Clemmons v. State

• Decision Date: 07 December 1998
• Docket Number: No. 11,11
• Citation: 352 Md. 49,720 A.2d 1170
• Parties: Thomas Eugene CLEMMONS v. STATE of Maryland.
• Court: Maryland Court of Appeals

720 A.2d 1170

352 Md. 49

Thomas Eugene CLEMMONS v. STATE of Maryland.

No. 11, Sept. Term, 1998.

Court of Appeals of Maryland.

December 7, 1998.

George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Emmet Davitt, 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 CATHELL, JJ.

WILNER, Judge.

In an eight-count criminal information filed in the Circuit Court for Somerset County, petitioner was charged with second degree rape, first and second degree sexual offense, conspiracy to commit a second degree sexual offense, false imprisonment, kidnapping, assault, and battery. A jury acquitted him of the more serious charges but convicted him of conspiracy to commit a second degree sexual offense, assault, and battery. After merging the assault conviction, the court sentenced him to 18 years imprisonment for the conspiracy and five years, concurrent, for the battery. Those judgments were affirmed by a divided panel of the Court of Special Appeals.

We granted certiorari to consider whether the trial court erred in permitting Roger Christopher, an initial co-defendant who had earlier been convicted of a second degree sexual offense arising out of the same incident, to testify that he had been so convicted. We shall conclude that the court erred and thus reverse the judgment based on conspiracy. As we believe that the error did not in any way affect the conviction for battery and was, to that extent, harmless, we shall affirm the judgment entered on the battery conviction.

The charges against petitioner arose out of an episode that occurred on the evening of October 30, 1994, involving a 12-year old victim, Katrice. Katrice, who lived with her mother in Salisbury, testified that she went out with two other girls, Muffy and Mimi, ending up with Leonard Hassell at a fast-food restaurant. Hassell, who knew Muffy and Mimi, later drove the three girls to a house in Princess Anne where petitioner was residing. Katrice said that she thought Hassell was going to drive her home, but she did not protest going to Princess Anne. According to Katrice, no one was present at the home when they arrived, and Hassell, who had a key, let them in.

Much of the evidence of what happened at petitioner's home was in dispute. According to Katrice's account, Christopher and petitioner eventually arrived, and, at first, the group sat around a table talking. Hassell left for a time but later returned. At some point, Katrice and Muffy went into a bedroom, where Muffy searched through a dresser drawer and began "playing" with some money. After a while, they left the bedroom and went outside. Petitioner then came out, summoned them back into the house, and informed them that he was missing $170. He accused Katrice of taking the money and hit her with a belt. She denied taking or having any of his money, began to cry, and asked to be taken home. Petitioner refused, however, saying that she was going to "make his money" if she had to "suck everybody's penis around there." Christopher then joined them and asked to be first. Despite her tears and protest, petitioner ordered her into a bedroom, hit her several times with the belt, and forced her to commit fellatio on Christopher. He then took her to another bedroom, hit her again until she disrobed, and raped her. After making her help clean up the room and threatening harm to her family if she said anything about what had occurred, he walked her to a store in Princess Anne, where she called her parents. Later, accompanied by her father, she guided the police to the house where the events occurred. Following testimony by Katrice's father, who described the call from his daughter, her revelations and excited condition, and the subsequent trip with the police, the State called Christopher. Outside the presence of the jury, the judge recalled that Christopher had been a co-defendant in the case, that he had pled guilty to a second degree sexual offense, and that he had been sentenced to 20 years imprisonment. The record indicates that Christopher's trial occurred in February, 1995, about 20 months prior to petitioner's trial. When initially called, Christopher refused to testify on the ground that "I don't know anything." After establishing that there were no pending appeals from the judgment, the court ordered him to testify, even if to say that he had no knowledge of the events. The jury was brought in, and Christopher was sworn. The relevant part of his testimony was as follows:

"Q. Mr. Christopher, what is your current address, sir?

A. My current address is Maryland House of Correction.

Q. And why are you there?

A. I was found guilty by this court.

Q. Of what?

[Defense Counsel]: Objection

The Court: Basis?

[Defense Counsel]: I'm just curious if he's impeaching him or what.

The Court: Overruled. You may answer, sir.

A. I was found guilty of a charge in your courtroom, judge.

Q. You were convicted of second degree sex offense; is that correct?

A. Yes.

Q. Who was the victim in that case?

[Defense Counsel]: Objection.

The Court: Basis?

A. I don't know the name.

The Court: Wait a minute, wait a minute.

