diserics Heights. Maryland on

approxizately 21:95 hours. * Under “d.

Qule 741 e 1 disclosure of any alibi wicnesses as due co Se

furnished by Feorsary

2am Zlijan Howard

Ll. Mo wriccen response as aver xsace.

Pringle sas soiaciyz indietad with Taliafe==9,

buc was tried separately.

*%0 point was sade is che trial court, oF On appeal, >ased

on Lack of cizeliness

of the Stace's socion.

A-

—

On February 14, 1980 a nocice was sent co pecicioner’s

counsel, wich a copy to Taliaferro ac his address in 3alcinore

Cicy, setcing trial for April 11, 1980 and seccing a precrial

conference for March 27, 1980. By a notice daced March FP

1980, with copy to petitioner personally, trial was rasec fron

April ll co May 21, 1980. A March 28, 1380 notice, wish copy

to petitioner personally, resect the pracrial conference fron

March 27 to May 6, 1980. :

Taliafterto was prasent with his attormey ac che preccial

conference. The court vas advised chac chere would se cre

defense wimmess.* Counsel for boch parties simmed a greccial

Bemorancum ac chat conference which reads in parc:

Counsel further cercify thac ... the nazes

of all witnesses xcw known have been ex-

changed by che parcies and chac this case

is ready for crial.

Counsel certify chac all wicnesses are

available for che crial dace

Om che sorming trial was scheduled -5 degin, May 21,

Taliatesto's counsel requested a contisuance. ‘She acvised -he

oust chat Taliaferss had given her che rame and s2laeconcne

mumber of a “Karen Sellamy” ac she fizsc incarvriew, -Sac ssunsel

had sever See= able <5 raach the wirmess S¥ t®.esafcne, suc cshac

el

Sis counsel indicace chac che ancicisaced defense wi-mness 247

have Seen icencizied ac chac cite as Carsline JelLlamcy (also -a-

served co as Raren 3ellasy). There is xc cenzancics|. however,

Chas che Scace <new earlier chan ac sotal shac she daZesse was

aiidi.

“Statements sade to she ccurs az -rial Sy peticioner and

-5-

Taliaferro had thac day given counsel che witness’ adcress.

The requested continuance was denied. Trial of Taliaferzo's

case began at 2:55 P.M. on May 21, with che selection of che

jury. <A mocion to suppress che photographic idencificacion

was heard and denied. Trial on che merits proceeded with

the testimony of Parker and of the investigating police officer.

On cross-examination, Parker admicted that, at che time cf the

crize, he was on probation for scorehouse Sreaking. Court

adjourned ac §:20 P.M.

Tetal resumed ac 9:30 A.M. on Thursday, May 22 wish drief

testimony from Parker's mothers as so che value of the property

taken. The Scace rested. Pecicioner’s counsel advised the

cours that Taliaferso had “been in couch with the witness chat

I was celling you abouc”™ and chac Taliaferro was “trying to get

somecne here” fsom 3alcizore. A delay of 1-1/2 hours was re-

quested so chac Taliaferro could “try co sec his here."° At

10:10 A.M. che court csecessed uncil 11:30 A.M. afser denying

che cetense motion for a judgment of acquittal. The jury was

brougne back inco che courtrcom ac 12:05 2.M. and excused {or

lunch wich ‘astrsctions co repors back ac 1:30 3.M.

Colloquy and cesciscony i= che alicernocon of May 22 reveai

shat Taliaferso had spoken Sy celephone chat torning with an

Ecward aich, Je. (Rick) in Balciscore. Taliaferro is also a

the transition to che personal pronoun, “his,” on sh

mosniang of che 22nd is che Sizssc indicacion in che record chat

the prospective wicness was sot Caroline 3ellany.

jA-6

-4-

residenc of Balcimore. Taliaterzo's father had gone co

Salcimore and brought Rich cto che court house in Upper Maz sors.

Ac 1:28 2.M., in che court house corridor, Rich had been iactro-

duced to the prosecutor as an alibi witness. Court reconvened

at 1:30 ?.M. wich che jury in che box. The prosecutor, at

sidebar, odjected to Rich cescifying Secause “a couple of

minutes before courc I started to talk to che gencleman --

do not believe chac gives ze faiz opporsumisy co pursue this

gencleman's background to invescigace che evidence chat he >r9-

soses co give, and i= necessary, to get any rebuccal vimesses

to his tsscisony.” The cours was asked so sracluce che wicmess

feca cescifying.

Defense counsel scacad chac she had soc <cwn whac Rick vas co

cescify co wumril 2ich came to the cours house. Ske had asked

Taliaferso previously foz wicnesses and he had given che caze

of the friend, Caroline 3ellamy, whom counsel nad Seen mmacdla

co get to court Secause of lack of an adczass.

The court, afcer stacing chat che only alcarnacive £9 ex-

cluding the testimeny was a continuance, askad che srcsecurs>

wnat te would have done had Rich's same Seen cisclosed ag an

libi wisness che sraceding week. This collecuy ensued:

(PRCSECITOR]: For cne ching, i would

nave tad che solice decascsene == a secors

check on [Rick], cov 20 decermine whera se

Lives, wrac commeccicn te has tad wish cht

Safencans, or che co-defencanc in she past,

all sorcs of chings I can's <o cm She spur

of che somanc. I say r0¢ <s es wich 4ny-

eaisg.

a]

TSE CSURS: Zcw iong do vou seed <3 ¢<o

PP

[PROSECUTOR]: Monday. Thac would give

me adequate time.

THE COURT: We may have to do chac.

[PROSECUTOR]: Lec se juse ches my

schedule. Monday is Memorial Day.

THE COURT: I wonder how aany of these

jurors are due back to work [as jurors] next

week. We are going to lose some of chem if

they have a holiday Monday and they are noc

due back. I might inquire how many of chem

would have sore time co serve, and chen make

a decision.

Ladies and gentleman of che jury, how

sany oP ny are winding up your jury service

this week?

Thac ends thac. Six people puc cheir

hands up.(7]

(DEFENSE COUNSEL): [s your investigation

going to concern icself just wich checking

with che police?

[PROSECUTOR]: I am noc sure exactly,

depending on what we cay determine, ic Say

require me to consider rebuctal witnesses.

I am just noc certain, buc I had no reason

to believe there were going to be any alibi

witnesses in this case, and I would jusc lixe

to sit down and chink abouc ‘tc.

Svonday, May 26, 1980 was che last Monday (a May and vas

che day celebrated as Memorial Day dy che federal governmenc.

See $ U.S.C. § 6103(a) (1976). The Scace of Maryland celebraces

Memorial Day on May 20 which was the Friday of che following

week in 1980. See Md. Code (1957, 1981 Repl. Yol.), Azz. 1L,

§ 27(a)(7). Maryland courts observe che holiday designacead by

Scace law. Md. Rule 1205 a.

7>rince George's Councy, Maryland adjoins che Discrics of

Columbia. Many of che councy's residencs are ecployed by che

federal governmenc. [c appears chac che trial jucge was

attenscing co deceraise how sany jurors were cold sheir casa

of sexvice would expire on Friday, May 23, and sight have cace

plans for the chree day federal Sclicay weekend.

Ak

The defense proflered shac Rich would cescif7 shac he had

tajured his back and head on August 22, 1979, had been con-

fined co his house for approximacely three aonchs, and cshac

during ac leasc che fizsc chree or four weeks of che confine-

ment, Taliaferzo had been ac his house each evening, including

Sepcember 1, che evening of che crime. DOelense counsel suggescec

"a couple of simple celephone calls would sorovide che invesci-

gacion”™ soughe by che Scace, and chac ic could be done chac

day. The Stace replied shac “there is a liccle sore tavolved

chan a sere racord check.” de said there aighe be other factors

which he would Like co check ouc fa addicion co Rich's record

and his disabilisy. [ns che course of sis argumenc che Scace's

Accorney scaced chac "[i]! che cours wanes co conciaue [che

case], is is fine wich ae...” and also chac he was “willing

to go along wish” puccisg che case off for a few sore days.

Following a cecess, che csotal judge, afcers oucliniag scsc

of she procecural history of che case, siled thas he was exascising

his déiscsecion co vafuse co pesais che alibi sescisony, for

fatluse cs comply wich aule 74. ¢d 3}.

TaliaZesso elacced nce co sescifzy. Alter a conZazence with

esunsel ia Chambers che csuss vesimed she sench and advised

GeaZense counsel chac is would give her

he opporcunicy 12 zou isha, to pus ta she svecord

che efforts thac the defendanc has sace cver a

perioc of whatever cine $9 locaca and crocuce this

alibi witness secause = don's know chat cshere is

anyeasa ia bere ¢3 ‘acicacs what, 12 anychiang, ke

nas dsne, and dagendisg cn chac, is 13 a sasces cf

dijlizence as far ag = am concerned, and i2 diligence

has Seen sewarced, as o2 csocay, chat sav Se one

, s

-9-

msother ching. 28 chere has bees some diligence

buc noc much, chat would be anocher ching.

Taliaferro was sworn and tescified. [In substance he said

chac he had concacted Rich around December 1979. Rich was

willing to come to court. Ac chat time Rich was living at his

mother's house, buc had subsequently left, and Taliaferro did

noc know where Rich was living. Taliaferro had gotten in touch

wich Rich “yesterday, the day before yesterday” by telephoning

Rich's mocher's house and Rich was there. Rich's socher had

lived ac che same address and had had che same telephone number

since Sepcember of 1979. Taliaferro could noc say when he had

last called Rich's mocher's heme prior to May 21, 1980. ‘When

Taliaferro had called Rich's aocher's home on prior occasions, he

would leave a message for Rich but had never received any recur

calls.

Defense counsel chen presented an argumenc based on che

factors set forth in Unised S:acee v. Myers, $80 F.2d 1036 (Sch

Cis. 1977), cere. dented, 439 U.S. 847, 99 3. Ce. 1467, $8L. Ed.

2d 149 (1978) as ones to be considered in deciding whether to ex-

clude. In chac case, dealing with a prosecucion rebucctal wicness,

che cours lisced the amounc of prajudice resulcing from che

failure co disclose, che reason for non-disclosure, che extent to

which the hara caused Sy non-disclosure has Seen sicigaced by

subsequent evencs, che weight of che properly admicced evidence

supporting che defandanc's guils, and ocher celevane faccors

arising ouc of che ciscumstances of che particular case. As *9

the reascn for Taliaferzo's non-disclosura, defense counsel argued

that p-je

Me. Taliafersto has cascifZied che reason he

talked co [Rich] in December abouc it, and

then (Taliaferzo] was of che opinion chac

Caroline Bellamy was going to taescify, he

didm'c have an address for Caroline 3ellamy.

After he spoke with Mr. Rich, Mr. Rich chen

moved, and he sade efforts co find ouc where

ic was he lived. He didn'c know uncil today

where Mr. Rich lived. We couldn'c have oro-

vided chac 12 we had co.

ta deciding co lec iss sculing scand, she court explained

in part as follows:

Ie appears to me, chac if [ could have

found chac che defandanc was diligence ia his

effores in providing chia name and cddress,

and chac his diligence juse paid of yescerday,

chac I could chen cule chac se has done all

chac che cule tequires. However [ can'c sake

chac fiading. From what I have heard {20m che

way chis cetendanc has cescilied, he has kown

che address of che sccher of che wicness. The

mother of che witness still csesidea ac che same

address she resided ac back in November. [cr

is also obviously very iaportanc co chis deZen-

dane co have shis alibi wicmess here, probably

one of the sost isporcanc decisions of his

ifZe .... He waiss weil cwo days Sefore che

total co accually locace chis wiscness, when he

could have done so early on. Ze hasn't sade

any veal efforc, excepc yesterday co locace

chis wicmess, and chen springs ic so to speak

om che state che second day of csial ....

(Emphasis supplied. }

The veasons underlying 4 procedure thac raquires socice of

an alibi cafense are well scacted in isscein, idvence Jorise 27

Al<3¢, 55 J. Cota. &., Cotminology & Police Sct. 29, 21-32 (1964):

Cne.--Forsoss is she idea that che statute

pravencs suprise. Ali5i has Seen cersmed a “his

pockec” cafanse because of =he ease with which

is cam Se sanuvaccused for tacroduccion is sks

Sisal hours of crial.

Myo.-+*The stacuce acts 259 derer false alidis

because <eZandancs know “hat the inZortation *u2-

aished will +. invescsizgaced sefsza crial .

Three. --Precrial investigation resulcs 42

a saving of soney and trial time. This occurs

in two ways. (1) If, after che investigation,

che district atcormey ig satisfied chac che

alibi is true, cne case should be dismissed;

(2) che district actorney is not surprised act

erial by the alibi defense, and there is 10

need for a continuance Co investigate and pre-

pare ..-:

Pour.--Alibis which are presenced at esial

will be accorded sore respect ---- (Foocnoces

omicced.

we need noc Linger over che suggestion chat

the discovery pernicted tne State against pecti-

rioner in this case deorived hia of “due process”

or a “fais cotal.” Florida law provices for

liberal discovery >y che defendant against che

Scate, and che notice-of-alidi sale + icself

carefully hedges with reciprocal duties requiszia

state disclosure ¢o rhe defendant. Given es

ease with which an alibi can de fabricated, the

State's interest 12 procecting icselZ against an

elevench-hour defense ig both obvious and Leg--

eisate. Reflecting 6345 interest, notice-of-

alibi provisions, dacing ac least from 1927, a=@

acw in existence in 4 ubstantial number of Scaces

“he adversary syscea of trial is hardly 4s end in

ieself; ic is soc yet 4 soker game 4A wnich players

enjoy an absolute rignt a.vays 59 sonceal =hets

-ards uncil played. Je find ample room ta tnat

system, ac Least as far as ‘cue orscess” +3 cOn-

cerned, for the inscane Florida rule, which ‘s

designed co enhance whe search for truth +2 che

eriminal trial >Y insuring doth tne defendant anc

“he State ample Cpportsn-<s7 eo investigate cerca.

facts crucial co cne jerernmination of guilt cf

innocence. (|Foocneces smicced. }

Sesscein advances a3 a 2i5cn reason chat tne cule “+3

important <3 che comcex= of sore Liberal discover? <3 siainas

cases.

-L2-

The Federal Rules of Crininal ?rocedure have since 1975

included a notice of alibi requiremenc ia Rule 12.1. Upon

failure of either party to comply with che requirements o-

chat rule, “the court aay exclude che testimony of any und:s-

closed witness offerad by such pasty as co che defencanc's

absence from or presence at, the scene cf the alleged offense."

Fed. 2. Crim. P. 12.1(d). Uniced Scaces Courts of Appeals view

the imeosition of che samction of exclusion as itavolvriang as

exercise of discrecion and che standard for appellace Taview

is whether there has been an abuse o discracion.?

