Hepple v. State

• Decision Date: 04 June 1976
• Docket Number: 730,Nos. 714,s. 714
• Citation: 31 Md.App. 525,358 A.2d 283
• Parties: Richard E. HEPPLE v. STATE of Maryland. James Edward JONES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 525

31 Md.App. 525

358 A.2d 283

Richard E. HEPPLE v. STATE of Maryland.

James Edward JONES v. STATE of Maryland.

Nos. 714, 730.

Court of Special Appeals of Maryland.

June 4, 1976.

Michael E. Kaminkow, with whom was Richard T. Rombro, Baltimore, on the brief, for appellant in No. 714

Henry E. Dugan, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, States Atty., Baltimore City and William Monfried, Asst. States Atty., Baltimore City, on the brief, for appellee in No. 714.

Geraldine Kenney Sweeney, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant in No. 730.

Arrie W. Davis, Asst. Atty Argued before ORTH, C.J., and MORTON, MOYLAN, POWERS, GILBERT, MENCHINE, LOWE, MELVIN and MASON, JJ.

Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, States Atty., Baltimore City and Francis A. Sauer, Asst. States Atty., Baltimore City, on the brief, for appellee in No. 730.

ORTH, Chief Judge.

The two September Term 1975 appeals we decide in this opinion, Richard E. Hepple v. State, No. 714, and James Edward Jones v. State, No. 730, present a common issue for decision. The issue relates to the place of rebuttal evidence in the order in which parties are required to offer their evidence. The Court of Appeals had the point before it in Bannon v. Warfield, 42 Md. 22, 39 (1875). It first explained why it was essential to have fixed rules on the subject and to observe them:

'The observance of fixed rules upon the subject is of great importance, not only as means of avoiding confusion, but to the fair administration of justice. Much of course depends upon the form of the issues joined, and upon whom the onus rests. The parties must not be allowed to break up the evidence they may intend to offer on any particular issue, and introduce it as different stages of the cause in piecemeals, as the varying emergencies of the case may seem to require. Such practice would not only greatly prolong trials, but would frequently lead to surprise and injustice.'

It set out the general rule:

'According to the well established practice, the plaintiff, having the right to begin, must put in the whole of his evidence upon every point or issue which he opens, and the defendant then puts in evidence his entire case; and in reply the plaintiff is limited to such new points and questions as may be first opened by the defendant's evidence. I Greenl.Ev. sec. 469a.'

The rule was stated in Jones v. State, 132 Md. 142, 148-149, 103 A. 459, 461 (1918) in the words of 'Mr. Poe in his second volume on Pleading and Practice, section 287:' 'The rule is that the plaintiff will be required to go fully into his own case in chief on these issues as to which he holds the substantial affirmative, and where, therefore, the burden of proof rests on him; and hence, in reply to the case made by the defendant, he will ordinarily be limited to what is strictly rebutting evidence.' The Court set out the rule thus in Mayson v. State, 238 Md. 283, 288-289, 208 A.2d 599, 602 (1965): 'Ordinarily, an orderly conducted criminal trial anticipates the State adducing all of its evidence in chief and resting its case. The defense follows by producing its evidence tending to establish the accused's non-culpability, which includes the contradiction or rebuttal of the evidence offered by the State. Then the State is afforded an opportunity to produce its rebuttal evidence.'

The rule for the order in which evidence is to be adduced is clear but not unyielding. Bannon v. Warfield, supra, 42 Md. at 39, recognized this:

'From this general rule there may be departures to meet the requirements of particular cases; but the entire question, as to the mere order of proof, and under what circumstances evidence should be admitted or rejected when offered out of the proper order, in the absence of some positive rule of court upon the subject, must be allowed to rest in the discretion of the court directing the trial, as the tribunal best qualified to judge what the justice of the case may require in these respects; and hence from the rulings on such questions no appeal will lie. R. R. Co. v. Stimpson, 14 Pet. 448, 463, 10 L.Ed. 535; Salmon v. Rance, 3 S. & R. 311, 314; Duncan v. McCullough, 4 S. & R. 482; Frederick v. Gray, 10 S. & R. 182; 4 Phill.Ev. 708.'

