Opposition — Vernon Thaddeus Taliaferro v. Maryland

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No. 82-6483 RECEIVED |

IN THE MAY 2 1983

SUPREME COURT OF THE UNITED S EE aT US

OCTOBER TERM, 1982

VERNON THADDEUS TALIAFERRO,

Petitioner

v.

STATE OF MARYLAND,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

STEPHEN H. SACHS,

Attorney General of Maryland

DIANE G. GOLDSMITH,

Assistant Attorney General

Seven North Calvert Street

Baltimore, Maryland 21202

Telephone: (301) 576-6300

Attorneys for Respondent

QUESTION PRESENTED

Did the trial judge's discretionary ruling that Petitioner's

alleged alibi witness could not testify as a result of

Petitioner's admitted failure to comply with Maryland Rule 741

constitute a denial of due process and the right to compulsory

process?

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INDEX

TABLE OF CONTENTS

Page

QUESTION PRESENTED. 2c ccccccccccccccccccccccccccccccscccccod

STATEMENT OF THE Men >> |. ccssonbntoedacvbocgneegedeaveute

SUMMARY Or DARED. « . cocedcsdvoeeesscesecsocesseceessseoosl

REASONS WHY THE WRIT SHOULD BE DENIED. .cccccccccccccccccccel

THE QUESTION OF WHETHER PETITIONER'S

CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE

TRIAL JUDGE'S DISCRETIONARY RULING THAT THE

ALLEGED ALIBI WITNESS COULD NOT TESTIFY AS A

RESULT OF PETITIONER'S ADMITTED FAILURE TO

COMPLY WITH MARYLAND RULE 741 SHOULD NOT BE

ADDRESSED BY THIS COURT BRCAUSE MARYLAND'S

DISCOVERY RULE IS RECIPROCAL AND PETITIONER'S

FAILURE TO COMPLY WAS EGREGIOUS ..cccccccccccccscsel

CONCLUSION... cccccccccccccsccccccccccccccccccsccssssccsceced

TABLE OF AUTHORITIES

Cases

State v. Silva, 118 R.I. 408, 374 A.2d 106 (1977) ..ceeeeeeed

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

L.Ed.24 82 C1973) ncccccccccccccvcccccccccceccoscossens &

Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1983, 26

L.Ed.2d 446 EIOPOD c cocadecccanecccseseceedpesoecoesety, &

Rules

Maryland Rules of Procedure

Rule Se a eT rer Terry Tt. Ter t 2, 3

APPENDIX

Maryland Rule BOR. - cn cucccedtdosecesucsooegseseese Gee 1-3)

Excerpt of Dated... cacchvcsvedebsecoceccecedseness Gee 4-9)

No. 82-6483

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

VERNON THADDEUS TALIAFERRO,

Petitioner

v.

STATE OF MARYLAND,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

Respondent accepts Petitioner's Statement of the Case with

the additional facts included in the argument that follows.

SUMMARY OF ARGUMENT

Although the question presented is signiticant, resolution

of the issue under the facts of the instant case is not

warranted.

REASONS WHY THE WRIT SHOULD BE DENIED

THE QUESTION OF WHETHER PETITIONER'S

CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE

TRIAL JUDGE'S DISCRETIONARY RULING THAT THE

ALLEGED ALIBI WITNESS COULD NOT TESTI”Y AS A

RESULT OF PETITIONER'S ADMITTED FAILU®® TO

COMPLY WITH MARYLAND RULE 741 SHOULD NOT BE

ADDRESSED BY THIS COURT BECAUSE MARYLAND'S

DISCOVERY RULE IS RECIPROCAL AND PETITIONER'S

FAILURE TO COMPLY WAS EGREGIOUS.

In both Wardius v. Oregon, 412 U.S. 470, 472, n. 4, 93 S.Ct.

2208, 37 L.Ed.2d 82 (1973) and Williams v. Florida, 399 U.S. 78,

ST

83, n. 14, 90 S.Ct. 1983, 26 L.B4.2d 446 (1970), this Court

oe

expressly declined to rule on whether the preclusion of alibi

testimony due to non-compliance with discovery rules is

constitutionally permissible. However, the mere fact that the

question presented in the instant case remains unresolved by this

Court, should not warrant the automatic grant of certiorari.