A requirement for notice of am ali5+ defense, wich ‘icenci-

fication of sroposed alibi and sebuccal co alibi wimmesses, sow

exists under stacece or sale of cours in 35 of cur sister scates

and in the Diserice of Columbia. Thera ‘3 an express provision

for exclusion of alibi wicmess sescisony as a sanction for

violation in all sue chree of chese jurisdiccio _ 20

3

“

- -

Tweniv-

urisdiccions provide chat ior violation of she alibi <sise-

closure vequiremencs Sse cours S47 exclude che cesciscny. ~~

Panized Scates v. ‘*cocars,. 4

671 F.2d 1097, 1200 (38e8 CLs. 2392)

Uaiced Scares v. shice, $33 7.2¢ 399, 302 ($c8 Cie. 1978), Unisac

Seaces v. Fists, 576 F.24 337, 839 (i908 Cie. 1978); Gnssed Snacas

7. Baton, $73 7.24 782, 787 (3e& Cis. 1973); Unised Stacas +7.

Myers, supmz, $50 F.2¢ 1036, 1942, Uniced Scates ¥. Saiss, 324

7.24 1288, 1290 (3.C. CLs. 1975)

199 2. Coin. P., Rule L4A(D) (“she coust say cake asprcsstacea

aczion."): Miss. 2. Cris. ?. 3.02, 9.92 (“she ssurs saz upon

section ans nrccics , enter suck orzer as is deems just 12 che ci:

cumstances."); sash. Super. Cs. Cris. 2. 4.7 (“She couss sayz

enter such ccser créer as 1: deems ‘uss under che circums<cances.").

%

bi jess. a. Cris. P. $9.2, 25.7; ack. 2. Cota. P. 18.3, 29.7

(“the court za7 ... srshioic che paicy vom tncsoduciag “2 evicence

J

In eight scaces, the sanction provision states that Che court

shall exclude che alibi or alibi rebuttal testimony, unless

the party offering ic shows good cause to the contzary. +?

In Michigan, the stacuce in terms mandates the exclusion of

evidence offered in violation of the disclosure requirements,

13

without any express good cause exception. In Kansas, the

stacute permits adding to a lise of alibi witnesses inisially

properly filed, buc otherwise appears to mandate exclusion for

failure to give nocice. **

ll (Cone.)

Cris. P. 3.200; Haw. 2. Penal P. 12.1; Idaho Code § 19-519

(1979); f11L. Sup. Ce. R. 413(d), 415 (g); La. Code Cria. Proc.

Ann. art. 727 (west 1981); Mass. R. Coim. P. 14(5); Miss. Unié.

is. Ce. Codm. R. 4.07; Mo. Sup. Ce. &. 25.05, 25.16; Nev. Rev.

Seac. § 174.087 (1981); N.H. Super. Ce. R. 100; N.J.R. Coin.

Prac. 3:11; N.M.2. Ceim. P. 32; N.Y. Cota. Proc. Law § 250.20

(McRinney 1971, 1981 Cum. Supp.); N.9.2. Crim. ?. 12.1, Ohio

Rev. Code Ann. § 2945.58 (Page 1982); Pa. R. Crim. P. 305 C;

R.2.R. Ceis. P. 16(¢); Tenn. R. Ceis. P. 12.1; Ueah Code Ann.

$ 77elLaé-2 (19862); @. Va. R. Ceim. P. 12.1.

llesto. Rev. Stat. § 16-7-102 (1978); tad. Code Ann.

§ 38-36-40] ec seg. (Burns 1979, 1982 Cum. Supp.); towa Coca

Ann. § 813.2, Rule 10(10) (wese 1979, 19482 Cum. Sup9.); “fon

Code Ann. § 46-1$-301 (1981); Or. Rev. Scac. § 135.455 (1981)

§.0. Comp. Laws Ann. § 23A-9-1 e2 seq. (1979); Ve. &. Cria. ?

12.1; Sis. Seae. Anmm. § 971.23(8) (Wese 1971, 1982 Cum. Susp.)

7

L3uich. Comp. Laws Ann. §§ 768.20, 758.21 (Wese 1982)

People v. Mersics, 396 Mich. $7, 82, 238 3.W.2d 31, 37-38 (1975)

wnich Taliazerco e=snasices and which hele chat preclusion should

be Limiced only so an “egregious” case, sas ceciced uncer a

prior scacute.

lazis. Scat. Ann. § 22-3218 (1981).

A- 14

oLbe

tn sost states, as <a che federal system, the sancsion +9

pe applied zests ia the discretion of she t=: Ll court where cne=8

nas been a viclation of a rule requiring sne timely disclosure

of alibi or rebuccal wisnesses in a criminal case. Application

of the sanction is reviewable on appeal 9 determine if discze-

tion has been abused. The exclusion of <esc-=cny som detanse

alibi wircnesses has deen sustained ia aany cases. Among che sore

recent decisions reaching cAac casulct are: Ccar< ¥- Yatcead rates,

396 A.24 997 (D.C. 1979); cewts 9. Soars, SLL So. 24 980 (Fla.

App. 1981); Stave ¥. Javits, 63 Haw. 191, $2¢ 2.2¢ 376 (29821);

Jones ¥. Stace, Slt M.£.2d 613 (Zad. 1980); Peopte ¥- 20>¢ng0n,

104 Ill. App. 3¢ 20, 432 $.2.2¢ 240 (1942); People

81 Ill. App. 34 908, 401 4.£.24 1062 (1980); Sate v. CADtszEnNSeN,

Ss

ls

ressonr,

223 N.%.2d 219 (Towa 1982); State v. Frown, 414 So. 26 439, 538-39

(La. 1982); Gommonueaizh 2. La Frannie, L2 Mass. Asp. 977, “32

%.2.24.338 (1982); Sss76 2. Lindsay, 234 N.8.2¢ 268, 373-74

(Mian. 1979); Zexers %- Stata, 326 Nev. %4, 60S P.24¢ 617 (2230);

~~

State v. FtoAr, 301 4.3.24 2167 (W.D. 1980); Score 4. Yai, $4 OF.

Aop. 334, 634 D.2d 1267 (1941) (1a Sanc). gerision for revise

ailoved, 292 Or. 334, 844 2.24 1126 (1982).

Ta the concexs of a soc-ce of alibi sale, she Suprzace Couss

has noc yet passec “pcr che conscizucicnalic7 of exclusicn a3 =he

sanczicn for violacicn 57 4m accused. fee serdius %. -7EF=%, 41

g.§. 470, 472 2.4, 93 $. Cs. 2298, 2222 2.+. 37 4.

é. 24 82, 96

s.% (1973) ane #i2-cams ?. Picstde, suprc, 399 U.S. as 83 2.16,

$0 $. Cc. ac 1997 2.16, 28 &. =. *¢ at 4312.14. Foweves,

stata courts anc lower federal couccs gave ¢dacicac that sre

~

?

exclusion of alibi testimony offered by an accused who has

violated an alibi discovery requiremenc does noc offend the Sixca

Amendment right to have compulsory process for the obtaining of

witnesses. "The reasoning is chat che alibi cule does noc pre-

vent a defendanc from compelling the attendance of witnesses;

racher, the rule provides reasonable conditions for the presenca-

tion of alibi evidence." Stace v. Smith, 38 N.M. 541, 543, 543

P.2d 834, 836 (N.M. Ce. App. 1975).45 See also aider ¥. Coouse,

357 F.2d 317 (lOeh Cir. 1966); Unidced States es rel. Snyder ».

Yack, 372 F. Supp. 1077 (2.9. Pa. 1974); Ssaee v. Jodd, LOL Aris.

234, 237, 418 P.2d $71, $74 (1966); State v. Aodverce, 225 Xan.

740, 602 P.2d 1385 (1979); People v. Jackson, 71 Mich. Ap

)

» |

269 N.W.2d 132 (1976); °° secce v. Plone, supra, JOL N.W.24 267;

a

LS.

In Smica che defendanc cisely gave a general notice of

incene co rely on alibi as a defense, Suc cid noc give che names

and addresses of alibi wiscnesses or ssecify che place ac which

che defendane claimed to have been ac che time of the allegec

offense, as vaquired by che aoplicadle rule.

iS | cexson suscained application of che Michigan sandatory ex-

clusion sanccion where the defendant gave rcotice seven days celfore

ectal, duc ic was chree days lace.

There are cases ari ing sme 3 che federal habeas corsu

scatuce ia whic! snienias of defense alibi wicnesses has Seen

held co conscicuce a dential of rey process on che gasciculas ‘faces

presenced. Hackecc v. “uicahy , 693 F. Susp. 1329 (0.4.5. 1980)

involved a notice of alibi defense given by ortor

accused which was due on June 3. A general nocice had Seen z

Sune 18 and che idencicy of witnesses was furnished July 7. Trial

did noc commence uncil November 1. Azer the cefencanc's xe:

counsel made an opening stacemenc which indicaced chat she defense

was alibi and chac ali5i witnesses would be called, she srcsecucser

told che cours he was “noc coc concerned with alibi witnesses,"

ang chac he had noc calkxed with chem. The first defense witress

A-16

-15-

Subsect

fashion an appropriate order when a parcy7 ‘as

with chat Rule. A ccurt “may,”

continuance, pronibic che party

the matter noc disclosed ... oF

priace under she ciscumscances.”

expressly vecogniszing exclusion

mandate its ied Nor

ton g of Md. Rule 741 peraics she

ow

“--—

al csuss <:9

iled ce comply

a, “grant a reasonable

from incocducing in evidence

enter any other order aopro-

wnile

The Masvland =3le,

as a cossible sanction, does

od

noc imposicion. does is ssecify exclu as

the sanction for violacion, in che absence of good cause ‘for

noc imposing ic. Rule 741 g leaves che sanction, +5 any, <9

the discretion of the trial court. The imposision of an exclu-

siomary sanction againsc

is ciscumscrised only dy

7 (Csac.)

1

-

@as cne prt or “a Ze was

uneisely soct

witnesses seaeney,

<ormer?.

when th

. ““

not complied wica rules.

conciuced:

couse

tan view of che highly <sechn

counsel's exzor, she adsenc

complicisy Sy pecs sioner

of any prejudice co che Sca

ss severe sraiudica 23

preclusion sanction, —_

oy she prcsecuticn sercra

sais ceferdanc «as deprived

and of cue ssscess of law.

‘3s

-

_

~ —_

-<-&%

3rown ¥. Sainwrizgnc,

a dua process violacion ia

versed discoves7 ia

nad failed 22 comply wish

were sracluded fz

incraduce

--

ee

-_s

-

-*--

srayriocuas!? unctiecltcaad

che Scace of

¢delense ac

chey sere excluded and che }

alibi defense would xct be ee because defense ccunsel

The

the use os

~

ezisisal cases.

m cescifying watie

a |

lta

the accused under iule

cross-examined

somcermning 25

sasoced so ]

“have ese 4.

ury was sold

~—a—d aw

—_—--~

Uniced Sceaces DL

sacuse of

any evicence of

estcce, che lack

ce cai used uy ca eset,

istones caused Sy cre

eh sancsica

Sag oust

, #6 S33

cane L sigke

:

ical

a of

esac

i:

a.

_ .

gh Ws rt >

nace sctace “as

cace and she cefanse

she d¢deZanse si -messes

s2a7e as seraiscac co

wBeace

J

27eune

?

naman evel 2 ~ mee a “«wa+tee

we

and by conscicutional limicacions, under all of she relevance

circumstances.

The exercise of discretion concemplates chac che trial

court will ordinarily analyze che facts and noc act, particularly

to exclude, simply on che basis of a violation disclosed by che

file. See Sradford v. State, 278 So. 2d 624 (Fla. 1973) (erial

court erzed by excluding defense witnesses Sased solely on che

absence of cheir names from witness lise furnished state) and

Stace v. JZtas, 393 So. 2d 677 (La. 1981) (crtal course erred dy

treating scacuce chac made exclusion discretionary as if exclusion

were mandatory). [In che ‘nscanc case, the trial courte recognized

chac ic had, and was applying, discrecion. Ic heard extensive

arguments from boech counsel and a proffer of proof before

inictally mauling to exclude, chen tock evidence from che accused,

and again heard argumenc from defense counsel before deciding

noc co discurS ics inicial suling.

Uncer the approach taken dy sost courts, whecher the exclu-

sion of alibi wicness tesciztony is an abuse of discretion turns

om che facts of che particular case. Principal among she relevance

factors which cecur in che opinicns are whecher

violacion was technical or subscaneial, che c:

disclosure, che treason, if any, for che violation, che degree

of prejudice co the parties respectively offering and coscsing

che evidence, whether any resulting pre

Sy a pescponemenc and, 15 so, che overall desizabilicy of a

continuance Frequently chese factors overlap. They do soc

lend shetselves <3 a comearccencal analysis.

i Pe. 3

tn che case ac hard che cule violation was a gr>9ss cre

There was so aCtempc ac compliance. This is not a case wheres

nocice was given a few days laca, Suc well in advance of crial,

or given in a sechnically defective form. f[lluscsacive of

weat was held co be a csecknical non-compliance is State v. Sicva,

118 2.2. 408, 374 A.2d 106 (1977). Six aonehs petior so cstal,

buc 10 days lace uncer che court sule, she cetendanc filed a

socice of alibi defense, stacing thac he spenc che encize

evening in quescicon at cwo specitied acdrasses and idenctiliving

chree alibi wismesses. Five weeks price ccs <->: che disclicsuse

#as suoplemenced by am additional wicness’ race, wichouc an

addvess. The trial couse excluded che alidi sesciscny for Lack

of compiiance wich che sule’s specificicy scequisesenss. i:

was keld shere was substantial comoliance with che leccer and

spisic of che sule and chac “she cotal couss abused iss <iscra-

cton is exzeluding che defendanc’s alist caescisony.” <[2. ac “le

374 A.2¢ ae 109.

Nor did Talitazerso sresenc any excuse jusciftviag ==

Tielacice. dais csumsel sad asxead abcus TalLiaZarra’s wicnesses

acs che 2iss¢ tacesriew and sad Seen given she same and <eleshone

sumber of Caroiise Jellamy. “hile she secsrd <coes sce exslisisl

ssow whecher Ms. 3eliamy was <3 Se an alibi vimmess

she was xct stesenced 4s 4 witness anc cherte 43 x0 comsancicn of

eroor is she cenial of a soscsemesenc <9 socain es ssesence ‘i=

esuss. fs vas A&ick who was excluded. Usdes Taitalesss'’s sosi%er

he was wich Rick, ac AfLee’s sockes’s =cae ‘a 3alsisore, eves?

-_—

sighs foe a sestod of weeks susssimcing and inciucing she =

_-

--+.

J

-19-

of the robbery. Taliafer=o mew ' eh's name and ac least his

last known address 4c his mother's home. Indeed, in the pre-

ceding December Taliaferro and Rich had discussed Rich being

a witness. 5ut Taliaferro did not give Rich's name co defense

counsel as 4n alibi wimess until the second day of trial. The

only juscificacton which Taliaferzo attempted to present was

chat he had not been able to locate Rich. That explanacion did

not persuace che trial court co ignore che violation. t¢ could

not find chat Taliaferso “vas diligent in his efforcs in pro-

viding chis sane and address ieee

In this respect, che instant sacte> duplicates Yniced S2a788

y. white, supre, $83 F.2d 899. There the accusec ¥as aware of

che identity of his alibi wimmess, Walker, for soncns prior <9

erial buc dié not reveal Walxer until the close of all of s5

evidence. Tue reason given was chat che accused had Seen wunaodle

to locate Walker. The Sixth Cizcutt affirmed darziag =5¢ alidi

witness, and said chac

che sere fact chat appellant did noc ow

walker's whereabouts does noc excuse appellans

from complying with the idencicy requiresencs

of Rule 12.1(a). IZ appellanc had cendered

notice of Walker's idenc+cy. the Government

would nave nad an o portunity 6° locate Walxert

for the beresic of boch part-+es- ($83 F.2¢ a©

302. ]

Sinilarly, sere the defendant 443 charged #55 asomittiag a c=+se

on August 17 and contended sac each nignt curing te >

a

"

”

o

a

Augzst 13 ¢° August 21 se had spent 3+s >-=8 in taverns anc cen

Later “'at che premises eceupied Sy Alica Peasecke,’” 2ut did ace

give aocice of alibi weit $:00 o'clock om che afzernacen of ce

j17 72

o20e

day preceding trial, che alibi evidence was exciuded. I: vas

held there was no good cause shown for che failure to disclose

because the “defendanc was aware of chis alibi ac all times

and could have served his nocice of alibi in compliance with ch

stacuce."” Jensen v. State, 36 Wis. 24 598, 153 N.W.2d 566, 568,

modifiad, 36 Wis. 2d $98, 184 N.W.2d 769 (1967). is Jnised Stz7es

gy. Zarron, supra, 578 F.2d 752, che defendane cid noc disclose

his alibi defense and alibi wicnesses to his public celende>

counsel uncil after the jury had Seen empanelled. Counsel ismedi-

ately advised che gover=menc. jJased on the accused's scteactas®

sefusal to cooperate in his own defense, coupled with che scroengtn

of the govermmenc’s case, i= was held chac there nad been sc abuse

2 discretion in excluding the alibi wimmesses, even shough, as

a resuls of the timing of the governmenc’s discovery ctaquest, che

defendant's answer was only one day lacs. Ali5i wicnesses who

were kcown to che defendanc wera also involved in Ynised gfcactes 7.

