McCray v. State

• Decision Date: 24 December 1985
• Parties: Ernest McCRAY v. STATE of Maryland. 31 Sept. Term 1985.
• Court: Maryland Court of Appeals

Page 126

305 Md. 126

501 A.2d 856

Ernest McCRAY v. STATE of Maryland.

31 Sept. Term 1985.

Court of Appeals of Maryland.

Dec. 24, 1985.

Sherrie B. Glasser, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Valerie J. Smith, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

COUCH, Judge.

We granted certiorari in this case to consider whether the trial court erred in refusing to allow a proffered defense witness to testify in his behalf on the basis of a violation of the sequestration rule ¹ when there was no request for sequestration nor any such order. Under the facts and circumstances present we hold the trial judge did err.

Ernest McCray was charged with, inter alia, second degree rape and child abuse. He was tried in the Circuit Court for Baltimore City and convicted of these two charges. Upon appeal to the Court of Special Appeals that court affirmed the judgments; we issued certiorari to review that decision.

During the trial the State produced, in rebuttal, the thirteen year old victim, who on cross examination denied that in visiting the defendant ² in jail awaiting trial, she told him she was going to drop the charges. The defendant, in his direct examination, had testified that she had so told him on her visit to the jail. The victim also denied that she told anyone else that she was going to drop the charges although, during the State's case in chief, she, in answer to a question from the trial judge, stated that in a phone conversation with the defendant he had asked her "Was I going to let him go free and I told him yes. I told him yes. And I told him that he has to tell me something first before I go to Court. And I asked him, I said did you do that to me? He said yes."

Thereafter defense counsel, in a bench conference, advised the trial judge he had "to ask some surrebuttal;" that the defendant's sister, who had been sitting in the courtroom during the trial, was prepared to testify she was at the jail when the victim told the defendant she was going to drop the charges. Thereafter the following colloquy took place:

"MR. WOOD [State's Attorney]: I believe she is in the courtroom.

MR. CAPLAN [Defense Attorney]: This is something I didn't anticipate. You're the one who brought up the question.

THE COURT: You brought it out. He didn't bring it out. Your client brought it out.

MR. WOOD: It was implied in the defense counsel's question.

MR. CAPLAN: No. Well, irrespective, in view of cross examination I am entitled to rebut what she said.

THE COURT: Well, why wouldn't you have told us about that so that--

MR. CAPLAN: I had no idea she would deny it, why she would go over there.

THE COURT: You brought out for the first time that the victim had been to the Baltimore City Jail and she had said that she was going to drop the charges. You brought that out.

MR. CAPLAN: Right.

THE COURT: It surely is not unreasonable to assume that the victim was going to deny that. And yet, you knew that the sister was in the courtroom and you could reasonably anticipate putting her on to rebut what the sister said.

MR. CAPLAN: That's not true. I didn't know about the visit to the City Jail until the case was in the middle of it.

Secondly, I did not know she made mention to the sister.

THE COURT: Well, you brought this out when you were directly examining your client.

MR. CAPLAN: I didn't know she was going to deny the statement.

THE COURT: Did you think she would admit it?

MR. CAPLAN: I thought that's what she went over there for.

THE COURT: Simply because your client said--

MR. CAPLAN: No. Why would the girl go over there? Would you think that a girl would go over there and say I'm going to prosecute you? It's always the other way around. And I assume that's what it's going to be.

THE COURT: Why would you think the victim went over there simply because your client said she did?

MR. CAPLAN: Why would he lie about it? I could get the record--

THE COURT: Do you want to know why people lie? I don't have enough time to answer that question.

Just a minute. Let's stop sparring. The point of it is you knew you were going to elicit testimony from your client that the victim visited him at the jail. You knew that the victim either was going to say yes, I did, and you knew further that the victim if she took the stand might well have denied that she had ever said she was going to drop the charges. So, you should have apprised this Court of that so we could understand whether the aunt or whoever it was, the sister was going to be a witness in this case. Now, having said that--

MR. CAPLAN: Your Honor, if I might interrupt.

THE COURT: Why should you interrupt? Having said that, the whole purpose of the sequestration rule is so that some person cannot hear what someone else is saying.

MR. CAPLAN: There was no motion that I recall.

MR. WOOD: There was no motion to sequester in this case because the defense said they had no witnesses at all in this case. Why should I make a motion to sequester if we have no witnesses?

