Crawford v. State

Decision Date27 March 1978
Docket NumberNo. 85,85
Citation282 Md. 210,383 A.2d 1097
PartiesJohn Thomas CRAWFORD v. STATE of Maryland.
CourtMaryland Court of Appeals

Arthur A. DeLano, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Kathleen M. Sweeney, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

MURPHY, Chief Judge.

The sixth amendment right of an accused in a criminal case to confront the witnesses against him is a fundamental constitutional right made obligatory on the states by the fourteenth amendment to the federal constitution. 1 Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The same right is secured by Art. 21 of the Maryland Declaration of Rights. 2 State v. Collins, 265 Md. 70, 288 A.2d 163 (1972). The issue presented in this case is whether the appellant Crawford was denied his constitutional right of confrontation when testimony of the prosecuting witness, given at a preliminary hearing, was received in evidence over his objection at his subsequent trial after it had been established that the witness was unavailable to testify.

Fourteen-year-old Cheryl Adams was beaten, shot in the head and abandoned on a highway in Washington County on September 22, 1975. Crawford was arrested later that day at his father-in-law's home in Cumberland and charged with assaulting Cheryl with intent to murder her. A revolver containing one spent round of ammunition was found in Crawford's Ford XL automobile, together with Cheryl's birth card. Crawford told one officer on the night of his arrest that he had driven from his home in Washington, D.C. earlier that day bound for Cumberland and that Cheryl and her boyfriend, whose name he did not know, accompanied him in his car. He told the officer that he had stopped at a gasoline station to get some cigarettes and when he returned to his car, Cheryl and her boyfriend had disappeared. The next day Crawford told another officer that Cheryl's boyfriend was named Robert Rogers, and that he had accompanied them on the trip, but a disagreement developed between Cheryl and Rogers and they left the car. The only description of Rogers given to the officer by Crawford was that he was a black male. Police efforts to locate Rogers through Cheryl's mother and landlord and Crawford's family were unsuccessful.

Shortly after his arrest, Crawford, through counsel, requested a preliminary hearing. See Maryland Code (1957, 1976 Cum.Supp.) Art. 27, § 592. It was not until December 19, 1975 almost three months after the offense was committed that the preliminary hearing was held. Cheryl appeared as a witness for the State. She testified under oath that she lived in Washington, D.C. and had known Crawford for about three years. She said that on September 22, 1975, she accompanied him in his car on a trip; that Crawford told her he wanted to stop at a place in Cumberland and needed her help to get some TV sets; that during the trip Crawford "got real quiet," stopped the car, put a gun in his waistband, and directed her to stand on a hill and look toward their destination. Cheryl recounted that Crawford thereafter struck her from behind, shot her in the head, and then drove away. She said that she was alone in the car with Crawford during the entire trip.

On cross-examination, Crawford's counsel asked Cheryl whether it was correct that "There were only two people in the car during the entire trip." She answered in the affirmative. He then asked Cheryl whether she knew "a man by the name of Robert Rogers"; she said that she did not. He next asked whether she ever heard her family "or anybody in your area talk of a man named Robert Rogers"; she said that she had not. Further cross-examination revealed that Cheryl had been away from home for approximately six or seven months, living with Crawford whom she had known for approximately three years. Other questions were asked on Cheryl's cross-examination concerning her family, where she lived, and the events of the day of the crime.

Following the preliminary hearing, Crawford was indicted for assault with intent to murder. At the trial before a jury in the Circuit Court for Washington County, the State adduced evidence showing that Cheryl was unavailable to testify. Over Crawford's objection, the State was permitted to introduce Cheryl's preliminary hearing testimony in evidence.

After his motion for a judgment of acquittal was denied, Crawford testified that he was driving Cheryl to Cumberland on September 22, 1975 to live with his relatives. He said that en route they picked up Cheryl's boyfriend, whose nickname he then knew to be "Prees" and whose first or last name was Rogers. He said that Prees did not want Cheryl to go to Cumberland; an argument ensued, and Prees was told to leave the car. A scuffle followed, during which Crawford took Prees' gun from him and threw it away. Crawford testified that Cheryl left the car with Prees and he drove on alone. Shortly thereafter, he decided to return and look for Cheryl. He saw Prees on the highway but Cheryl was not with him. He picked up Prees and together they looked for Cheryl, but did not find her. Crawford gave Prees $22 and told him to go back to Washington. Crawford then drove alone to Cumberland.

