Marshall v. State

• Decision Date: 10 September 1981
• Docket Number: No. 121,121
• Citation: 434 A.2d 555,291 Md. 205
• Parties: Larry Rudolph MARSHALL v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 205

291 Md. 205

434 A.2d 555

Larry Rudolph MARSHALL v. STATE of Maryland.

No. 121.

Court of Appeals of Maryland.

Sept. 10, 1981.

Michael R. Braudes, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Diane G. Goldsmith, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

COLE, Judge.

In this case we shall determine whether the trial court abused its discretion when it admonished the appellant/witness to tell the truth or be prosecuted for perjury.

Larry Rudolph Marshall was tried and convicted of first degree murder by a jury and was sentenced to a term of 50 years by the Circuit Court for Worcester County. His conviction was affirmed by the Court of Special Appeals, Marshall v. State, 46 Md.App. 695, 420 A.2d 1266 (1980). We granted certiorari to consider the important issues presented. ¹

At Marshall's trial the State adduced evidence that on the night of February 9, 1979, the victim, Harry Waters, had been drinking in Dickie's Bar in Pocomoke City. At about 10 p. m., Waters left the bar and was joined by appellant and appellant's sisters, Barbara and Delores Marshall. On the corner of Clarke Avenue and Maple Street, outside the bar, appellant seized Waters from behind, whereupon, Delores and Barbara seized the victim's wallet and took his money. After the victim's empty wallet had been returned, appellant hit Waters in the face, which caused him to fall on the sidewalk and strike his head, rendering him unconscious. Appellant testified that he struck Waters only because Waters had threatened to "cut" him and had been reaching into a pocket.

At some point that evening, Peggy Marshall, another sister of appellant, saw the three perpetrators outside Dickie's Bar. Barbara said to Peggy that "they were messing with Harry Waters." The four of them, joined by Denise Trader, a friend of Peggy's, then walked around the corner to Maple Street where Waters was lying on his back. Delores poured water on him in an attempt to revive him, and a decision was then made to put Waters in his pick-up truck. Peggy testified that appellant made this decision; appellant testified that the suggestion was made by Peggy. Appellant and his sisters then placed Waters in his truck and returned to the bar. Waters was found unconscious in his truck the following morning and subsequently died as a result of his injuries and over-exposure.

Several days after the attack, appellant was picked up and transported to the Pocomoke City police station for questioning. He made a statement to Trooper D. Bruce Hornung which Hornung transcribed in longhand while appellant was speaking. At a pretrial hearing the court denied appellant's motion to suppress this statement, and at trial Trooper Hornung related it from his notes. Hornung testified that his notes reflected the following:

In my notes taken on February the 12th I have got full name of Larry Randolph (sic) Marshall. His full description. And I go on that Larry, Barbara, and Delores this is what Mr. Marshall was telling me Larry, Barbara, and Delores were in Dickie's (Bar) after dark. Larry and Barbara went outside and Barbara went down the street to where Harry (Waters) was standing. Then I went down. He said he was going to give her some money. Larry held him from behind and Barbara took his wallet from his pants. She looked in his wallet and took the money out. Then she put his wallet back. We were walking back to the place and he was saying he was going to cut me. That's when I hit him and he slipped down. When I hit him and in the margin I have got left left side of face.

What Mr. Marshall did, when he was talking to me, was indicate that he had used his right hand in a swinging motion, like this, and struck Mr. Waters on the left side of his face (indicating).

When I hit him Barbara and Delores were there. Then Denise and Peggy came around the corner. Larry and Barbara and Delores carried him to his truck and Denise carried his hat. Put him in passenger side and put his key in pants pockets. Locked up truck and left. Sister said where vehicle was parked. Larry got $5.00.

On direct examination at trial, appellant's testimony concerning his participation in the robbery was similar to the statement related by Trooper Hornung, except for a few details. On cross-examination, when appellant was questioned concerning his oral statement, he indicated that Trooper Hornung had attributed words to him which he had not said and, when asked to be specific, Marshall stated he couldn't remember, but that there was something in there he had not said. When counsel began asking appellant on a line-by-line basis whether appellant had made the statements reflected in Hornung's notes, appellant answered the first two questions, regarding his initial departure from Dickie's Bar, in the negative. The following colloquy ensued:

THE COURT: Just a minute.