Almost a century later the Court was of like mind. It said in Mayson v. State, supra, 238 Md., at 289, 208 A.2d, at 602: 'However, experience has shown that justice does not require the following of the The question of the admissibility of evidence on the ground that it is offered out of proper order usually arises after the moving party-in criminal cases, the State-has rested its case and desires to reopen it to introduce evidence properly admissible in chief, or at the rebuttal stage of the trial when evidence is offered as rebuttal which is not proper rebuttal evidence.

above course (of the adducing of evidence) as an inflexible and undeviable procedure.' Thus, the question as to mere order of proof, and under what circumstances evidence should be admitted or rejected when offered out of proper order, has been clearly held to be within the sound discretion of the trial court. Rickards v. State, 129 Md. 184, 191, 98 A. 525 (1916). There appears to be no distinction in this regard between civil trials and criminal trials.

Evidence Adducible in Chief

Trial judges are vested with wide discretion in the conduct of trials. So, in Hamm v. State, 233 Md. 248, 249, 196 A.2d 464 (1964), no abuse of discretion was found when the trial court permitted the State, upon motion made after it had rested, to reopen the case for the purpose of offering another witness. And in Stansbury v. State, 218 Md. 255, 262, 146 A.2d 17 (1958) it was held that there was no abuse of discretion in the refusal of the trial court to allow the defendant to reopen or continue his case. The Court of Special Appeals in a number of cases has reviewed the contention that it was reversible error to permit the State to reopen its case for the purpose of proving important or even essential facts to support a conviction, and has found no abuse of discretion in a variety of circumstances. See Spillers v. State, 10 Md.App. 643, 649, 272 A.2d 49 (1971); Jones v. State, 2 Md.App. 356, 363, 234 A.2d 900 (1967); Boone v. State, 2 Md.App. 80, 99, 233 A.2d 476 (1967); Tingler v. State, 1 Md.App. 389, 392, 230 A.2d 375 (1967).

Rebuttal Evidence

The Court of Appeals has set out what constitutes rebuttal evidence. In Jones v. State, 132 Md. 142, 148-149, 103 A. 459, 461 (1918), it used the language of 'Mr. Poe, in his second volume on Although the definition of rebuttal evidence is clearly stated, Mr. Poe was aware that what is simply defined may not be readily determined. He observed, § 287: 'Still, it is not always easy to draw the line between what is rebutting evidence and what is evidence properly adducible in chief.' The Court of Appeals shared Mr. Poe's view. Jones v. State, supra, 132 Md., [358 A.2d 288] at 149, 103 A. 459; Snowden v. State, 133 Md. 624, 636, 106 A. 5 (1919). Mr. Poe concluded that whether evidence was properly rebuttal evidence was a matter for the exercise of judicial discretion: 'The subject is one which is addressed to the sound discretion of the Court; and the appellate Court will not reverse for an error on this point, unless the ruling of the Court below was both manifestly wrong and substantially injurious. Indeed, as a general rule in such cases no appeal will lie.' The assertion that 'no appeal will lie' does not mean that the point may not be considered on appeal. It means simply that on appeal there will not be a reversal on the point unless the court's ruling was 'both manifestly wrong and substantially injurious.' Mr. Poe's view is the law of Maryland. The Court of Appeals quoted it in Jones, 132 Md., at 149, 103 A. 459, iterated it in Snowden, 133 Md., at 636, 106 A. 5, and reiterated it in Kaefer v. State, 143 Md. 151, 159-160, 122 A. 30 (1923) and applied it in deciding those cases. The discretionary power of the trial court to determine what constitutes rebuttal evidence has been more The second requisite for reversal on error of the trial court's ruling as to what constitutes rebuttal evidence, is that the ruling is 'substantially injurious.' ³ We think that 'substantially injurious' must be construed in the light of Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976). Reversal vel non for error in the determination of what constitutes rebuttal '(W)hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed 'harmless' and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of-whether erroneously admitted or excluded-may have contributed to the rendition of the guilty verdict.'

                Pleading and Practice, section 287': 1  '(Rebuttal evidence is) evidence in regard to such new points and questions as were first opened by the defendant's evidence.'  In Lane v. State, 226 Md. 81, 90, 172 A.2d 400 (1961), the Court observed: '(A)ny competent evidence which explains, or is a direct reply to, or a contradiction of, material evidence introduced by the accused may be produced by the prosecution in rebuttal.'  Mayson v. State, supra, 238 Md., at 289, 208 A.2d, at 602, combined the definitions of Jones and Lane thus: '(Rebuttal evidence) includes any competent evidence which explains, or is a direct reply to, or a contradiction of, any new matter that has been brought into the case by the defense.'
                recently affirmed.  In Lane v. State, supra, 226 Md., at 90, 172 A.2d at 404, after defining rebuttal evidence, the Court said: 'And what constitutes rebuttal

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