The State attempted to impeach Crawford's credibility by showing that he had an extensive and serious criminal record. No other witnesses testified on Crawford's behalf and the jury found him guilty of assault with intent to murder.

Crawford appealed on the ground that Cheryl's preliminary hearing testimony was improperly admitted into evidence at trial in violation of his constitutional right to confront the witnesses against him. The Court of Special Appeals, in an opinion by Judge W. Albert Menchine, extensively reviewed the authorities and concluded that the confrontation clause had not been violated. Crawford v. State, 37 Md.App. 1, 375 A.2d 240 (1977). We granted certiorari to consider the important constitutional issue raised in the case.

It is the primary object of the constitutional provision requiring confrontation to prevent depositions or ex parte affidavits from being used against a person accused of crime in lieu of a personal examination and cross-examination of the witnesses. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895). The primary interest secured by the confrontation clause is the right of cross-examination; an adequate opportunity for cross-examination, therefore, may satisfy the clause in the absence of physical confrontation. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). In the words of Dean Wigmore, "(t)he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination " so that where there has been due cross-examination there has been a confrontation. 5 J. Wigmore, Evidence §§ 1395, 1396 (Chadbourn rev. 1974) (emphasis in original).

Consistent with these principles, we have recognized that "the right of confrontation is generally not violated when the accused has been given a prior opportunity to cross-examine the witnesses whose testimony is to be used against him." State v. Collins, 265 Md. 70, 288 A.2d 163 (1972).

Our predecessors have consistently held that testimony taken at a former trial may as a general rule be admitted at a subsequent trial where it is satisfactorily shown that the witness is unavailable to testify. Contee v. State, 229 Md. 486, 184 A.2d 823 (1962); Bryant v. State, 207 Md. 565, 115 A.2d 502 (1955); Hendrix v. State, 200 Md. 380, 90 A.2d 186 (1952). These cases generally recognize that where an opportunity was afforded to the accused to cross-examine the witness at the former trial, there is no violation of the state or federal constitutional right of confrontation. The rule has generally been applied without distinction between the admissibility of testimony given at a former trial and testimony given at a preliminary hearing since, as Professor McCormick states:

"If the accepted requirements of the administration of the oath, adequate opportunity to cross-examine on substantially the same issue, and present unavailability of the witness, are satisfied then the character of the tribunal and the form of the proceedings are immaterial, and the former testimony should be received. . . ." McCormick, Evidence § 258 (2d ed. 1972).

Other text writers are in accord. See 2 Jones on Evidence § 9.22 (6th ed. 1972); 3 Wharton's Criminal Evidence § 650 (13th ed. 1973). The use of preliminary hearing testimony of an unavailable witness at a subsequent trial has been consistently held not to infringe upon the constitutional right of confrontation as long as there has been due cross-examination. See, e. g., Government of Virgin Islands v. Aquino, 378 F.2d 540 (3d Cir. 1967); Butler v. Wilson, 365 F.2d 308 (9th Cir. 1966); People v. Rojas, 15 Cal.3d 540, 125 Cal.Rptr. 357, 542 P.2d 229 (1975); People v. Fink, 552 P.2d 529 (Colo.App.1976); Richardson v. State, 247 So.2d 296 (Fla.1971); People v. Horton, 65 Ill.2d 413, 3 Ill.Dec. 436, 358 N.E.2d 1121 (1976); State v. Washington, 206 Kan. 336, 479 P.2d 833 (1971); State v. Ford, 336 So.2d 817 (La.1976); Commonwealth v. Mustone, 353 Mass. 490, 233 N.E.2d 1 (1968); State v. Jacob, 222 N.W.2d 586 (N.D.1974); Smith v. State, 546 P.2d 267 (Okl.Cr.App.1976); Commonwealth v. Clarkson, 438 Pa. 523, 265 A.2d 802 (1970); Raley v. State, 548 S.W.2d 33 (Tex.Cr.App.1977); Fisher v. Com., 217 Va. 808, 232 S.E.2d 798 (1977); State v. Roebuck, 75 Wash.2d 67, 448 P.2d 934 (1968)....

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