Parks v. State

• Decision Date: 10 November 1980
• Docket Number: No. 136,136
• Citation: 47 Md.App. 141,422 A.2d 384
• Parties: Timothy PARKS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 141

47 Md.App. 141

422 A.2d 384

Timothy PARKS v. STATE of Maryland.

No. 136.

Court of Special Appeals of Maryland.

Nov. 10, 1980.

Thomas J. Saunders, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland, on brief, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen Andrew L. Sonner, State's Atty. for Montgomery County and Barry A. Hamilton, Asst. State's Atty. for Montgomery County, on brief, for appellee.

Argued before MOYLAN, MOORE and LOWE, JJ.

LOWE, Judge.

The evidentiary issue in the case before us exemplifies a tendency of some prosecutors who "overtry" their cases intending, perhaps, to err if at all on the side of prudence. But too much is not always prudent. A careful carpenter, for example, will resist the temptation to add that one last nail which will frequently split the board, weakening rather than reenforcing, the structure he is trying to build. A careful lawyer also knows when to stop hammering, although the hairline fractures are not always immediately apparent. Unless the same craftsman defends his structure on appeal, the subtle damages of overbuilding a case may continue to escape him. While the structure withstood it in this case, the value of that last nail was hardly worth the risk-but that is much easier to see in the contemplative light of retrospect.

In this case, originally tried by a jury in the Circuit Court for Montgomery County, a 13-year-old girl was the victim of assault and battery, assault with intent to rape and a third degree sexual offense by appellant who was one of several men between the ages of 18 and 32 who had picked her up in a car. She was molested thereafter in various ways, at different times and at several locations.

Appellant was tried separately from the other participants, some of whom testified in his case, some of whom did not. In addition to submitting evidence of the corpus delicti of the crime, the State established appellant's criminal agency by a wealth of evidence. Appellant's brother and his wife established appellant's presence, explaining that he (the witness) and his brother (the appellant), in addition to one John Norris Anderson, ¹ while on an aborted errand, had stopped and picked up the victim who was on a sidewalk and was apparently drunk. Appellant's brother inculpated Anderson directly and appellant inferentially, by describing their conduct during the drive to the apartment of a friend, Ronald Harrison Reemsnyder, ² and after leaving the apartment building. When the vehicle was stopped at a deserted military base, the witness stayed in the car, but his testimony inferentially and corroboratively inculpated the other four male passengers, including Anderson and appellant.

An associate of appellant's also testified corroboratively in regard to appellant's criminal agency and further inculpated him by reciting an admission indicative of guilt. Another witness who came upon the scene when attracted by the victim's screams, testified to his observations which also circumstantially inculpated appellant. Testimony of a microscopic examination of hair samples taken from clothing at the scene of the crime revealed that the hairs could have come from appellant. A final witness, Clifford Tragesor, was permitted to testify to a conversation that he had had with John Norris Anderson while both were detained in a jail cell. His testimony was limited to Anderson's statements concerning only Anderson's involvement in the criminal conduct. It is this testimony that brought about the appeal here, despite there having been no testimony from Tragesor about conversations with appellant or with Anderson that implicated appellant directly.

The purpose and the relevance of the testimony was primarily to corroborate the testimony of the other witnesses who had inculpated Anderson and appellant, as well as the other participants in their joint venture, thus corroborating not only appellant's criminal agency inferentially, but tending to prove the corpus delicti by repeating Anderson's admissions of his own criminal conduct which the panoply of witnesses' testimony showed was committed while in the car with appellant and the others. ³the right of confrontation

The single question on appeal relates to the admissibility of Tragesor's testimony.

"Did the court err in allowing a witness to testify concerning the admission of a codefendant?"

While recognizing that the evidence was admitted under a proper exception to the hearsay rule (admissions against penal interest), appellant attempts to create a constitutional obfuscation of an already cloudy area of criminal law.

"The question which needs to be resolved involves the viability of the Bruton v. United States, 391 U.S. 123 (88 S.Ct. 1620, 20 L.Ed.2d 476) (1968) doctrine now that Maryland has adopted the declaration against penal interest exception. Does that exception nullify Bruton, or can they be harmonized?" (Footnote omitted.)