The Maryland discovery law, Maryland Rule 741 (Apx. 1-3),

requires reciprocal duties of both the defense and the

prosecution, In Williams v. Florida, 399 U.S. at 81-82, this

Court rejected a due process challenge to Florida's notice of

alibi rule which contained such reciprocal requirements:

We need not linger over the suggestion that

the discovery permitted the State against

petitioner in this case deprived him of “due

process” or a “fair trial.” Florida law provides

for liberal discovery by the defendant against the

State, and the notice-of-alibi rule is itself

carefully hedged with reciprocal duties requiring

state disclosure to the defendant. Given the ease

with which an alibi can be fabricated, the State's

interest in protecting itself against an eleventh-

hour defense is both obvious and legitimate.

Reflecting this interest, notice-of-alibi

provisions, dating at least from 1927, are now in

existence in a substantial number of States. The

adversary system of trial is hardly an end in

itself; it is not yet a poker game in which players

enjoy an absolute right always to conceal their

cards until played. We find ample room in that

system, at least as far as “due process” is

concerned, for the instant Florida rule, which is

designed to enhance the search for truth in the

criminal trial by insuring both the defendant and

the State ample opportunity to investigate certain

facts crucial to the determination of guilt or

innocence. [Footnotes omitted.)

In Wardius v. Oregon, this Court held that Oregon's notice of

alibi rule was violative of due process because the prosecution

was not required to give reciprocal discovery rights to the

defendant.

The grant of certiorari is not merited for yet ancther

reason. The sanction imposed against Petitioner, a prohibition

on the receipt of testimony from his alleged alibi witness, was

due to more than a simple technical violation of Maryland Rule

741. The trial judge specifically found that Petitioner had not

exercised due diligence in locating the alleged alibi witness,

@3-

Edward Rich, and bringing him to the attention of the court and

prosecution (A. 90-91). Petitioner had been arrested on November

28, 1979, released on bond the followed day and remained on bail

continuously until his sentencing. Under Maryland Rule 74le

disclosure of any alibi witness was due to be furnished by

February 11, 1980, in response to the State's February 1 motion

for discovery requesting, inter alia, the name and address of all

alibi witnesses other than Petitioner himself, It was not until

the second day of trial, May 22, 1980, that Petitioner apprised

the court of the Rich's existence. However, Petitioner testified

that around December of 1979 he had contacted Rich and Rich was

willing to come to court. At that time Rich had been residing

with his mother who had lived continuously at the same address

and had the same telephone number since September of 1979. By

Petitioner's own testimony, he got in touch with Rich on May 20

or 21, 1980 by telephoning Rich's mother’s house, It was these

circumstances of such an egregious violation of Maryland Ru.e

741, compounded by Petiticner'’s failure to timely alert the court

of Petitioner's whereabouts on May 20 or 21, which caused the

court to exercise its discretion and prohibit Rich from

testifying. Compare, State v. Silva, 118 R.!I. 408, 374 A.2d 106

(1977), where the trial court was held to have abused its

discretion in excluding the defendant's alibi testimony where,

although the defendant's notice of alibi was 10 days late under

the rule, notice of the existence of three alibi witnesses was

first provided six months prior to trial.

Moreover, Petitioner was not precluded entirely from

presenting his alibi defense by the trial court's ruling.

Maryland Rule 74143 only requires the disclosure of all alibi

witnesses “other than the defendant." Therefore, Petitioner

could have presented his alibi defense through his own testimony.

However, the record clearly indicates that Petitioner waived his

o4-

right to testify because he did not wish to be impeached with two

prior convictions. (Apx. 4-9).

Given Maryland's discovery rule and the gross nature of

Petitioner's violation of that rule in the present case, the

instant case fails to present the proper circumstances for this

Court's review of the constitutional issues asserted.

CONCLUSION

Por the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

STEPHEN H. SACHS,

Attorney General of Maryland

RAL _

poecey oe GOLDSMITH, =

Assi&Stant Attorney General

Seven North Calvert Street

Baltimore, Maryland 21202

Telephone: (301) 576-6300

Attorneys for Respondent

idl

Rule 74) Discovery and Inspection.

a. Disclosure Without Request

Without the necessity of a request by the defendant, the State's Attorney

shall furnish to the defendant

1. Any material or information within his possession or contro! which tends

to negate the guilt of the defendant as to the offense charged or would tend to

reduce his punishment therefor,

2. Any relevant material or information regarding. (a) specific searches and

seizures, wire taps and eavesdropping, (b) the acquisition of statements made

by the defendant, and (c) pretrial identification of the defendant by a witness

for the State

3. The State’s Attorney's obligations under this section extend to material

| and information in the possession or control of members of his staff and of any

| others who have participated in the investigation or evaluation of the case and

who either regularly report or with reference to the particular case have

reported to his office

b. Discovery by the Defendant

Upon the request of the defendant, the State shall

1, Witnesses.

