Metz v. State

• Decision Date: 18 February 1970
• Docket Number: No. 274,274
• Parties: Thurston Everett METZ v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 15

9 Md.App. 15

262 A.2d 331

Thurston Everett METZ v. STATE of Maryland.

No. 274.

Court of Special Appeals of Maryland.

Feb. 18, 1970.

Robert Anthony Jacques, Rockville, for appellant.

Donald Needle, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Robert S. Rothenhoefer, State's Atty. for Frederick County, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSAN, MORTON, ORTH, and THOMPSON, JJ.

ORTH, Judge.

Thurston Everett Metz (appellant) was convicted at a court trial in the Circuit Court for Frederick County of assaulting his wife, Viola Marguarette Metz, with intent to maim, disfigure or disable her. He presents questions relating to (1) the testimony of a wife against her husband in criminal proceedings under the provisions of Md. Code, Art. 35, § 4; and (2) the sufficiency of circumstantial evidence to sustain a conviction.

(1)

Viola Marguarette Metz, conceded by the State to be the legal wife of appellant, called by the State and being duly sworn, declined to testify against her husband and was excused, the court finding that she had an absolute right to refuse to testify. The State then adduced, through the testimony of Trooper Roger Miles of the Maryland State Police, that about 7:30 P.M. on 31 December 1968 he received a telephone call from appellant who said that 'he was having a New Year's party with his wife and that she had picked up a shotgun and he had tried to take it away from her and he related to me that she got shot.' Miles dispatched an ambulance to appellant's home and Trooper First Class Carl R. Harbaugh and Sergeant Major John E. Koontz went to the scene. They arrived at the Metz home in about 15 minutes. Harbaugh testified that appellant admitted them. 'Mrs. Metz was lying in a doorway between the kitchen and the living room and a large pool of blood was by her right arm by her body. * * *.' Harbaugh said that she was able to talk. Objection was made and sustained as to what she said. It was elicited that appellant was present, standing 'right beside' the officer and above Mrs. Metz. Harbaugh continued, 'Well, in the corner of the doorway where Mrs. Metz was lying on the floor was a 12 gauge shotgun. The gun was cocked and had a spent shell in the chamber. Mrs. Metz's arm was badly mutilated at the elbow. She had a large knot in the center of her forehead and her nose was scratched and bleeding and her face and arm was just generally covered with blood. We asked her what had occurred and she stated that. * * *' Defense counsel objected. The court asked, 'On what grounds if this is in the presence of the defendant if at the time of the shooting she was telling what occurred. Isn't this part of the res gestae?' Defense counsel replied, 'Your Honor, I am objection on the grounds that Mrs. Metz has exercised her right not to testify against her husband and by allowing this statement in the Court will be allowing her to testify indirectly when she has refused to testify for the record.' The court said, 'She elected at the time that she made the statement. She didn't exercise her privilege at that time. Objection is overruled.' The officer continued, 'Mrs. Metz stated she didn't do it and at this time Mr. Metz said for her to tell the truth and she said she would later.'

Appellant claims that the admission of the wife's statements was error, relying on Code, Art. 35, § 4. He argues that to allow the wife's statements in evidence through the officer, in the light of her refusal to testify, defeats the entire purpose of the statute. The statute provides, in pertinent part:

'* * * In all criminal proceedings the husband or wife of the accused party shall be competent to testify; but in no case, civil or criminal, shall any husband or wife be competent to disclose any confidential communication made by the one to the other during the marriage, nor shall the husband or wife be compelled to testify as an adverse party or witness in any criminal proceeding involving his or her spouse, except when such proceedings involves the abuse of a child under sixteen years pursuant to § 11 A of Article 27 of this Code, as amended from time to time; * * *.'

The statute clearly provides that in criminal proceedings, a husband or wife:

1) shall be competent to testify, except

a) neither shall be competent to disclose any confidential communication made by the one to the other during marriage (which is also applicable to civil proceedings);

2) shall not be compelled to testify as an adverse party or witness, except

a) when the proceedings involve abuse of a child as specified.

Appellant does not contend that his wife was not competent to testify and, of course, it is clear that she was. Even if the challenged statements be considered as a communication made by the wife to the husband, they were not confidential since they were made in the presence and hearing of third parties. Mulligan v. State, 6 Md.App. 600, 252 A.2d 476. See Gutridge v. State, 236 Md. 514, 204 A.2d 557. But it is equally clear that she could not be compelled to testify against her husband as the proceedings did not involve the abuse of a child. Mrs Metz invoked her statutory right not to testify and it was honored. We construe the statute to mean exactly what it says, that a husband or wife shall not be compelled 'to testify as an adverse party or witness.' Mrs. Metz was not compelled to testify and there was therefor no error. We are not persuaded that we should otherwise construe the specific and unambiguous language of the statute or convinced that we have the power, in any event, to depart from what we believe to be the clear legislative intent. We do not find that it was the legislative intent to exclude statements, otherwise admissible voluntarily made by one spouse to police officers, simply because that spouse refuses to testify against the other. We hold that Code, Art. 35, § 4 does not preclude the admission of the challenged statements.

Appellant also argues that even if the statute is not applicable, the statements were inadmissible. He asserts that the trial court ruled them admissible as part of the res gestae and urges that they were not. We do not find from the record that this point was tried and decided below. Appellant's objection was on the specific and sole ground that to admit the statements would have the effect of compelling the wife to testify. The court's ruling was on consideration of this ground advanced by appellant, even though it may have thought, as indicated by its question, that they were part of the res gestae. Since whether they were part of the res gestae vel non was not tried and decided below, that point is not properly before us. Maryland Rule 1085. In any event we think the statement that she did not do it was part of the res gestae. See Hall v. State, 5 Md.App. 599, 249 A.2d 217. And if the statement to the effect that she would describe the facts and circumstances of the shooting and battery later was not part of the res gestae and was admitted in error, its admission, in the circumstances, was harmless.

(2)

The thrust of appellant's contention that the evidence was not sufficient to sustain the conviction is that the evidence was solely circumstantial. The test of the sufficiency of the evidence has been established as being whether the evidence either shows directly, or supports a rational inference of, the facts to be proved, from which the trier of fact could fairly be convinced beyond a reasonable doubt, of the defendant's guilt of the offense charged. Williams v. State, 5 Md.App. 450, 247 A.2d 731. There has come to be impressed upon this rule, that when guilt is based solely upon circumstantial evidence, the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence. We traced the history of this language in Nichols v. State, 5 Md.App. 340, 247 A.2d 722. We found that language to that effect appeared in the Memorandum for Reargument in Edwards v. State, 198 Md. 132, 157, 83 A.2d 578, 581, 26 A.L.R.2d 874:

'If we assume that circumstantial evidence, or all the evidence of any kind, must 'exclude to a moral certainty every other reasonable hypothesis than that of guilt,' this assumption does not change the result in the instant case-and does not furnish any 'definite rule for the appraisal of circumstantial evidence."

In Shelton v. State, 198 Md. 405, 84 A.2d 76 the court stated the general test for sufficiency of the evidence and added, at 412, 84 A.2d at 80: 'Before a verdict of guilty is justified, the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence.' But in Vincent v. State, 220 Md. 232, 236-237, 151 A.2d 898, the Court made clear that this language is impressed upon the general test only when guilt is based solely upon circumstantial evidence. See Brown v. State, 222 Md. 290, 296, 159 A.2d 844 and Glaros v. State, 223 Md. 272, 281, 164 A.2d 461.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common...