Matthews v. State

• Decision Date: 01 September 1985
• Docket Number: No. 1467,1467
• Citation: 511 A.2d 548,68 Md.App. 282
• Parties: Gene MATTHEWS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 282

68 Md.App. 282

511 A.2d 548

Gene MATTHEWS v. STATE of Maryland.

No. 1467, Sept. Term, 1985.

Court of Special Appeals of Maryland.

July 10, 1986.

Gary S. Offutt, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Ann E. Singleton, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and April Gluckstern, Asst. State's Atty. for Baltimore City, on brief), Baltimore, for appellee.

Argued before GARRITY and ALPERT, JJ., and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

ALPERT, Judge.

Gene Matthews, appellant, was charged with robbery with a dangerous and deadly weapon, assault, and the use of a handgun in the commission of a crime of violence. ¹ A jury in the Circuit Court for Baltimore City, with Judge Kenneth Johnson presiding, convicted appellant of assault and the weapons charge, but acquitted him of robbery with a dangerous and deadly weapon. Appellant received concurrent sentences of 15 years for assault and 20 years for the handgun offense.

This appeal followed.

The facts of this case, as revealed through the testimony of the victim, Lottie Graves, were as follows:

At 1:00 a.m. on August 19, 1984, Ms. Graves was returning home from the store when she encountered appellant, Rodney Carter, and a third person. ² These individuals accompanied Ms. Graves to the apartment she shared with her boyfriend, Earl Frazier, who was also acquainted with the appellant and Carter.

Shortly after they arrived at the apartment, Ms. Graves observed Carter threaten Frazier with a gun. Carter allegedly then turned the gun on Ms. Graves and ordered her to sit with Frazier in a chair in the kitchen. Carter then, according to Ms. Graves, instructed appellant and the other individual to remove an aquarium from the apartment. Carter then gave the gun to appellant and picked up a bat and, wielding it at Graves, ordered her to take off her ring. She complied, and he placed the ring in his pocket.

Next, Ms. Graves testified, appellant ordered her to go into the bedroom and told her to undress. He asked her if she performed fellatio and when she replied that she did not, he hit her across the face with the gun. Appellant then took her into the living room and instructed her to have sex with Carter and the third man, but she refused. Ms. Graves testified that appellant then struck her with the gun. Thereafter, Carter approached Graves (who was in the shower) and instructed her to go to an apartment upstairs and call the police. Carter further instructed her to leave his name out of the report.

According to Ms. Graves, she did telephone the police but they never came. The following day, at the request of her mother, she went to the hospital. There, hospital personnel called the police.

Appellant's arguments are threefold:

I. The trial court improperly restricted appellant's ability to cross-examine and impeach state witnesses.

II. The trial court erred when it refused appellant's jury instruction.

III. Appellant's sentence for assault is illegal.

Because we believe that the trial court did indeed unduly restrict cross-examination of one of the State's witnesses we shall reverse. Since the other issues could arise at retrial, we shall also address them.

I.

In a four-pronged argument appellant asserts that the court improperly restricted appellant's ability to cross-examine and impeach the State's witnesses.

RESTRICTION ON CROSS-EXAMINATION OF WITNESS FRAZIER

First, appellant contends that "[t]he trial court erred when it refused to allow defense counsel to ask about the quantities of cocaine and alcohol Frazier had used at the time of the incident." We agree.

It is axiomatic that evidence of a witness's intoxication at the time of the event about which he is testifying is admissible for the purpose of impeaching his credibility. Wharton's Criminal Evidence Vol. 2 § 458 (13th ed. 1973). We recognize that Frazier apparently acknowledged that he was under the influence of drugs and, further, that he had consumed alcohol on the night in question. The trial court, without explanation, sustained the State's objections to questions concerning the quantity of drugs and alcohol. Frazier was a key witness for the State. His credibility, in particular, his perception as to what occurred, was critical to the State's case. It is common knowledge that the quantity of alcohol and/or drugs consumed will affect one's ability to see, to hear, and, generally, to perceive what is occurring. The principle that a party is privileged to cross-examine a witness as to whether he was intoxicated or under the influence of drugs at the time of the incident about which he is testifying was implicitly recognized in Dove v. State, 33 Md.App. 601, 606, 365 A.2d 1009 (1976), rev'd on other grounds, 280 Md. 730, 371 A.2d 1104 (1977). There, we said:

Generally, cross-examination is restricted to those points on which the witness had testified on direct examination. This rule is not applied to limit cross examination of the witness to specific details brought out on direct examination "but permits full inquiry of the subject matter." Furthermore, it is proper to allow any question which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or which tends to test his accuracy, memory, veracity, character, or credibility. Seemingly, therefore, a witness may be questioned regarding whether he was sober, intoxicated, or under the influence of drugs at the time of the event in question.