Disclose to the defendant the name and address of each person then known

whom the State intends to call as a witness at the hearing or trial to prove its

case in chief or to rebut alibi testimony

2. Statements of the Defendant

As to all statements made by the defendant to a State agent which the State

intends to use at a hearing or trial, furnish the defendant. (a) a copy of each

written or recorded statement and (b) the substance of each oral statement and

a copy of all reports of each ora! statement

3. Statements of Codefendants

As to all staternents made by a codefendant to a State agent which the State

intends to use at a hearing or trial, unless a severance has been ordered by the

court, furnish the defendant (a) a copy of each written or recorded statement,

and (b) the substance of each oral statement and a copy of all reports of each

oral statement

4. Reports of Experts

Produce and permit the defendant to inspect and copy all written reports or

statements made in connection with the particular case by each expert con-

sulted by the State, including the results of any physical or mental examina-

tion, scientific test, experiment or comparison, and furnish the defendant with

the substance of any oral report and conclusion made in connection with the

particular case by each expert consulted by the State, including the results of

any physical or mental examination, scientific test, experiment or comparison.

5. Evidence far Use at Trial.

Produce and permit the defendant to inspect and copy any books, papers,

documents, recordings, or photographs which the State intends to use at the

hearing or trial, and produce and permit the defendant to inspect and

CApx. 1)

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photograph any tangible objects which the State intends to use at a hearing or! ¥

trial wf

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6. Property of the Defendant. %

Produce and permit defendant to inspect, copy and photograph any item, ,

obtained from or belonging to the defendant, whether or not the State intends.

to use the item at the hearing or trial MM

¢. Matters Not Subject to Discovery by the Defendant.

This Rule does not require the State to disclose

1. Any documents to the extent that they contain the opinions, theories, or _ ‘

conclusions or other work product of the State’s Attorney, and Pa

2. The identity of a confidential informant so long as the failure to disclose *

the informants identity does not infringe a constitutional right of the defen. =

dant, and the State's Attorney does not intend to call the informant as a

witness, and

3. Any other matter if the court finds that by disclosure there ir » substan.

tial risk of harm to any person which outweighs the interest in disclosure.

d. Discovery by the State $

Upon the request of the State, the defendant shall

1. Generally

As to the person of the defendant

(a) Appear in a lineup for identification;

~ (b)-Speak for identification,

(c) Be fingerprinted,

(d) Pose for photographs not involving reenact:nent of a scene,

(e) Try on articles of clothing,

() Permit the taking of specimens of material under his fingernails;

(g) Permit the taking from his body of sz.mples of blood, hair and other

material involving no unreasonable intrusion upon his person,

th) Provide specimens of his handwriting:

(i} Submit to reasonable physical or mental examination

2. Reports of Experts

Produce and permit the State to inspect and copy all written reports made

in connection with the particular cave by each expert which the defendant

intends to call as a witness at the hearing or trial, including the results of any

physical or mental examination, scinntific test, experiment or comparison, and

furnish the State with the substance of any oral report and conclusion made in

connection with the particular care by an expert which the defendant intends

to use at the hearing or trial, including any physical or mental examination,

scientific test, experiment or comparison.

3. Alibi Witnesses. x soa

Upon designation by the State of the time, place and date of the alleged

om. ee he"

occurrence, furnish the name and address of each witness other than the defen

dant whorn the defendant intends to call as a witness to show he was not

present at the time, place and date de signated by the State in its request.

e. Procedure for Discovery

1. Time for Discovery

The State shall make disclosure pursuant to section a of this Rule within 25

dayr after the earlier of the appearance of counsel or the first appearance of the

defendant before the court pursuant to Rule 723 (Appearance — Provision for

or Waiver of Counsel). The defendant shall make a request for discovery pur

suant to section b of this Rule, and the State shall make a request for discovery

pursuant to section d of this Rule within 15 days after the earlier of the

appearance of counsel or the first appearance of the defendant before the court

pursuant to Rule 723 (Appearance —- Provision for or Waiver of Counse}). The

party served with the request shall furnish the discovery required by this Rule

within 10 days after receipt of the request

2. Motion to Compe! Discovery

If discovery is not furnished as requested, a motion to compe, discovery may

be filed within ten days after receipt of the discovery or after discovery should

