Fletcher v. State

• Decision Date: 08 December 1981
• Docket Number: No. 447,447
• Citation: 437 A.2d 901,50 Md.app. 349
• Parties: Jerome Leroy FLETCHER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 349

50 Md.App. 349

437 A.2d 901

Jerome Leroy FLETCHER v. STATE of Maryland.

No. 447.

Court of Special Appeals of Maryland.

Dec. 8, 1981.

Michael R. Malloy, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County, and Joan Lieberman, Asst. State's Atty. for Prince George's County, on the brief, for appellee.

Argued before THOMPSON, LOWE and MASON, JJ.

LOWE, Judge.

Upon conviction by a jury in the Circuit Court for Prince George's County of felony and misdemeanor theft, appellant was sentenced to ten years imprisonment. The items taken were a car door, a gas tank and a 1961 Volkswagen automobile.

The owner of the stolen items testified that he had kept four cars behind an abandoned house on an acre of posted land owned by him. While routinely checking the property he came upon a pickup truck with one of his gas tanks in it, parked near his Volkswagen, which had been pulled a few feet by a chain still attached. The pickup truck was occupied by one Richard James and the infant daughter of appellant.

When accosted, James claimed that he had been hired by appellant to move the vehicle and soon after produced appellant, whose automobile contained a door missing from one of the other seemingly abandoned vehicles. Although the owner testified that he had given no one permission to asport his vehicles or parts thereof, James claimed that appellant and another man had offered him fifty dollars to move the Volkswagen (and some other articles which appellant said had been given him) to a junk yard.

Replying to an attack on his reason for testifying against his friend, James testified under cross-examination that he had been charged in the case, denied having made any deal with the State, and had been tried. He was asked if he had been promised a "lesser sentence" to testify against appellant. His reply was not responsive.

"I had no defense. The only defense I had was to tell the Court exactly what happened."

He was again asked whether the State had agreed "to offer you any", presumably meaning leniency. He responded:

"Didn't promise me nothing."

Counsel pressed on, obviously inquiring whether his sentence was pending, from which he might expect the leniency he had not been overtly promised.

"Q Did you get a sentence?

MISS LIEBERMAN (prosecutor): Objection.

THE COURT: Objection sustained.

THE WITNESS: Answer the question?

THE COURT: No.

BY MR. PARKER (defense counsel):

Q When did you go to trial on this?

MISS LIEBERMAN: Objection.

THE COURT: Sustained."

In light of his conviction, and urged on by his own ten year sentence, appellant complains to us that he was denied the right to show bias arising from the witness' possible desire to shift the blame from himself and to obtain sentencing leniency by testifying to aid the State's case against appellant. He relies primarily upon Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Equating James' testimony with that of the witness under attack in Davis, it is apparent that both prosecution witnesses provided " 'a crucial link in the proof ... of petitioner's act' ". Id. at 317, 94 S.Ct. at 1111, quoting Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 1077, 13 L.Ed.2d 934 (1965). It was James' presence and his expressed reason therefor which were necessary to prove appellant's criminal agency since it was James, not appellant, who was caught in flagrante delicto. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of James' vulnerable status pending sentence, as well as of James' possible concern that his presentence investigation might cause him to be considered more culpable than he had asserted by his present and possibly past testimony. Id. 415 U.S. at 317, 94 S.Ct. at 1110-1111.

The State's effort is somewhat strained in reply. By steps it tries to build a rationale for the ruling by contending that the question was technically objectionable because it "was not preceded by one asking James what the verdict had been in his case." Therefore, says the State, the precise ruling was not technically incorrect and it did not foreclose further inquiry into the realm of bias.

Perhaps recognizing some persuasive weakness in that contention, the State quickly turns to a harmless error alternative, contending that because appellant's subsequent testimony (as well as a prior statement he had made) was consistent with James' narrative, the cross-examination showing bias would have been a "meaningless exercise". The State attempted at argument to analogize the rule set forth in Peisner v. State, 236 Md. 137, 144-145, 202 A.2d 585 (1964), that where testimony objected to comes in later without objection from another witness, one cannot successfully claim on appeal that the original error was prejudicial. See Tichnell v. State, 287 Md. 695, 716, 415 A.2d 830 (1980).

