Hutchinson v. State, 580

• Decision Date: 07 March 1979
• Docket Number: No. 580,580
• Parties: Frederick Jerome HUTCHINSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 569

41 Md.App. 569

398 A.2d 451

Frederick Jerome HUTCHINSON v. STATE of Maryland.

No. 580.

Court of Special Appeals of Maryland.

March 7, 1979.

Francis B. Burch, Atty. Gen., Alice G. Pinderhughes, Asst. Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and Harvey Greenberg, Asst. State's Atty. for Baltimore City, for appellee.

Submitted to THOMPSON, LISS and WILNER, JJ.

LISS, Judge.

On April 5, 1978, Frederick Jerome Hutchinson, the appellant was convicted in the Criminal Court of Baltimore of second degree rape. On May 4, 1978, he was committed to the custody of the Division of Correction for a period of twenty years. On appeal he contends:

1. the court erred in refusing to join separate charges placed against him.

2. the State prejudiced the appellant's defense by virtue of its cross-examination of the appellant's witnesses and its closing argument.

3. the court erred in not granting a missing witness instruction.

4. the court erred in its additional instructions to the jury concerning the possible verdicts.

The twenty-year-old prosecuting witness testified that on the night of September 13, 1977, she was baby sitting at the house of a friend of her mother when the appellant, who had been going with her sister, unexpectedly came by. She said that the appellant accused her of upsetting his relations with the woman with whom he was living and threatened her. As a result of the threats and to insure the safety of the children who were asleep, she said she did not resist his sexual advances. The next morning the prosecuting witness told her boyfriend and later that day reported to the police that the appellant had raped her. Subsequently her sister Cheryl reported to the police that the appellant had forced her to engage in oral sex with him a few days previously.

On cross-examination the prosecuting witness denied having previously had sexual relations with the appellant. In presenting a defense of consent, the appellant introduced evidence that the prosecuting witness had had sexual relations with him during the summer. In addition, Hester Seldon, the woman with whom the appellant purportedly lived, testified that she had received telephone calls, which greatly upset her, from both the prosecuting witness and Cheryl.

1. Refusal to join offenses

The appellant had been charged with offenses against both the prosecuting witness and against Cheryl. Prior to trial the appellant moved to have both cases against him joined for trial on the grounds that they arose from a conspiracy by the two sisters against him. The following colloquy then occurred:

"THE COURT: Mr. Greenberg, do you want to respond to that?

MR. GREENBERG: Just this, Your Honor, there are a few rights the State has, but one of them is to call whatever cases are on the docket or not to call. The State elects not to call the case of State Versus Cheryl Hooks at this time and just chooses to call the case of State Versus Wanda Briggs. I don't think the State can be compelled to call the other case.

THE COURT: I agree with you. The motion is denied."

The appellant himself then addressed the court and pleaded to have the charges consolidated. In repeating its denial the court said:

"I understand you might not have wanted to have done that, but you would have had a right to severance because they would have been improperly joined, and, as I said, I cannot compel them to join two cases where, if they were joined, the joinder would be improper, and, accordingly, I will deny your motion."

On appeal the appellant contends that the court abused its discretion by not making an inquiry to determine if a joint trial was feasible. We note that Maryland Rule 745 b. states:

"If a defendant has been charged in two or more charging documents, either party may move for a joint trial of the charges. In ruling on the motion, the court shall inquire into reasons for the motion and the ability of either party to proceed at a joint trial."

While the question generally arises in the context of a request by a defendant for a severance, the same principles apply whether the request is for joinder or severance.

In the instant case we consider that the court should have conducted an inquiry into the appellant's request and it was error not to do so. Since the State has nol prossed the case involving Cheryl, the issue is now moot and amounts to harmless error.

2. Prosecutorial Misconduct

The appellant launches a two prong attack against the prosecutorial conduct. First he asserts that the State improperly commented, during opening and closing argument on the fact the accused would not and did not testify. Secondly he complains that the State elicited improper testimony during the cross-examination of two of the appellant's witnesses.

While it is improper for the State to comment on a defendant's failure to testify, this does not mean that every neutral or indirect reference that the State makes which implicitly refers to a defendant's silence is improper comment. In Grace v. State, 6 Md.App. 520, 522, 252 A.2d 297, 299 (1969), we stated:

". . . the rule does not apply, where, as here, the thrust of the remark is directed toward the lack of evidence rather than pointed directly at the failure of the accused to testify."

In this case the comment during opening and closing argument was directed toward the lack of potential evidence and not at the appellant's election not to testify. The State merely called the jury's attention to the relevant importance of eyewitnesses' testimony over that of other witnesses. Accordingly we find no misconduct in the State's comments.

Brown, a co-worker of the appellant, testified to a different version of the appellant's relationship with the prosecuting witness than had been presented by the prosecuting witness. As to be expected, the State then attempted to impeach Brown's testimony by first eliciting from Brown a statement that the appellant was a good friend. Next the State asked whether Brown and the appellant had worked together stealing parts from their employer. Brown denied the accusation but did admit to participating in activities that the jury could have reasonably interpreted as involving the illegal sale of stolen parts.

Lee Headspeath also testified for the appellant and stated he had known the appellant since 1967. He also admitted that he had been incarcerated for nine years for a conviction of robbery with a deadly weapon. In the course of cross-examination of Headspeath, the State elicited testimony that the appellant had been incarcerated with Headspeath at the Maryland Penitentiary from 1971 through 1975. ¹

In Bryant v. State, 4 Md.App. 572, 580, 244 A.2d 446, 451 (1968), we said:

"The general rule is that a witness may be cross-examined on such matters and facts as are likely to affect his credibility, test his memory or knowledge, show his relationship to the parties or cause, his bias or the like."

In the instant case, the complained of questions tended to show the witnesses' relationship to and possible bias toward the appellant. As such they were the proper subject for cross-examination.

3. Missing Witness Instruction

After the conclusion of the presentation of evidence, the appellant requested that a missing witness instruction be given to the jury regarding the prosecuting witness' sister Cheryl. The court denied the request.

In ruling on the appellant's request for a missing witness instruction the court said:

"No one has made any effort to get her here. No one has made any effort to take her deposition. I think her absence is being made an issue when it is really not warranted. If anyone really wanted her, she could have been here or her testimony could have been, so I won't allow any of that."

The missing witness rule provides that where a party fails to call an available material witness, a presumption arises that the testimony of such person would be unfavorable to the party failing to call that witness. In this case the witness was equally available to either side but no efforts were made by either side to secure her presence. Accordingly we find no error in the court's refusal to grant a missing witness instruction.

4. Court Instructions Regarding Verdict

The appellant complains that the court did not advise the jury that they could find him not guilty. In reviewing the instructions to the jury, we note that the court said:

"You should not assume that the defendant is guilty merely because he is being prosecuted because charges have been preferred against him. The burden of proof is on the State to prove every element of the crime charged against the defendant, and the defendant is presumed innocent until proved guilty beyond a reasonable doubt. That presumption attends the defendant throughout the trial until or unless overcome by proof establishing his guilt beyond a reasonable doubt and to a moral certainty.

"While the burden is upon the State of establishing every fact material to the guilt of the defendant, including every...