.2¢4 1238. Ac a sreccial conference celense

counsel told che ccsurt chas che cefendance proposed 53 presenc an

alibi defense, suc counsel vas unable cs Ssrnish che names of

wicresses secause zhe deZandans nad failed so provice coimsal wics

chei> names. The trial court sulec che wimesses souls noc Se

allowed co cescizy. Ac crial, che cefendanc prasencec semsers of

his wife's family as alibi wicmesses, Suc she court acheszac 22 ics

pravicus suling. The Jiscrics 2° Columbia Cissuis sume so abuse

of discretion 2ecause xc exslanacicn sac seen given ist the celen-

danct’s ¢elay in fo>nishing the cates of che wicnesses. Zeosie 2.

731 :

2ecston, supez, 31 ILL. App. id 308, 401 N.2.2¢ 1062, iavoived az

attempe on che first day of trial co amend discovery answers to

present an alibi defense, which was denied. an alibi wicness,

defendant's wife of cwo days, was precluded from testifying.

In affizming, the appellace court said:

[N]o evidence was produced showing chac che

defendant was unaware of his alibi defense

and che existence of che alibi witness prior

to (che day of trial]. Therefore, the trial

judge did noc abuse his discrecion in denying

che motion to amend che answer to atecovert:

{81 Ill. App. 3d ac $15, 401 N.E.2d ac 1067.)

Cases like che foregoing may be contrasted with Williams v. Scare,

97 Nev. 1, 620 P.2d 1263 (1981). There the accused had furnished

counsel with the names of four alibi wicnesses, and counsel had

timely dictated the nocice, buc through inadvertence, had failed

to file it umctil seven days prior co che scheduled crial cate.

The applicable cule required filing ten days prior to esial.

However, because of a postponement, trial did not actually Segin

5-7

uneil cen days after che filing of che nocice. Further, che

State's case rested exclusively on che testimony of the victin.

Under these circumstances ic was held chat good cause had Seen

shown for relief from scerict compliance with the stacuce.

Wich respect co che factor of prejudice, ic is clear

chat Rich was the only non-party wicness whom Taliaferro Sad

presenc in court to cescify. Further, as che trial judge

recognized, Rich's sestimony was importance to che defencanc.

The prosecution's case sested on an ‘dencificacion only Sy she

wietia. However, had the trial court permicted Rich co cessicy

on the afternoon when he was produced in court, the Stace woulc

have been saverely srajudiced. I: would have had no cppor=umity

to investigace Rich's Sackground o> co ‘avestigate the alioi,

Bart? .o

?

disclosed ac the last minute, waiea undertook to place Taltalerso

with Rich ac Rich's aocher'’s home. Taliaferzs does noc concend

thac this should have been dene. His poine is chat cne court

abused its discretion by failing to granc a concinuance Co

enable the State to invescigace, particularly siace Taliazertvo

contends chat che Stace conceded cnat a L-1/2 day postponement

would cure any prejudice. This amgumenc ties reducing prejudice

to a continuance and essentially czaises che s4me consi¢erations

as an argumenc “hac che denial of a continuance to obtan

a wittess ‘is an abuse of discretion. ta “hac conctexs

we nave said chac she defendanc susc show, inter ziis, “'cRac

he fhasj made diligenc and proper efforts to secura che evidence.'”

Saokson 9. Scatea, 298 Md. LOL, 194, 416 A.2d 278, 281 (1980), quecans

an earlier Jcexson 7. Sta74, 214 Md. 434, 489, 135 A.2d 638, 540

(1957), cert. dented, 386 U.S. 940, 78S. Ce. 794, 2b. Zd. 2d

als (1988). Here, the crial court, based on Taliazar=o's own

testimony, found a lack of diligence boch ia proviciag cue came

and address of Rich, amd with sespecs 59 Taliaferco's explanation,

ts daterniaing Rich's whereacoucs.

Taliaferso's azgimenc of a concess+on shat a l-1/2 cay

continuance would cure any orejudica so che Scaca cverscaces

the prosecutcr’s pesicicn as cetlectad by the sacord. The 2F5-

secutor's scacamenc shac 4 delay izcm Thursday aicesnech weetl

Monday morning vouls give 5:3 “adequate cise” was a falarence

so the time wichita which Rich's Sackgrsund an¢ connecc.sn wick

che defendant could Se checked. “<@ State's Actommey 4.30 assercec

chac ne aight wish co Sring is cabuctal witnesses. Obviously she

~

~

?

prosecutor was noc in 4 position, when Rich was sprung on hia

ac che elevench hour, ©° advise che court where an as yec

unperforned investigation would lead. While 4 concinuance

would relieve che State of the severe prejudice of being re-

quired co cross-examine 4 surprise alibi witness immediately,

the short cot inuance for which petitioner contends could never

equace wich the opportunity °° prepare in the period from

February 11 so May 21 to meet 4 disclosed alibi defense witness.

That is whac cne Stace was enticled co under Rule 741 in this

case. We cannot know what 4n tavestigacion of Rich and of

the alibi would have revealad, and ic is speculation 6° treac

the continuance alcernacive 43 involving 4 fixed period of L-1/2

co 2-1/2 trial days. tf the Stace, ascer inicial investigation,

had requested 3 further concinuance for the purpose of obcainiag

witnesses co reduc che alibi amd ‘co impeach Rich, rhe matzer couls

have been further exacerbated. “We also note chac cere was 70

express waive= by Taliaferro of any clais of right co aot.ce

from the Stace of alidt rebuttal wicnesses.

Further complicatiag the problem was chat this was a j3°7

trial. Thre crial court 44s also entitled to consider chac che

estinaced ce=3 of service oF hal? of ics {=7 ended on Fricay,

May 23, 3° that a ainicm continuance would be uncil Tuesday,

May 27, unless >lans which those jurors Likely had sade for che

rhree ¢a7 federal nolicay vers co be ignored.

Ic has Deen said chat cre exclusion sancsscn should Se one

of lasc vesorc, *°9 be “invoked only 42 whose cases wnete@ OCne=

7 -2ay¥

e2he

Less scringenct sanccions are roc applicable so effec= she ancs

of juscice.” Ssate v. Smish, 123 Asiz. 263, 252, $99 3.2d 199,

208 (1979). This approach, if applied co a case like che one

ac bar, seriously undermines one of che sajor purposes of an

alibi reciprocal discovery rule--avoiding crial iacersupcicn

and delay. The Advisory Commiccee on che Federal Rules of

Criminal Proceduse, in sacommending Fed. 2. Crian. 29. 12.1 sta

(62 F.R.D. 271, 294-95):

Prohibicing from cesciltying a witness waose

name was soc disclosed is a commen provision

im state stacuces .... Ic is generaliy assused

chac che sancticn is essencial if she nccice-

of-alibi cule is to Rave praccical significance.

eo 7 ©

Rule 12.1 will serve a useltul sursose even

though cule 16 rcw requires disclosure of ch

names and addresses of governamenc and <cefense

witcmesses. There are cases in wnich che iden-

cicsy of defense witnesses aay Se known, Sut it

Bay come as 4 surprise Oo che gcovercusenc chat

they incend co csesctity as co am alidi and shere

may Se so advance socice of she cetails of <h

claimed alibi. The resuls often is an umneces-

— inctersupcion and delay in che czial co

le che gover=mens ¢9 conduct an acprocriace

investigation. The cdjeccive of s3le 12.1 is

co prevent chis by providing a sechanisa which

will emable che parties co Save specitic inicr-

mation ia advance of trial ¢s sracarte <3 seect

ese issue of alibi cusing She cota...

The poise is well aade Sy Epstein, Aicvoence Fesice 327 42:

susra, 55 J. Cota. L., Coiminclogy & Police Set. as 35-56:

Excluding che evicence sas sssvec alteccive

cooe a2 COMGSASS, che chteac of @ conttatancs

43 not a sanceicn ac all; ‘She srosecucicn weeld

be granted a concinuance om she grorumd of surprise,

even wichous she scacucor7 cisecsics. if ait ske

Zencant tisks is a comsinuancea, he will surscseir

mot give xocice Secause cre concinuance ‘3s va.uabie

eo his. Shem is is grancac, is ssmes alces she

on -

?

prosecution has presented its evidence and allows

it co gec cold. The effect of s continuance

as a “sanction” is also contra the deep concer

of che bench and bar with trial delay.

The majority of courts which have considered che question,

and the better reasoned decisions, ave generally in accord with

Epstein's analysis. See United States v. White, supra, 583 F.2d

at 902 ("Because Walker's testimony was noc offered uncil doch

parties had rested ac the close of a three cay jury Cria., a

continuance [for tnavestigacion] would noc have Seen satisfactor7.")

Uniced States ¥. Jarron, supra, $78 F.2d ac 757 (If liberal dis-

covery and the prevention of cial delays “are co be effeccuatec and

if the rule is to have amy teeth, trial courts must be able to

impose sanctions, even the drastic one employed in this case." ;

Dodd, supra, LOL Ariz. at 237, 418 2.2d ac $74 (1966)

(“Because of defendanc's failure to act:

:

ia)

o

“0

8

oa

-

~~

&

0

n

a

a

al

iw

mm

r

a

sotice scule, we find a0 abuse of discracion in the instant case.

Any decision co che concrary would rencer she force of [che ali5:

.

isclosure stacuce] nugatory.”); Clark v. Untced Scaces, supec,

396 A.2d ac 999 (“(I]e its generally assumed shat such a sanction

i.e. exclusion] is essential if che accice-of-ali5i sale is <0

mificance."); State v. Tavita, sucec, $3 Yaw.

3g

at 198, 624 P.2d ac 381 @xclusion essential {fs

e ssle co have

practical significance); Scase v. Chziacensen, susee, 323 N.8.id ac

223 ("{A] delay ia the proceeding would create a substancial cine

interval becveen che presentation of che Scate's evidence anc “he

defendanc's evidence of alibi. This noe oniy disrupes che

sudicial process bus say also alifecs che jurors an¢é the outcome

+

of che trial."); Scase v. lindsey, suprs, 234 N.W.2d ac 374

("(Wle racognize chat che trial cours had no ocher seaniagsul

sanctions at its disposal; ic vas ¢90 far into trial co consicer

a continuance ...."); S7as4 ¥. ¥oodard, 102 N.J. Super. 419,

426-27, 246 A.2d 120, 134 (1968), cers. dented, 395 U.S. 238,

99 $. Ce. 2004, 23 L. Ed. 2d 453 (1349) (“To have waived che

provisions of che cule, at thac poinc in th erial (dusting

eress-examinacion of she state's last wizness}], would Sav Seen

highly unfais and oreiudicial so cre State--and an adjournment

to allow she Scate co invesc-gace che witness ... sould noc iave

eured this elevenca hour asplicacion."), $7276 4. Ficae, susse

30L N.@.2d ac 372 (“Quice simply, 4 defendant with am absolsce

right co submis evidence withheld from discovery as

lose by being umccoperac.ve. L=ernacive sanctions [s9 exclusion,

appear less esfective and often entail delay anc expense, <=="

railnenc of discovery, and even potencias sonstirsecional proolems."),

State es sel. Simoes 9. Jurxé, Ju7Ps aL wis. 2¢ as 129

for adicusmment cn ‘Sie ground of suprise 53 7erass isvvegitig3sscn

of alibi claias. The ‘acerascs 32 the crosacucicn, celense in

public are served Sy such facilisacing of srdercl?7, unincars:pcec

ecials for che seeking sf tne cfs58 ang the srocecticon of cre

sights of alt soncerned.”).

Months sefora trial in che case sus ‘ydieg Taliazersss “ow

Rick's idenctisy7, tis socner's adézass, and che dace of cosa anc

ad seem asked Sy ccunsel a5out si cesses. siisous any {uscisring

axcuse, Taiazer=3 cic ccc t¢sclose Rich as an aiidi wismess “nce:

the close of che State's case in a jury trial. The crial court

acted well within the bounds of irs discretion in excluding

Rich's cescimony and in noc continuing che case.

JUDGMENT OF THE COURT OF SPECIAL

APPEALS AFFIRMED. COSTS TO BE

PAID BY THE PETITIONER.

A-2F

24

IN THE COURT OF APPEALS OF MARYLAM

No. 101

Sepcember Tera, 1981

VERNON THADDEUS TALLATERRO

v.

STATE OF MARYLAND

Murphy, C.J

Saich

Eldridge

Cole

Davicson

RocGowsky

Menchine, @. AlSere

(recired, specially assigned)

JJ

—————a

Dissencing Opinion by Eldricsze, J.

~2 which Cole and Savidson, Jc.,

concur

Filed: Feormsas7 +9, 1923

Eldridge, J., dissencing:

The Supreme Court of che United States has twice

expressly reserved the question of "Cwlhecher and co what

extent a State can enforce” a notice-of-alibi rule "by

excluding relevant, probative evidence” offered by the

defendant, recognising that ic “is a question raising Sixch

Amendment issues." #illiams v. flerida, 399 U.S. 78, 83

mn. 14, 90 $.Ce. 1893, 26 L.Ed.2d 446 (1970). See Jardius 9.

Oregon, 412 U.S. 470, 472 a. 4, 93 $.Ce. 2208, 37 L.Ed.2d 42

(1973). Under circumstances like those in Chis case, where

che sanction of exclusion for violating a notice-of-alisi

cule operates Co prevent 4 criminal defendant from calling

his only alibi witmess anc thus from presenting his only

defense to the charges, where the violation was sot de-

liberate, and where any prejudice to the prosecution eculd

have been cured by a short continuance, the applicacion of

a notice-of-alibi rule's exclusionary sanction violates the

Sixth and Fourteenth Amencmencs to the Uniced States Consc:-

tution. The sajoricy, in holding cnat che state srocecural

cule overrides the petitioner's right to call his only wit-

ness, has denied petitioner the sost fsndamental constirtu-

tional right chat exists in a criminal case -- the rignc

to present a defense.

In order to understand better che full impacc of

the majoricy's position, ic is necessary ©o tecounc some of

she critical faces ia shis case.