The reasoning of these cases is twofold: 1) a party waives his objection to testimony by subsequently offering testimony on the same matter, Peisner, supra; and, 2) more pertinently here, when one's own testimony confirms evidence to which he previously objected, no reversible error exists, Tichnell, supra, citing Hillard v. State, 286 Md. 145, 406 A.2d 415 (1979), among others. Significantly in Hillard the Court of Appeals recognized an exception to the Peisner-Tichnell waiver-harmless error amalgam. If an accused's election to testify was induced by the erroneous admission of the evidence that he reiterates it will not cure the prior erroneous admission of evidence, Hillard, supra at 156, 406 A.2d 415.

Hillard recognized the vitality of the rule of Peisner and its predecessors,

"that the admission of improper evidence cannot be used as grounds for reversal where the defendant gives testimony on direct examination that establishes the same facts as those to which he objects." Id.

The Court found it significant, however, that this rule predated an exception carried out by Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968),

"that a defendant's election to testify will not cure the prior receipt into evidence of an involuntary confession because of the possibility, absent conclusive evidence to the contrary, that his verbal reiteration of this admission at trial was induced by the receipt of his custodial statement." 286 Md. at 156, 406 A.2d 415.

Although both Harrison and Hillard dealt with improperly admitted confessions, the language used by the Court of Appeals spoke more generally of evidentiary or procedural errors which would affect a defendant's election to testify.

"Thus, the issue becomes 'not whether (Hillard) made a knowing decision to testify but why,' Harrison v. United States, supra, 392 U.S. at 223 (88 S.Ct. at 2010) for as we said in Dorsey (v. State, 276 Md. 638 (350 A.2d 665) (1976)), supra: 'An evidentiary or procedural error in a trial is bound, in some fashion, to affect the delicately balanced, decisional process. The abnegation of a particular rule upon which the defense intended to rely may often inflict more damage than initially apparent; ...' 276 Md. at 657, 350 A.2d at 677." Id.

Harrison, as pointed out in Hillard, was based upon the premise that if a defendant testified in order to overcome the impact of confessions illegally obtained the testimony was tainted by the same illegality as the initial statements. It was therefore not necessary for the accused to establish that the subsequent testimony was, as a matter of fact, impelled by the use of the inadmissible remarks. The government must show that its illegal action did not induce his testimony. Hillard, supra, 286 Md. at 157, 406 A.2d 415; Harrison, supra, 392 U.S. at 224-225, 88 S.Ct. at 2011-12.

"Although no explicit evidence exists that the defendant Hillard was impelled to testify by the prior introduction of his written confession, neither is there any to the contrary; consequently, the admission of this 'evidentiary bombshell' leaves no doubt in our mind that we must recognize the existence of at least a reasonable possibility that the government's use of his written involuntary confession provoked his verbal testimony at trial and, therefore, destroys any assertion that his in court testimony rendered harmless the erroneous receipt of the earlier statement." Hillard, supra, 286 Md. at 158, 406 A.2d 415.

Hillard did not intend the Harrison exception broadly to apply in any instance of evidentiary error, so as to abrogate the Peisner principle completely, but neither did it confine the exception to erroneously admitted, involuntary confessions.

In this case, as in Hillard, without the testimony of the accomplice (James), the case would not have survived a motion for judgment of acquittal. Had James been an acknowledged perjurer, incompetent as a witness, Md.Cts. & Jud.Proc.Code Ann. (1980 Repl.Vol.) § 9-104, the error of admitting his testimony could not have been cured by appellant's subsequent decision to take the stand despite his implicit, if not explicit, verification of James' testimony. James' testimony in such case would have, as a matter of law, had no weight or persuasive effect that a factfinder might consider. Suppression of a perjurer's testimony is a statutory right; however, the right to erode inculpatory testimony by discrediting the witness' credibility is a constitutional right intended to permit the achievement of the same result. If an accused is satisfied that he had been able to so discredit (or suppress) the one State's witness connecting him to the crime, he need not place himself in further jeopardy by testifying to an excuse, justification or mitigating fact such as appellant did in this case. In either instance the error (if error it was) admitted or...