Davis v. State, 38

• Decision Date: 01 September 1995
• Docket Number: No. 38,38
• Citation: 344 Md. 331,686 A.2d 1083
• Parties: , 65 USLW 2503 Tyrone DAVIS, v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 331

344 Md. 331

686 A.2d 1083, 65 USLW 2503

Tyrone DAVIS, v. STATE of Maryland.

No. 38, Sept. Term, 1995.

Court of Appeals of Maryland.

Dec. 26, 1996.

Richard K. Jacobson, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Petitioner.

Rachel Marblestone Kamins, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Respondent.

Argued before ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ., and ROBERT C MURPHY, ^* Chief Judge, (retired).

BELL, Judge.

The issue which Tyrone Davis, the petitioner, raises before this Court is the propriety of the trial court's ruling allowing the prosecution to cross-examine a defense alibi witness regarding his failure, prior to trial, to inform the police or the prosecution of exculpatory evidence, i.e., the defendant's alibi, of which the witness was aware. More particularly, we address whether, and, if so, under what circumstances, an alibi witness's pretrial silence is relevant to the impeachment of that witness's testimony at trial. The Circuit Court for Baltimore City permitted the cross-examination and, in an unreported opinion, the Court of Special Appeals affirmed. We granted the writ of certiorari at the petitioner's request and, for the reasons that follow, we too will affirm.

I.

Because, rather than the sufficiency of the evidence, the issue in this case pertains to an evidentiary ruling at trial, it is sufficient to recount that the petitioner, who had been identified by the victim as the person who attempted to rob him, was apprehended by the police after a short chase. He was arrested and charged with the attempted robbery of Earl Spain, a State correctional officer. Discovered in his possession was a plastic toy gun, which the victim identified as the weapon used in the attempted robbery.

Consistent with his not guilty plea, the petitioner denied attempting to rob the victim. To substantiate that defense, he called Mr. Kabacca Bey as an alibi witness. According to Mr. Bey, the petitioner was either within his sight or in his presence during the entire time when the victim claimed to have been accosted by the petitioner. More particularly, he testified to seeing the victim and petitioner engage in conversation on two separate occasions. According to Mr. Bey's testimony, after each occasion, the victim left the area only to return later. While the victim was away from the area, Mr. Bey testified that he and the petitioner talked together. When the victim returned on the second occasion, the police were with him and the petitioner and other men on the corner ran away, as did Mr. Bey.

During the cross-examination of Mr. Bey, the following occurred:

Q [By the prosecutor] You came to court one other day besides this day, is that correct?

A Right.

Q What day was that?

A Tuesday, the 22nd.

Q Did you ever try to speak to anyone in the State's attorney's office or the police about this case?

A No.

Q You just wanted to come in and--

A Oh you mean--

Q About this case, yes?

A After, after came here or prior to coming in? No, I told his fiance, say, you know, that she can tell him that he can, you know, use me as a witness.

Q But after you came to court, you still didn't try to talk to the police or State's attorney's office--

MR. ROGERS [Defense Counsel]: Objection.

Q Did you?

THE COURT: Overruled.

A Why? I don't understand the question.

Q To say this, this couldn't have happened.

A I still don't understand the question. I don't know why I would have to go to--

Q Let's just answer the question. Did you try to talk to the police when you came to court on Tuesday?

A I don't understand the procedure.

Q Did you talk to the police?

A No, no.

Q Did you make any effort to talk to the police?

A No.

Q Did you try to talk to the State's attorney's office?

A No.

The State had previously established that Mr. Bey knew the petitioner, the circumstances under which they met and the length of time they had known each other. In addition, the State brought out that Mr. Bey was aware of the petitioner's arrest and the reason for that arrest. It had shown also when Mr. Bey acquired his knowledge. Finally, the State's cross-examination revealed that the sources of Mr. Bey's information were the petitioner's fiance and the man who was with the petitioner on the day of the incident.

II.

A.

