Pettie v. State

• Decision Date: 01 September 1987
• Docket Number: No. 73,73
• Citation: 316 Md. 509,560 A.2d 577
• Parties: Steven Tyrone PETTIE v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 509

316 Md. 509

560 A.2d 577

Steven Tyrone PETTIE v. STATE of Maryland.

No. 73, Sept. Term, 1987.

Court of Appeals of Maryland.

July 7, 1989.

Gary S. Offutt, 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., on the brief), Baltimore, for appellee.

Argued Before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

COLE, Judge.

In this case, Steven Tyrone Pettie contends that the trial court erred in excluding evidence that a police officer told the prosecuting witness not to alter his original accusation against Pettie or face criminal prosecution. Pettie argues that no foundation was required for admission of the officer's testimony. However, the Circuit Court for Washington County (Daniel W. Moylan, J., presiding) found and the Court of Special Appeals, Pettie v. State, 70 Md.App. 602, 522 A.2d 394 (1987) agreed that Pettie should have laid a proper foundation by cross-examining the prosecuting witness. We shall determine the correctness of that ruling and also whether evidence of Pettie's alleged attempted suicide was properly admissible as raising an inference of consciousness of guilt.

We first summarize the facts giving rise to these issues. While an inmate at the Maryland Correctional Training Center, Steven Tyrone Pettie was charged with committing various sexual acts upon another inmate, Robert Butts. Butts testified that at approximately 1:30 p.m. on December 19, 1984, Pettie entered Butts's cell, brandished a knife, and demanded that Butts submit to his sexual ultimatum. Under threat of the knife, Butts was sodomized. At approximately 5:10 p.m., Butts reported the assault (but not the sodomy) and sought protective custody. Penal authorities then placed Pettie on administrative segregation.

At trial, over Pettie's objection, correctional officer Donald Roy Hunter testified for the prosecution that at 10:40 p.m., less than six hours after the initial report, he was summoned to Pettie's cell by inmate Brian Priet, who had found an apparent suicide note. Hunter found Pettie lying face down on his bunk in a non-responsive but conscious state with a single horizontal cut to his left wrist approximately two inches in length and one eighth inch deep. The cut bled only slightly.

Nearly two months after the reported assault, Butts finally told prison authorities that he had been sodomized. After investigating Butts's claim, authorities brought charges against Pettie.

At trial, Pettie called a single witness, the investigating officer, Maryland State Police Trooper Harry V. Smith. Over the State's objection, Pettie sought to introduce a portion of Smith's report showing that Smith had warned Butts that if he decided to drop the charges or refused to testify in court that he would be charged with false statements to a police officer, perjury, and the false report of a crime. The circuit court declined to allow this evidence finding it irrelevant and proffered without foundation.

Pettie argues that no foundation should be required regarding Trooper Smith's testimony because the foundational requirement generally applies only to bias evidenced by comments or conduct of the witness to be impeached, not to comments made to the witness by third parties. Here, Pettie argues, Butts is the target of the impeachment, not the maker of the prior statements. Pettie also alleges that by finding the Smith testimony irrelevant, the trial court precluded Pettie from requesting that the judge vary the order of proof and allow the foundation to be established later. Furthermore, Pettie contends, a foundation should not be required since the person called to testify, Trooper Smith, was the proponent of the contested statement and in fact was a more appropriate witness than Butts from whom to elicit this evidence of bias.

The State counters that the relevance of the statements by Trooper Smith cannot be proved absent a proper foundation. The State contends that Pettie should have cross-examined Butts concerning the warnings of Trooper Smith rather than question Smith directly.

Pettie also complains because the circuit court admitted evidence that he had attempted to commit suicide shortly after the alleged rape. Pettie maintains that given the many possible motivations for a suicide attempt, the prejudice engendered by admitting evidence of an attempted suicide far outweighs any marginal probative value the evidence might otherwise possess. The State, on the other hand, argues that the vast majority of courts have admitted evidence of attempted suicide as tending to show consciousness of guilt.

We agree with Petitioner that the statement made by Officer Smith was improperly excluded. It clearly was relevant and did not require a foundation. Furthermore, we find that the State did not meet its burden of proving a valid suicide attempt. For both of these reasons, we shall reverse.

