Harrod v. State

• Decision Date: 13 April 1978
• Docket Number: No. 905,905
• Citation: 39 Md.App. 230,384 A.2d 753
• Parties: George Anthony HARROD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 230

39 Md.App. 230

384 A.2d 753

George Anthony HARROD v. STATE of Maryland.

No. 905.

Court of Special Appeals of Maryland.

April 13, 1978.

Richard M. Karceski, Assigned Public Defender, for appellant.

Gilbert H. Robinette, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., for Baltimore City and Charles P. Lamasa, Asst. State's Atty., for Baltimore City on the brief, for appellee.

Argued before THOMPSON, WILNER and COUCH, JJ.

WILNER, Judge.

Lightning may get away with striking twice in the same place. George Anthony Harrod did not. He was caught and thereafter convicted by a jury in the Criminal Court of Baltimore of robbery with a deadly weapon, for which he was sentenced to imprisonment for fifteen years, and of using a handgun in the commission of a felony or crime of violence, for which he was sentenced to a concurrent term of five years. We affirm these convictions.

The State's case against Harrod came primarily from the testimony of Clara Stump and Helen Stephenson, two former employees in a store known as the Edsel Shop. This was a children's clothing store located in Baltimore City, near the Johns Hopkins Hospital complex. Essentially, their testimony was that Harrod and another man, thought to be Jeffrey Cassell, entered the store on January 10, 1976, when both women were at work. Harrod pretended to be a customer, and was waited on by Ms. Stump. After examining some items of children's clothing, he (and Cassell) left the store. They returned about ten minutes later and Harrod stated that he would buy the item he had previously examined. Ms. Stump retrieved the article, accepted $20 from Harrod, and was about to place the money in the cash register when Harrod pulled a gun. He then herded Ms. Stump and Ms. Stephenson into the back of the store and locked them in the bathroom. When they finally got out, they found the cash register open and the money ($140) gone. Eighteen dollars was also taken from Ms. Stump's purse.

Shortly after this incident, Ms. Stephenson identified Cassell from an array of photographs shown her by the police, and a warrant was promptly issued for his arrest. ¹

Nothing of consequence happened with respect to Harrod until June 22, 1976, some five months later, when he again entered the Edsel Shop this time alone and again held it up at gunpoint. Ms. Stump had the misfortune of being present on this occasion as well. About a month later, on July 19, 1976, Ms. Stump spotted Harrod on the street outside the shop, and observed him enter a nearby jewelry store. She promptly notified the police; and, as a result, Harrod was identified, tracked down, and arrested.

The case proceeded against Harrod only with respect to the first incident the one occurring on January 10. ² Cassell was joined as a co-defendant charged with two counts of armed robbery, both, apparently, in connection with the January 10 incident. During the course of the trial, however, the State nol prossed these charges against Cassell, and the trial thenceforth proceeded against Harrod alone.

Further facts will be set forth in the discussion of the issues raised by Harrod. Those issues are as follows:

1. Was appellant precluded from impeaching the witness, Clara Stump, by use of the transcript of her testimony at appellant's preliminary hearing?

2. Was appellant's right to cross-examine State's witnesses on material issues unduly restricted?

3. Was the testimony concerning an alleged admission by appellant to his participation in the instant robbery erroneously admitted in evidence?

4. Was the rebuttal testimony of Officer Timothy Murray improperly admitted in evidence?

5. Did the State fail to meet its burden of proof under the eighth count (use of a handgun in the commission of a felony or crime of violence) and was the trial court's instruction on that count plain error requiring a reversal of appellant's convictions?

(1) Use of the Preliminary Hearing Transcript

The complaint here, in appellant's words, is that he was "precluded from impeaching the witness, Clara Stump, by use of the transcript of her testimony at the appellant's preliminary hearing."

During her direct examination, Ms. Stump stated, with respect to the January 10 incident, that two men had entered the store. She repeated that on cross-examination. Defense counsel then desired to impeach the credibility of the witness by showing that, at Harrod's preliminary hearing in the District Court, she had testified that three men, rather than two, had entered the store. He proposed, ultimately, to do this by referring to a transcript of that proceeding which purports to show her saying that "there was three men came in." Counsel began to lay the necessary foundation to establish a prior inconsistent statement when an objection was made to the form of his question. At an ensuing bench conference, the State learned that counsel was in possession of the transcript and proposed to use it for impeachment purposes.

