Mayfield v. State

• Decision Date: 12 December 1983
• Docket Number: No. 99,99
• Citation: 468 A.2d 400,56 Md.App. 541
• Parties: Sylvester MAYFIELD AKA Robert Wilson v. STATE of Maryland. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 541

56 Md.App. 541

468 A.2d 400

Sylvester MAYFIELD AKA Robert Wilson v. STATE of Maryland.

No. 99 Sept. Term 1983.

Court of Special Appeals of Maryland.

Dec. 12, 1983.

David P. Sutton, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on brief, for appellant.

Jillyn K. Schulze, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., of Maryland, Kurt L. Schmoke, State's Atty., for Baltimore City and Gary Ticknor, Asst. State's Atty., for Baltimore City on brief, for appellee.

Argued before LISS, ALPERT and GETTY, JJ.

ALPERT, Judge.

This case requires our examination of the criminal defendant's right to testify in his own behalf. For the reasons stated herein, we hold that the appellant's statutory right to testify in his own behalf was impermissibly restrained requiring a reversal of his conviction.

FACTS

On the afternoon of January 19, 1982, Kevin Chase accompanied his friend, Anthony Carroway, to the George Street Apartments, a "project building" in downtown Baltimore. The purpose of Carroway's visit was to repay money loaned him by Cedric Allen. Allen resided on the tenth floor of the building. Because the lobby was crowded, the men decided to take the stairs. According to Chase, when they got to the third-floor landing, Sylvester Mayfield, appellant, motioned them into the hallway, put a gun at Carroway's side, and ordered them to give him their money. Understandably, both men complied. Chase described the gun as a black revolver resembling a magnum [handgun]. Chase testified he was robbed of $240; Carroway stated between $240 and $250 was stolen. Appellant then escaped by ascending the stairs. Chase and Carroway returned to the lobby, hypothesizing that their assailant would have to depart through that area of the building. Carroway hoped "to talk to him to see if I could get my money back."

Approximately one hour later, appellant emerged from the elevator into the crowded lobby. Several events transpired in the span of a few seconds. As Carroway recognized his accoster, he noticed two Baltimore City police officers entering the lobby. Carroway tapped an officer on the shoulder and said, "I just got robbed by that dude right there." Appellant recoiled, turned his back and threw an object into the elevator the precise instant its door was closing. Agent Bruce Dolinka testified that the object "landed with the sound of a large hard metal object." In the ensuing chaos, Dolinka and his fellow officer grabbed appellant, Chase and Carroway, pressed them to a wall and frisked them. Chase and Carroway were subsequently released after they gave statements to the police. When questioned, appellant identified himself as Robert Wilson. A post-arrest search of appellant recovered $332.

Appellant was charged with robbery with a deadly weapon and related offenses. He was tried on October 27 and October 28, 1982 before a jury in the Criminal Court of Baltimore.

Appellant contended that the activities at the George Street Apartments were in fact a drug deal gone awry, and that Chase and Carroway falsely accused appellant in order to blackmail him. On cross-examination, appellant sought to establish that Chase had visited appellant's mother and sister and offered not to testify if they paid him. Chase denied going to see either woman, but admitted receiving telephone calls from a woman identifying herself as appellant's sister offering money not to testify against her brother. Carroway also testified that he had received two calls from appellant's sister proposing that she could have her lawyer arrange for him to get his money back if he didn't press charges.

Appellant, after conferring with his counsel, elected not to testify, expressing concern about his past criminal record. Defense counsel named appellant's mother as the only defense witness for the purpose of rebutting Chase and Carroway's testimony regarding the phone calls. The State objected to the mother's testimony because she had not been sequestered during the State's case-in-chief. The Assistant State's Attorney stated he did not request sequestration, relying on defense counsel's statement that there would be no defense witnesses unless the defendant decided to testify. The trial court sustained the State's objection and pointed out that appellant's counsel was aware that his line of questioning of Chase might require the mother's rebuttal testimony. Appellant's counsel then explained that his actions resulted from the expectation that appellant's sister would appear and present a receipt which he could use to confront Chase with respect to the alleged extortion. The woman did not appear. This explanation did not persuade the court to change its decision because counsel did not have the receipt when cross-examining Chase. Appellant then advised the court that he had no defense witnesses.

