Gorman v. State

Decision Date01 September 1985
Docket NumberNo. 898,898
Citation507 A.2d 1160,67 Md.App. 398
PartiesRobert W. GORMAN v. STATE of Maryland. ,
CourtCourt of Special Appeals of Maryland


F. Anderson, Asst. Public Defender (Alan H. Murrell, Public Defender on brief), Baltimore, for appellant.

Ronald M. Levitan, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, Joseph I. Cassilly, State's Atty. for Harford Co. and Deidre W. Lee, Asst. State's Atty., for Harford Co. on brief, Bel Air, for appellee.

Argued before WILNER, GARRITY and BELL (ROSALYN B.), JJ.


A jury in the Circuit Court for Harford County (Cameron, J., presiding) found Robert W. Gorman, the appellant herein, guilty of attempted escape from the Harford County Detention Center and malicious destruction of property. He received a sentence of ten years for the attempted escape and three years, concurrent, for malicious destruction of property.

He has presented the following issues for our review:

1. Was appellant denied his right to compel a witness to testify on his behalf?

2. Did the court err in refusing to strike certain jurors for cause?

3. Did the court err in limiting the scope of appellant's cross-examination?

4. Did the court err in admitting hearsay testimony?

I. Right to Compel Presence of a Witness

The appellant, both in a Motion for Postponement and in a Motion for New Trial, complained that he was unable to pay for the transportation of a witness then incarcerated in a federal prison located in the State of New York. Both motions were denied. On appeal, Gorman asserts that he was denied his right to a fair trial because he was financially unable to compel the presence of that particular witness to testify in his behalf.

A. Motion for Postponement

The record reflects that the appellant, who was indicted on March 4, 1984, had been in the Harford County Detention Center awaiting trial on a charge of robbery. By agreement between the appellant and the State, the trial in this matter had been postponed on numerous occasions until the completion of the robbery case. Finally, on January 21, 1985, after the appellant had been granted yet another postponement of the robbery trial, the court denied the appellant's request for postponement of the attempted escape trial.

After the jury had been impaneled on the scheduled date, appellant's assigned public defender moved for another postponement. Counsel explained that one of the appellant's witnesses, William Adkins, had been transferred to a federal penitentiary in New York State and that Gorman did not have sufficient funds to pay transportation costs. Defense counsel advised the trial judge that, although the court could issue a summons, the U.S. Marshall "will not honor that writ unless they receive a $1,000 check." Counsel further related that,

while there are other witnesses who may testify similarly to Mr. Adkins, we have, quite candidly, a case where the guilt or innocence of the Defendant rests on specifically the evidence of convicted criminals, who are now or have in the past been in Harford County Detention Center and other facilities.... But as far as who was involved, it rests solely on the testimony of three convicted criminals in the case of the State and seven convicted criminals in the instance of the Defendant's witnesses. And, therefore, while numbers are not supposed to mean anything, we're before a jury, your honor, and it seems to me each person who comes forth and testifies one way or the other is going to have the ability to persuade the jury one way or the other. (Emphasis added).

Defense counsel proffered that Adkins would testify that, for "part of the time" during the attempted escape, Gorman had been watching television and writing and that, "to his knowledge, Gorman was not involved in the plan of any escape." Adkins would also refute testimony concerning any threats made by Gorman to other witnesses "if such testimony came along."

In denying the motion to postpone, the court declared that "it's up to the Public Defender's Office to bring a federal witness in." Although, as the court explained, it would issue writs and summonses, the funds demanded by the federal authorities would have to come from some source other than the court. The court further found that, based on the proffer, Adkins's testimony would be cumulative.

The trial judge further observed that "if the entity that's representing the Defendant doesn't have the money to spend for a witness, that, I think, would be a post-conviction issue rather than trial." The assigned public defender responded by stating "I wanted to make sure the record would reflect the State entity prosecuting has the funds and we do not." 1

B. Motion for New Trial

Prior to sentencing, the appellant moved for a new trial. One of the grounds was that he was denied his right to compel the presence of a witness, specifically, Adkins.

In argument on the motion, the appellant's public defender advised the court that, "the Defendant didn't have these funds available to him (to cover transportation costs) and I might add, also, the Public Defender's Office does not have the type of funds to expend on such witnesses." (Emphasis added).

In denying the Motion for New Trial the court again observed that:

the Court can summons witnesses, but there's no responsibility on the part of the Court to pay for their attendance. You can bring in a witness from any institution in Maryland, but you can't bring them in from federal institutions unless somebody pays the bill. 2 It's a question of reasonableness. How far do you have to go? This particular witness doesn't appear to me to have been that vital to the Defense.

C. Discussion of Law

The State does not dispute the appellant's contention that he had the right to compel the presence of a witness at trial. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Darby v. State, 47 Md.App. 1, 421 A.2d 108 (1980). Indeed, the trial judge acknowledged that he could issue a writ of habeas corpus ad testificandum, but agreed with defense counsel that the document would be of little utility without the attendant payment of transportation costs. On appeal, the State does not contend that it had no obligation to provide these costs. It recognizes that the Due Process Clause of the Fourteenth Amendment requires the States to provide reasonable costs for witnesses necessary to prepare an indigent's defense. Ake v. Oklahoma, --- U.S. ----, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The State, however, vigorously challenges defense counsel's statement that the Office of the Public Defender did not have sufficient funds available to cover transportation costs of Adkins from either New York State or Connecticut. 3 The Office of Public Defender, which also represents appellant on appeal, has apparently chosen not to respond to this challenge. Indeed, aside from the bald statement of counsel, there was no evidence whatever that the Office of Public Defender did not have sufficient funds to pay the U.S. Marshall's Office the transportation costs it required. Neither the public defender nor any administrative official of the public defender's office confirmed counsel's allegation.

Ake v. Oklahoma, supra, was a capital murder case in which the sole defense on the merits was insanity. The trial court denied a defense motion that psychiatric assistance be provided at State expense. The issue was whether the U.S. Constitution requires that an indigent defendant have access to psychiatric assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question. The Supreme Court answered that question in the affirmative.

Citing authority concerned with similar issues regarding funding of necessary costs for indigents to enable meaningful participation 4, Justice Marshall explained This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to insure that the defendant has a fair opportunity to present his defense. This elementary principal, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake. 105 S.Ct. at 1093.

Justice Marshall went on to observe that:

Meaningful access to justice has been the consistent theme of these cases. We recognized long ago that mere access to the courthouse door does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. 105 S.Ct. at 1094.

It was the Court's view that fundamental fairness "entitled indigent defendants to 'an adequate opportunity to present their claims fairly within the adversary system' " and that the " 'basic tools of an adequate defense or appeal' " must be "provided to those defendants who cannot afford to pay for them." The Court went on to hold:

that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist ....

Id. at 1097.

Following the Supreme Court's decision in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), which held that indigent criminal defendants were entitled to counsel at every "critical stage" of the proceedings, the Governor of Maryland called an emergency session to determine the steps necessary for compliance. See Joint Governor's Commission and Baltimore City Bar...

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