724 A.2d 65 (Md. 1999), 10, Burral v. State

Docket Nº:10,
Citation:724 A.2d 65, 352 Md. 707
Opinion Judge:[7] The opinion of the court was delivered by: Wilner, J.
Party Name:Lewis William BURRAL v. STATE of Maryland.
Case Date:February 12, 1999
Court:Court of Appeals of Maryland
 
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724 A.2d 65 (Md. 1999)

352 Md. 707

Lewis William BURRAL

v.

STATE of Maryland.

No. 10,

Court of Appeals of Maryland.

February 12, 1999

[352 Md. 708] Julia Doyle Bernhardt, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Petitioner.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER, and ROBERT L. KARWACKI (Retired, specially assigned), JJ.

WILNER, Judge.

The issue in this appeal concerns the admissibility of hypnotically-enhanced testimony. In State v. Collins, 296 Md. 670, 464 A.2d 1028 (1983), we concluded that such testimony did not meet the test of reliability adopted by this Court in Reed v. State, 283 Md. 374, 391 A.2d 364 (1978) and was, for that reason, inadmissible. We held that testimony consistent with statements made by a witness prior to undergoing hypnosis was admissible, but not testimony based on recollections formed during or after the hypnosis. The exclusion of hypnotically-enhanced testimony was stated in the form of a per se exclusion; it did not depend on who the witness was, who called the witness to testify, or the circumstances of the case. See also Simkus v. State, 296 Md. 718, 464 A.2d 1055 (1983); Grimes v. State, 297 Md. 1, 464 A.2d 1065 (1983); State v. Metscher, 297 Md. 368, 464 A.2d 1052 (1983); and Calhoun v. State, 297 Md. 563, 468 A.2d 45 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1984).

Four years later, in Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), the Supreme Court held that such a per se exclusion could not Constitutionally be applied to preclude the defendant in a criminal case from testifying on [352 Md. 709] his or her own behalf. The question now before us is whether that Constitutionally-based exception to a per se exclusion applies as well to the testimony of a defense witness other than the defendant. We shall respond in the negative.

THE FACTS

Early on the morning of February 27, 1989, the body of Jeffrey Fiddler (whom, to

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distinguish him from his brother, Jimmy, we shall refer to as Jeffrey) was discovered in a ditch adjacent to an entrance ramp to Interstate 81 in Pennsylvania, just over the Pennsylvania-Maryland border. An autopsy revealed two stab wounds--one to the chest and one in the back--a number of defense wounds to the hands, bruises to the back of the neck, and abrasions and contusions in the lower back and buttocks region. The medical examiner determined that the bruises, abrasions, and contusions were inflicted before death and that the cause of death was the eight-inch stab wound to the chest, which perforated a lung. He opined that the chest wound engendered extensive bleeding, that it would have caused large pools of blood at the crime scene, and that death would have ensued within a half hour after the stabbing. Based in part on the fact that there was very little blood in the ravine where the body was found, the Pennsylvania police determined that the stabbing had occurred elsewhere and that the body had been moved after death. When the body was discovered, Jeffrey had on no underwear or socks, but was wearing a shirt, blue jeans, and shoes. Blood patterns on those items and on the body itself indicated that Jeffrey was not wearing the blue jeans or the shoes when he was stabbed.

After a preliminary investigation, the authorities concluded that the crime had probably been committed in Maryland, and the Hagerstown police promptly began assisting the Pennsylvania State Police. The police interviewed a number of people who knew Jeffrey--petitioner Burral, Robert Schell, Edward Stouffer, Jeffrey's brother, Jimmy Fiddler, and some of their respective wives or girlfriends. The stories told by these people, at various times, were not always clear and not always [352 Md. 710] consistent, either internally or with each other, and approximately six years elapsed before the police determined that they had sufficient evidence to charge Burral and Stouffer with the murder. The investigation was actually suspended for about four years, between 1990 and 1994. There was evidence that Jeffrey was stabbed in Hagerstown, in or just outside of Schell's apartment at 12 Elizabeth Street, and there was other evidence, coming largely from statements made by Burral, that the stabbing occurred in other places--in Clear Spring, Maryland, some 10 miles west of Hagerstown, or in Williamsport, which is on the West Virginia border. There were accusations that Schell did the stabbing, that Edward Stouffer was the killer, and even that Jimmy Fiddler was the culprit.

