Johnson v. State

Decision Date20 May 1974
Docket NumberNo. 444,444
PartiesKenneth Ricardo JOHNSON v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Donna C. Aldridge, Hyattsville, for appellant.

George A. Eichhorn, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., for Prince George's County and Stephen C. Orenstein, Asst. State's Atty., for Prince George's County, on the brief, for appellee.

Argued before GILBERT, MENCHINE and MOORE, JJ.

MOORE, Judge.

Appellant, Kenneth Ricardo Johnson, was convicted by a Prince George's County jury of the crime of burglary and sentenced by the court (Powers, J.) to a twelve year term of imprisonment. His appeal raises four contentions:

1) The court erred in not granting his request for a rule on witnesses before the completion of opening statements and in denying his motion for a mistrial based thereon;

2) the court erred in permitting the State to amend Count Two of the indictment, alleging housebreaking;

3) the evidence was not sufficient to support his conviction; and

4) the court denied him due process by sentencing him 'to a longer term based upon his not admitting guilt but instead pleading not guilty and testifying in his own behalf.'

We treat these contentions in the order presented and affirm the judgment of conviction.

I

The case came on for trial on May 16, 1973. After the Assistant State's Attorney had commenced his opening statement, defense counsel apologized for interrupting and requested a rule excluding witnesses, to which the court responded:

'Very well, I will do that when the opening statements are over. I don't want to interrupt this now.

Go ahead.'

At the conclusion of the State's opening statement, defense counsel moved for a mistrial. The court denied the motion and also denied counsel's renewed request for a rule on witnesses prior to making his own opening statement:

'MR. FOLSTEIN: I would ask you to make the rule on witnesses at this point before I make an opening statement.

THE COURT: You are not supposed to. You don't have to until after the opening statement is over. You can leave the first witness in and have the others go out. It disrupts things having witnesses going back and forth. The purpose has nothing to do with opening statements. If the witness doesn't know as much about the case as will be told on opening statement, the attorneys would be lax or-

MR. FOLSTEIN, I feel he has been prejudiced by the fact that he has heard the State's entire proposition of the case, the legal points he has to score and everything else.

THE COURT: How has he been prejudiced?

MR. FOLSTEIN: He has been prejudiced by telling the Court everything that this witness has to know. The main witness is Mr. Stevenson, whose house was broken into.

THE COURT: Don't you think they have discussed the case before? I don't want to waste anymore time.

MR. FOLSTEIN: Will you rule on witnesses?

THE COURT: I will announce the rule when you finish the opening statement.'

Counsel then delivered his opening statement. At its conclusion, the court ordered the sequestration of the witnesses.

Md. Rule 753 provides in relevant part:

'The court may upon its own motion and shall, upon the request of a party, order that the witnesses be excluded from the courtroom until called upon to testify.'

The primary purpose of the rule is to prevent prejudice and to insure, as far as possible, that one witness shall not be taught, schooled or prompted by another witness' testimony. Conway v. State, 15 Md.App. 198, 289 A.2d 862 (1972); Jones v. State, 11 Md.App. 468, 275 A.2d 508 (1971). When the request for exclusion of witnesses is made, it is mandatory that the trial court comply with the request. Bulluck v. State, 219 Md. 67, 148 A.2d 433 (1959); Pinkney v. State, 12 Md.App. 598, 283 A.2d 800 (1971). The failure to comply with the rule does not constitute reversible error per se, however. Hurley v. State, 6 Md.App. 348, 251 A.2d 241 (1969); Jones v. State, supra. The real question is whether the action of the lower court in denying a request for the exclusion of witnesses or in allowing the witness to testify where there has been a violation of the exclusion rule constituted prejudicial error. Bulluck v. State supra; Swift v. State, 224 Md. 300, 167 A.2d 762 (1961).

In stating that the purpose of the sequestration rule 'has nothing to do with opening statements,' the trial court had the support of Wigmore (6 Wigmore, Evidence, 3rd ed. § 1840):

'The time for sequestration begins with the delivery of testimony upon the stand and ends with the close of testimony.

