Devan v. State
| Decision Date | 23 February 1973 |
| Docket Number | No. 288,288 |
| Citation | 300 A.2d 705,17 Md.App. 182 |
| Court | Court of Special Appeals of Maryland |
| Parties | Madison DEVAN v. STATE of Maryland. |
Russell J. White, Towson, for appellant.
Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty. for Baltimore City and Joseph Rouse, Asst. State's Atty., for Baltimore City, on the brief, for appellee.
Argued before MENCHINE, SCANLAN and DAVIDSON, JJ.
On July 28, 1971, at 5:00 p. m., William Cartman entered his Ford automobile in the parking lot of the Reisterstown Plaza Shopping Center. A man stuck a gun in his side through a window of the vehicle. Ordering Cartman to move over, the gunman and another man entered the vehicle. Cartman was ordered to give up his wallet-a card case without money in it-and then to give up his money. His watch then was taken and the car driven from the parking lot with its owner now an unwilling passenger. Proceeding along city streets, the car ultimately was stopped at Greenspring Avenue and Cold Spring Lane where Cartman was ordered from the vehicle. Cartman called the police and while still in a police car completing a full description of the offense, a radio report came over the air that 'they had located my car in front of a house off of Druid Park Drive.' Taken immediately to that location, Cartman identified his vehicle. After discussions with children in the neighborhood, police entered a dwelling after permission to do so had been granted by the owner.
On entry, police observed one Hargrove and the appellant in the dining room. They fitted the description previously given to police. A set of keys belonging to a Ford was in front of Hargrove. Appellant and Hargrove were arrested and searched. A wallet containing Cartman's driver's license, registration card, a race track identification card with his picture on it, and other personal papers of Cartman, were taken from the pocket of the appellant. A .22 caliber starter pistol was found in a trash can in the hallway after it was pointed out to police by the property owner. The legality of the arrest and consequent search is not contested. Convicted of armed robbery, Madison Devan appeals.
Hargrove and Devan both were indicted for the robbery with a dangerous and deadly weapon. Hargrove's case was the first called for trial. Represented by counsel, he entered a plea of guilty before Judge Solomon Liss. Because the appellant relies heavily upon the later use by the State of Hargrove as a witness, it is necessary to state the background of knowledge possessed by the State at the time it offered Hargrove as a witness.
At the Hargrove trial before Judge Liss a statement of facts was read by an assistant state's attorney that included the following:
'At that time, Mr. Hargrove, the defendant, pointed a gun at Mr. Cartman, and said, 'Move over,' and got into the car of Mr. Cartman. He then said, (Emphasis added)
At a later point in the same hearing Judge Liss addressed Hargrove as follows:
Uncertainty arose in the mind of State's counsel about the use of the witness Hargrove because the witness would not discuss the case with the assistant state's attorney before trial. This was brought to the attention of the trial judge and to counsel for Devan, with the result that inquiry was made to Hargrove that included the following:
'Q You were in Part III this morning before his Honor, Judge Liss?
A Yes, I was.
Q At that time, you pleaded guilty to the first count of Indictment 3356, robbery with a deadly weapon, did you not?
A Yes, I did.
Q Judge Liss was present in the courtroom this morning, was he not?
A Yes, he was.
Q Was Mr. Schlossberg present?
A Yes, he was.
Q Was I (assistant state's attorney) present?
A Yes, you were.
Q What else did I, in fact, say to Judge Liss this morning involving your case, what you would do?
Q In your presence.
A That I would do?
Q That is correct, Mr. Hargrove.
A Testify or something.
Q Testify in what?
A To my case.'
After further inquiry, Judge Thomas then inquired of the assistant state's attorney:
The State then directed the following questions to Hargrove 'Q Was anybody else involved in this holdup?
A It was a fellow named Bernard.'
The State forthwith desisted from further interrogation of the witness and was permitted, over objection, to call the official court reporter who had recorded the proceedings before Judge Liss. He read into the record the quotations previously set forth herein.
Appellant argues that surprise had not been shown; that no foundation for impeachment had been laid and that there had been no contradictory statement by the witness, thus no impeachment of him.
McCormick, Handbook of the Law of Evidence (1954) declares in § 38:
'The common law rule forbidding a party to impeach his own witness is of obscure origin but probably is a late manifestation of the evolution of the common law trial procedure from an inquisitorial to a contentions or adversary system.' (Page 70)
In the same section it is noted that proposed uniform rules recommended abandonment of the common law rule and pointed out at page 73:
'* * * it seems that the rule against the showing of the prior statements of oen's own witness, to aid in valuating his testimony, is a serious obstruction to the ascertainment of truth.'
It is of further interest to note that the Rules of Evidence for United States Courts and Magistrates, adopted by the Supreme Court of the United States on November 22, 1972, included Rule 607 that reads as follows:
'The credibility of a witness may be attacked by any party, including the party calling him.'
Wigmore on Evidence, Chadbourn Revision, Vol. IIIA, § 903, is so critical of the old common law prohibition against allowing prior self-contradictions by a party's own witness that he says at page 672: 'There ought to be no hesitation upon the propriety of this evidence' and points out that: 'The exclusion of the evidence would be unjust (1) in depriving the party of the opportunity of exhibiting the truth and (2) in leaving him the prey of a hostile witness.'
Jones on Evidence, Sixth Edition, § 26.11, joins the chorus of criticism of the old rule by declaring at page 196:
'* * * many decisions have announced disapproval of the orthodox rule, or have approved the rule generally and have recognized exceptions to it in certain circumstances, as, for example, where surprise, hostility or deceit is disclosed by the testimony of the witness.
If a party has been misled and surprised by the testimony of his witness, it is held that he may impeach the witness by proving his former contradictory statements.'
That Maryland adheres to the doctrine last above stated is made crystal clear by the decision in Meyerson v. State, 181 Md. 105, at page 108, 28 A.2d 833, at page 834, wherein it was said:
(Emphasis added)
Again, in Hernandez v. State, 7 Md.App. 355, 365, 255 A.2d 449, 455, we said:
'While a party ordinarily may not impeach his own witness by proof of prior statements which are inconsistent with, or contradictory to, his testimony at trial, where such party satisfies the court that he has been taken by surprise and that the testimony is contrary to what he had a right to expect, it is within the sound discretion of the trial court to determine whether or not proof of prior inconsistent statements should be permitted.' (Emphasis added)
Accordingly, it is plain that whatever may be the continued viability of the ancient rule prohibiting impeachment of one's own witness, it is very clear that in Maryland a witness will not be permitted to obscure or prevent the emergence of truth.
Appellant argues that there was no basis for the contention that the State was surprised or that deceit by the witness was shown. In advancing this contention, appellant points out that no personal statement was made by him during the course of the proceedings before Judge Liss and thus no basis for the conclusion that he subscribed to the statements there made by others. The trial judge, seeking objectively to pass upon the question whether the State had been surprised said: 'I will get the reporter to come over here and read the exact language and put it all on the record as to what was said and then we can determine if the State is really surprised by the testimony of this...
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