Dorsey v. State, 9

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before MURPHY; O'DONNELL; Concerning the criteria to be applied in cases of constitutional error; MURPHY; I agree with the majority that the testimony in question was improperly admitted into evidence, that the error was plainly prejudicial, a
Citation276 Md. 638,350 A.2d 665
PartiesDonald DORSEY v. STATE of Maryland.
Docket NumberNo. 9,9
Decision Date09 January 1976

Page 638

276 Md. 638
350 A.2d 665
STATE of Maryland.
No. 9.
Court of Appeals of Maryland.
Jan. 9, 1976.

[350 A.2d 666]

Page 639

Barry Renbaum, Asst. Public Defender (Alan H. Murrell, Public Defender, and George E. Burns, Jr., Asst. Public Defender, Baltimore, on the brief), for appellant.

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



Following a jury trial in the Criminal Court of Baltimore (Judge J. William Hinkel[350 A.2d 667] presiding), the appellant Donald Dorsey was convicted of robbery with a deadly weapon, of assault, and of the use of a hand gun in the commission of a crime of violence. His conviction was affirmed upon direct appeal to the Court of Special Appeals in an unreported per curiam opinion in Dorsey v. State, (No. 282, September Term, 1974, decided December 5, 1974). Upon the appellant's petition we granted a writ of certiorari to that Court limited to the issues: (1) Did the trial court err in allowing Detective Richard Simmons, on cross-examination by the State, to answer the question: 'And of the cases you have investigated, can you give us any idea of the percentage in which convictions resulted from your arrest?' and (2) If the court committed error in permitting such testimony, was the error prejudicial?

At about 11:30 P.M. on December 27, 1972, Mrs. Doris Fuller, the proprietress of the 'Red Bull' carry-out shop, at

Page 640

2301 East North Avenue, in Baltimore, was confronted by three young men, one of whom was armed with a gun, and was told 'This is a stickup.' Several patrons were directed to lie on the floor; she was ordered 'not to move.' One of the robbers searched her pockets and relieved her of a .22 caliber pistol; another of the group, whom she identified at the trial as the appellant, ordered her to open the cash register and he removed its contents. She testified that as the bandits left the premises, the appellant had directed one of his confederates to 'Fire on her, man, fire on her.' She however was not further harmed. The police were promptly called.

Shortly after the robbery she made a photographic identification of appellant's brother Gary Dorsey as one of her assailants. In her trial testimony, in which she identified the appellant, Mrs. Fuller stated that she had known the appellant and his several brothers-all of whom looked somewhat alike-for a number of years and conceded a confusion with their names. She acknowledged that she had mistakenly identified Gary Dorsey as one of the robbers, but that on December 31, 1972, when her cousin William Alexander Jones, accompanied by the appellant, came to the carry-out shop and returned the gun which had been taken from her during the robbery, 1 she then realized that it was Donald Dorsey and not his brother, Gary, who had participated in the hold-up. This information was reported to the police.

Detective Richard Simmons, of the Baltimore City Police Department, testified that three days after the hold-up he presented Mrs. Fuller with a group of six photographs and from them she identified Gary Dorsey as one of the assailants, that a warrant was issued for his arrest; that he surrendered himself to the police and that when he was confronted by Mrs. Fuller at the police station she retracted her identification and he was released. It was further elicited that when a second group of photographs was shown her on January 5, 1973 she identified the appellant and also

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identified him at a line-up held five months after the robbery.

Detective Simmons, recalled in the trial as a witness for the defense, was permitted-over objection by the State-to relate an exculpatory self-serving statement made by the defendant that, when he interviewed him, following his arrest, he denied any knowledge of the robbery and insisted that he was home because of an illness. 2

The assistant prosecutor then by way of cross-examination of the detective developed the issues which we here examine. That cross-examination was as follows:

[350 A.2d 668] 'BY MR. CLARK:

'Q. Detective Simmons, approximately how many armed robbery cases have you investigated in your experience with the Baltimore City Police Department?

'A. Robbery Squad or my experience with the police department?

'Q. Your experience with the police department?

'A. I have to take a very broad guess; I'd say somewhere in the neighborhood of about a thousand.

'Q. Of that approximate one thousand cases can you give us any idea of how often the person arrested denied any involvement in the crime?

'A. Percentage wise I would say about 80% of the time they deny any involvement.

'Q. And of the cases you have investigated, can you give us any idea of the percentage in which convictions resulted from your arrest?

'MR. HORNSTEIN: Objected to.

'THE COURT: Overruled.