MR. GROTON (Defense Counsel): May I approach the bench, Your Honor?

THE COURT: Yes.

Madam Foreman, and ladies and gentlemen of the jury, will you retire to your room momentarily?

(Whereupon, the jury retired from the courtroom and the following proceedings ensued out of their hearing and presence:)

MR. MOORE (State's Attorney): Your Honor

THE COURT: Just a minute.

MR. MOORE: I would like to make a proffer before you say

THE COURT: No, just a minute. Unless you don't want me to tell him.

MR. MOORE: I would.

THE COURT: Now, Mr. Marshall, you are under oath. If you fail to tell the truth, you can be charged with perjury. You took the witness stand in front of me the 13th of November.

THE WITNESS: Yes, sir.

THE COURT: With regard to the statement which you had given Trooper Hornung.

Now, during the course of that hearing you testified that you told him what had happened.

THE WITNESS: Yes, I did.

THE COURT: And I asked you if you told him the truth, and you said you did.

Now, this was after Trooper Hornung had testified precisely as he did in this case.

Now, you are trying now to testify differently from what you said on November the 13th, and I'll issue a bench warrant charging you with perjury if you persist.

All right, what do you want to say?

MR. MOORE: Would you advise him of the penalties of perjury?

THE COURT: I don't even remember, but you are disenfranchised for the rest of your life. ²

Now, ordinarily counsel cannot discuss the case with their client when the client is on cross-examination during a recess, but it's up to you, Mr. Moore.

Do you care if Mr. Groton talks to his client during the recess?

MR. MOORE: I wish he would.

THE COURT: Yes. All right.

When cross-examination resumed appellant testified that Hornung's notes in fact accurately reflected the statement.

On appeal to the Court of Special Appeals appellant argued that the admonitions of the trial judge, which resulted in the change in defendant's testimony when the examination resumed, constituted error. The court rejected appellant's contention that the warnings were such as to deny him the right to present his defense and thus violated due process of law. We disagree.

First, it is apparent, upon a comparison of Marshall's testimony with the unsigned statement related at trial by Trooper Hornung, that there was some discrepancy in the details. Whereas Hornung's notes reflected that Marshall had left the bar and walked over where the victim was standing, Marshall testified that they had left the bar together, and that Marshall had walked down the street right behind him. At no point, either at trial or at the suppression hearing, had Marshall testified that Hornung's notes accurately reflected the statement Marshall had given him. Merely, he had said, as the trial judge recalled correctly, that Marshall had "told him what happened." ³ Thus, there was no indication that Marshall was giving or was about to give testimony inconsistent with the substance of his own sworn statements, or that he was knowingly about to lie.

The real crux of the problem, however, lies in the admonition itself. Although this Court has never addressed the problems which may arise when the trial court takes it upon itself to warn a witness or the defendant in a criminal case about the consequences of failing to testify truthfully, we find little difficulty in observing that whenever a court does so, it is swimming in treacherous waters. Preliminarily, as noted by the Supreme Court in Webb v. Texas, 409 U.S. 95, 97, 93 S.Ct. 351, 353, 34 L.Ed.2d 330 (1972) (per curiam), citing United States v. Winter 348 F.2d 204, 210 (2nd Cir. 1965);

Once a witness swears to give truthful answers, there is no requirement to "warn him not to commit perjury or, conversely to direct him to tell the truth." It would render the sanctity of the oath quite meaningless to require admonition to adhere to it.

The Supreme Court in Webb v. Texas, supra, found no difficulty in holding that a trial court's admonition to a defense witness to refrain from lying, coupled with threats of dire consequences if the witness did lie, effectively drove that witness off the stand and deprived the defendant of his right to present a defense. The Court reasoned:

The trial judge gratuitously singled out this one witness for a lengthy admonition on the dangers of perjury. But the judge did not stop at warning the witness of his right to refuse to testify and of the necessity to tell the truth. Instead, the judge implied that he expected Mills to lie, and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury, that the sentence for that conviction would be added on to his present sentence, and that the result would be to impair his chances for parole. At least some of these threats may have been beyond the power of this judge to carry out. Yet, in light of the great disparity between the posture of...