It appears that this was precisely the attack made in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 210 (1970). Reciting the Dutton facts Judge Morton noted in McDowell v. State, 31 Md.App 652, 660, 358 A.2d 624 (1976), cert. denied, 278 Md. 727 (1976), that the factual posture of Dutton was substantially identical to that of McDowell.

"In Dutton v. Evans, Evans had been convicted in a Georgia court of participating in the murder of three policemen. In the course of the trial, a witness for the state, named Shaw, was permitted to testify that Williams, an accomplice of Evans, had told him (Shaw) while he was in prison awaiting trial that if it had not been for Evans, he, the accomplice Williams, would not 'be in this now.' Objection to the testimony was made on the ground that the introduction of this hearsay testimony was in violation of Evans' right of confrontation. The objection was overruled and the issue before the Supreme Court was whether Evans' murder conviction should be set aside because of the admission of this testimony."

We find the facts here even more apposite to Dutton, while the evidence now in question is even less damaging to appellant than that which was admitted in Dutton. It further appears that Dutton expressly dispelled the same Bruton obfuscation attempted here.

"There was not before us in Bruton 'any recognized exception to the hearsay rule,' and the Court was careful to emphasize that 'we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.' (Citation omitted.)

It seems apparent that the Sixth Amendment's Confrontation Clause and the evidentiary hearsay rule stem from the same roots. But this Court has never equated the two, and we decline to do so now." 400 U.S. at 86, 91 S.Ct. at 218 (footnotes omitted).

The significance of Dutton is the Court's distinguishing that which the Dutton case did not involve:

"This case does not involve evidence in any sense 'crucial' or 'devastating,' .... It does not involve the use, or misuse, of a confession made in the coercive atmosphere of official interrogation, .... It does not involve any suggestion of prosecutorial misconduct or even negligence, .... It does not involve the use by the prosecutor of a paper transcript, .... It does not involve a joint trial, .... And it certainly does not involve the wholesale denial of cross-examination, ...." Id. at 87, 91 S.Ct. at 219.

Mr. Justice Stewart, for the plurality, went on to note that:

"Of the 19 other witnesses, the testimony of but a single one is at issue here. That one witness testified to a brief conversation about Evans he had had with a fellow prisoner in the Atlanta Penitentiary.... His testimony, which was of peripheral significance at most, was admitted in evidence under a coconspirator exception to the hearsay rule long established under state statutory law." Id. at 87, 91 S.Ct. at 219 (footnote omitted).

This indicated, we believe, the lack of significance of that testimony in the perspective of an otherwise strong case. The language demonstrates rather clearly that even if it had been erroneously admitted its effect may well have been harmless.

It also appears that Dutton indicates with equal clarity that whether these evidentiary admissible out-of-court admissions of codefendants to a third party are constitutionally admissible must be decided each on its own facts. Id. at 86-88, 91 S.Ct. at 218, 219. ⁴ Taking that as the message of the plurality, we begin with the presumption that the judge's exercise of discretion is presumed correct, Mathias v. State, 284 Md. 22, 28, 394 A.2d 292 (1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1996, 60 L.Ed.2d 675 (1979); but see Hughes v. State, 288 Md. 216, 421 A.2d 69 (1980), and we may not under our own appellate procedure, reverse the trial judge's discretion unless it is abused.

Procedurally, before addressing the constitutional admissibility, we must first assure ourselves that it was evidentially admissible under an exception to the hearsay rule. Here the evidence was allowed in via the exception for statements that are against penal interest which is clearly under the aegis of Maryland evidentiary rules. Jacobs v. State, 45 Md.App. 634, 415 A.2d 590 (1980).

We have already addressed the corroborative relevancy of the statement, and so long as it tended toward "Getting The Right Man", Jacobs, supra 45 Md.App. at 645, it is not the Court's role to judge the degree of persuasive effect, only that it does or does not tend to get the right man. It is then necessary simply to determine that the out-of-court declarant is "presently unavailable." Id. at 45 Md.App. 653. John Norris Anderson, the declarant, had been tried and convicted by the time this case was being tried, but his conviction was on appeal. It is well-settled that "invocation of the privilege against compelled self-incrimination is a sufficient showing of unavailability." Id. (...