The pecicioner, Vernon Taliaterzo, was indicced

for robbery with a deadly weapon, use of a Gamcgun in che

commission of a felony, and lesser charges which were nol

prossed. Cn che fizsc day of bis crial, Wecnesday, lay 21,

1980, che petitioner saquested a concinuance in ordat shat

ene of his wicnesses, Carol Jellamy (a former gizsl isiand),

could be summoensed co tastify. Cerfense counsel stated chac

she had been umable to reach Jellamy Sefore she crtal, a.-

shough she nad had Zellamy's selephone number for scme cise,

and chat she tad cnly ocdtained her acdress cn che day of <he

total. Even shough she Stace had ro objection <0 a concinu-

ance, che coial judge denied Taliaterso's recuesc, scasing:

"The defendanc nas waised uncil she cay of she crtal co give

nis coumsel am adcress of a witmess which 13 uct, ia 37

view, @ ceascn to concisue a case, so f will noe coneinu

1

in t-

lili

5]

-" This saiiny, alsscugh soe Sefore shis Couss, saculcé

Se sou ia aisd ‘a consicering peciticres’s sotlisy

tc sresenc his cefanse.

<<

On che next day of his trial, Thursday, May 22,

1980, che pecitioner sought to call Edward Rich, who was

then present in the courthouse, as an alibi witness. The

State objected om che ground chac Taliaferro had failed to

mame Rich as an alibi witness in response to the State's

request cade pursuant to Maryland Rule 741. The Scace claimed

that ic had been surprised by the last-minute proffer of Rich,

was unprepared to cross examine him, and had had no opporsunity

to imvestigacte his background. The State indicated, however,

that ic would have no objection to Rich's testifying if the

Case were continued until the following Monday, May 26.¢

The majority suggests that the prosecuting at-

torney's statemenc, that a continuance uncil Monday,

Hay 26, would be sufficienc, related only to che

time within which Rich's background and connection

with the defendanc could be checked. The prosecu-

ting attorney, however, was in addicion referzin

to “all sorts of things I can't do on the spur o

the somenc,” before responding: "Monday. c

would give me adequate time." Lacer che presecu-

ting attorney refersed to “puc(cing) che case off

for a few aore days," and he unequivocally stated:

"I am willing to go along wich chac."

The record clearly shows, therefore, that the

Stace believed chat a short continuance would be

suzficienc and would cure any prejudice caused 5

the violation of the discovery zule. Alshough che

majority «rpears to second-guess che prosecution

in this regard, I believe chac che attorney for

Che prosecution is the bese judge of how much cine

he would need to be presared to cross-examine the

defendanc's witness.

A -32

‘

rs

‘

The record shows thac che trial judge appeared

disposed towards continuing che case uncil he learned chat

Che temas of six of the jurors were to expire on Friday, and

Chat the following Monday was a federal holiday. MNevercheless,

Menday was not a state holiday, and che court was requized so

be open om chac day. The judge feared chat Sy resuming che

case on Monday, he aighc disrupt che long-weekend plans of

Che six jurors whose carms were to expire. The judge, sow-

aver, cade no inquisies co decermine whether chis fear iad

any Sasis. de made 20 effort to ascertain whether a sriaZ

continuance would inconvenience a single juror. Instead,

che stall jucge simply set:sed co continue she crial, and

wailed thac Rich would noc be permiccad cs cascify as a

sanction fcr TaliaZerco's violation of 2ula 741.”

2 (Cons'’d.)

Mosecver, the trial judge's s:ling exclucing sh

witmess vas act Sased upon che iudze's view chat a

shcte continuance would noc Se suffticienc for =h

prosecution. Instead ic was based uron che judge's

specsiacion shat jurors sigst be inconvenienced Sy

a sors concinuance.

“:

The sajorisy speculates chac Secause ?rince Gecrze's

County acjoins she Discrice of Columbia and sanz of

23 resicents are epploved dy che federal goversmecc,

che jusors “aight save nade plans 2cr she chree 4a7

federal <ciicay weekand."” CLacas in =he coinicn, zbe

aajorzicy somehow Seccaes secre certain, zafarsing to

“slans which those Susors lixelz hac sace fez che

casae cay federal soliday.” As soincad ous above,

newever, Che trial judge sade xc effsrz 25 detarcaine

whether any jussr sad holiday slams {02 Monday cr for

amy ocha> cay. As Zaz as shis seacerd shows, x0t a

etmnmla tvemnem som t A BSeosrm Beam !aanamcoaat’ coocad *®e «a

i =

The trial judge did noc find chat Taliaferro's

violation;of Rule 741 was deliberate; instead he found chat

che defendant was aot "diligenc” and “hadn't made any real

effort, except yesterday, to locate the witness."

After the trial judge's decision excluding Rich

as a witness, defense counsel requested a ruling chac che

State not be permitted to impeach Taliaferro with his prior

criminal record if he decided to take the stand in his own

defense. The judge denied counsel's request, and che ce-

fendant never tock the stand.

3 (Conc’d.)

resumption of che tzial on Monday.

Morecver, the record fails co disclose chat any

of the twelve jurors in the case sere federal gover=-

ment employees. The total population of Prince

George's County i3 665,071. 3ureau of the Census,

U.S. Dep's of Commerce, No. ?C80-1-A22, 1990 cansus

of Popucaston - charactertacics of ine Popucasiton:

YumBer of Inanadttancs, Marytand 22-12 (1982). Of

this total number, a roximately 450,000 persons

are over che age of % and thus eligible for jury

duty. Office of Planning Data, 4d. Dep't of Stace

Planning, Maryland, 1940 Porulastion 3y Age one Ses

28 (i983) . I have been iniormed oy an ofZicial ia

che Bureau of Economic Analys:s, United States

Department of Commerce, chat 71,912 Prince George's

County residents are federal government civil-an

eaployees. In light of these figures, chere +3 so

basis for a an inference, based solely cn

Prince George's County's prox-mity to she Districe

of Columbia, that che six jurors whose cerns were

to expire were likely federal exployees.

Ulcimacely, chen, Taliaferzo was unable so present

any defense to the charges against him. Taliafarro's deZense

had been alibi, and he had soughe to introduce che cestimcny

of cwo wimesses and to cascizy himsel’. Because of the

csial judge's evidenciary sulings, TaliaZerro's “defense” was

reduced co an actack on che credibility of che Scate's only

witness against hin.“

The Sixch Amencmens to the United Statas Constiz:-

Ciom provices: "In ali criminal prosecutions, she accused

shall enjoy che right... to have compulscry srscess for

obtaining wimesses i= sis favor.” In Veshingcon 2. lezce,

~ Is 4s notaworthy shat ac an earlier scage of ch

Cstal, che total judge tad soc ancicisacad chac

rulings on che acmissibilicy of evidence would de

such a sajer factor ‘2 che cotal. On che firs day

of che trial, che judge annctumced chac he vas

“perscnally acquaincec” with she family of she

sobbery viccin, havizg own chen fcr cwencty rears.

"Ll know where they live, save been in theiz scuse;

Chey nave Seen ‘2 ay couse.” 3uc che judge ccn-

cluded chat he would Save “so problem” coving che

case "since is 4s a jusy case, and a7 #-ncsicn,

Sasically, is so dacarmine the acnissisilisy of

evidence.” I che coial judge had ancicisatad

saat his slings cn she acnissibilisy cf avidence

would detaraisze whacher or =scct a defense would se

offered co che jusy, nis decision concerning che

aatcar of dsiquaiizicacicn sighs have seen cifferacc.

=

388 U.S. 14, 87 $.Ce. 1920, 13 L.Zd.2d 1019 (1967), Che

Supreme Cours held chac che Sitch Amendment rights so offer

Cescimony of witnesses and Co compulsory process are applicable

Co state criminal proceedings, and chac a Texas statute pro-

hibicing accomplices fzom tescifying for each ocher violated

chose rights. The Cours said (388 U.S. ac 19):

"The right co offer che testizony of wit-

nesses, and to compel their accendance, i+

necessary, is in plain taras the righc to

presenc a defense, che right Co presenc ch

defendanc's versicn of the facts as well as

the prosecution's to the jury so it sayz

decide where che truch lies. Just as an

accused has the right to confrore che

prosecucion's witnesses for the purzose

of challenging their testimony, he has the

tight co presenc his own witnesses to

establish a defense. This right is a

fundamental elemenc of due process of law.”

See aleo In @e Oliver, 333 U.S. 257, 273, 68 $.Ce. 499, 92

L.2d.682 (1948) (recognising che sight co offer tescincny

as one of several rights which "ara basic in our system of

jurisprudence.")

In Chambers v. Aiesissipe:, 410 U.S. 234, 93 $.Ce.

1038, 35 L.Ed.2¢ 297 (1973), Justice Powell, for the Cour,

wrote (410 U.S. at 294, emphasis supplied):

she cigne of m accused in 2 criminal

trial co due process is, in essence, Che

cighe to a fais coppersumisy co seftend againsc

che Stace's accusations. The sights to

comironc amd cross-examine witnesses cnc so

sell visnesses in one's oun 2encl? Azcve Long

dean secognisad 23 essanczial so dua process.”

In caamzers, che Court held chac a csiminal defendans was

impermissisly denied chese rights Sy a Mississispi voucner

ssle which tad praciuded Sim fssm calling wimmesses So ¢is-

ezedic cne of bis sum wimesses whose Cascimony hac Seen

damagicg.

In che present case, as a sesulc of che trial

sudge's applicacion of a ncmmamcatory sanccicn periaining

to a were srscedusal cule, che defencanc was preclucec r=

eallicg his only alibi wimmess, amd thus “som presanting

5

ais omly defense co she stata'’s accusations. Motecver,

Tse face chat 2ich was che only wimess which

Taliafesso could save called conccasts with sisua-

tions in which, for example, a defendanc cas call

mumercus wicmesses, bas presented a subscancial

defense and seeks <9 introduce “needlessiy comula-

tive" evidence. United States v. Davis, 539 F.2d

239, 244 (Sek Ciz. 1981). See clsc Unised Scaces

v. waita, 5383 7.2d 899 (6c Ciz. 1978) (cascinony

of cwo alibi wimmesses aczitcad, ceaestinony of chisc

alibi wicness excluded for con-ccoapliance wish rsle);

Commonwealsh v. LaFsemie, 13 rmndey ! dy 977, 432

N.2.24 535 (1982) (same); Commenwealsa v. Vecchicil:,

208 Pa.Suser. 433, 244 A.2¢ 96 (1966) (same). in

such cases, the ssling, alcshcugh exscneous, raz well

be sazmless beyon< a teascradle <cudc. This case is

Pr eee

re

the violacion of the rule was noc deliberace, and any pre-

judice co the prosecution was concededly curable by a short

continuance. ° Finally, the record fails to show that anyone

§ (Conc’d.)

also distinguishable from those in which che profiered

evidence is of limited probacive value. See, 4.¢.,

United States v. Fitts, 576 F.2d 337 (10eh Ciz. {34a)

(alibi was only for two ouc of four alleged attempts

to cash stolen money orders); United States v. Smith,

§24 F.2d 1288 (D.C.Cir. 1975) (alibi given for only

one of three alleged heroin sales); Jensen v. State,

36 Wis.2d 598, 153 N.W.2d 566, nodified, 316 Wis.2d

598, 1354 N.W.2d 769 (1967) (alibi was for only cwo

of three counts). Here, however, the consticucional

violacion could not possibly be considered haraless

because the ruling resulted in che exclusion of che

defendant's only witness and precluded him from pre-

senting his only defense.

Ia —_— jurisdictions, as a prerequisite to ex-

cluding che defendanc's witness for violation of a

notice of alibi or witness discovery cule, che trial

judge susc find either or boch chac che defendanc’'s

violacion of the rule was deliberate and chac che

prosecution would be significancly prejudiced unless

che witness was excluded. See, «.¢., United States

v. white, $383 F.2d 3899 (6ch Cis. 1978); Hackece v.

Mulcahy, 493 F.Supp. 1329 (D.N.J. 1980); Stace v.

Smith, 123 Ariz. 243, 599 P.2¢ 199 (1979); 3radford

v. State, 278 So.2d 624 (Fla. 1973); Stace v. Davis,

63 Sawaii 191, 624 P.2d 376 (1981) (exclusion proper

when defense counsel concedes cule violation was a

deliberate, tactical decision); Scate v. 3righc, 22

Ran. 185, 623 2?.2d 917 (1981); Scace v. Bias, 393

So.2d 677 (La. 1981); Commonwealsh v. Edgerly, 37

Mass. 337,343, 361 N.E.2d 1289 (1977); People v.

Mestice, 396 Mich. 67, 238 N.W.2d 31 (1976); Williams

v. Stace, 97 Nev. L, 620 P.2d 1263 (1981); Founcs

v. Stace, 47 Nev. 165, 483 ?.2d 654 (1971); Stace

v. Saish, $0 Ohio $e.2d $1, 362 %.£.2d 986 (1977) ;

Scacte v. Silva, i118 R.2. 408, 374 A.2d 106 (1977);

°

7

A-340

would have been inconvenienced by a shor= continuance. This

applicacion of a state procedural rile cannot be squared with

che mandate of Chambers, Zaahingcon and In ve Oliver. Under

the teaching of chose cases, Taltalerzo was convicted ‘a

violation of she Sizsh and Fourteench Amencments.

The majority cpinicn rejects Taliazerzo's consci-

cucional argument, stating Chac "“scate ccusts and lcwer

Zederal couscs nave decided chat che exclusicn of alidi

cestincny offered dy an accused who has violated am ali

iscovery requizemen= dces not offend che Sixth Amencmenc

tight so kave compulsory process fsr che cbhcaining cf

witnesses." Yec srcne cf the cases cited Sy she saaicricy

Bold chac exclusion pursuant co a sotice-05-21i5i s2le can

never be waocensticucional. In fact, csurts have Selcd,

4 (Cenc'd.)

State v7. Masccia, 165 wash. 190, 4% 3.26 380 (1931);

State v. Grant, 16 waskh.Asp. 468, 519 3.2¢ 251

(1974).

Fusthersorse, several jusisdicciscrs ccnsicar che

value of she precluded cestincny <5 she cefendass's

case. See, ¢.g., State v. Marcia, 410 3?.2¢ 132,

137 (Astz.Asp. 1966); Se EET 7. LaFsensie,

i3 Mass. 7 977, 432 3.2Z.2¢ £28 (21982); Scase v.

i Be poet &%.8.2d 363 (isn. 9° 9) ; icker= v

Scaca, 36 Yev. ag any 2.24 $17 (1250); Foues v

Scacea, ee o 165; Scace 7. Wiser, 123

Ve. 38, 233 a 4355, $25 (2363).

é 4 3 q

om constitutional grounds, that a trial judge cannot exclude

a defendant's witness merely as a sanction for a discovery

cule violation. Jnited States v. Davis, 639 F.2d 239, 243

(Sth Cir. 1981) ("We hold, therefore, that the compulsory

orocess clause of the sixth amencuent forbids the exclusion

of otherwise admissible evidence solely as a sanction to

enforce discovery rules or orders against criminal defendants).

