Austin v. State

• Decision Date: 01 May 1969
• Docket Number: No. 222,222
• Citation: 253 Md. 313,252 A.2d 797
• Parties: John Henry AUSTIN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 313

253 Md. 313

252 A.2d 797

John Henry AUSTIN v. STATE of Maryland.

No. 222.

Court of Appeals of Maryland.

May 1, 1969.

Edward J. Angeletti and John D. Hackett, Baltimore, for appellant.

Bernard L. Silbert, Asst. Atty. Gen., Baltimore, (Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr. and James F. Garrity, State's Atty. and Asst. State's Atty. respectively, Baltimore City, on the brief) for appellee.

Before HAMMOND, C. J., and MARBURY, McWILLIAMS, FINAN and SMITH, JJ.

FINAN, Judge.

We review this case on a writ of certiorari (Code (1968 Repl.Vol.) Art. 5, Sec. 21A) for the sole purpose of determining the correctness of the holding of the Court of Special Appeals' sustaining the trial court's refusal to admit into evidence a police report, pertaining to the identification of the accused, as given to a police officer by a witness near the scene of the crime.

At a trial held February 20-21, 1967, in the Criminal Court of Baltimore, a jury convicted the appellant, John Henry Austin, of robbery with a deadly weapon. He was thereafter sentenced to a term of twenty years in the Maryland Penitentiary.

The evidence adduced at the trial established that on the morning of February 16, 1965, Mrs. Mae Duda was robbed of some $788.00 by two negro men who entered her living quarters above the funeral home she operated in Baltimore City. The faces of both men, one of whom carried a revolver, were covered with blue handkerchiefs, but during a struggle the mask fell from the face of one of them.

On March 8, 1965, Mrs. Duda identified a police photograph of the appellant as the man who had become unmasked in the course of the crime. On March 12, 1965, Mrs. Duda again identified the appellant from a police line-up as one of her assailants.

At the trial, in presenting his defense to the charges against him, appellant read into the record the former testimony of John W. Ketcham, since deceased, taken from the transcript of the appellant's prior trial which had been invalidated as a result of Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965). At that trial Ketcham had testified that about the time of the robbery he observed two negro men wearing dark overcoats enter Mrs. Duda's premises and then depart about twenty minutes later. Ketcham was not, according to his testimony, able to identify either of the men. Appellant then called Sergeant James Gorsuch as a witness. He testified that immediately after the crime he had interviewed Ketcham and had written a departmental report following the interview. The appellant offered the report as evidence for the purpose of showing that Sergeant Gorsuch had received from Ketcham a description of the two men substantially different from that given the police by Mrs. Duda (a description also possibly different from that of the appearance of the appellant himself), and urged that it should be admitted as part of the res gestae. However, the State objected to the introduction of this report and the trial court sustained the objection on the basis that since Mr. Ketcham was deceased, there was nothing further that could be added or detracted from his testimony given at the prior trial. The trial court also was of the opinion that the report was irrelevant.

In his appeal to the Court of Special Appeals, the appellant contended that the report was admissible to show that Ketcham's description of the men was different from that given by Mrs. Duda to the police. However, the State contended then and now, that counsel for the accused failed to make a proper proffer of what he intended to prove by the introduction of the report at the time it was submitted at the trial, and that accordingly there was no issue for the Court of Special Appeals to review. The Court of Special Appeals was of the opinion that the appellant had failed to state the rule of evidence upon which he was relying to support the admissibility of the police report, and in the absence of some clear showing of a proper basis supporting the report's admissibility under the rules of evidence the trial judge should be affirmed.

We think that with regard to the issue of lack of proper proffer of the report the simple answer is the police report was in the State's possession, it was familiar with its contents, and the substance of the report being information on the identity of the accused, spoke for itself. We do not discount the importance of a proper proffer when the evidence sought to be introduced is under challenge (Leitch v. Board of Education of Anne Arundel County, 248 Md. 611, 616, 237 A.2d 748 (1968); Fowler v. Benton,229 Md. 571, 575, 185 A.2d 344 (1962); Maryland Rule 522 b); however, in the instant case the variance between the description given by the victim and that contained in the report makes obvious the purpose for its being offered into evidence. In our opinion, the question of whether it should, or should not, have been admitted into evidence depended upon its relevancy. We think it was sufficiently relevant to the question of identification to have been admitted into evidence for consideration by the jury.

The difficulty with the State's position in this case, as we see it, is that the exclusion of the report which Sergeant Gorsuch took from Ketcham goes to the very core of the State's case against the appellant. The State's case hangs by the tenuous thread of identification of the accused by the victim. The Court of Special Appeals noted:

'* * * the substance of the report was not relevant to the issues in the case since, at most, it established that Ketcham's description of the men who entered the victim's home was different than that given by the victim of her assailants and, additionally, different from that of the appellant. We note that Ketcham's description of the men, as related in the police report, was most general and actually was consistent with the victim's description of the clothing worn by the two men. In any event, we see no error in the court's refusal to admit the police report into evidence.' 3 Md.App. 231, 236, 238 A.2d 569, 572 (1967).

We are of the opinion that the substance of the report...