Patterson v. State

• Decision Date: 23 July 1975
• Docket Number: No. 179,179
• Citation: 342 A.2d 660,275 Md. 563
• Parties: Mary Theresa PATTERSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 563

275 Md. 563

342 A.2d 660

Mary Theresa PATTERSON v. STATE of Maryland.

No. 179.

Court of Appeals of Maryland.

July 23, 1975.

Gilbert Kramer, Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., (Francis B. Burch, Atty. Gen., Clarence W. Sharp, Asst. Atty. Gen., Baltimore, Edward H. W. Harlan, State's Atty. for Harford Co., John A. Goodman and Edward ward Lilly, Asst. State's Attys. for Harford Co., Bel Air, on the brief), for appellee.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

Following a domestic argument, Douglas Lynn Patterson died on the night of Sunday, June 25, 1972, as a result of internal bleeding caused by a stab wound in his chest. His wife, the appellant, Mary Theresa Patterson, was indicted for his murder.

Following a five-day jury trial in the Circuit Court for Harford County (presided over by Judge Albert P. Close) she was convicted on February 17, 1973, of murder in the second degree and thereafter sentenced to a term of 20 years. ¹

On the morning of the trial the prosecutor filed a motion for appropriate relief under Maryland Rule 725 a asking that the trial court call Mrs. Edna Gentile as the court's own witness for the purpose of direct examination by the court and with cross-examination to be allowed both the State and the defense.

As reasons for the relief requested the motion alleged that the witness possessed material and relevant knowledge of the circumstances surrounding the homicide and the actions and words of the decedent immediately prior to the stabbing, that the State could not vouch for the veracity of the witness and that a miscarriage of justice would result from the failure of the witness to testify. Following the impaneling of the jury, the prosecutor, in chambers, in support of his motion, proffered that although Mrs. Gentile had been summoned as a State's witness the prosecution could not vouch for her veracity because she had made inconsistent statements, plus the fact that she was the mother of the appellant; that she had refused to speak with the prosecutor about the case; that on the night of the homicide she had given an oral statement to State Police officers, only after having spoken with her husband and after she had urged him 'don't tell the police anything;' that the oral statement varied materially with the sworn testimony she had given the Grand Jury and varied as well materially with the statement given her daughter's counsel, and that because of the blood relationship with the accused it was believed that she would not be candid in her testimony. It was additionally proffered that at the time of the homicide Mrs. Gentile had been the only person present in the Patterson home, other than the three-year-old child of the parties, and that the personal knowledge she possessed made her testimony necessary for a fair determination of the appellant's guilt or innocence. Appellant's counsel objected to the motion and countered by moving to suppress the oral statements given by Mrs. Gentile which might be used by the State in presenting its case-in-chief, or by the court in examining her, should the motion be granted. ²

In order to protect the witness against any possible charge of perjury Judge Close appointed counsel to represent her and, out of the presence of the jury, received evidence in support of the State's motion.

In those proceedings two Maryland State Troopers testified that when they visited the Patterson home Mrs. Gentile, who was described as 'upset,' remained in a bedroom until her husband came to the premises, that although she exhorted her husband not to tell the police anything he counseled her that the police were 'only doing their job' and that 'if she knew anything (about the homicide) to tell them.' Mrs. Gentile then told the police that Douglas Patterson and her daughter had planned 'to go out for the evening;' that she was scheduled to 'baby sit;' that after Mrs. Patterson had gotten dressed she heard the victim express his change of mind and saw her daughter enter a small bedroom, used as a television room, where her son-in-law was seated in a chair; that when he repeated his refusal to 'take his wife out' her daughter began waving a knife in front of him. Subsequently she saw Douglas Patterson rise from the chair with blood on the front of his clothing and stagger into the kitchen where he collapsed. Because she was 'upset' she refused to give the police a written statement that evening; an appointment was made for her to be interviewed at the police barracks the following day. She later refused to give a statement out of the presence of her attorney and her account of the incident was never reduced to writing.

