Dyson v. State
| Decision Date | 01 September 1992 |
| Docket Number | No. 8,8 |
| Citation | 615 A.2d 1182,328 Md. 490 |
| Parties | James Lionel Lambert DYSON v. STATE of Maryland. , |
| Court | Maryland Court of Appeals |
Bradford C. Peabody, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.
Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI, and ROBERT M. BELL, JJ.
The defendant complains that the trial judge erred in permitting the introduction of additional evidence after the jury had begun its deliberations, and in denying the defendant the opportunity to cross-examine the witness who provided the additional evidence. The State denies that the nonverbal communication by the witness constituted additional evidence. In the alternative, the State argues that the trial judge did not abuse her discretion in permitting additional evidence, and that the defendant waived his right to cross-examine the witness.
The victim was awakened at 3:30 a.m. by an intruder who had gained access to her apartment in St. Mary's County. The victim testified that her assailant threatened her with a butcher knife, raped her, and performed other sexual assaults upon her. She said that during the course of the assault, the intruder forced her to drink a large quantity of rum, which caused her to become intoxicated and later to pass out. When she awoke, she obtained a ride to the Patuxent Naval Air Station where she worked, and there reported the assault. She was examined at the base hospital, and the police were summoned.
The victim gave the police a description of her assailant, but the description was apparently not sufficient to focus suspicion upon any individual. The only distinctive feature included in the description was that the assailant had "light colored spots or blotches on his lips." Several weeks later, the victim saw her assailant on the street in Lexington Park, and called the police. Coupling the original description with additional information provided by the victim with respect to the suspect's clothing, the police questioned local residents and merchants and learned that the defendant fit that description. An array of photographs was shown to the victim; she identified the defendant's photograph, in these words:
It looks like him. His lips and his face protrudes like that. He was wearing a cap the last time I saw him. It is difficult with the photograph, but it looks like him. None of the others are him.
After some delay, and following removal of the case from St. Mary's County to Prince George's County, the defendant's trial began on 20 November 1990. From the outset it was clear that the principal attack on the State's case would be the identification of the defendant as the perpetrator. Defense counsel elicited evidence that the only clear view the victim had of the assailant was in the bedroom during the assault, and that it was dark in the bedroom at that time--the only light being that which came from outside street lights through the closed shade of a single window. At all other times, the assailant remained behind the victim, ordering her not to look at him and slapping her on the one occasion she attempted to do so. Although fingerprints were obtained from the scene, few were of comparison quality, and those that were did not match the defendant's prints.
In addition to the extra-judicial photographic identification, the State elicited a positive in-court identification of the defendant by the victim, and offered circumstantial evidence tending to tie the defendant to the crime. The victim testified that the perpetrator had taken money from her purse and had apparently also taken her gold "Orient" wristwatch and a "Sharp" radio, also referred to as a "box". The State proved that the defendant had given a ladies' gold "Orient" watch to Sheila Chase Rogers on 13 May 1988, which she in turn gave to Margaret Kuykendall, who turned it over to the police. When shown the watch, the victim testified it looked like hers, but admitted it had no distinctive features and she could not distinguish it from other watches of that make and model.
With respect to the "Sharp" radio, the State proved that Margaret Kuykendall received it from the defendant in mid-May, 1988, and turned it over to the police. Although the outward appearance of the radio was the same as other "Sharp" radios, the victim testified she could identify it as hers because the indicator needle did not move across the face of the dial when the tuning knob was turned. She explained WITNESS: Well, the band on the radio is broken and we took it apart and to get it to work again we had to take it off of the--there's a little red mark that tells you what station it's on.... Well, that no longer moves because we had to disconnect it to tie it together to make it long enough so we could get different stations.
Defense counsel pursued the matter on cross-examination:
Q. Are there any initials of yours on that radio?
A. No, there are not.
Q. Are there any distinctive marks on that radio?
A. If you were to take it apart you can see where we tied the band back together where it moves the--the red line on the front back and forth to wherever the station should be.
Q. Well, when you examined that radio on the stand had you taken that radio apart?
A. No. I turned it on. The line doesn't move. It stays right there. You have to turn this and just guess at wherever the station is.
On redirect-examination the witness spoke of a knot she had tied in the line that is attached to the tuning knob of the radio:
Q. Just briefly, on this radio you mentioned something about bands, tying a band together. What--describe to me a little more what you're talking about when you say tying a band together.
A. It's just a thin line inside of a radio that when you turn the knob for the tuning it turns it, you know, so you would know where to put it on.
Q. Okay.
A. Well, we had to disconnect it from the--the doodad that slides back and forth across the radio ... and tie it together so it would be long enough to tie it together so we could tune the radio.
Q. You mean it's in a knot?
A. Yes, it's in a knot.
Q. Okay. So, in other words, if--if the members of the jury were so inclined to take off the front of this radio and look at the band they would see a knot tied in it?
A. Yeah, but they would have to do it from the back side.
Minutes later, near the end of the victim's testimony, the jury passed a note to the judge. It said: "Can we see inside of radio for verification." The trial judge responded:
Ladies and gentlemen, someone has asked a question about looking at the inside of the radio. When you get this case for your deliberations you will be allowed to consider all of the evidence which is presented and which has been introduced for your inspection.
Examination of the witness was completed without further reference to the radio.
The case was given to the jury for deliberation at 2:00 p.m. on 26 November 1990. At about 6:00 p.m. the jury sent the following note to the judge:
We, the jurors have not decided a verdict on any of the four charges. May we be excused?
Also, one of the jurors is interested in the victim showing us the knot in the radio?
Defense counsel objected "to any procedure in which the victim would at this point in the trial show anything with regard to that." He argued that the State had ample opportunity when the victim was on the stand to have the radio taken apart and to have the witness point to anything inside the radio. The following colloquy then occurred between the judge and defense counsel, out of the presence of the jury:
The jury was excused for the evening, and arrangements were made for the victim to return to court the following day.
The next morning, the judge explained to counsel that she was going to ask the victim to
come up, without saying anything to the jurors, open the box and point to the area where you are talking about, and then just go ahead and sit down, because the evidence is all finished and we can't put on any more. This is over [defense counsel's] objection.
In the presence of the jury, the judge asked the victim to open the radio and "show ... the area she was referring to." When the witness experienced some difficulty opening the radio, the jury was allowed to return to the jury deliberation room. After about 15 minutes, defense counsel again objected to the procedure, adding the argument that he was being deprived of any opportunity to cross-examine the witness--a right that he felt was particularly important in view of the difficulty the witness was experiencing in opening the radio, and the absence of any pry marks indicating earlier attempts to open it. The objection was overruled. The witness and the State's Attorney then succeeded in disassembling the radio, and the jury was brought into the courtroom. The following occurred:
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