THE COURT: Well, Mr. Caplan should have told this Court that the Defendant was going to say that the victim visited him in jail and that the victim said I'm going to drop the charges. And thus afforded the adversary an opportunity to determine who the adversary the State was going to put on the victim to deny these things. Whether the State would or wouldn't have, it would have been preferable obviously to not have the sister of the Defendant in the Court during this critical testimony. Because Mr. Caplan specifically asked the Defendant on direct examination, is it true that there were other people present. And he elicited the answer that the sister was present. Now, right then and there Mr. Caplan knew that the sister was sitting in the very courtroom when that question was asked. Why did you not at that time as an officer of the Court say, Judge, I want to alert you to this and the sister shouldn't be in this courtroom?

MR. CAPLAN: I should not as an officer of the Court--

THE COURT: You should not?

MR. CAPLAN: In the interest of my client, I'm to protect his interest at all times. It does not call for me to tell you what I proffer as to--

THE COURT: Why should I not permit her testimony?

MR. CAPLAN: Because surrebuttal is in the discretion of the Court. I feel you would be abusing your discretion by not permitting me to put her on.

THE COURT: Even though you sandbagged this Court?

MR. CAPLAN: I didn't sandbag the Court. Have no reason to alert the Court and State's Attorney as to what my possible defenses or testimony are. There's no motion in the discovery for discovery from the State except as to alibi witnesses. That is not the situation in this case. At no time do I have to make a proffer as to what my proffer might be.

THE COURT: You're correct. You don't have to make a proffer. When you get to the point where you know you're going to be asking this man whether what he said was truthful because someone else was present at that time and you knew he was going to say the sister was present and you also knew the sister was in the courtroom. That creates a situation where when you now want to put her on you've done something in my viewpoint that's somewhat questionable. Now, the question is whether to let her testify or not. I have these options: I can say no, she can't testify; or I can say no, she can't testify and the State cannot allude to that in its closing argument; or I can let her testify. If she does testify, she had the advantage of having heard everything that the Defendant has said and can pattern her testimony after his. Whereas had she not been in the courtroom, then she would have been just another witness to be cross examined not knowing precisely what the brother had testified to.

Ma'am, would you come up, please? This lady. Thank you.

What is your name?

MS. TAYLOR: Fanny May Taylor.

THE COURT: You're the sister of the Defendant?

MS. TAYLOR: Yes.

THE COURT: Now, were you present at the time?

MS. TAYLOR: Yes.

THE COURT: Did you talk to Mr. Caplan about that?

MS. TAYLOR: Yes. I told him when I called him on the phone.

THE COURT: When did you call him on the phone?

MS. TAYLOR: That Sunday.

THE COURT: How long before today did you call, a week ago?

MS. TAYLOR: I'd say almost--Eleaisha, she went almost two weeks before Thanksgiving.

THE COURT: And you told Mr. Caplan you were at the jail?

MS. TAYLOR: Yes. He came that Saturday.

THE COURT: And that's when she said what?

MS. TAYLOR: I told Mr. Caplan she said she's going to drop the charges and she asked me could she go to Baltimore City Jail with me. Nothing else, could she go with me.

MR. CAPLAN: Let me ask you something: Did you tell me that she was over the City Jail with you when she said she was going to drop the charges?

MS. TAYLOR: Yes. We went there together. I told you that.

MR. CAPLAN: When did you call me?

MS. TAYLOR: Sunday night.

MR. CAPLAN: What did you say?

MS. TAYLOR: I told you Eleaisha said she was going to drop the charges.

MR. CAPLAN: Isn't that exactly what you said?

MS. TAYLOR: Yes.

THE COURT: Sit down, ma'am, please.

I sustain the State's objection and she will not testify. And I feel you misled this Court intentionally. You contended three minutes you knew nothing about it.

MR. CAPLAN: I still contend it. She said one time over the phone. What I gathered is a different story.

THE COURT: I order the State not to talk about that."

The right of a defendant in a criminal trial to produce witnesses in his own behalf is a critical right, the implementation of which is guaranteed by Article 21, Maryland Declaration of Rights, and the Sixth Amendment to the United States Constitution. We recognize, of course, that trial judges have broad discretion in the conduct of trials in such areas as the...