It was further elicited that when Mrs. Gentile testified under oath before the Grand Jury she stated that the argument had commenced in the television room and continued in the kitchen; that she was never present in the same room where the parties were arguing. She further gave testimony that the first time she had ever seen the knife was, following the stabbing, when the trooper removed it from the kitchen sink; she denied that she had ever seen her daughter brandishing the knife and stated that during the argument her son-in-law had left the television room and that when she next saw him he was lying wounded on the kitchen floor.

It was additionally pointed out that a statement she had subsequently given the appellant's trial counsel different substantially from what she had orally related to the police on the night of the killing. ³

Judge Close after hearing argument on that, as well as on other motions, granted the State's motion to have Edna Gentile called 'as the court's witness' and before the State closed its case-in-chief she, over defense objection, was called as the last witness, with the court questioning her initially and both the State and the defense cross-examining her.

In her direct appeal to the Court of Special Appeals the appellant asserted inter alia that the trial court abused its discretion in granting the State's motion and in having Edna Gentile testify as the court's own witness during the presentation of the State's case-in-chief. That court, in affirming her conviction in Patterson v. State, 22 Md.App. 13, 321 A.2d 544 (1974), held that 'there was an adequate showing of the need to do so, and that in calling her (as the court's witness) the court did not abuse its discretion.' We granted certiorari limited solely to the question whether the trial court abused its discretion by granting the State's motion for appropriate relief and in calling Edna Gentile as its own witness during the State's case-in-chief.

Although in Hewitt v. Md. Board of Censors, 241 Md. 283, 291, 216 A.2d 557, 561 (1966), this Court rejected the procedure where the trial judge mobilized, on his own initiative, the entire jury panel as a pool of witnesses to review a motion picture and to answer a questionnaire concerning whether of not it was 'obscene,' and stated: 'The trial judge ordinarily should wait for the party on whom the burden of proof rests to procure, produce and examine in open court, the witnesses he hopes will prove his case,' and although in Wilson v. State, 20 Md.App. 318, 321, 315 A.2d 788, 790 (1974), where the trial court had granted the State's motion that three young men, eyewitnesses to the shooting, be called as the court's own witnesses on the ground that they had been intimidated, were 'terrified' and that the State could not vouch for their veracity, the authority of the trial judge to call and examine the witnesses was not there at issue, no prior appellate decision in this state has ruled on whether a trial judge may, in the exercise of his sound discretion, call and examine witnesses under appropriate circumstances.

In all jurisdictions, however, in which the question has been considered the authority of the trial court to call a witness in a criminal prosecution as the court's witness on its own motion, or at the request of one of the parties has been recognized. ⁴ In those cases where neither the prosecution nor the defense is willing to vouch for the veracity of the witness and the witness appears to possess material evidence the invocation of the procedure is generally held to be within the sound discretion of the trial court; some courts limit the procedure to those cases where material injustice would otherwise result. See Annot., 67 A.L.R.2d 538, 540-42 (1959).

A succinct summary of the rule is stated in 98 C.J.S. Witnesses § 350, at 70-71 (1957), as follows:

'This power of the court to call witnesses and allow cross-examination by either or both sides extends to criminal cases. This does not mean that every witness may be so called, or that cross-examination may include everything that may affect credibility. The calling of a witness as the court's witness in a criminal case, either for or against accused, is a matter resting in the sound discretion of the court. The court's discretion should be exercised with great care; and some showing should be made to the court, in the absence of the jury, to justify the court in calling witnesses as its own. Ordinarily, the court should call a witness as its own only when it is shown that otherwise there might be a miscarriage of justice. The court may call a witness whose veracity and integrity will not be vouched for by the prosecution or accused, or a witness who is hostile to the party calling him. The power of the court to call witnesses may be exercised with respect to witnesses present at the commission of the crime . . ..'

In Accord 2 C. Torcia, Wharton's Criminal Evidence § 503 (13th ed. 1972); C. McCormick, Evidence § 8 (2d ed. 1972); and 58 Am.Jur. Witnesses § 4 (1948). See also 9 J. Wigmore, Evidence § 2484 (3d ed. 1940).

The new Federal Rules of Evidence expressly recognize the right of a court, on its own motion, or at the suggestion of a party, or...