There then ensued, at the bench, a wide-ranging discussion about the transcript. The State objected to the admission of the transcript into evidence primarily on the grounds that the transcript was hearsay, it was unreliable, and it was not properly authenticated. Responding to these objections, the court noted that District Court transcripts tended to be unreliable, and it expressed concern that "you (defense counsel) don't have anybody to vouch for the reliability of this transcript."

Whatever may have been counsel's original proposed use of the transcript, after several bench conferences, it became clear that he desired to offer it, or at least the relevant part of it, into evidence. His ultimate motion was not merely to read the question and answer, as shown in the transcript, to the witness and then ask her about them, but rather to place that part of the transcript into evidence as an exhibit. The court, responding to that motion, allowed the transcript to be marked for identification, but declined to permit the transcript, or any part of it, to be admitted into evidence, stating:

"(T)he most untrustworthy document I can think of is a District Court transcript made from a disc which is transcribed by a typist who is not a reporter and doesn't even hear the testimony. And it may be covered technically by the law . . . but the byword in the introduction of any evidence is trustworthiness. And transcripts of District Court hearings are notoriously untrustworthy." ³

The court did state, however, that it would permit counsel to call as a witness the public defender who was present at the preliminary hearing:

"You could put him on. He could say, 'Yes, I was there,' and tell whether or not he remembers what she said in answer to that. But, now, that's a live witness who was a witness to a prior contradictory statement. But, I'll not accept . . . a District Court transcript to support a position of a prior contradictory statement."

In addressing the issue raised, we start with the proposition that the credibility of a witness may be impeached by showing that he has made statements which contradict his trial testimony in respect to material facts, provided a proper foundation has been laid. See State v. Kidd, 281 Md. 32, footnote 8 at page 46, 375 A.2d 1105 (1977). ⁴ This would, of course, include statements made by a witness at a preliminary hearing. DeToro v. Pepersack, 332 F.2d 341 (4th Cir., 1964), cert. denied, 379 U.S. 909, 85 S.Ct. 198, 13 L.Ed.2d 181 (1964). Thus, after laying a proper foundation, he was entitled to offer credible evidence that Ms. Stump had stated, at the preliminary hearing, that three people had entered the store.

The question was whether the "transcript" of the hearing was the appropriate vehicle with which to establish that proposition. To address that issue, we first must consider what it is we are dealing with.

In circuit court proceedings, an official court reporter is present in court, and he personally and contemporaneously records his immediate sensory perceptions of what has transpired. When he prepares a transcript, he does so from what he personally has recorded; and his transcript represents the only official record of the proceeding. ⁵ Thus, a court reporter's certificate generally attests both to the recordation and the transcription. ⁶

By way of contrast, there are no official court reporters in the District Court. Proceedings there are electronically recorded, not always under the best of circumstances. That recording the tape or disc is the actual, and only, neutral and official record of what transpired. ⁷ When a transcriber prepares a transcript from such a recording, he is therefore not relying on his notes or his recollection, but only upon a recording that he is in no better position than anyone else to interpret.

The primary proposition to be proved was that Ms. Stump had testified, in the District Court, that three men had entered the store. When the transcript purporting to show that was offered, and the State objected that the transcript was unreliable, it raised a secondary issue that had to be dealt with before the primary proposition could be resolved; namely, whether the assertion in that document that Ms. Stump had so testified was itself sufficiently trustworthy to be laid before the jury as substantive evidence. In that context, defense counsel was offering a document for its truth; he was proposing to ask the jury to accept as true the written statement of an out-of-court declarant (the transcriber), not even made on personal knowledge, that Ms. Stump had made a particular statement. And he offered this in lieu of the primary evidence of what she had actually said the recording from which the transcript was made or the testimony of a witness who was present at the hearing and could state upon personal knowledge what was said.

It is clear that the document was hearsay. The question is whether it is admissible...