Based, in part, on statements given to the police by Burral in March, 1989, suspicion focused initially on Schell, and, in August, 1989, he was arrested and his apartment was searched. 1 When Jimmy Fiddler exonerated Schell, however, [352 Md. 711] he was released and Burral was charged with having given the police a false statement. Burral soon left Maryland for Florida. The investigation continued. By May, 1990, the police apparently came to believe that Burral had more knowledge about the incident than he had previously revealed, and they took the unusual step of

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seeking and obtaining his extradition on the outstanding false statement charge, which was only a misdemeanor. In a statement given to the Florida police upon his arrest, Burral admitted that he accused Schell because he had a grudge against him. Nonetheless, though no longer accusing Schell of having committed the murder himself, he asserted that Schell probably paid someone to do it. He claimed that he never knew Jeffrey and did not know what happened on the night Jeffrey was killed. In a statement given to the Hagerstown police several days later, Burral changed his story. He claimed that he and Willie Stouffer, Edward Stouffer's brother, went to Clear Spring, where they were soon joined by Edward Stouffer and Jeffrey. Edward Stouffer and Jeffrey got into an argument over money that Jimmy allegedly owed Edward and Willie for drugs, and, when Jeffrey walked away, Edward went after him, fell on top of him, and stabbed him. Edward then put the body in the trunk of the car. When the car could not be started, Edward and Burral pushed the car down the hill to Willie Stouffer's girlfriend's house, where Edward told his brother that the body was in the car and to do "whatever was necessary." Willie's girlfriend then drove Burral and Edward back to Hagerstown. Burral said that he made the accusation against Schell at Edward's request.

Burral was arrested for the murder in September, 1995. The State's theory at trial was that Burral, Schell, Edward Stouffer, and others were engaged in some criminal activity emanating from Rocky's Pizza, that Jeffrey was associated with some of the group but was essentially an outsider, and [352 Md. 712] that they were concerned that he may be talking to the police and could not be trusted. The State posited, and produced evidence to show, that Jeffrey was kidnapped and beaten, that he was stabbed by Edward Stouffer with a knife supplied by Burral, that he was then put into a car, and that Stouffer and Burral then drove the car through Hagerstown to the Interstate 81 entrance ramp, where they dumped the body. 2

Burral does not challenge the sufficiency of the State's evidence. In addition to Burral's own statements given to the police, the State produced Rebekah Knodle, who testified that she, Edward Stouffer, and Burral were at the apartment of one Jimmy Russell on the evening before Jeffrey's body was found, that Russell, Stouffer, and Burral left the apartment around 4:30 p.m. and returned about 3:30 the next morning. Burral had a red substance on his pants and shoes which he claimed was either red mud or the result of a nosebleed. He changed his clothes and put the clothes that he previously had on in a plastic bag. Those clothes were never recovered. After being shown her pre-trial statement to the police, Ms. Knodle said that Burral "might have" told her that the killing took place on Elizabeth Street. 3 Angela Tobery testified that Burral had told her that he was present when Edward Stouffer stabbed Jeffrey, that the knife used in the killing belonged to Burral, and that Burral, at one point, was sitting on top of Jeffrey on the back seat of the car as it traveled through Hagerstown. That, he told Ms. Tobery, is how he came to have blood all over him. Barbara Kelly testified that, the evening before Jeffrey's body was found, she saw Jeffrey near Rocky's Pizza running across the street, being chased by [352 Md. 713] several men, among whom were Edward Stouffer and Burral. She heard Stouffer warning Jeffrey to stay away from "Becky."

The testimony, or proffered testimony, that produced the issue before us came from Lisa Wallech, who had been Jeffrey's girlfriend at the time he was killed. Ms. Wallech was called as a defense witness, in an apparent attempt to focus suspicion back on Robert Schell. To put the issue in perspective,

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Jimmy Fiddler testified, as a State's witness, that, on the evening his brother was killed, Jimmy, Schell, and several others, including Ms. Wallech, were together at Schell's home at 12 Elizabeth Street. He and Schell went out for a while. Jimmy returned around 2:30 a.m., and Schell returned around 4:00. Just after Schell returned, Jimmy and Schell got into an argument. Schell, apparently, had been in several arguments that evening. Jimmy attempted to leave, but Schell followed him, and the two got into a wrestling match in front of the house. Jimmy stated that his brother, Jeffrey, was not there that evening and had not gotten into any fight with Schell. Schell confirmed Jimmy's account, adding that, prior...

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