Absent legislative directive, a citizen ordinarily is not legally obligated to volunteer exculpatory information to law enforcement authorities. See, e.g., State v. Silva, 131 N.J. 438, 621 A.2d 17, 21 (1993) (citing State v. Bryant, 202 Conn. 676, 523 A.2d 451, 465 (1987)); Commonwealth v. Brown, 11 Mass.App.Ct. 288, 416 N.E.2d 218, 224 (1981) cert. denied, 383 Mass. 891 (Mass.1981); People v. Brown, 62 A.D.2d 715, 405 N.Y.S.2d 691, 695 (N.Y.App.Div.1978), aff'd, 48 N.Y.2d 921, 425 N.Y.S.2d 54, 401 N.E.2d 177 (1979); People v. Dawson, 50 N.Y.2d 311, 428 N.Y.S.2d 914, 918-19, 406 N.E.2d 771, 775 (1980); United States v. New York Tel. Co., 434 U.S. 159, 175-76 n. 24, 98 S.Ct. 364, 373-74 n. 24, 54 L.Ed.2d 376, 385 n. 24 (1977). Therefore, "an assumption that it is natural for a defense alibi witness to tell his or her story to the police is not always warranted." People v. Fuqua, 146 Mich.App. 250, 379 N.W.2d 442, 445 (1985) See also Bryant, 523 A.2d at 466. This does not mean, however, as some courts have held, that an alibi witness's pretrial silence may never be the basis for the impeachment of his or her trial testimony. See e.g. United States v. Young, 463 F.2d 934, 938 (D.C.Cir.1972) ("[N]o inference can be drawn from the fact that a witness did not go to the police when he learns they have made an arrest of a defendant for a crime committed at a time for which he could provide alibi testimony."); Whiteside v. Bordenkircher, 435 F.Supp. 68, 71 (1977). Indeed, whether, and under what circumstances, "prior silence is so inconsistent with ... present statements that impeachment by reference to such silence is probative," Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2132, 65 L.Ed.2d 86, 93 (1980), are matters left to each jurisdiction to determine as a part of its Rules of Evidence. Id.

The majority of the courts that have considered the issue, while acknowledging that alibi witnesses are not legally bound to report exculpatory evidence to law enforcement authorities, conclude that there is "no sound reason flatly [to] prohibit this type of cross-examination of a defense witness in all criminal proceedings." Dawson, 428 N.Y.S.2d at 921-22, 406 N.E.2d at 778. See also People v. Ratliff, 189 Cal.App.3d 696, 701, 234 Cal.Rptr. 502 (1987). In fact, some of those courts hold that such impeachment is always appropriate. See e.g., Peterson v. State, 166 Ga.App. 719, 305 S.E.2d 447, 449 (1983) (the witness's failure to inform the authorities of facts which would have tended to absolve his roommate of any criminal wrongdoing was a proper subject for impeachment by the State during cross-examination.); People v. Outlaw, 75 Ill.App.3d 626, 31 Ill.Dec. 339, 353, 394 N.E.2d 541, 555 (1979) ("[A] prosecutor [is permitted] to inquire of witnesses as to whether they had told the same story previously in order to determine whether the testimony was recently fabricated.").

Other courts, indeed, the majority, view the question as whether pretrial silence is relevant to the credibility of the alibi witness's trial testimony. These courts recognize that pretrial silence may be relevant to the credibility of exculpatory testimony given at trial, but only if "the natural impulse of a person possessing exculpatory information would be to come forward at the earliest possible moment in order to forestall the mistaken prosecution...." Dawson, 428 N.Y.S.2d at 919, 406 N.E.2d at 775. In that event, they point out, the witness's pretrial silence "is a form of conduct that may be analogized to a prior inconsistent statement by the witness." Id. 428 N.Y.S.2d at 921-22, 406 N.E.2d at 778 ("the witness' prior failure to come forward [is admissible] insofar as it casts doubt upon the witness' in-court statements by reason of its apparent inconsistency"); People v. Van Zile, 48 Ill.App.3d 972, 6 Ill.Dec. 747, 752, 363 N.E.2d 429, 434 (1977) (where it would be reasonable for an alibi witness to disclose the exculpatory evidence to the authorities, the inference raised by the witness's silence is inconsistent with that witness's testimony); Brown, 416 N.E.2d at 224 ("[T]he failure of a witness to offer the information when it would have been natural to do so might well cast doubt on the veracity of the witness' trial testimony ... [and] is akin to a witness' prior inconsistent statement."). See also United States v. Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 2136, 45 L.Ed.2d 99, 104 (1975) ("[A]s a preliminary matter ... the court must be persuaded that the statements are indeed inconsistent.... If the government fails to establish a threshold inconsistency between silence at the police station and later exculpatory testimony at the trial, proof of silence lacks any significant probative value and must therefore be excluded."); U.S. v. Carr, 584 F.2d 612, 618 (2nd Cir.1978)(citing U.S. v. Rice, 550 F.2d 1364, 1373-74 (5th Cir.1977), cert. denied, 434 U.S. 954, 98 S.Ct. 479, 54 L.Ed.2d 312 (1977)); U.S. v. Standard Oil Co., 316 F.2d 884 (7th Cir.1963); Silva, 621 A.2d at 21 ("[W]hen a court finds that 'silence may reasonably be viewed as inconsistent with [the witness's] testimony ...' the Rules of Evidence allow cross-examination on the prior inconsistency.") (Quoting State v. Marshall, 260 N.J.Super. 591, 617 A.2d 302, 305 (1992)). Such statements are relevant and, hence, admissible to impeach the witness's trial testimony.

B.

Critical to the relevance determination, i.e., whether the witness's pretrial silence is inconsistent with his or her trial testimony exculpating the defendant, is that the natural response of the...