A |

te

tv

'

©

_

1A

a

ir

oO

=

"

e-

‘oOo

@

~

~~’

See Unired Scates v. Peres, $43

(error to have excluded witness because of vielacion of

discovery order to reveal reports of physical examinat-ons,

but error was harmless). The United States Court of Aopeals

for the Seventh Circuit has recently held chac ic is comst:-

tucionally impermissible to apply a notice-of-alidi ssle so

as to preclude che defendcanc from testifying in his own

defense as 20 am alibi. ilicea v. Gagnon, 675 F.2¢ 91e

(7/08 Cis. 1982

ther courts have held that specific applications

reclusion sanctions violate a defencanc 3 constiztacional

th

-

J

3

a

~

'

ue

0

"

7

ts

o

4

&

i

‘

+

i.

cignts. The Uniced States Court o

Ciscuit, for example, held chac ic is unconstitutional <o

preclude a defencant from calling wicnesses and presenting

an insanity defense when formal socice vas the only cer:-

when amy orejuc:

@ could nave seen amelicrated Sy Lesser

ie)

e 12

eans tham exclusion. onsen ¥. sommiasiones of csr. 27

‘cosa oF 4.2., 504 7.24 176 (24 Cis. 1979). The cours $

reasoning is applicadle to the instanc case (604

L78-179):

‘hile a deZandcanc’s rigact =o cali wicnesses

on nis dehal? is 20t absoluca, a state's

interest in zescricting no 347 be called

will be sezatinised closely. ..- . ta cad

regard, maxiom ota gathering,’ Facer

esan arbitrary lLimicacion, +3 cA¢ favored

goal... . Given tuat 2 gramc of comcinu-

ance wculd save sexved so ain-=.se@ any?

stejudice =o she state resulcicng izom “he

Yack of formal accice, Che seissal of She

ertal court 29 exercise discretion <6 allow

“she defancanc] to call “ais osyehiatzise.

and to present am “2340-27 defense, cnen,

“as a Ti0lacsion cf Qonsen's sixi=h apenccenct

sights.”

tea tiso the well-reasomac opinscn 3£ che Tnicted Scaces

Siscrict Court im cre same 2234,

Susp. 37 (3.0.4.7. 1373).

— - : . oe ™~s. i - ‘ ~

™se@ Tniscec 3sfaceses Sisezics Ccuss ost 2-8 Jisssics

th

of New Jerse7 issued a VTl= SG

senvictad after a tttas SS Shas ‘3@ ‘sag 20C se=asscac C3

, . . ‘ . . _

iscooduce alibi sescimcny. <sse"e75 7: ulisaay, 232 F.Supp.

oe i3 «

noting chat "Cejhe right co present witnesses 2 one's

defense is 4 fundamental right guaranteed by the Sixch

amendment.” Id. at 1335. after reviewing the facts, che

court concluded chat "chere is 20 indication chat pecicioner

waived his constitutional right ¢o present rhe alibi cest+-

mony of witnesses ~~ The trial court's refusal ¢°o perait

the introduction of evicence exucial ©o peticioner’ § case

visited a cerzidle punismment om. - - ‘him]. He was

deprived of the right 6° defzend himself.” Ic¢- af 1240.

The Supreme Court sf washington as indicated c-at

excluding defense witnesses a3 4 sanction for noncompliance

with a necice requizement nay oe unconscitucsona.. tn Scace

y. Marten, 165 sashls0, 187, 42.24 430 (1932). the court scaced:

“Te, in such a case as chis.

claim suzpr-+se (resulting é=ca

it might deccue the ducy of ©

declare that che appellant's evidence should

aot Se received, out chat the scace shoul

have 4 reasonale opportun-c7 to prepare it~

self agaiast surprise; *ot che conscicucicn,

oY quarancee==6 an accused persca the right

to ceZend himself anc °° compel the actes-

dance of witnesses by she ¢

necessarily 9-725 his cae =

atrending «icnesses nears.

gnc co have

Many other cases Save recognises che exiscence ef constsss-

sional problems in acply+s the preclss-+on sanction st

ywiolaticu cf notice-0f-4+>5 grovissons. See, @:Fe0 Jnices

Sseses ¥. Jarron, $75 F.2d 752, 787 n. S (9th Cie. 1978);

Jrown v. sainurigas, 459 F.Supp. 244, 247 (M.D.

Fla. 1978);

People v. Jackson, 71 Mich.App. 395, 299, 249 N.W.2d 132 (1976);

Commonuealsh v. idgerlty, 372 Mass. 337, 243, 16

(1977); Ssase es vei. Sizxora v. Jiscriss Cs., iS

462 3.20 397, 903 (1969); 2eopie v. Morcies, 37

269-270, 372 ¥.%.$.2d 25, 333 8.2.24 339 (1975);

Smish, 50 Ohio Sce.2d 51, $2 2. 2, 262 N.E.2¢4 38

cease 9. solve, 273 Or. $18, $25, $42 B.24 482,

~

williams v. Florida, 39

25 L.Ed.2a 446 (1970), sel

provisions do noc violate

selS-incriainacion clause, aichough, as ore

G.scsssed, the Court reserved Tiling on che

som of excluding che deZendanc's evidence.

eakese, Swo states have declared sotica ~7

ales

tovisicns vislacive of state consctic:cicna!

g. Ss. ‘3, 90 $.Ce

1 N.Z.2d 1289

¥.¥.26 262,

Sseasé v.

8 (137

436 (1975);

~~

ed

ae

e. 1393,

. .

aisoi

he rises, Amenczent's

vicusly

sanc-

Never-

aiidi

oy

4 privie

sages aga-sst sels-incsimisacion. Is Alasixa, che

Supreme ccuss meld chac che stace's accice

of alibi

provision violated chac state's consticscicnal

privilege aga-ast seiz-iacsiainacicn to ce

CSac She ssovisicn saquised scre chan sere

of intcamt <0 present an alibi dafense. ey

Reid chat Seyond simola sctice, she scata :

compel che cefendanc <3 disclose anvz decail

defense such as who nis Wicmesses ara anc wh

excanc

ccice

sul

sc

was i= he was ccc ac she crime scene. Sescz 7.

State, 512 P.24 774 (Alaska 1374). Similarly, ‘ts

Alles v7. Superios Csusc, 18 Cal.3¢ $26, 134 Cal.

Apes. 774, 557 7.22 63, 67 (1376), cSe Susrame Course

of Califor: mele shac she selS-iacrisisacicn

Clause Of She conscisscicn cf shac scace srchidics

*-* | 4 . ‘

ccompeiied sratcial cisclosute to the crssacucicn

Sy a Gatancanct (= she disclosure "'cconceivadly

sighs lLighe c2@ pecsecution’s Suscen ci roving

4S3 case is csiaeZ.

4 43

‘

—

While some of che above-cited cases have left the

constitutional issue undecided, none of ches has involved a

situacion as extreme as thac in the present case, where che

judge excluded the defendant's only witness, thus precluding

the defendant from presenting any defense, without finding

thac the failure to comply was deliberate, and where any

7 (Cone'd.)

In an earlier decision, the California Supreme

Court struck down 4 udicially-created notice of

alibi requiremenc, © ereby rejecting che efiorts

of some lower courts in that state to creace a

common-law notice requirement. Reynolds v.

Superior Court, 12 Cal.id 834, 117 Cal. Rpt. 437,

$28 P.2d 45 (1974). In explaining its hesitacion

to create or sanction notice of a.ibi measuzes,

the court gave particular weight to peocencial ccnm-

stitutional proolems:

"TClomplex and closely balanced questions

of state and federal constitutional law are

presenced by a notice-of-alibi order. .- -

‘Ol]ur decision thac it would be inappropr+ace

Zor us to declare judicially a notice-of-

alibi cule does arise from our sensitivicy

to the consticucional constraints on che

power of che courts or the Legislature co

require a defendant in a criminal case to

reveal to the prosecution in advance of the

normal course of trial tangible or incangidle

erial-relaced evicence oF other saterial.”

Id. at 837.

The Maryland Declaration of Rights also conta-as

a provision guaranceeing citizens the right aga-ast

self-incriminacion. Article 22 states: “shat a0

aan ought to be compelled co give evidence againsc

SimselZ in a criminal case." This Couss has never

=:led on the issue of whether Rule 741 say Se 2a=-

tially tavalid because it compels crimina de-

Zendants to give evicence againsc chemselves com-

trary to article 32. Because the parties have 0c

eatsed che issue, it +s not before us in chis case,

and I express no views on che sacter.

yn d¢7

disadvantage to the prosecution vas admittedly curable Sy a

continuance.

In addition, ccmmencators have Caken the positicn

thac exclusion of che defense witmesses, 43 4 sanction for

violating a discovery tale, presencs sericus consticucicnal

problems. Professor Clinton, for example, concludes crat

“applying che preclusion samction co the

accused would in sost cases Se constictu-

tionally suspect. The application of the

preclusion samction. . . should susvive

tonstitucional challenge cnly when che

avidence excluded is nce vary <aportanct

co the accused or, in the usual case,

where other seans of effecsuacing ‘he

state's interest are practically un-

available.” Clinctecn, 216 Rigas ce

Peesant 2 Cerenae: An Imarzen: Conactisue

sional Guarantee in Crimina: Sricis, 9

tnd. L. Rav. 712, 339 (1975).

°

See ziso Sesten, The Compulsory Procass Steuse, 73 Mick. L.

Zev. 71, 137-138 (1974); Note, ie Preciusion Sanesion - A

Yiglazion of cae Comazisusionas Rigas to Present z= JaZanse,

@l Yale L.J. 1342 (1972). See gameraliy Wete, Peosecuserts:

Stsccvery Indar Proposed Fule 24, a8 Zasr. L. Rev. 396

”~

1972). The American 3a> Association, Lz A3A Ssandasds fc?

csininel vuazice, § Ll-4.7(a) (26 ac. 1980), vejeccs cre

exclusicn sanction om tech policy anc onscic=

"

.

4

ry

‘ .

ow

i

i

ras

a

See Fak

ae ‘

ST =. ER cy

- 17 -

IZ excluding a criminal defendant's witness for a

violation of a discovery rule ever infringes upon the Sixth

Amendment, it does so in the present case. The deZendanc's

only defense was alibdi, and the excluded witness was his only

alibi witness. The prosecucion’s case was based upon the

identification testimony of a single witness, who had

initially idencified the photograpa of someone else as the

perpetrator of the crime, who was a police inforzanc, and

wno had a criminal record. The only issue before the jury

should have been to decide which of two witnesses was

telling the truch -- the prosecution's idencificacion

witness or the defendanc’s alibi witness. But, because of

the trial judge's ruling excluding the defendanc's evidence

as a sanction for violating a discovery cule, che jury

heard only the prosecution's witness. To reiterate, the

violation of the discovery rule was noc deliberate and was

admittedly curable by a short comtinuance. Under these

circumstances, the defendant simply did noc recaive a fair

trial.

The majority takes the position thac che decision

to probibic che defendant's witness from testifying was

within "the discretion” of che tzial court. In ay view

this is true only if a trial court bas "“disezecion” so

abridge che Sixth Amencnenc right to presenc a defense.

L would reverse the conviction and awar¢ Taliaferro a new Crial.

0 a oe

Judges Cole and Davicscn have authorised se co state

chac they comcurs wish she views expressed hereis.

UNREPORTED

Cc PECIAL APPEALS

MA N

September Term, 1980

No. 1175

VERNON THADDEUS TALIAFERRO

STATE OF MARYLAND

Morton

M elvin

MacDaniel,

J.

Per Curiam

On May 22, 1980, Vernon Thaddeus Taliaferro, the appellant,

was convicted by a jury in the Circuit Court for Prince

George's County (McCullough, J.), of robbery with a deadly weapon

and the use of a handgun in the commission of a crime. On

August 18, 1980, he was committed to the custody of the Division

of Correction for twelve years for the robbery with a five

year concurrent sentence for the handgun offense. On appeal

he contends:

Ll. the court erred in failing to grant a

mistrial.

2. the court abused its discretion in excluding

certain testimony.

The record before us shows that at about 9:00 P.M. on

Saturcay, September 1, 1979, when John Parker respcnded to a

knock on his front door, two men forced their way at gunpoint

into his house. Parker was tied up. The intruders ransacked

a bedroom and other areas of the house. One of the men had a

gun and fired a shot during the robbery.

T. Mistrial

Appellant first contends that the court erred in refusing

to grant a mistrial after a police officer who testified for

the State made reference to other crimes committed by appellant.

The basis for the appellant's argument is that the court had cran

@ motion in limine when the appellant recuested that the State

not be alicwed to introduce any evidence regarding the fact that

he had been at the Howard County detention center. The

p-4

2.

request was precipitated by the fact that the photographs which che State pre-

posed to intrccuce as exhibits Scre actations which indicated their crigin in

Eoward County. The court granted the motion. The State obliterated the no-

tations on the photographs and cautioned the police cfficer not to refer to

their origin.

In spite of all the foregoing, the cfficer testified:

"Q. Was (the picture] shown to Mr. Parker?

A. Yes, sir. That was shown cn Novemcer 29.

The color polarcids that we take depict the ¢efen-

Gant a little better. Also, these were from a neigh-

Sering jurisdiction. *

The appellant promptly moved for a mistrial. [n suling on the mcticn, th

court said:

“Tam not going to grant a mistrial. [am

going to keep this trial going, Sut it seems in-

credible the officer is tcid not to mention that

and he comes right cut and mentions it. In any

event, [ am not going to grant a mistrial. [am

not going to interrupt the testimony at this time.

The motion for mistrial {s denied.”

Now on appeal the appellant contends that the court should have grented a mis-

trial.

We have reviewed all the testimony anc consider that the werds

“These (photcgraphs] were from a neighsering jurisdiction” are nct evidence of

other criminal cifenses. See Coccer v. State, 14 Md. App. 106 (1972), Sowman,

Brooks end Sersis v. State, 15 Md. Asp. 384 (19372) anc Austin v. State, 3 Md.

App. 231 (1968).

tn Wilhelm v. State, 272 Mc. 404, 429 (1974), the Court of Appeals

A-JSO

2 rs ve \

“A request for a mistrial ina criminal case is ad-

dressed to the sound discretion of the trial court and

the exercise of its discretion, in 4 case involving a

question of prejudice which might infringe upon the

right of the defendant to 4 fair trial, is reviewable

on appeal to determine whether or not there has been

an abuse of that discretion by the trial court in deny-

ing the mistrial. The decision by the trial court in

the exercise of its discretion denying 4 mistrial will

not be reversed on appeal unless it is clear that there

has been prejudice to the defendant. " (citations

omitted)

Although we do not condone the conduct of the officer, particularly after the State

had cautioned him not to mention the subject, we do net, for the same reasons

as set forth in WuUhelm v. State, supra, consider that the court abused

its discretion in denying the appellant's motion for a mistrial.

- I. Excluded testimony

Immediately prior to the commencement of the trial on May 21, 13980, the

appellant's trial counsel advised the court that a defense witness, “aren Belamy,

had just been located. The appellant's trial counsel then said:

"l would request the court to continue his case in

order to issue a witness summons for Karen Belamy,

who lives in Baltimore. He gave me the street ad-

dress. Ihave told Mr. Bonsib [Assistant's State's

Attorney] I would be asking the court for a contin-

vance on his behalf, and he indicated to me he

would have no particular cdjection if the defencant

was willing to waive the Hicks implications.”

The court refused to grant the continuance.

At 1:30 P.M. on May 22, 1980, the State rested its case The aprel-

lant's trial counsel advised the court tet it had been unable to get Karen Belamy

to trial but had been able to secure the presence of one Edward Rich whom the 4p-

A-S1

XY? 2,

Se

pellant ncw wished to call as 2 witness in her st ead. The State cojected on

the grounds that Rich would be an alibi witness anc chat his

name had not been provided to the State in the ciscovery process.

The appellant's trial counsel replied:

"I do realize it calls for production of alisi

witnesses. I think it would be a gross injustice

to this defendant, it would se a violation of cue

process and his rights to a fais trial cs not

allow his alibi witness to testify."