'It is therefore not appropriate during the reading of the pleadings or the opening address of counsel; any danger of improper suggestions at such times is to be dealt with in other ways.' (Emphasis in original.)

In Bulluck, supra, the Court of Appeals recognized that this principle may not be valid for all situations. Bulluck involved the claim of an appellant that because the case turned on his being identified as the rapist, the trial court's refusal to grant his request that all witnesses be sequestered before he was called upon to stand and plead, was prejudicial error. Judge Hammond (later Chief Judge), writing for the Court observed:

'If identification is a crucial or important factor in a case, exclusion of witnesses, before the accused is put physically in a position where it is apparent that he is the accused, may be necessary for his proper protection.'

The Court went on to say, however:

'We assume, without deciding, that the appellant's request should have been granted, but we think no prejudicial error resulted from its denial.'

Neither is it necessary for us in this case to decide whether the lower court was correct in stating categorically that the witness exclusion rule 'has nothing to do with opening statements,' and in granting appellant's request only after the opening statements were completed because the record before us is convincing that appellant suffered no prejudice from the court's action.

Four witnesses testified for the State, the prosecuting witness, James Stevenson, and three members of the Prince George's County police department. While the record affords practically no enlightenment on this point, we shall assume all four witnesses heard the State's opening statement, which outlined in detail the (relatively simple) facts as to which each would testify. 1 Mr. Stevenson testified in substance that he had left his house at approximately 6:00 p.m. on January 6, 1972 after locking the doors; that it was 'about dark' when he left; that he returned home two hours later to find one of the panels of his jalousie-type front door removed and lying on the grass; that he discovered the interior of the house 'in shambles' and determined that various objects of value had been taken including a television set, a tape recorder, and money from a plastic box-like coin container kept in the dresser drawer; and that he had never seen appellant prior to the trial and to his knowledge appellant had never been in his house.

Detective Schultz, Evidence Collection Section, Prince George's County police, testified that he had lifted several latent fingerprints from the same plastic coin container shortly after the reported burglary and turned them over to the fingerprint examiner's office. Detective Joseph Gray identified a set of fingerprints belonging to appellant which he had taken from appellant in the Sheriff's office on June 6, 1972. Andre DeGagne, police fingerprint examination supervisor, testified in some detail on the nature of fingerprint identifications. He then stated he had compared the latent fingerprints received from Detective Schultz with appellant's fingerprints rolled on June 6 and that the comparison had revealed a positive identification.

It is at once apparent, we think, that the State's witnesses could not have been 'taught, schooled or prompted' in any meaningful sense by hearing one another's testimony as outlined in opening statement. Mr. Stevenson's testimony was limited solely to establishing the corpus delicti of the burglary; he gave no evidence bearing on the issue of appellant's criminal agency. The testimony of the police witnesses, on the other hand, involved entirely their investigation as a result of which appellant's criminal agency was established by scientific evidence-an investigation in which they played completely separate roles. Appellant recognizes that the potential for tutoring in any direction presented by this arrangement of the witnesses is negligible; thus his claim appears to be basically that Stevenson was instructed in 'key points' of his own testimony by the State's opening remarks, viz., as to the approximate value of the items missing from his home, whether he had known appellant prior to trial, and whether it was light or dark when he left his house. But it requires only common sense to recognize that Stevenson was in need of no instruction on these points. We conclude, therefore, that appellant was not prejudiced by the court's refusal to exclude the witnesses until completion of the opening statements.

Therefore, even assuming the court should have granted appellant's request when made, there was no reversible error. We pause, however, to note our agreement with the view expressed by the Court in Martinez v. State, 80 Wyo. 325, 342 P.2d 227 (1959), where a similar request had been made for exclusion of witnesses prior to the prosecution's opening statement:

'We think that whenever exclusion of witnesses is indicated, the better practice is to make the exclusion at the beginning of trial.' 2

II

Appellant next contends that the court erred in permitting the State after the close of its case to amend Count Two of the indictment, alleging housebreaking. The indictment was in four counts, each alleging the same operative facts. Except for Count Two, all alleged that the offense was...

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