have been received, whichever is earlier. The motion shall specifically describe

the matters requested which have not been furnished An answer to the motion

may be filed within five days after receipt of the motion. The court may not

consider any motion to compel! discovery unless the moving party certifies in

the motion and sets forth specific facts to demonstrate that he has made a good

faith attempt to secure the requested discovery from the opposing party and the

party has not complied with the request

f. Continuing Duty to Disclose

If, subsequent to compliance with a request made under this Rule or with any

order compelling discovery, a party discovers adJitional metter previously

requested and required to be furnished, he shall promptly furnish the matter

to the other party or his counsel. If the additional matter is discovered during

trial, in addition to furnishing the matter promptly to the other party or his

counsel, he shall notify the court that the matter is being furnished to the other

party.

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 proceedings 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 introducing in evidence the matter not disclosed, grant a

mistrial, or enter any other order appropriate under the circumstances. All

materia! and information to which a party is entitled must be disclosed in time |

to permit beneficial use thereof.

-!

\ 95

that discretion and refuse to permit the defendant to call his

alibi witness for his failure to comply with Maryland? Rule

741 (a) (3).

MS. PERRY: Your Honor, would you hear us just one

moment further? I realize you have ruled already.

THE CouRT: No, once T have rulet -- I gave

everybody all of the tine they wanted to say whatever the,

wanted to say.

MS. PERRY Then, would you please heer us on a

mo*icn in limine with regerd to a orior record, so tha. the

man might testify in his own behalf?

THE COURT: Yes. I thought vou were talking about

the alibi witness. I am not preventing you from saying

anything new to me about some other subject. I will listen

to you on the motion in limine.

a. MS. PERRY: The reason my client is not taking the

stand is beceuse he has, I believe, two prior convictions.

That is a matter of record. We gave the court that

information, or the state did, during the pretrial. This

man is faced with 20 years on the armed robbery plus 15 for

use of a handgun in the cormission of a felonv. If he

takes the stand and testifies, then, without limiting the

state, it can cross examine him and ask him about prior

convictions, and he has one in 1972 for larceny, 1974

robbery with a deadly weapon. We would like to ask the court,

| (Apx.4l)

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——

96

because of the highly sl aliielian nature of that kind of

evidence, him being the only witness that he has, that the

atate be limited and not be allowed to bring that evidence

out, in liew of the alibi witness, and also that the state

not be allowed to ask the question of my client on the

stand, nor to argue it, where is your alibi witness.

THE COURT: Would you intend to say anything about

anv alibi witness, if you cross examined hin?

MR. RONST4: “Well, I don't know, Your Honor. I

can't siv, at this point. I certeinly will try to steer

cleer of it.

THE COURT: No. T am just trying to fin? out whether

I have to make a ruling, if you are going to sav, you don't

know, or vou have to use it, then T will make o ruling.

MR. BONSIB: Let me not say T am not going to do

it then, unless you make a ruling.

THE CouRT: Say that again?

MR. BONSIB: I can't tell you for sure what T am

going to do.

THE COURT: Motion in limine qranted as to the

failure ‘to call the alibi witness. What about the record?

MR. BONSIB: The record is one of moral turpitude.

tte

*

Ms. Porry made an issue of my victim's prior record, that

he hed been convicted of a D&F.

MS. PERRY: You didn't object.

| (Apx. 5)

97

MR. BONSIAB: know when an objection is 111 founce

In this particular case, I think the issue of credibility 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 in proper and we should be allowed to cross examine the

defendant on it.

THE COURT: Anything else?

MS. PERRY: No.

THE COURT: The potion in linine 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 Nonor. The

defendant cannot testify, and the motion in limine that you

granted for us with regard to alibi has no application, at

this time. He cannot testify in his own behalf.

THE COURT: He can testify in hin own behalf. He

chooses not to.

MS. PERRY: That..is because I know what the

prejudicial effect of that is going to he.

THE COURT: But he can testify.

I want to make sure you have discussed with him his

right to testify. .

MS. PERRY: He knows that.. ..

**

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THE CO! T: And his watver of his mistitutional

right to testify in his own behalf. Do you waive that, sir?

THE DEFENDANT: If the court will permit, Your

Honor, like TY was telling Ms. Perry, my lawyer, we had a

wreliminary or pretrial hearing with Mr. Bonsib, and he

knows that If had informed him that I had ; witness. I could

not get in contact with her

THE COURT: I don't mean to cut you short, but I

an not going to go back into my ruling on the alibi witness.

