Paschall v. State

• Decision Date: 01 September 1986
• Docket Number: No. 1111,1111
• Citation: 524 A.2d 1239,71 Md.App. 234
• Parties: Joseph A. PASCHALL v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 234

71 Md.App. 234

524 A.2d 1239

Joseph A. PASCHALL v. STATE of Maryland.

No. 1111, Sept. Term, 1986.

Court of Special Appeals of Maryland.

May 7, 1987.

Julia Doyle Bernhardt, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Jillyn K. Schulze, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore

City, Sherry Aarons and William Guiffre, Asst. State's Attys. for Baltimore City, on the brief), Baltimore, for appellee.

Submitted before ALPERT, BLOOM and KARWACKI, JJ.

BLOOM, Judge.

A jury in the Circuit Court for Baltimore City, presided over by Judge Martin Greenfeld, convicted appellant, Joseph Anthony Paschall, of two counts of felony murder, robbery with a deadly weapon, and three counts of use of a handgun in the commission of a crime of violence. Appellant received two sentences of life imprisonment and two sentences of twenty years, all of which were ordered to run consecutively.

The issues in this appeal, as presented by appellant, are as follows:

1. Whether the trial court erred in admitting a portion of the pre-trial statement of a witness under the doctrine of verbal completeness.

2. Whether the trial court abused its discretion in refusing to allow impeachment of a witness for the State with a prior conviction of malicious destruction of property.

For the reasons set forth below, we reject appellant's assertions of error and affirm his convictions.

Facts

In the course of a holdup at the Wilkens II Bar, shortly after 1:00 a.m. on January 21, 1985, a masked gunman shot and killed William and Wanda Garrison, the bartender and barmaid on duty at the tavern that night.

There was a considerable body of strong circumstantial evidence pointing to appellant as the criminal agent, but the only eyewitness to the robbery was William Schmuff. Schmuff had left the bar around midnight but returned around 1:00 a.m., at which time appellant was the only other patron on the premises. Shortly thereafter, Wanda Garrison made the call for last rounds, at which time appellant went to the men's room. A few moments later, appellant came out of the men's room wearing a ski mask, brandishing a handgun and announcing a holdup. Schmuff, who had known appellant for six months to a year prior to the crime and knew him by name, testified that he saw appellant take money out of the cash register but did not see or hear any shots. Schmuff ran outside and hid under a car. Later, after he emerged from his hiding place, he observed appellant leave the bar with a gun and a bag of money in his hands.

On cross-examination of Schmuff, appellant's counsel was able to demonstrate inconsistencies as to several details between the witness's testimony in court and earlier statements made by Schmuff to the police. There were also inconsistencies between Schmuff's testimony in court and his earlier testimony before the grand jury. Later in the trial, defense counsel sought to introduce a portion of a written statement Schmuff had given the police, in order to illustrate further inconsistencies between the statement and the witness's testimony. The portion of the statement that appellant's counsel wanted to introduce was as follows:

He went behind the bar and grabbed Wanda. He threw a brown paper bag on the bar and told me to get the money. I just sat there. I told Wanda to do as he said. So, Tony walked Wanda down to the cash register, and she got the money for him.

After that he walked her back down the bar and around like you go to the basement. When they started down the basement steps, I ran out the side door and hid under a car. Then Tony ran out the bar right past me. He ran down Wilkens Avenue toward Monroe Street. Actually, he was walking and not running.

The State initially requested that all of Schmuff's multiple page statement be admitted under the doctrine of verbal completeness or to demonstrate prior consistency between Schmuff's pre-trial statement and trial testimony, but later modified its position. Instead of insisting upon introducing the entire pre-trial statement if any part of it were introduced by appellant, the State requested only that the court admit the entire response by Schmuff to the question that gave rise to the portion appellant wanted to admit. In short, the State merely sought to have introduced "one complete answer to one complete question." ¹

The trial judge ruled that the portion of Schmuff's pre-trial statement offered by the defense would be admitted, but he also ruled that the following sentences immediately preceding that portion would be admitted as well, under the doctrine of verbal completeness:

Well, we were sitting there drinking a beer. It was me, Tony, Wanda, the barmaid, and her husband, Bill. Wanda said it was closing time, for everyone to finish their beers, because we had to go. She had already locked the front door. Tony went to the bathroom. Then he came out.