(Citations omitted) (emphasis added).

Other jurisdictions are in accord, recognizing that a witness's capacity for accurate observation and memory are impaired by intoxication and/or drug influence. See generally Annot., 65 A.L.R.3d 705; Annot., 8 A.L.R.3d 479; and Wharton's Criminal Evidence § 458.

What Dove did not articulate, however, but what we consider an elementary principle of the right to cross examine a witness, is that a party has a further right to elicit from a witness evidence as to the extent of his intoxication. We find support for this statement from various other jurisdictions: United States v. Ketchem, 420 F.2d 901 (4th Cir.1969) (counsel should have been allowed to inquire into witness's course of drinking prior to alleged theft of car by defendant to show extent of intoxication and defense of consent); State v. Caston, 509 S.W.2d 39 (Mo.1974) (court erred in refusing to permit cross-examination of witness as to number of drinks consumed immediately prior to or during time events occurred); State v. Brooks, 1 N.C.App. 590, 162 S.E.2d 45 (1968) (proper to cross-examine witness as to quantity of alcohol he had consumed prior to incident); State v. McKiel, 122 Or. 504, 259 P. 917 (1927) (counsel has right to inquire as to the extent of witness's intoxication and in what way, if at all, it affected her memory); Rector v. State, 11 Ala.App. 333, 66 So. 857 (1914) (defendant has right to show that witness, at the time of the incident, was under the influence of liquor and the degree or extent of his intoxication); State v. Pemberton, 39 Mont. 530, 104 P. 556 (1909) (proper for defendant to question witness as to sobriety at time of incident to show he was "so intoxicated" his ability to observe was impaired).

Defense counsel had the right to explore the degree of drug influence and alcohol intoxication so that the triers of the fact could decide how much weight to give Frazier's testimony. The trial court's restriction constituted reversible error.

RESTRICTION ON EXAMINATION OF WITNESS WRIGHT

Appellant next contends that the State's witness, Tina Wright, should have been allowed to testify that Graves appeared to be under the influence of drugs.

At trial, examination proceeded as follows:

Q. Did she tell you why she came to your door?

A. Well, I was upset, because I was not well. She was doped up.

MS. GLUCKSTERN: Objection.

THE COURT: Sustained. The jury will disregard the comment. Next question.

BY MR. HENDERSON:

Q. You indicated you were upset; is that correct?

A. Yes.

Q. Why were you upset?

A. Because she was high.

MS. GLUCKSTERN: Objection.

THE COURT: Come up here, please.

The court later sustained the objection to the question whether Graves was "high."

Q. Based on your observations, those 15 years, and based on your observations of Lottie Graves, in your opinion, was she high?

MS. GLUCKSTERN: Objection.

THE COURT: Sustained.

At a later point, Wright was asked about Ms. Graves's condition, and her response was that "she was disarranged, disoriented. She was drawn. She looked like a monster from the drugs." The prosecutor lodged an objection, which was sustained, for reasons unstated by the trial judge. The State argues on appeal that when Tina Wright testified that she was upset because Lottie Graves was high, the trial court did not sustain the objection. We believe that that unfairly characterizes the record. The trial judge called counsel to the bench and subsequently admonished Ms. Wright because of her answer. While he neither sustained nor overruled the objection to the characterization of Lottie Graves as being "high," the admonition appears to have been in front of the jury and could have had the functional effect of sustaining the objection. Although the State argues that the later objection was overruled because it was cumulative, the trial judge did not assign that reason. We ought not and shall not assume, as the State would have us do, that the jury, notwithstanding the court's rulings, might perceive that Lottie Graves was "high" on the evening in question. She was the State's key witness, and her testimony was critical to the State's case. Defense counsel, had he laid the proper foundation, had the right, within certain bounds, to attempt to impeach her on the theory that she was under the influence of drugs. As...