TI want to make sure you unterstand that you have a richt to

testifv. If you choose not to do that

THE DEFENDANT: Judge McCullough, I don’t umterstandc

one thing. Okay, I am not familiar with law, as you are.

Okay, she explained it to me already, that she alreaty

arqued that point. However, the point T an trying to express

to vou, Mr. Bonsib, here, and Judge Melbourne were present

when I informed them that I had a witness. I could not

contact her. Right?

Tue Court: Mr. Taliaferro, again, I have ruled

on the alibi, and I don't wish now to debate that with you.

All I am trying to find ovt now is if you want to take the

stand in your own behalf.

THE DEPENDANT: Judge McCullough, I understand

i

whet you are saying -~

>

THE COURT: Don't interrupt mé,‘please? If you are

| | CApx.*i)

‘That is the only thing I am asking you.

called to the stand ta testify. which you have ¢ tight to

do, the state will be permitted to ask you about your pricr

record on cross examination, so that the jury will have the

benefit of your record to use that, if it is of any use to

them at all, on your credibility.

Your attorney has said to me you choose not to

testify because you are afraid of that. That is perfectly

all right. I just want to meke sure that you understand

that you have a right to toke the stand and testify in your

own defense and you have made the judgment you don't want to

do so. That is all T want to find ovt. Tf you want to

testify, fine. If you don't want to tentify, fine. The

choice is solely yours.

THE DEFENDANT: So what you are asking me is whether

or not I want to testify?

Tne Court: Yes, sir. That choice is only yours

to meke, after you listen to your lawyer, and after you

have listened to what I say, it is your decinion alone to make

THE DEFENDANT: What about the things that I don't

understand. You know, IT understand that perfectly clearly.

THE COURT: Lets get over this first.

THE DEFENDANT: I am going by what my lawyer says.

I acree with whatever she says which is I will not testify.

TRE COURT: You have made: that decision? *

;

ath Re

on | CApxy

—es oor =

-4qudgment of ecquittal.

‘

«

THE DEFENDANT: I am going by what she says.

TR COUR’ All right.

THE DEFENDANT:. Now, if you can explain and clarify

that point, why can’t you explain and clarify the point that

I am trying to get over to you, Your Honor, which fis, I don't

urderstand the alibi witness, when T eald T had a witness,

although I never hat a chance to inform the witness that T

was coming to court, I never had a chance to contact her.

Thie is what I am seying. Although you ruled on this

situation, which IT don't u wWeratand, You know, it is only

fair to me if you can explain one thing, why not explain the

other?

Tie couRT: TI thought I explained it rather well

for the record, an’ if you didn't understand’ it, I am sorry,

hut I don't intend to go back and explain it anain, or how

YT ruled. I have made a ruling, sir, and I am sticking by

t‘.at, ant in the event T am in error, there in someboty

higher than I that can correct that.

Anything else, Ms. Perry?

MS, PERRY: .No, sir.

THE COURT: Then, we are ready to go to the jury?

1 MR, BONSIB: Yes, Your Honor, the state is ready.

MS. PERRY: I would like to make my motion for"

. . %? . .

. ~ a ems

Tak Court: Any -.further argument on that? a tore

( Abx. 4)

RECEIVED

No. 82-6483 MAY 2 1983

IN THE OFFICE OF THE CLERK

a. RUPREME CourT, US.

SUPREME COURT OF THE UNITED S’

OCTOBER TERM, 1982

VERNON THADDEUS TALIAFERRO,

Petitioner

Vv.

STATE OF MARYLAND,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

APFIDAVIT

I, Diane G. Goldsmith, do affirm on my personal knowledge as

follows:

1. That I am a member of the Bar of the Supreme Court of

the United States.

2. That I am the attorney for Respondent in the above-

captioned case.

3. That on April 29, 1983, ten (10) copies of Respondent's

Brief in Opposition to Petition for Writ of Certiorari were sent

to the Supreme Court and three (3) copies were sent to Counsel

for Petitioner, Michael R. Malloy, Esquire, Assistant Public

Defender, Tower Building, 222 EB. Baltimore Street, Baltimore,

Maryland 21202 by depositing same, postage prepaid, in the

.

United States mail.

Seven North Calvert Street

Baltimore, Maryland 21292

Telephone (301) 576-6427

Attorney for Respondent

SUBSCRIBED AND SWORN to before me, a Notary Public in and

for the State of Maryland, on this 29th day of April, 1983.

ewity Coop ser

pew ublic t

/

My commission expires: 7/)/d¢¢