The jurors returned to the jury box, and the defense rested. The court informed the jury:

... [A]s you heard, the defense has rested its case and there will be no testimony from defense and that will conclude all the testimony in this case.

The jurors were then excused for the day.

When trial resumed the next morning, appellant informed the court that he now wanted to testify.

Your Honor, I wish to testify on my own behalf because I mean without the testimony I don't think that it would be, I don't think I could really get a fair trial. Because there's one side as it stands now. I have been denied the testimony of my mother which is a key witness. I don't see any way possible to get a fair trial.

The State objected on the grounds appellant had given a "fair waiver" to exercise his testimonial privilege. The court sustained the objection and did not permit appellant to testify.

THE COURT: I'm going to sustain the objection. I believe the Defendant has rested his case, he had adequate opportunity to consult with counsel about whether or not he wanted to testify. Mr. Kaplan indicated he had talked several times previously with the Defendant. Although those discussions were before my ruling on his mother's testimony. Even after my ruling on his mother's testimony, there was every opportunity for the Defendant to speak up before the jury left yesterday. He did not. Even after the jury left yesterday we were going over instructions, the Defendant was here throughout the entire time and never said anything. He is saying something now for the first time this morning. What the Defendant is seeking to do is reopen his case at this time. I believe it's a matter for the discretion of the trial Court whether or not to allow him to reopen his case. I do not think he has shown good cause. He never, according to Mr. Kaplan, he never anticipated his mother testifying to begin with, and because his name was never, because Mr. Kaplan never gave the mother's name as a witness, he never could have anticipated his mother was going to testify. And notwithstanding the fact that he never anticipated his mother's testimony until last moment, he still had several conversations with Mr. Kaplan prior to the commencement of the trial and/or the beginning stages of the trial as to whether or not he was going to testify. Mr. Kaplan has so stated this yesterday. I would also point out that, and the State can correct me if I'm wrong, the State has excused the two witnesses in the case who were victims in the case. They are not present in Court today and therefore not available to be able to be recalled as rebuttal witnesses if the State should decide that their rebuttal testimony would be desirable and needed. Is that correct?

MR. TICKNER: That's correct, Your Honor.

THE COURT: So the State is put at a disadvantage in this regard. A further reason for my ruling is that to allow the Defendant to testify at this time, in my judgment, would allow him to present his defense in a more distinctive and advantageous atmosphere for himself, rather than have his testimony immediately following all of the State's witnesses as would have been the case yesterday, if he had elected to testify. It would be waiting for a new day to dawn, the beginning of a new day, his testimony alone goes before the jury today after the jury was told the case was all over, as far as testimony is concerned, after motions had been heard, after instructions to the jury, ready to come in to the Courtroom, they're ready to hear closing arguments and instructions. And all of a sudden, they're told now you're going to hear the Defendant's version. I think this gives the Defendant an undue advantage in the atmosphere of his testimony. And for all of these reasons, I sustain the State's objection.

Appellant was found guilty of two counts of robbery with a deadly weapon and two related counts of use of a handgun in the commission of a crime of violence. He was sentenced to 25 years imprisonment without parole pursuant to Maryland's mandatory sentencing, Maryland Code Ann. Art. 27, § 643B.

Three arguments are presented to us in this appeal:

I. The trial court erred prejudicially in refusing to permit Appellant to testify in his own behalf.

II. The court erred in invoking the sequestration rule to prevent the testimony of Appellant's mother.

III. The prosecutor's comments in closing argument concerning Appellant's failure to produce exculpatory evidence were so prejudicial as to deny Appellant a fair trial.

We believe appellant should have been permitted to testify and that the trial court abused its discretion in failing to permit appellant to reopen his case. Therefore, we shall reverse the conviction below. Accordingly, we need not address the other issues presented on appeal.

THE LAW

Today, in Maryland, the criminal defendant's right to testify is embodied in Md.Cts. & Jud.Proc.Code Ann. § 9-101.

Unless otherwise provided in this subtitle: (1) A person shall not be excluded from testifying in a proceeding because of incapacity from crime or interest in the matter in...