I

We first address the foundation issue. There exists considerable conflict among state courts as to the applicability of the foundation requirement. Rulings have run the gamut from requiring a foundation only where evidence is based upon the adverse witness' statements, e.g., Baker v. Joseph, 16 Cal. 173 (1860), to requiring a foundation only for prior contradictory statements, e.g., Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956); Angelopoulos v. Wise, 133 Colo. 133, 293 P.2d 294 (1956), to requiring a foundation only for "impeaching" evidence, e.g., Alford v. State, 47 Fla. 1, 36 So. 436 (1904).

Although no general rule is applicable in all circumstances, it is well established that the bias, hostility or motives of a witness are relevant and are admissible for purposes of impeachment. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Martens Chevrolet v. Seney, 292 Md. 328, 439 A.2d 534 (1982). We require a party to lay a foundation by cross-examining the adverse witness, where the credibility of the witness is impeached by introducing prior inconsistent statements. In this context, requiring a foundation makes perfect sense for reasons of fairness "in order that the witness may be enabled to refresh his recollection in regard to such statements, and be afforded the opportunity of making such explanation as he may deem necessary and proper." State v. Kidd, 281 Md. 32, 46 n. 8, 375 A.2d 1105 cert. denied, Maryland v. Kidd, 434 U.S. 1002, 98 S.Ct. 646, 54 L.Ed.2d 498 (1977). By cross-examining the witness as to prior statements he may have uttered, the witness is fairly alerted as to what proof he must garner to defend against the attack and is given the opportunity to call other witnesses or to prepare his answer. Smith v. United States, 283 F.2d 16 (6th Cir.1960), cert. denied, 365 U.S. 847, 81 S.Ct. 808, 5 L.Ed.2d 811 (1961). Also, if the witness is asked the time, place, and persons and circumstances involved in the purported conversation, he may admit, deny, or explain the situation. People v. Payton, 72 Ill.App.2d 240, 218 N.E.2d 518 (1966); 81 Am.Jur.2d § 562. In short, the first articulated rationale for the foundation requirement is the avoidance of surprise.

A second reason for requiring a foundation is "the saving of time by making unnecessary the extrinsic evidence [of bias]." McCormick On Evidence, § 40 (3d ed. 1984). The foundational cross-examination of the adverse witness saves considerable time in the conduct of trials, for, if evidence of a witness' bias is adduced and on cross-examination he admits the allegations, no more evidence need be presented, and the proceeding may continue. State v. Murphy, 59 Haw. 1, 575 P.2d 448, 459-60 (1978).

The Second Circuit in United States v. Harvey, 547 F.2d 720 (2d Cir.1976), likewise held that a proper foundation must be laid before extrinsic evidence of bias is introduced. Apparently tempering the rule imposed, however, that court clarified that:

Although the scope of a defendant's right to introduce evidence of bias is not limitless, and may be restricted as the trial court in its sound discretion deems proper, it is rarely proper to cut off completely a probative inquiry that bears on a feasible defense. "(A) defendant should be afforded the opportunity to present facts which, if believed, could lead to the conclusion that a witness who has testified against him either favored the prosecution or was hostile to the defendant. Evidence of all facts and circumstances which 'tend to show that a witness may shade his testimony for the purpose of helping to establish one side of a cause only,' should be received...."

547 F.2d at 723. (Emphasis added) (citations omitted).

The necessity for being fair to the witness and affording him the chance to explain allegations against him is especially significant where the witness' general credibility is attacked. Fincher v. The State, 58 Ala. 215 (1877). Where a witness is impeached by evidence showing that he has made prior inconsistent statements, for example, in essence he is charged with lying or with committing an act virtually akin to perjury. A witness under such accusatory pressure should fairly be allowed to rebut that charge. See State v. Smith, 44 S.D. 305, 183 N.W. 873 (1921).

On the other hand, where a party seeks merely to challenge the accuracy of the witness' testimony in the particular case by pointing to facts tending to show the witness' bias, the witness' attention need not be directed to those facts. Id. at 308, 183 N.W. 873. While evidence of what a witness previously has stated is desirable in the form of his own testimony elicited on cross-examination, Davis v. Ivey, 93 Fla. 387, 112 So. 264, cert. denied, Mellon v. Ivey, 275 U.S. 526, 48 S.Ct. 19, 72 L.Ed. 407 (1927), evidence of his hostility or bias accurately may be conveyed by other competent witnesses called to testify concerning the circumstances. Id.; Fincher, supra, 58 Ala....