# Petition — Vernon Thaddeus Taliaferro v. Maryland > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1402%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 461 U.S. 948 ## Text 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. 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 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 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 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 Aly 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-¢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 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 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 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 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. “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 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 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 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 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: 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 is unfais to the state now to permit the alibi witness, even thouch it is the only @GeZense witmess. 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 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 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