The appellant's trial counsel advised the court that the State

had talked to Rich pricr tc commencement of the afternoon s¢ss-cn.

The court asked she State what else it had to do. Th

followiag colloquy then occursed:

"wR; BONSIB (Assistant State's Attcrney]:

For one thing, I would have nad the police

department sun a record check on him, tm

to determine where he lives, what connection

he has had with this defendant, or the co-

defendant in the past, all sorts cf things

I can't do on the spur of the moment. 1.

may not come up with anything.

THE COURT: How long do you need to do

that?

MR. BONSIB: Monday. That would give me

adequate time.”

After some further discussion, the appellant's trial counsel

made the following proffer of Rich's testimony:

"May it please she court, © would lLixe,

at this time, “oO ask that tne court give

the state the cpporsunity =o ¢o whatever

tt has to do to investigate fully my alisi

witness. His name is Edward Rich, Jr.,

ané I would like to proffer his testimony

at this time, so that the state may 5e

aware of it, and that is, that cn approximacely

August 22 of 1979, Mr. Rich, who is the alist

witness, who is present in the courtzrcon, suftered

C) ‘

. 5.

an injury to his upper and lower back, his

hip, and his head. From August 22, for

a period of approximately three months, he

was confined to his house recovering from

the injury. He is under the care of a

Dr. Lippman at 809 N. Charles Street, in

Baltimore, and a Dr. Nepkin of the same street

address. He is still under those doctors

care. If the state intends to impeach him

by first the significance of that, his testimony

would be that during at least the first three

or four weeks, my client was at his house

each evening helping him to be moved about

as had to be done, playing chess with hin,

assisting him, and generally keeping him

company, and he knows that on September 1,

that my client was there with him so engaged.

Mr. Rich will supply to the court, or for the

tate’s Attorney his date of birth, if it is

necessary. I understand that is necessary

tn order to run a record check."

The State still objected and the court ruled that, as a

1

sanction for not complying with the discovery rules, Rich

would not be allowed to testify. The following colloquy

then occurred between the court and the appellant:

" THE OEFENDANT: ‘If the court will permit,

Your Honor, like I was telling Ms. Perry, my

lawyer, we had a preliminary or pretrial hearing

with Mr. 3consib, and he knows that I had informed

him that I had a witness. [ could not get

in contact with her --

THE COURT: I don’t mean to cut you short, but

tT am not going to go back into my ruling on the

alibi witness.”

Cbvicusly the witnesses’ testimony was relevant and the

witness was present in the court. That the appellant had nct

complied with Md. Rules 741 ¢ 3 and Md. Rule 741g seems so be conceded

although the extent cf the State's purported lack of knowledge

about an alibi witness may be cebatable. In any event the

1.

Maryland Sule 741.

latter was cne which the rules leave to the court's discretion.

In ruling on the matter the trial judge stated:

“*HE COURT: This defendant was indicted on De-

cember 21, 1979. He was arraigned on January 3,

1980. Ca msel entered her appearance on January 3,

1980. On March 3, 1980, a notice was sent _

cating this case would ce set for — on May 21,

1980. The defencant has <nown since he was in-

dicted that his defense would be alibi. Ca th

second day of trial, the defen dant notifies the

State's Attorney t they now have an alibi wit-

mess. Rule 741 ‘é) (3) requires that a cefendant,

pon designation by the State of the tine, slace

one date cof the alleged cccurrence, shall fumish

name and address of each witmess other than

the defendant whom the defendant intends to call

4s a witness to shcw he wa3 not prasent at the

time, place and date designated by the State in

its request’.

I originally thought it may Se a due process

problem. [I now don't think that. [ think there

was a process here tc Se followed, and that the

defendant felled to fcllcw it. [ think it is un-

fair to the state ncw tc permit the alibi witness,

even though it is the only defense witness. [

think the sanctions uncer the 400 cules would

Se the sancticns under this cule. In cther words,

the court would have the discretion as to whether

of not to permit an alibi witness to testify. [am

gcing to exercise that ciscretion and refuse to

permit the defendant to cal his alibi witness for

his failure to comply with Maryland Rule 741 (d)

(3).°

a cur view we cannct say, under the circumstances present here, that the tra!

sdce abused his ciscreticn in applying the sancticn he dic. The appellant

7.

had to have known fer cciue months of his trial date; he also knew of his alibi

witness by name and even if that witness had moved there seems to be no reason

why at least that name could not have been given to the State.

Finding no error, we shall affirm.

JUDGMENTS AFFIRMED;

COSTS TO BE PAID BY APPELLANT.

A-SL

1

AFTERNOON SESSION

(Trial in the above-entitled matter was resumed

at 1:30 p.m., at the expiration of the recess, and the

following proceedings were had in the presence cf the

jury:)

MR. BONSIB: Your Honor, may we aoproach the bench?

THE COURT: Yes, sir.

(Whereupon, counsel approached the bench and the

-

following proceedings were had out of hearing of the jury

MR. BOCNSTSB: Your gJoncr, the witness that Ms.

Perry, I think, proposes to call, is an alibi witness. Tod:

when she indicated she was going to be calling his was the

first time I had notice of an alibi witness. On Pebrnary

1980, I filed the state's sotion for discovery, asking shat

v

the defense produce the nases cf any witnesses they prorcsed

to call as alibi witnesses. [ do not believe “s. Perry has

given ma the copertunity -- a couple of minutes before court

I started to talx to the gentleman -- [f do sot believe shat

gives me fair cpperscunity to pursue this gentleman's

background to investigate the evidence that he proposes ¢9

give, and if necessary, to get any rebuttal witnesses *o

bis testimony. This has been approximately three, four,

five sonths since I filed this request for déscovery. To

have this put on at the last ninute, <= think, defeats the

whole idea of giving the state the right to discovery o7

fi -S0

2

13

l4

this tyre of information. Pive minutes before trial dces |

nothing to allow me *> prepare to rebut that sort of evicence.

I would ask that the court preclude the witness from |

testifying. The state, as the court well knows, has always bee

held to this type of burden when they fail to complete

discovery, and ft think the defense should be held “o che

same burden.

MS. PERRY: If it please the court, Tour Joncr, I |

did not, ayself, know what the man would testify *o |

antil he just came. “r. Taliaferro went up and picked hin

up. He is an acquaintance of say client. f had asked hin

for witmesses previcusly, and he gave se “he naze of ,

Caroline Sellamy, who was a girlfriend. We weren'* able *o

get her bere. As I told the court, [I didca’t have an

addvess for her. She can't be here today. “r. Taliaferro

called a Mr. Bich and was able *o get nis her2. New, “here

are 20 sancticns that I am aware of provided for in the

seven hundred sules for failure to comply with the zortica

for discovery and inspection. f. do realise it calls for

production of clibi witnesses. I think it would Se a gross

injestice co this defencant, Lt would se a violation of cue

process and his rights to a fais trial 29 sot ailow his alidi

witness to testify. “cw, “zr. Zonsib, as soon as I was

finished talking wich “=. Rich, I told him to talk with

“Mr. Sonsid, and te socoke with his cut of the sresence of

om» , —-_—

ar. taiiaterso. Fe, basically, told him what he would

testify to, and he asked hin specifically if he had been

convicted of a crime, which, I think, is what Mr. Sonsib

was referring to, if he had been convicted of a crime. He

told him about that, and I think that we have sufficiently

allowed the discovery. I know, on occasions, I have had

witnesses come in that I didn't know about before, and I

have been allowed, at the time, to talk with them and I

have not had an opportunity to check to see if they have

criminal convictions or to check their backcrounds. The

court has allowed me a continuance or a short time in

which to speak with them, and that has been it, and I would

ask that Mr. Rich be allowed to testify.

MR. SONSIB: I would point out that an alibi

witness {s recognized by these rules as different from

another type of witness. The state has the oblisaticn, i?

the defense produces alibi witnesses, to produce its rebuttal

witnesses if request is made for them. I am certain the cour+

woulde not allow them to testify if we had not vrovided them.

To say the state is allowed neans of discovery and vet failur

to provice it, there {3 no sanction. “erely sroviding it

five minutes before trial is really ust previding it

sufficiently in advance for the state to s2ke any seaning‘:cl

use of the information. If the rules are not to be a force,

I think the court bas to impose the sancticn of exclusicn of

Pee i

- -

1] the witness.

2 THE COURT: Is that the sanction?

3 MS. PERRY: It is not provided for in the rules.

+ MR. BONSIS: I think it is the logical sanction.

5|| what else would the rule sean? It could be flaunted at every

8] sure if ft didn’t sean that.

THE CCURT: <I kncw what the rule says, Sut = an

8 saying, is that the only sanction?

9 | MR. BONSIS: That is the only sanction that would

10) be @ meaningful sanction. The Court of Appeals and the

ll || Court of Special Acpeals now are holding the state to the

12] letter of the law and so many of the different rales where

13 there is no svecific sanction ocrovided for, the ccurts are

4 imposing dismissal or exclusicn. The courts have been

| holding almost routinely that these rules are teant for a

16 || purpose, and the only way to insure the purpose is to put

IT] sanctions that have teeth in them. To hold the stats ‘to

18] one standard and the defense to another, I don't think is

19 ¢air. We aight as well wipe out the recuiretent.

20 | THE CCURT: The only other alternative is *o

2 continue this case and give you an opversunity to =aake

_ whatever tavestication you have to make to cetarmine whatever

yOu want to determine abcut this witness. i agree you

2%] S®onld have had it wav before acw, and this comes at a very

3s late tite, bat, also, this gentleman is facing a rather

ye FG

_™~

to

serious charge, and if convicted, may face a very substantiz

period of incarceration. TI think you have to balance one

against the other, fairness to the state and fairness to the

Gefendant, even though he has violated the rules. So, lets

assume you hac his name last week -- what could you have dor

or what would you have done?

MR. BONS*S: For one thing, I would have had the

police department run a record check on his, try to determis

where he lives, what connection he has had with this

defendant, or the co-defendant in the past, all sorts of

things I can't do on the spur of the mement. f[ may not

come up with anything.

THE COURT: How long do you need to do that?

MR. BSCNSIB: Monday. That woule give me adecuate

THE COURT: We may have to ¢o that.

MR. SONSITS: Let me just check my schedule. “onda

is Memorial Day.

THE COURT: I wonder how sany of these jurors are

due back to work next week. We are going to lose some of

them if they have a holiday Monday and they are not due bach

I might inquire how aany of them would have more time to

serve, and then make a decisicn.

Ladies and gentlemen of the jury, how many of vou

are winding up your ‘iw y service this week?

yt G0

—s

10

l¢

3

is

—_— ~~ * — >

That ends that. Six pecple put their hands cp.

MS. PERRY: Is yeur investicsaticn going to conces=

itself just with checking with the solice?

MR. SONSTS: I am not sure exactly, depending on

what we may determine, it may require me to consider rebuttal

witnesses. [ =p just not certain, but I had no reason to

believe there were going to be any alibi witmesses is shis

case, and [ would just like to sit deown and think about it.

THE COURT: You have one alibi witness, sicus the

defendant?

MS. PERRY: Se is net going to testify.

THE COURT: The cnly witness you have is «he

alidi witness?

MS PERRY: That is the only witsess [ have.

What about letting him testify, letting him go ahead and

testify, because he has got a kind of an injury, he is a

little uncomfortable, and then carry it over for rebut=t2l?

MR. SOMNSTS: The whole problem is f cannot cerfori

the kind of cross examination, I can't intelligently cross.

examine a gan shat just poops up at the last mincte.

I think chat is the whole surscse of the male, for se to have

the cpoorsunity *o prepare cross exzmination, 20t have

surprise witnesses sresented where we don’t have a chance ‘to

verify sheiz stories.

THE cctUr?: This is going ts boil dcwn to t=he

WW. £1 |

‘

victim versus -- since you are saying the defendant is act

going to testify -- it is going to be the victim's

testimony versus the alibi witness.

MS. PERRY: That is right.

THE COURT: That is what it is going to boil down

MR. BONSTB: [It is quite cbvious Ms. Perry hac

substantial time to vrevare her cross examination of ay

victim, go into his background, go into the facts of the

case. I certainly want an equal cpportunity to reoresent the

state.

THE COURT: I have to try to be fair not only to t&

defendant but I have to try to be fair to the state, too.

I don’t think what is happening here is being fair to the

state. 21 of a sudden this deferncant, and I don't kncw

hew long his trial date has been set, but it has been set for

scmetize --

MR. BONSTB: Ever since March.

THE counr: ‘arch, April, May, two sonths, ncw.

The second day, the last minute of the trial, he ccmes up

with an alibi witness. I am going to take the Sull by “he

horns --

MS. PERRY: #e is also an extremely credible alibi

tness.

“MR. BOMNSIB: ‘That is something vet to be determine

Wb >

10

=

“SE COURT: Is he credible? I don't know. Jcw

come he shcews up at the last ninute vhen chis man “as <=cwn

for two months when this trial date is. That dcesn't nake

his tom credible ‘to me.

“MS. PERRY: I don't know when he talked to hin.

know he tried to call him yesterday, tried to call the

girl yesterday.

THE COURT: This is his fault, sot yours.

MS. DERRY: << realize that, Sut I do have *o

represent him, and criminal defencants are sot probably --

I doen't want to say, as conscientious -- but are a little

less concerned about the rules we were talkiag about, thas

1? we were involred with a civil case. If you ¢con’*S have

a witness here, don't have information, you are kind of

eat of court kind of thing. Me asked for the contiatance on

the first day.

“WE COURT: The same reasoning would apply *<o

that, too. You just don’t come in the first day of esisl er.

say, I am scrzy, < sow have a witness. You don't de ‘t that

way, and I can*t apply the rules any 4ifferently co shis

@efendant than I apply them to anybody else. They “ave to Se

applied equalir.

we, Sail: #4, dco we have a ccourt=cem “<3 send <=hi

jury to?

L/ bs

THE COURT: I mean a jury room to send this jury to?

MR. BAILITP: Yes, Your donor.

(Whereupon, counsel returned to the trial tables

and the following proceedings were had in ovan court

in the hearing of the jury:)

THE COURT: I am getting tired of whisperiag.

I think we will send you to the jury room so we can talk

about this in a better tone. I would ask you to retire to the

jury room.

(Whereupon, the jury retired from the courtrocn

and the following proceedings ensued out of their hear’

and presence.)

THE COURT: Are counsel aware of any cases “hat

have ruled on this point?

MR. BONSTB: I am not aware of any cases specifical.

on this point, Your Honor, just the general cases that talk

about interpretation of the rules and how they have been

enforcing then.

MS. PERRY: When the language of the rule is

"shall", and is zandatory, then the court« have b-on acplying

sanctions, but they have not, in the criminal cases [ an

familiar with, ever anslied sanctions that “your witness

will not be allcwed to tastify because you ¢id not give xe

his name*, in all of the time I have been ¢oing it. I cet,

"You go out in the hall and talk to them now sort of thing”.

n-bY

»' " id “ Pi

ae

2

=—

THE COURT: When I practiced law, if I didn’t

get the name of the witness in che interrocatsrias to th

state in a criminal case, IT have had judces then refuse to

let the state call witnesses.

MS. PERRT: I have never had that hapven ‘o ze.

THE COURT: I& was done to se or [f did it to the

state, lets put it that way. What cule was shat again?

MR. BONSTS: 741(d), the discovery rales, under

the state's discovery secticn.

THE CcURT: f think 741(4)(1) -— were voa saving

that it wasn’t prefaced bv the word, ‘shall’? The role

was not mandatory because it wasn't prefaced by the word,

*shall*?