He had a mask on. He then said, "It's a holdup." He had pulled out a gun.

The trial judge elaborated:

[T]his one paragraph at the bottom of page one is a running narrative by the declarant about what happened. The only way to fairly give a jury the proper understanding and perspective and impression of what the person making the statement said was to give them that entire running narrative.

It is grossly unfair--it is grossly misleading--to pick and choose little phrases, separate items from that paragraph, even though those phrases are inextricably intertwined with the entire statement as given or at least that narrative--that uninterrupted narrative--that was given.

I

Appellant contends that the trial court erred in permitting the State, under the doctrine of "verbal completeness," to introduce into evidence those few sentences in the eyewitness's pre-trial statement that immediately preceded the matter introduced by the defense. We disagree.

In Newman v. State, 65 Md.App. 85, 499 A.2d 492, cert. denied, 305 Md. 419, 504 A.2d 1152 (1986), we discussed at length the doctrine of verbal completeness. We noted that:

Where a party has introduced a part of a writing, oral statement or conversation, his opponent may afterward introduce the remainder of the writing, oral statement or conversation which was written or said on the same subject at the same time. [Citations omitted.] This is equally true in the situation where a part of a statement is introduced or referred to in the course of impeaching a witness by showing bias or a prior inconsistent statement.

65 Md.App. at 95, 499 A.2d 492 (emphasis added).

Fairness is the raison d'etre of the doctrine in that it allows "an explanation to be given as to the impeaching material and in providing a complete picture for the trier of fact." Id. at 96, 499 A.2d 492. See also White v. State, 56 Md.App. 265, 273, 467 A.2d 771 (1983), cert. denied, 299 Md. 137, 472 A.2d 1000 (1984).

There are, nonetheless, limitations on the right of a party to introduce the remainder of a statement or utterance, namely:

(a) No utterance irrelevant to the issue is receivable;

(b) No more of the remainder of the utterance than concerns the same subject, and is explanatory of the first part, is receivable;

(c) The remainder thus received merely aids in the construction of the utterance as a whole, and is not in itself testimony.

Newman, supra, 65 Md.App. at 96, 499 A.2d 492 (citing 7 Wigmore, Evidence § 2113 (Chadbourne rev. 1978)). See also Bowers v. State, 298 Md. 115, 134, 468 A.2d 101 (1983); Feigley v. Baltimore Transit Co., 211 Md. 1, 10, 124 A.2d 822 (1956).

To be admissible, therefore, the remainder must not only relate to the same subject matter but must also tend either "to explain and shed light on the meaning of the part already received," or to "correct a prejudicially misleading impression left by the introduction of misleading evidence." Newman, supra, 65 Md.App. at 96, 499 A.2d 492; White, supra, 56 Md.App. at 273, 467 A.2d 771.

Appellant contends that the portion of the statement admitted at the behest of the State did not "explain and shed light on the meaning of the part already received" at the request of the defense. He argues that the portion of the statement which he offered related only to the question as to whether it was appellant (as Schmuff testified at trial) or Wanda Garrison (as Schmuff informed the detective) who took the money from the register and whether appellant had ever grabbed Mrs. Garrison. The disputed portion admitted at the State's request, appellant asserts, is irrelevant to those issues and merely served to bolster Schmuff's credibility.

Appellant's reading of Newman and his interpretation of verbal completeness are unreasonably restrictive. In Newman, the alleged victim complained that she was sexually abused on several occasions while babysitting at the accused's home and that ultimately she was raped. The victim reported the incidents to a Mrs. Lechman. At trial, after the victim testified that she babysat at appellant's home on New Year's Eve, she was asked whether she had told Mrs. Lechman on a prior occasion she had not babysat for the accused on New Year's Eve. The victim denied making such a statement to Mrs. Lechman, whereupon the defendant sought to impeach her by offering that portion of Mrs. Lechman's pre-trial statement that was at variance with the victim's testimony concerning her whereabouts on New Year's Eve. The State then offered Mrs. Lechman's entire pre-trial statement under the doctrine of verbal completeness and the court admitted it. We held that the trial court erred in admitting the entire statement. Appellant had impeached the victim's testimony on the narrow issue of whether she had babysat for the accused. We pointed out that the

remainder of Mrs. Lechman's statement, while made at the same time as the portion referred to by appellant, is not on the same subject. Rather than explaining and shedding light on...