[Defense Counsel]: Relevancy.

The Court: Overruled.

By [Prosecutor]:

Q. I didn't hear you, sir?

A. I don't know the name.

Q. You don't know the victim's name?

A. No, I do not.

Q. Where did the act occur that you're convicted of?

A. On the address of the house. It's around on the back street here behind the courthouse.

Q. Do you know whose apartment it was?

A. Yes. It was Sharon Roberts apartment."

Thereafter, Christopher's memory supposedly collapsed. He said that he could not recall what time, or even what day, the events occurred, who was there, or even having discussed the matter with the prosecutor a week before trial. The prosecutor asked no further questions, and defense counsel declined cross-examination.

The State's case concluded with the testimony of a District Court Commissioner and the arresting police officer, both of whom related that, when eventually arrested and taken before the Commissioner, petitioner admitted (1) that Katrice had been brought to the house by Hassell, (2) that he was aware that she had committed fellatio on Christopher and was crying and upset, and (3) that he (petitioner) had struck Katrice with a belt for taking his money.

Testifying in his own defense, petitioner admitted that the three girls had been brought by Hassell to the apartment that he shared with one Sherman Roberts, the uncle of the girl he was then dating. At some point, he said, Muffy, Mimi, and Hassell left. He denied that there was any sexual activity but admitted that he struck Katrice one time with his belt after she confessed to taking his money and not returning all of it. He said that he discovered $375 missing from his dresser and that, when he confronted Katrice, she returned $100 but claimed that she threw the rest outside. After he was unable to find the rest of the money, he accompanied Katrice to a pay phone so she could call her parents. Hassell testified that he saw Katrice return $100 to petitioner, following which he, Muffy, and Mimi left. Christopher was arrested the same evening. Petitioner said that he spent the night with his girlfriend and then returned to New York, unaware that a warrant for his arrest had been issued. He was not arrested until March, 1996—about 17 months after the event.¹

DISCUSSION

Though recognizing that the conviction of a co-conspirator is generally inadmissible to establish the guilt of a defendant, the panel majority of the Court of Special Appeals concluded that Christopher's testimony "fell short of informing the jury that the crime for which Mr. Christopher was incarcerated arose from the same incident as that for which [petitioner] was on trial." It declared, in addition, that his testimony "could have been elicited by the State for reasons other than using the conviction of a co-conspirator to prove the guilt of [petitioner]," offering, as an example never offered to the trial court, that it could "corroborate the victim's testimony as to the location of the event." That approach was not persuasive to Judge Alpert, who, in dissent, pointed out the obvious internal inconsistency between finding Christopher's testimony insufficient to suggest that the incident underlying Christopher's conviction was the same as that charged to petitioner, but nonetheless corroborative of the location of the crimes charged to petitioner.

The State acknowledges that, ordinarily, the conviction or guilty plea of a co-perpetrator may not be used as substantive evidence of another's guilt. That principle, founded on concerns as to both relevance and unfair prejudice, is well established in Maryland and elsewhere. See Gray v. State, 221 Md. 286, 157 A.2d 261 (1960); State v. Joynes, 314 Md. 113, 549 A.2d 380 (1988); United States v. Dworken, 855 F.2d 12 (1st Cir.1988); United States v. Fleetwood, 528 F.2d 528, 532 (5th Cir.1976); United States v. Hutchings, 751 F.2d 230 (8th Cir.1984), cert. denied, 474 U.S. 829, 106 S.Ct. 92, 88 L.Ed.2d 75 (1985); United States v. Baez, 703 F.2d 453 (10th Cir.1983); United States v. Griffin, 778 F.2d 707 (11th Cir.1985); Knowles v. State, 44 Ala.App. 163, 204 So.2d 506 (Ala.Ct.App. 1967); State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (Ariz.1992); State v. Gargano, 99 Conn. 103, 121 A. 657 (Conn.1923); Thomas v. State, 202 So.2d 883 (Fla.Dist.Ct.App. 1967); Hughes v. State, 546 N.E.2d 1203 (Ind.1989); Commonwealth v. Tilley, 327 Mass. 540, 99 N.E.2d 749 (Mass.1951); State v. Robertson, 219 Neb. 782, 366 N.W.2d 429 (Neb.1985); State v. Hunt, 325 N.C. 187, 381 S.E.2d 453 (N.C.1989); Commonwealth v. Thomas, 443 Pa. 234, 279 A.2d 20 (Pa.1971); Annotation, Prejudicial Effect of Prosecuting Attorney's Argument or Disclosure During...