MS. PERRY: <= believe I did, Sut = think I am

aistaken.

THE CCURT: Secause it says, “Upon the recuest

of the State, the defendant shall:

Ll. Generally.

Do certain things.

2. Reperes of B=perscs.

3. AlfLdi Witzesses.*

All of them acrear after the word, “shali*, so =

thick it is mandatory that the defendant must do chis. The

cnly questicn is what sanction shculd te izsosad for his

failure to do it, and there ‘s only ‘vo alternatives.

CMe ot

10

ll

Lee

Number one, prevent the witness from testifying

for the defendant's failure to comply vith the rule.

Number two, grant a continuance to give the state

an opportunity to investigate the alibi witness.

Neither one of those alternatives are very enticing

to the court. I don’t like either one of them. I want to

get this case tried. I want to make sure everybody has a4

fair shot, including the state and the defense, but we have

certain rules to comply with, and cbviously, the defendant

has not complied with the rules.

MS. PERRY: May it please the court, I would lixe,

at this time, to ask that the court give the state the

opportunity to do whatever it has to do to investigate fully

my alibi witness. dis name is Ecward Pich, Jr., anc I would

like to proffer his testizony at this time, so that “he

state may be aware of it, and that is, that on approximately

August 22 of 1979, Mr. Rich, who is the alibi witness, who is

present in the courtroom, suffered an injury to his uprer

amd lower back, his hip, and his head. Prom August 22, for

a period of approximately three sonths, he was confined ‘to his

house recovering ‘rom the injury. Je ts under the care of a

Dr. Lirrman at 309 N Charles Street, in Baltincre, end a

Dr. Mepkin of “he same street address. Ae is stiil uncer

these “loctors care. If the state intends to impeach his Sy

firs: the significance of that, his testimony wonld be that

~2 Ve -O6

7, oe .

*

ll

VY ee

during at least the first three or four weeks, ay client

was at his house each evening helping him to be moved abcut

as had to be done,playing chess with hin, assisting hin,

and generally keeping him company, and he knows that on

September 1, that my client was there with him so engaced.

Mr. Rich will supply to the court, or for the State's Attorney

his date of bisth, if it is necessary. I understand that is

necessary in order to run a record check.

The only other thing that I can see, were I in the

State's position, would be to determine if, indeed, he was

laid up, if I can use those words, and if the dectors can

verify that he was. The information is there, and it seems

to me a couple cf simple telephone calls would srcovide that

investigation, and as scon as the state knows, then we

could continue with this case. I* can be dcne. I think,

today. “sr. Rich will call and have the ¢octor verity

it if ehat is what “se. BSonsid recuires.

“MR. BSCONSTB: I think there ‘s a little sore

involved than 4 sere recora check. ¥#ithout going into the

specifics of exactly what = would like to ¢s, because the

defendant and the witsress are present, = would like to be able,

azeng other things, to sit ccwn and figure cut what xisd of

C2SSs exzstination I would crepare, based ucon the information

that he was with the defendant, in additicn so his record,

in addition to his ailzent. There nay be other factors I weuld

= MD bow

1

\

like to nth out. I am not trying to dilly-dally.

If the court wants to continue it, it is fine with me, but to

go forward right now, I don't think it is fair, and I would

certainly object to him testifying, at this time.

I would point out, you know the matter has been ¢c

ing since the trial has been set, before March, the beginning

of March of 1980. To come in at the last minute and now

expect to be able to put the case off for a few more Gays,

I am willing to go along with that, but for the @efense to

expect — I am sure it is not Ms. Perry's fault, but for the

@efendant to come in and give her the name of a witness at

the very last moment is just not the way the rules are

intended this thing should work. If he knew about this, he

should have known about it a long time ago, and if he didn't

do it, he would have to suffer the consequences, as the state

would in an identical situation, and dare say the court

wou... have more difficulty continuing it for the state “han

the defendant. We all try to bend cver backwards fcr the

@efendant. The rules are made to be followed, they were

not fullowed, and in this case, proceeding, now, with this

witness, I don't think is fair, and I am not prepared *9 do

what I think is a proper job of dealing with this witness,

at this voint.

THE COURT: I wilk admit that a strict enforcement

of the rule say interfere with dce process, and that is what

AOL

Py

~

2

3

if is bothering me.

MR. BCNSI3: I think the Supreme Court, in

cases that have dealt with the recuizements of defendants *9

produce alibi witnesses, have dealt with those kinds of

questions and have determined they do sot. The defendant

was given adequate notice, adequate cpportnnity. Ove

process requires no sore than he be notivzied of the situation, |

and I think under the rules they were notified what would

happen.

THE COURT: Anything else from anybocy?

“S. PERRY: No.

“32 COURT: Madam Clerk,you can anncunce & ‘en ainuts

din |

(At this point, a brief recess was taken).

“Te COURT: All right. “here is the éefendant?

“S. PERRY: Ze is right cutsice, Your Tonor. re

asked his father to get hin.

When did you find out, “r. 3onsib, about this

alleged alibi witness?

MR. BSCNST3: I xmew there was ¢gcing * be a

witoess when we took a recess “43 morning. I fsunc cut

there would te an alibi witness scmetine thereafter. The “ane

of the actual person, I didn't find out until five ainutes

Sefore we came back this afterncen, about twenty-five afar

one.

H-O4F

THE COURT: Anything else you wish to proffer as

to what the alibi witness would testify to, “s. Per=y?

MS. PERRY: Yes, sir. The witness would tastify

that basically he can cover the whole period of time that

we are talking about that this incident occurred on Septomber

1. My client was with him, helping him out at his home in

Baltimore. Mr. Taliaferro has been unable ts physically

locate and speak with this man, Mr. Rich, who is in the court-

room until today. He has been attempting to locate him. As

soon as he was well, he moved from his home, and he went ‘os

live somewhere else. Je now lives at a different address,

which I have. Mr. Taliaferro did not know his address and

could not give it to me, nor could Ir give it to the state.

Your Zoncr, we feel that the discovery rules are

continuing, and they apply to xnowledce that a person has.

Tf you don't have it at the time, within the tine recuired

by the rules, then, obviously, you cannot supply it. We

just feel that it would be grossly unfair to this man *o just

say that the only witness that he has cannot testify.

THE COURT: All right. Aavthing else?

MS. PERRY: No.

THE COURT: This ¢efendant was indicted on December .

21, 1979. He was arraigned on January 3, 1980. Counsel

entered her appearance on January 8, 1999. On March 3, 1379,

a notice was sent indicating this case would be set for trial

4-76

to

10

ll

i

iz

ae

on May 21, 1930. The defendant has <nown since he was

indiccad that his ¢efense would be slibi. On the secon2

Gay of trial, the defendant notifies the State's :ttorney

that they now have an alibi witness. Rule 741(d) (3) recuires |

that a defendant, “Upon designation by the State of the +

place and date of the alleged occurrence, shall furnish the

name and address of each witness other than she defendant

whom the defendant intends to call as a witness to shcw he

was not oresent at the tine, place and date designated

by the State in its request”.

The state sade a recuest. The defendant did not

answer it. de answered with so name, no alibi witness.

Ts that corzsect?

“MR. BOMSIB: ff ¢on’t recall it was not answered.

Cne or the other, it was not answered. or there was =o

alibi witnress.

Taz ccounr: * origisally thought it may be a

due process probluwm. f new don't think that. I think there

was a process Sere to be followed, asd that the defendant

failed to fallow it. = thi {> is unfais to the state

now to permit the alibi witness, even thouch it is the only

@GeZense witmess. <I shink the sanctions under she 1490 cuales

would be the sanctions under this scale. In other words, the

cours would have the discrsticn es *5 whether or not *9

permit an alidi witness to testify. = am goias to exercise

A- 7

|

that discretion and refuse to permit the defendant to call his

alibi witness for his failure to comply with Marvland Tule

741(d) (3).

MS. PERRY: Your Honor, would you hear us just one

moment further? [I realize you have ruled already.

THE COURT: No, once I have ruled — I gave

everybody all of the tine they wanted to say whatever they

wanted to say.

MS. PERRY: ‘Then, would you please hear us cn a

motion in limine with regard to a erior record, so that the

man might testify in his own behalf?

THE COURT: Yes. I thought you were talking about

the alibi witness. [I am not vreventing you from saying

anything new to me about some other subject. I will listen

to you on the motion ia linine.

MS. PERRY: The reason sy client is not taking the

stand is because he has, I believs, two prior convictions.

That is a matter cf record. We gave the court that

information, or the stata did, during the pretrial. This

man is faced with 20 years on the armed robbery clus 15 for

use of a handgun in the coemissinn of a felony. [If he

takes the stand and testifies, then, without limiting the

state, it can cross examine him and ask his about pricr

convictions, and he has one in 1972 for larceny, 1974

robbery with a deadly weapon. We would Like to ask ‘he court,

pA-7>

10

u

because of the hichly prejudicial nature of that kind of

evidence. him being the only witness that he has, that =e

state be limited and not be allowed to bring that evicence

out. in lieu of the alibi witness, and also ‘hat <“e state

not be allowed to ask the question of my client on She

stand, nor to argue it, where {s your alibi vimess.

THE COURT: ould yeu intend to say anything about

any alibi witness, if you cross examined him?

MR. SCNSIB: Well, I don’t know, Your foncr. ff

can't say, at this point. I certainly will try ‘to steer

clear of it.

|

[3B COURT: Yo. T am just trying to find out whether

|

I have co make a ruling, if you are going to say, you don’

know, or you have to use it, then I will sake a ruling.

“wR. BONSI3: Let me not sav I am sot ¢gcing to do

it then, tmless you make a ruling.

THE CCURT: Say that again?

MR. BONSIS: I can't tell you for sure what [ an

going to do.

“ae COURT: Moticn in limine granted as ts the

failure to call the alibi witmess. What abcut the racorc?

wR. BCNSI3: The record 1s cze of zoral turpituce.

Ms. Perzsy aade an issue of sy victin's prior secoré, <nat

he had been convicted of a 342.

MS. PERRY: You dida’t object.

ae 73

i

oy +

MR. BONSIB: I know when an objection is weil found

In this particular case, Tf think the isste of eredibility is

obviously the key issue in this defense, and the defendant's

prior record for armed robbery certainly goes to his

believability and credibility. We would strenuously argue

it is proper and we shonld be allowed to cross examine “he

defendant on it.

THE COURT: Anything else?

MS. PERRY: We.

THE COURT: The motion in limnine as to the prior

record is denied.

MS. PERRY: “May I have the court’s indulgence

one moment.

We would rest, at this time, Your Sonor. the

defendant cannot testify, and the sotion in limine that you

granted for us with regard to alibi has no application, at

this time. He cannot testify in his own behals.

T7E COURT: He can testify in his own behalf. Te

chooses not to.

MS. DERRY: That is because f know what the

prejudicial effect of that is going to be.

“HE COURT: Sut he can testify.

I want to make sure you have @iscussed with hin his

right to testify.

“S$. PERRY: He knows that.

A-74

oot” Te oe

| _ ~~’ OE |

i THE COURT: And his waiver of his constitutional |

right to testify in his cwn behalt. Do you waive tat, siz?

: Tae DEFENDANT: If che court will permis, Tour |

4! sonor, like I was telling Ms. Perzsy, my lawyer, we had a

5 preliminary or pretrial hearing with Mr. Bonsib, and he |

61 xnows that I had informed him that I had a witness. <= could

pot get in contact with ter —

8 THE COURT: I don't mean to cat you short, bot ft

’ am not going to go back into ay suling on the alibi witness.

10 I want to sake sure you understand that yeu have a right ‘to

testify. If you cheese nct to do that --

"WE DEFENDANT: Judge “McCulleugh, I don’t ree

13] one thing. Ckay, I am nct familiar with law, as you are.

14] okay, she explained ic to se already, that she already

S| argued that point. However, the point I am trying to express

IT] when I informed them that I had a witness. {I could not

18} contact her. Right?

i

|

16 to you, Mr. Scnsib, here, and Judge Melbourne were present |

19 TMZ COURT: “Mr. Taliaferso, again, I have =uled |

2 on the alibi, and I don't wish scw to debate that with you. |

2] all © am trying to find oat acw is if you want to take “he |

2 stand is your cwn behalf.

23 "He OEFEIDANT: Judce “McCallcugh, I unders*anc !

%i| what you ere saying --

3 “SE COURT: ».en't intersupt me, please. If yeu are |

A- 70 °

, aye Bi

ee ae a dy RR ME eT,

e bd i ar AC

1] called to the stand to testify, which you have a right to

2] ao, the state will be permitted to ask you about your prior

3|1 secord on cross examination, so that the jury will have the

4] benefit of your record to use that, if it is of any use to

; S$] them at all, om your credibility.

8 Your attorney has said to me you choose not to

testify because you are afraid of that. ‘That is perfectly

8} all right. I just want to make sure that you anderstand

9) that you have a right to take the stand and testify ‘a your

10 || own defense and you have sade the judgment you don't want ‘o

|| do so. That is all f want to find out. ff you want to

12) testify, fine. If you don't want to testify, fine. The

13] choice is solely yours.

4 THE DEFINDANT: So what you are asking se is whet"e

15] or not I want to testify?

16 THE COURT: Yes, sir. That choice is only yours

to make, after you listen to your lawyer, and after ‘ou

have listened to what I say, it is your decision alone to ma!

That is the only thing I am asking you.

THE DETTNDANT: ‘What about the things that - don't

understand. ‘You know, I understand that perfectly cloarly.

THE COURT: Lets get over this first.

Ee DEPENDANT: <I am going by what sy lawyer sevs.

I agree with whatever she says which is I will not testict:.

"SE COURT: You have made that ¢ecision?

A- 76

rosso"

eer ee VTS eee ea

THE DEFENDANT: I am going by what she says.

TSE COURT: All right. |

{SE CEFENDANT: Now, if you can explain and clarity

that point, why can’t you explain and clarify the point that

I am trying to get over to you, Your Honcr, which is, I don't

understand the alibi witness, when I said I had a witness,

although I never had a chance to informa the witsess shat tr

was coming to court, I never had a chance to contact her.

This is what I am saying. Althcugh you suled on thi

siteation, which I don’t understand. You know, it is only

fair to ne if you can explain one thing, why cot explain “e

other?

THe COURT: I thought I explained it rather vell

for the record, and if you didn't understane it, I am sorry,

but I don’t intend to go back and explain it again, or how

Il raled. Tf have zade a ruling, siz, and I am sticking Sy

that, and in the event I am in error, shere is scmebodc

higher than I that can correct that.

Anything else, “is. Per=zy?

MS. PEPRY: Mo, siz.

“SE COURT: ‘Then, we are ready to go to “he jury?

“MR. SONSI3: Yes, Tour Zonor, the state is Teacy.

MS. DERRY: I would like to take ay soticn for

™

judoement of acquittal.

THE COURT: Any further argument on that?

YP 7 Noes:

-~

10

~

2

- oo od

wu - we

~

4

7

-t

18

MS. PERRY: Wo.

THE COURT: Motion denied.

MR. SONSIZ: Your Sonor, the state woulc abandon a

nol pros counts 3, 4, 6 and %, leaving to the jury armed

robbery, robbery, grand theft and use of a handgun.

THE COURT: What counts did you say you are soing

with?

MR. BCNSIS: “Count 1, armed robbery; Ccunt 2,

robbery, Count 5, grand theft, and Count 7, use of a handgurs

THE COURT: Do counsel have instructions yeu wish

me to go cover? [If you have, I am going to recess and go cvs

them in chambers with you.