Page 642

'MR. HORNSTEIN: Your Honor, I am profoundly impressed by Detective Simmons' knowledge and talent; I don't think that the outcome of cases is a yardstick that should guide us in trying evidence.

'THE COURT: Mr. Hornstein, he is trying to broaden the denial of the defendant. I think he should be permitted to do so. You can answer the question.

'MR. HORNSTEIN: I would respectfully except. The fact is that there could be testimony regarding denials, but not regarding the outcome of other cases. With respect to the outcome of cases, box, scores, I certainly think that is not a yardstick of the, what shall I say, the weight of the evidence.

'THE COURT: You can answer the question.

'A. I'd say approximately 75 or 80 percent; and I am being very broad with my percentage.

'MR. HORNSTEIN: I respectfully continue the objection and move all the testimony regarding the outcome be stricken.

'THE COURT: Overruled."

(Emphasis added).

The Court of Special Appeals in finding that the ruling by the trial court was erroneous, pointed out that 'there was absolutely no factual or statistical basis upon which to formulate such an opinion' and that 'the officer's opinion, under the circumstances, was completely unreliable and untrustworthy.' Citing Wharton's Criminal Evidence, § 151 (13th ed. 1972), the court was further of the view that 'even if the estimate had been based upon a wholly sound foundation the question itself would have been objectionable for it sought to inject into the case evidence which was entirely incompetent, irrelevant and extraneous to the issue of the appellant's guilt or innocence.' We concur with the conclusion that the testimony was inadmissible.

We cannot agree however with the further conclusion that, though its admission was erroneous, there was 'ample

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evidence, legally sufficient to support the finding of appellant's guilt and . . . such evidence was not dissipated by the erroneous admission of the officer's testimony,' nor can we agree with that court's view, upon the authority of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), that 'the error was harmless beyond all reasonable doubt.'

The real test of admissibility of evidence in a criminal case is 'the connection of the fact proved with the offense charged, as evidence which has a natural tendency to establish the fact at issue.' [350 A.2d 669] MacEwen v. State, 194 Md. 492, 501, 71 A.2d 464, 468 (1950); Pearson v. State, 182 Md. 1, 13, 31 A.2d 624, 629 (1943). In Kennedy v. Crouch, 191 Md. 580, 585, 62 A.2d 582, 585 (1948), our predecessors stated it to be 'an elementary rule that evidence, to be admissible, must be relevant to the issues and must tend either to establish or disprove them.' Evidence which is thus not probative of the proposition at which it is directed is deemed 'irrelevant.' See C. McCormick, Evidence § 185 at 435 (2d ed. 1972). See also 1 J. Wigmore, Evidence § 28 at 409-10 (1940 ed.); Wharton's Criminal Evidence § 151, supra, at 275; 29 Am.Jur.2d Evidence § 251 (1967); 31A C.J.S. Evidence §§ 158, 159 (1964).

In Pearson v. State, supra, our predecessors, in reversing a criminal conviction because of prejudice resulting from evidence which was found to be clearly irrelevant to the main issue, stated: 'Evidence of collateral facts, or of (facts) which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, should be excluded, for the reason that such evidence tends to divert the minds of the jury from the real point in issue, and may arouse their prejudices.' In finding that its admission was prejudicial to the appellant, the court pointed out that the evidence 'tended to substantiate the witness on an immaterial point in the minds of the jury, and to correspondingly discredit the defendant as to his credibility on the main issue.' 182 Md. at 14, 31 A.2d at 629. See also Hitzelberger v. State, 174 Md. 152, 161, 197 A. 605, 609 (1938).

Distinct from its relevancy to be 'competent,' the

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evidence proffered must come within the established principles or rules for its introduction. See Haile v. Dinnis, 184 Md. 144, 152, 40 A.2d 363, 367 (1944); see also Wharton's Criminal Evidence, supra, § 154; Underhill's Criminal Evidence § 11 at 12-15 (5th ed. 1956); 29 Am.Jur.2d Evidence, supra, § 257 at 307-08; 31 C.J.S. Evidence § 2, at 816 (1964).

The principal issue in the appellant's trial was whether he was one of the perpetrators of the robbery. Detective Simmons' testimony, attempting to establish that a large percentage of those arrested by him for robbery were ultimately proven guilty, undertook to collaterally establish the detective's investigative successes, but had no probative value in tending to establish the proposition in issue-the identity of the appellant as one of the robbers-and was thus patently irrelevant.

Even in those jurisdictions 'in which the courts have ruled on the...

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