Patterson v. State, 496

• Decision Date: 11 July 1974
• Docket Number: No. 496,496
• Parties: Mary Theresa PATTERSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 13

22 Md.App. 13

321 A.2d 544

Mary Theresa PATTERSON v. STATE of Maryland.

No. 496.

Court of Special Appeals of Maryland.

July 11, 1974.

William G. Salmond, Baltimore, with whom was Gilbert Kramer, Baltimore, on the brief, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Edwin H. W. Harlan, State's Atty., for Harford County, John A. Goodman and Edward Lilly, Asst. State's Attys., for Harford County, on the brief, for appellee.

Argued before ORTH, C. J., and MOYLAN and POWERS, JJ.

POWERS, Judge.

On 7 August 1972 the grand jury in Harford County indicted Mary Theresa Patterson, charging that on 25 June 1972 she murdered Douglas Lynn Patterson. Trial was held before a jury in the Circuit Court for Harford County, beginning on 13 February 1973, and ending on 17 February with a verdict of guilty of murder in the second degree. After sentence was imposed, Mrs. Patterson appealed.

In this Court she raises four questions, as follows:

1. Did the Court abuse its discretion by granting the State's Motion for appropriate Relief and calling Edna Gentile as its own witness during the State's case-in-chief?

2. Did the trial judge abuse his discretion in allowing testimony of two witnesses called by the State as rebuttal witnesses?

3. Did the Court err by insufficiently instructing the jury as to the definition of voluntary manslaughter thus prejudicing the Defendant's right to a fair trial?

4. Did the trial judge commit reversible error by failing to instruct the jury that the prior statements of the witness, Edna Gentile, could be used only for the purpose of impeachment?

Since appellant does not contend that the trial judge erred in denying her motion for judgment of acquittal, a review of all the evidence for sufficiency is not required. Briefly, there was evidence that in the evening of 25 June 1972 the appellant and her husband, Douglas Lynn Patterson, had planned to go out, and appellant had arranged for her mother, Edna Gentile, to stay with their child. Mr. Patterson decided that he did not want to go out, and said so. An argument ensued. At one time, Mrs. Patterson had a butcher knife in her hand. She was standing near where her husband was sitting in a chair. The husband got up out of the chair and fell to the floor. Blood was coming from his chest. Help was summoned. An ambulance, the police, and a physician arrived. Mr. Patterson was dead, of a knife wound in the chest.

Mrs. Patterson testified in her own defense. She said:

'* * * we were going to go out for the evening, and right after that, my husband said, no, I am not going. And as soon as he said that, the argument started.'

She further said that she went in the kitchen, and was washing dishes. She described what followed:

'Well, my husband walked into the kitchen and he went to get a drink. He turned around from the kitchen, from where the sink was, it is a double sink, and he started to go like he was going back in to watch TV. So as I was gathering the dishes and the silverware, to finish washing them, because he said we weren't going anywhere, so I turned around and I noticed he was going up to the shelf to get the keys. So I said, 'Where are you going?' And he said, 'I'm going out.' I said, 'Well, you said you weren't going. Why can't we go together?' So he said,-he just started to violently take his hand to the keys. So he went to get it and I was in front of him. I went so fast, up to get the keys out of his hand, no realizing that I had the knife in the other hand, he pushed into me to go out the front door because he wanted to get out, before I knew it, it happened. But I didn't intend to do it. I wouldn't have hurt my husband. He beat me to death but I wouldn't have hurt him.'

I

On the morning of trial the State, in a motion for appropriate relief, asked the court to call Edna Gentile as its own witness for the purpose of direct examination by the court and cross examination by both the State and the defense. As reasons, the motion said that the State could not vouch for the veracity of the witness, that her testimony would be material and relevant to the issues and necessary for a full and fair determination of the issues, that later statements made by her vary materially from her first statement to the police, that because of her relationship to the defendant the witness may not be candid in her testimony, and that a miscarriage of justice would result from the failure of the witness to testify.

After taking testimony and hearing arguments on that and other motions, out of the presence of the jury, the court, the following morning, granted the State's motion for appropriate relief.

Before the State closed its case, Mrs. Gentile was called as a court's witness, and was questioned initially by the judge. Thereafter both the State and the defense cross examined the witness.

Appellant contends that it was an abuse of discretion, and therefore error, to call Mrs. Gentile as a court's witness. She does not assert error in any specific question or ruling during the course of Mrs. Gentile's testimony, but contends that by the very act of calling her as the court's witness, the judge diminished and tarnished his role as an impartial moderator, and improperly influenced the jury by creating in their minds suspicion of the appellant's guilt.

'The authority of a trial judge 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 in all jurisdictions in which the question has been considered.' Annot., 67 A.L.R.2d 538, 540 (1959). ¹

The cited Annotation goes on to say, at 541:

'Although the decisions are in accord to this extent, some inconsistencies, if not actual conflicts, appear in regard to when a court may properly exercise such authority; however, the intimation of a majority of the decisions is that it is primarily within the discretion of the court when it shall call a witness for whom neither the prosecution nor the defense is willing to vouch and who appears to possess material evidence.'

And says further, at 541-42:

'In some instances the courts have taken the position that the right of a trial judge to call a witness in a criminal case should not be exercised unless material injustice would otherwise result.'

In 98 C.J.S. Witnesses § 350, at 70-71 (1957) the rule is stated:

'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.'

McCormick, Law of Evidence, § 8, states:

'Not only may the judge examine witnesses called by the parties, he may also, for the same purpose of bringing out material facts that might not otherwise be elicited, call witnesses himself whom the parties might not have chosen to call. It is of course a matter of discretion, and is perhaps most often exercised when the prosecution expects that a necessary witness will be hostile and desires to escape the necessity of calling him and being cumbered by the rule against impeaching one's own witness. He may then invoke the court's discretion to call the witness, in which event either party may cross-examine and impeach him.'

And in 2 Wharton's Criminal Evidence, (13th ed.) § 503 (1972) the author says:

'In its discretion, the court may call a witness who has not been called by the prosecution or the defense, especially if his name is indorsed on the indictment. The court may call as a witness a person who was jointly indicted with the defendant, although not presently on trial; or a person who was originally summoned by the prosecution but proved to be hostile. A person called as a witness by the court is subject to cross-examination by both the prosecution and the defense.'

The rule is well stated by the Supreme Court of Illinois in People v. Moriarity, 33 Ill.2d 606, 213 N.E.2d 516 (1966), a case in which convictions in the trial court were reversed because the trial judge 'abandoned his role of an impartial arbiter, and assumed the role of prosecutor and jury to an extreme degree.' The court said:

'The practice of the court's calling a witness at the request of the prosecution in a criminal case was first enunciated in Carle v. People, 200 Ill. 494, 66 N.E. 32 (1903), where the court approved the calling of an eyewitness to a crime for whose veracity the State's Attorney could not vouch. It was later stated in People v. Cardinelli, 297 Ill. 116, 130 N.E. 355, that the purpose of the practice was to prevent a miscarriage of justice by having an eyewitness to a crime, for whose veracity neither party will vouch, fail to testify. And while subsequent decisions have held that the practice is not limited to the calling of eyewitnesses, (Citations omitted) every decision which has...