MS. PERRY: The only one I want is the one ‘from

the criminal jury instructions about sissing witnesses and

credibility of witnesses.

THE COURT: Missing witnesses?

MS. PERRY: Yes.

THE COURT: I will see you ia chambers in ‘tvo

minutes. The court will stand in recess.

(At this point, a brief recess was ‘*aken).

THE COURT: “Ms. Perry, I will give you the opscort:

if you like, to put in the record the efforts chat the

defendant has made over s period of whatever time to locate

and produce this alibi witness Secause I den'* know that the

—

is anything in here to indicate what, if anything, he has &

= f-7é

10

ll

19

3

es

and depending on that, it .: a matter of diligence as far

as I 2m concerned, and if dilicence has been revarced, as of

today, that aay be cne thing. I+5 there is no diligence, <hat |

may be another thing. If there has been some @iligence but

not auch, that would be another thing.

MS. PERRY: Would you hear from “tr. Taliatero on

the stand?

TSE COURT: Yes, uncer cath.

“MR. BONSTS: I would ask this crosvective alibi

witness be excloded.

“3B CCURT: All right. COxcluce the witmess.

Whereupon,

VERNON THADOEZEUS TALIAFERRO

the plaintiff? herein, is his own behal‘, was called as a

witness, and having been first daly sworn, was examined

and testified as folicws:

DIRECT SXAMOUTION

BY MS. PERRY:

Q “re. Taliaferto, could you please tell Iis Honor

your fall name?

A Vernon Thaddeus Taltaferso.

Q And could you please tell his Zonor when, vhat

efforts you sade to locate your witnesses ia this case

to bring thes to court today?

A I tried co locate my witnesses by taking several

4-74

|

| ed ier

phone calls and also going past the.- residences. In the

process, I found that my initial witness that the State's

Attorney is aware of, I could not get in touch with her becaus

like she resides with her mother at times, and also she

has a private residence and I couldn't get in touch with

her, although, on occasion, she had called me to ask whether

OF not Ms. Perry was going to get in touch with her. Jer

name is Ms. Caroline Sellamy. As far as Mr. Rich is concerned

the witness that is here today, I got in contact with hin,

I think it was in, lets sen; I guess it was around December,

and I informed him of the situation that I was in and he

was willing to come to court today, xnowing that I had

already talked to hia about sy situation. HZowever, he has

been ill, and he is not living where he was living at the

time that I did talk to him, so I couldn't get in touch with

hia. I got in touch with him, I think, vesterday, the day

before yesterday.

Q Sow is it you were able to get in touch with

his vesterday?

a Through his aother. I saw his sother downtown ,

Q Just on the street?

A On the street, right.

Q Prom Yebruary through now, say Pebruary 15, or there-

abouts, did you have anv knowledge as to where “Yr. Rich

resid¢ed or how yeu sight contact hin?

Xx Mo, I @€id aot.

\< 4-80

—_ — 194

Q Dees he work scmewhere or did he wor.: seméwhere?

x Ze ¢id work somewhere, ves, he dic, Suc he is

laid off because of an injury.

Q And to your knowledge is he laid off tcday?

A Yes, he is.

9 How did Mer. Rich get to court todav?

A Because I called his sister, you know, [

called there at his mother’s house and he was there, and

she relayed the sessage, acd sy father went up and oicked

hiz up.

Q Is be cresent in the cour*rsccm xscw?

A Not at this soment.

Q Ts he right cutside waiting?

BY Tes, he is.

Q Did you have an address -— do vou knacw what “2.

Rich's address is, at this moment?

A No, I don't knew his address, but I know where he

lives, let me sct it like that. I xncw it is on “onrce

Street.

Q That is his mother's addsess. Is that right?

A That is correct.

Q Se you kocw where te lives, at this tise?

Xx No, = don’t.

Q What was the problem with Caroline 3ellasr?

A Problen?

_A=-S4

10

ll

{) | afi poe

Q The problem as to why she “is-nct etre?

A Number on?, I couldn = get her address, “er xa

adéress in order fer her to be summonsed to court. Also

T haven't been in touch with her. Caroline and I had, yo

know, a relationship.

Q Which is no longer in effect?

A That is right. Like she is not home. She vors

two jobs and I couldn't get in touch with her.

THE COURT: You say she works two jobs?

THE WITNESS: She works two jobs. I have a hore

phone sumber but st> is never there. If did try to get in

with her. ;

MS. PERRY: That is all I have, Your Honor. I

would note fcr the court that I also had her televhone

number and there was no answer until aporoximately 19:99 or

19:30 at night, on the efforts that I made, and we ad ano

addresses.

THE COURT; You had a phone nember but no address?

MS. PEPRY: That is correct, because he didn't <x

sebat it was. I hav: nothing further.

CROSS EXAMINATION

SY MR. BONSTS:

Q Sir, isn’t it a fact you didn't attempt <9 contac

Ss. Rich until toda?

A .No, it isn’e.

Aor

i:

ii

be ” Trees <i cae ieee, maine

Q When did you call him about coming ‘o court

today? ‘what is the most Tecent contact you have had in crésr

ts lecate him and get him down here right now? You said

you called his mother's house?

a It was vesterday.

Q When was the last tize you called ter house

erier so that?

A I can't really say.

Q In fact, when you called his mother's house, his

mother was able to get ahold of him. Corzect?

A Today?

Q Tes, yesterday.

A Gis mother wasn’t here. Tt was nis sister.

P| That is the same >lace he was allegedly liviag,

and you took care of him, Sack in September when “his

incident occurred. Correct? |

A Say shat again.

Q She lives at the same place scw, on Yonsce Street,

that she lived back in September?

A Tes.

Q She has the same shene scmber?

A right.

Q Ard you had that shone number?

A Tes, I aid, and I also stated that = 4id xncew he

was there cericdically.

&

NN)

aS

| Ly bisa awe

Q I have no further questions.

THE COURT: Did you say that his sother, who you

called yesterday, has lived at the sane address sizxce

December?

THE WITNESS: His mother?

THE COURT: Yes.

THE WITNESS: Right.

THE COURT: And you knew where she lived?

"He WITNESS: Yes, I did.

THE COURT: Did you ever go up there?

TIE WITNESS: Yes, I did.

THE COURT: Sow many times did you go up there?

THE WITNESS: Okay. The last tine I seen “re. Rich

was, like < think tf mentioned, November, {£ I am not mistaken.

That was about the last tine.

THE COURT: The last time vou saw “r. Rich -- is

it Rich?

THE WITNESS: Tes.

THE COURT: R-i-c-h?

THE WITNESS: R-i-c~h.

THE COURT: You are saying the ‘ast time you saw

ur. Pich was in November of 1979?

THE WITNESS: I didn’t say that is the last «ize -

saw him. Tou asked se the last tine I went to his hcuse.

THE COURT: The last time you went to his house was

A-4Y

W . el

1 in Movember of 19797

2 Toe WITNESS: Yes, to *3lk aborts the e=iat.

3 "SE COURT: That is his mother's house, and his

4 mother still lives there?

5 732 WITNESS: That is correct.

|

. _ SB COURT: And you have a phone saumber for his |

7) sother? |

B) TSE WITNESS: Yes. |

9 THE COURT: Why didn't vou call his sother? |

10 “Gz WITNESS: I did. Mr. Rich dcesn't necessarily

11 stay there.

12 “TE CCURT: 3ut his nether kncws where he is? |

13 THE WITNESS: “tot necessarily. |

“4 TSE COURT: So vou kncw that she <oesn't?

1s "HE WITWESS: If she did, I assume she would cive

16 || me a way of contacting Mr. Rich. If she didn't, she would

17 | always say she would relay ‘se sessace, but I sever received

1s | amy retarn calls.

19 "SE CCURT: Anything else? ' |

Be) “SS. PERRY: No, si-. |

2} MR. BONSI3: No, siz.

~~ THR COUPT: Thank vou, siz. You may step ¢ccwn.

3 (witness exc:sed) .

4 TSE COURT: The reason = esked for this testimony

“s is to provide the rseccr= with ‘3 Zilicence, if any, exercised)

t

~

to

3

mf = ed

by the defendant in having Mr. Rich here today.

Dees anybody want to say anything to me befcre ¢f

make a ruling?

MS. PERRY: I am not quite sure what it is we are

doing. I don’t want to start beating a dead horse, and incur

the rath, or whatever.

THE COURT: What we are doing is, I think it maxes

a @ifference about a last minute alibi witness if a

defendant suddenly, niraculcusly comes up with an alibi

witness the day of trial, the day before, that is one thing,

but if there is an alibi witness the defendant knew abott

back in November, I have to make a finding as to whether he

has been diligent in getting that witness here tocav.

That is what I am going to rule on.

T am not soing to rule he has been dilisent. [ az

going to rule he has not been diligent. If you want to

say anything about it, I am willing to let you say something

to me, or I am just going to rule.

“S. PERRY: [If © get past what you want so hear, just

TSE COURT: Go right ahead.

“MS. PERRY: Because I feel like I am beating a dead

horse. ff would refer the court to 0. S. versus Myers. -It

is a 1977 federal case, 5£5 ?.2¢, page i936. tteis a Pitch

Circuit case that dealt with a failure to diuclose w*ere a

Hh

te

3

rule recuizred —

|

wre COURT: Mr. Zailif#, send scmebccy down, ‘#hceves.

is making all of that noise, and tell them to stop <"at icw.

All right. A little loucer.

MS. PERRY: It dealt with the failure of the

Goverment to provide witnesses where the rule recuizred it

and the court, in that case, = federal court, 2rovized five

facters which ought to be considered in determining

whether or net sanctions shculd be applied, and the one

was the amcunt of prejudice “hat resulted from the fail=sre *o

disclose.

Mow, I realize this is a reverse situaticn vhers

state's witnesses in this case were sot provided, and in chs)

case, you have 4 defendaat's alibi witness. This iz che

only standard in a case that I <xnew abcut. Mr. Jennet= was

kind enoush to help se cut in a short recess, and pick this

one up. We don’t tncw i# there is anv orejucice *o =e

state. tt had the ecvertunity to sake the ealis to fine

eut whether the man really was disabled, and I have croviced

“re. Bonsib, fer the recoré, with “- Rich's mother's

adé@ress and selephone aucher, which I got f2om Me. Rich.

and his current address ac his current telephone suctber.

“¥Z CCURT: Tou sean just recently?

“S$. PERRY: As sccn as ft vrew it, I gave it to bis.

I also have provided his lewrer's name who <3 handling his

4.77

to

FS i 4 EE

worksen's comp, his employer, where it was he was injured

to establish or to rebut, if he sust, that the man was or

was not injured. I have given him she sames of three

doctors under whose care Mr. Rich is, at this varticular

time. I don't know that there is any prejudice resulting to

the state. There is just a distinct possibility “here are

no skeletons in Mr. Rich's closet. he is tust a nice person,

and he doesn't have anything bac to be broucht cut, and that

is what I am maintaining.

The second factor is the reason for the ncn-

@isclosure. Mr. Taliaferzo has testified the reason he

talked to his in Dececber about it, and then he was of the

opinion that Caroline Bellamy was going to testify, he

@idan't have an address for Caroline Bellamy. After he spoke

with Mr. Rich, Mr. Rich then moved, and he mace efforts

to find out where it was he tived. Ye didn't knew until toca

where Mr. Rich lived. We coulcn’t have crovided that if we

had to. It is like saying to the ¢efencant, unless you can

provide us with an adéress for your witness, your al-bi

witness will never be allowed to testify, because that is

what the rule recuires, and that is what the court is

The third one is the extent to which the nara

caused by the non-disclosure was siticated by subsecuen*

events. I am not scre I <ncow what that means. Zt as act

11 sure there was any harm by not providing the name and the

2

address. “e have given Mr. 3ensid an oppersanisy £9 2t least

3 make the tslephene calls. Ze could call the ‘crc to

4i| sina out if there are warzants. Te could call to find out iZ

5] there ts a rap sheet. The police will help hin with that.

8] yy adon't knew that he hasn't had time to do that.

’ The fourth factor is the weight of the poroverlv

81 admitted evidence supporting the defendant's guilt. Your

9] goncr, we have a case where this alibi witness is the only

101 witeess who can refute that eve witness's testizcay, ind te

ul 4s absolutely one hundred percent sure that ts is che tan

21 who ccbbed his, so I think that under that fourth factor,

13 the weight of the proverly admitted evidence is overvheluins |

I+ at this point, and that is a factor +o be considered. Te

15 has no defense without that tan.

16 | Other relevant factors arising out of the

a ciscumstances of the case is the fifth factor. Your Toner, |

18 I think it has get to be more than just not giving ‘he state |

19 | the name and address. Surpese we don't have $s. 2 don’e |

: 7 knew that when I gave Caroline 3ellamy, shat “r. Bonsis |

| 422 anything abcut verifying ter. That ts all = hac vas |

2s | Caroline Qellami. <I am also nct sure ‘nat me

ss tate's motion for she discovery ‘is sizely under the J3.es. |

“| haven't checked that. That is why I dica’s aryue Lt, |

3 Y as not sure it is cinely, “ne request for discover? sn¢é

ss

Te ; f |

“yy

insvection of this file. I don't like to argue that

because I don't want it pulled on me next week.

Tn basic fairness in this case, I fsel he ought

to be allowed to have that man testify for him, or, at least,

to give Mr. Bonsib a chance to make his telephone calls. Wit

that information, he has a lot more than I get scmetines

with the state's witnesses on its case in chief.

THE COURT: All right. Anything else?

MR. SONSIS: If have nothing else to say, Your

Honor. f have said it.

“UB COURT: All right, again, the rules of

this court established by the Maryland Court of Apreals, to

which we are bound, require that the defendant in a criminal

case shall disclose the names, acdresses, anc whatever, of an

alibi witness, if that is the defense to the criminal charse.

It appears to me, that if I could have found that ¢!

@efendant was dilisent in his efforts in oroviding this nane

and acdress, and that his dilisence just paid off vesterday,

that I could then rule that he has done all that the rile

recuires. fNowever, f can't make that finding. From what

I have heard from the way this defendant has testified, he

has known the address of the nother of the witsess. The

mother of the witness still resides at the same address she

resided at back in Novetber. It is also obviously very

isportant to this defendant to have this alibi witness here,

.. ~h-GO

~~ on

probably one of the most imrortznt decisions of his live,

to have that witness here tcday. That te should have,

because of che sericusness of this charge against this

@efendant. Ze waits until two days before the *zial to

actzally locate this witness, when he could have done so

early on. He hadn't mace any real effort, excapt vasterday,

to locatsa this witness, and then springs it so to steak ca

the state the second day of trial, and as I say, I have got

an obligation to enforce the cules 2s they are written. The

Court of Apoeals has told as they are exact zsubrics *o te

complied with. Se that as it aay, I don’t think f have

any altarnative in this csse than to stick Sy zy srevicus

ruling that the defendant's alibi witness will not be

peraitted to testify. I think that we have as complete a

record as Y can make on this suling. So in the event I

ea in erscr, there wouldn't te any coubt as to why f am right

or why I am in ervocr.

Now, have you determined how vou want to =zask

these photocgrachs 30 “hat the identification plates won't

show?

MS. PERRY: Yes, it has been done to our satisfactica)

THE COURT: Are you agreed that the wav it has been

done -<-

M$. PERRY: © wanted co cat them bue I doen't chisk

ehat is what the stata agreed =o do. At least, veu can’t

ad sre

—_——