Jenkins v. State

• Decision Date: 22 December 1971
• Docket Number: No. 314,314
• Citation: 285 A.2d 667,14 Md.App. 1
• Parties: James Harley JENKINS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 1

14 Md.App. 1

285 A.2d 667

James Harley JENKINS v. STATE of Maryland.

No. 314.

Court of Special Appeals of Maryland.

Dec. 22, 1971.

Certiorari Denied March 14, 1972.

James, P. Salmon, Upper Marlboro, on brief for appellant.

Francis B. Burch, Atty. Gen., James G. Klair, Asst. Atty. Gen., Arthur A. Marshall, Jr., State's Atty., and Vincent J. Femia, Asst. State's Atty., Prince George's County, on brief, for appellee.

Submitted on brief before MORTON, ORTH, and MOYLAN, JJ.

ORTH, Judge.

James Harley Jenkins was convicted by a jury in the Circuit Court for Prince George's County of the murder in the second degree of Donald Glenn Oliver. We have no need to recount the sordid circumstances surrounding the homicide. Jenkins presents four questions on his appeal from the judgment and we shall answer them within the meaning contemplated by the precise wording of their asking, noting, however, that some of the questions as framed include conclusions which are not correct.

(1)

' Did the trial judge err in his determination that Paula Oliver was a 'surprise witness'?' The rule is that where a party satisfies the court that he has been taken by surprise by a witness he has offered in that the testimony is contrary to what he had a right to expect, it is within the sound discretion of the trial court to determine whether or not proof of prior inconsistent statements should be permitted. Hernandez v. State, 7 Md.App. 355, 365, 255 A.2d 449. We cannot say here that the trial judge was improperly satisfied that Paula Oliver was a 'surprise witness.' There was evidence tending to show that on 29 October 1970 she had given the police a written statement concerning the homicide and an oral statement, the same in substance, just before a scheduled date of trial in January. That trial was postponed. A few days before the trial here the prosecutor interviewed her again but in the presence of her mother and the appellant, her stepfather, who was out on bond. When it appeared that her version of the event was not consistent with that in her prior written and oral statements, the prosecutor continued the interview of her out of the presence of her mother and stepfather and 'she gave the exact same story she gave the day of the crime and some two months thereafter.' She said that if her stepfather knew she had told the police the truth 'she would be dead before he got to trial and so would the other children.' On the stand her testimony varied in material aspects from the prior written and two oral statements and the prosecutor claimed surprise. We think the prosecutor had a right to expect that under oath her testimony would not be inconsistent with her previous statements. Thus the determination by the judge that the State was taken by surprise was not error. Compare Gray v. State, 219 Md. 557, 150 A.2d 221 where the witness repudiated her statement the day after she gave it and was steadfast thereafter in that repudiation.

(2)

' Even if it be assumed that Paula Oliver was properly determined to be a surprise witness, did the trial judge err when he allowed the State's Attorney to examine the witness in regard to matters which were prejudicial to defendant and clearly collateral to the issues relevant to the case?' Since the trial judge was satisfied that the State was taken by surprise by Paula Oliver's testimony, the State could examine her to lay a foundation to admit evidence of prior inconsistent statements. The foundation being laid, it was not an abuse of judicial discretion to permit proof of prior inconsistent statements. The matters which appellant now challenges were part of the laying of the foundation and the proof of the prior inconsistent statements. Such proof did not go to the guilt vel non of appellant nor was it for the purpose of discrediting the witness. It was only to contradict the witness and thereby afford the State an opportunity to show why it called her. Sanders v. State, 1 Md.App. 630, 232 A.2d 555. In this frame of reference it cannot be characterized as 'clearly collateral to the issues relevant to the case.' All of this, upon request, could have been, and in part was, explained to the jury in the court's charge. We find no error in the rulings with respect to the examination of Paula Oliver.

(3)

' Did the trial judge err in allowing the State's Attorney to cross-examine Mrs. Jenkins as to matters outside the scope of her direct examination and as to matters which were collateral and prejudicial to defendant?' Mrs. Elizabeth Jenkins was the current wife of appellant and former wife of the deceased. She was called by appellant to testify in his behalf. The basic rule is as set out in Williams v. Graff, 194 Md. 516, 522, 71 A.2d 450 and quoted in Shupe v. State, 238 Md. 307, 311, 208 A.2d 590, 592:

'* * * where a witness is called to testify on a particular point, the adverse party in the cross-examination of the witness is restricted to the point on which he testified and cannot question him in regard to other issues in the case. * * *.'

As Williams points out, the basic rule has an extension:

'However, our rule does not go to the extent of restricting the cross-examination of the witness to the specific details inquired into on direct examination, but permits full inquiry into the subject matter entered into. Where a general subject has been entered upon in the examination in chief, the cross-examining counsel may ask any relevant question on the general subject. * * *.'

There is also an adjunct to the basic rule as extended:

'(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 relation to parties or cause, his bias or the like. Howard v. State, 234 Md. 410, 415, 190 A.2d 611.' Bryant v. State, 4 Md.App. 572, 580, 244 A.2d 446, 451.

The adjunct has an aspect involving prior contradictory statements. The first question considered above concerned proof by a party of prior inconsistent statements made by his own witness, the object of which is not to discredit the witness but to contradict him so as to show why he was called. The question now considered concerns proof by a party of prior inconsistent statements made by a witness called by an adverse party, the object of which is to discredit the witness by so impeaching him. Of course he may be asked questions on cross-examination to lay a foundation to admit evidence of prior contradictory statements. The...