Saunders v. State

• Decision Date: 03 November 1975
• Docket Number: No. 6,6
• Citation: 28 Md.App. 455,346 A.2d 448
• Parties: , 79 A.L.R.3d 1147 Mitchell Renoz SAUNDERS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 455

28 Md.App. 455

346 A.2d 448, 79 A.L.R.3d 1147

Mitchell Renoz SAUNDERS v. STATE of Maryland.

No. 6.

Court of Special Appeals of Maryland.

Nov. 3, 1975.

George E. Burns, Jr., Asst. Public Defender, with whom were Alan H. Murrell, Public Defender, and Arnold M. Zerwitz, Asst. Public Defender, on the brief, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., for Baltimore City, and Samuel Brave, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before ORTH, C. J., and MELVIN, J., and EDWARD F. BORGERDING, Special Judge.

EDWARD F. BORGERDING, Judge.

On May 21, 1974, a criminal information was filed against appellant, Mitchell Renoz Saunders, charging him with rape, assault with intent to rape, and assault. After a four-day jury trial in the Criminal Court of Baltimore he was convicted of rape, and subsequently sentenced by Judge Meyer M. Cardin to 10 years imprisonment. On appeal, he assigns three alleged errors to the trial court: admission of testimony that a third party attempted to induce prosecution witnesses to alter their statements; admission of improper rebuttal testimony; and impeachment of appellant with his assertion of Fifth Amendment rights.

In order to put the case in proper perspective, a brief recital of the pertinent facts is necessary. On Easter Sunday afternoon, April 14, 1974, Narvis Bruce, an eighteen year old girl, met appellant's cousin, Vincent Reynolds, and the cousin's girlfriend, Corinne Lemon, on Park Heights Avenue in Baltimore City. After visits to various places in the neighborhood, during some of which marijuana was smoked Reynolds, according to Lemon and Miss Bruce, introduced appellant to her. Late in the evening, the foursome eventually went to a party in a house on Reisterstown Road. After midnight, Reynolds and Lemon left the party. Shortly thereafter, Miss Bruce left. She testified that as she walked, looking for Lemon, a man grabbed her, pulled her into a park, tore her clothes, raped her and hit her in the eye and lip. She described her assailant as wearing a white wool knitted hat with a blue dungaree jacket, a flowered shirt, and dark pants. She did not identify the appellant as her assailant in her initial complaint to the police; however, she did identify him in court. Lemon testified that the following morning after spending the night at Reynolds' house, she awoke to find appellant there wearing the same flowered shirt as the night before. At his trial, Saunders' defense was twofold; 1) that he had an alibi and 2) that the rape may have been committed by his twin brother, Michael, who had died of a narcotic overdose two months prior to trial. He contended that he had never met Miss Bruce and was at home at the time of the crime. Six witnesses were produced in his behalf who corroborated his testimony in varying degrees that he was home the evening of April 14th and 15th. Jerome Shaw, a witness for the defense, testified that he saw appellant's twin brother, Michael, but not the appellant at the party preceding the alleged rape. Glena Coleman, Saunders' aunt, testified that a white knitted hat, dungaree jacket and dark pants had been purchased for appellant's twin brother and that the twin brother was wearing these clothes on April 14.

In the State's case in chief, Ernest Womble, who attended the party on Reisterstown Road, testified over Saunders' objection that Reynolds endeavored to induce him to change his testimony to the effect that the party that evening was a 'planned gathering' as opposed to an 'unplanned gathering'. Cross-examination by defense counsel elicited same from Womble. Next, the State called Corinne Lemon, who testified over objection that Reynolds talked to her about altering her testimony relating to the shirt Saunders was wearing the day of the rape. In the presentation of the defense, no testimony was either solicited or produced by the defendant or his witnesses on direct examination or cross-examination as to Reynolds' endeavors to have the prosecution witnesses, Womble and Lemon, alter their testimony. Over defense counsel's objection, the State was allowed in 'rebuttal' to call Reynolds as a 'hostile' witness. Reynolds stated that the appellant was not present at the party prior to the rape and denied attempting to influence the testimony of any witness. The State was then allowed to call Detective Carl Reichelt, Baltimore City Police Department, to rebut the testimony of Reynolds to the extent that in a telephone conversation, Reynolds had indicated that the appellant was present at the party. Lemon was then recalled by the State in 'rebuttal'. She was shown a note she said had been given her by Reynolds' brother and she identified it as having been written by Reynolds. The note, introduced into evidence and exhibited to the jury without objection, said:

'Hello baby-inside-Corinne I will see you in court and please change your statement. I will talk to you in court. Love, Vincent, smile.'

On cross-examination, the following exchange took place between appellant's counsel and Lemon:

'Q. Did you testify at your last appearance that Vincent had talked to you and all he asked you to do was to say there was no shirt that color? Did you use those words?

A. I don't remember.

Q. Now tell me what Vincent did ask you to say?

A. He asked me to say it was Michael who was with us that night and not Mitchell, and he asked me to say that there was no shirt and that we didn't see Mitchell the next morning.'

In closing argument the prosecutor argued to the jury the alleged attempts by Reynolds to get the State's witnesses to change their statements. Appellant challenges as error the admission of the remarks of Womble and Lemon that Reynolds sought to influence their testimony.

While the precise question raised by the appellant is one of first impression in Maryland, the authorities and the jurisdictions which have considered the point are in agreement with the general principle that an attempt by an accused to suborn a witness is relevant and may be introduced as an admission by conduct, tending to show his guilt. State v. Graves, La., 301 So.2d 864, 866 (1974); People v. Hooper, 50 Mich.App. 186, 212 N.W.2d 786 (1973); People v. Perez, 169 Cal.App.2d 473, 337 P.2d 539 (1959); Staggs v. State, 51 Ala.App. 203, 283 So.2d 652 (Ala.Cr.App.1973); Davis v. Commonwealth, 204 Ky. 601, 265 S.W. 10 (1924); State v. Reuschel, 131 Vt. 554, 312 A.2d 739 (1973); People v. Moore, 70 Cal.App.2d 158, 160 P.2d 857 (1945); C. Torcia, 1 Wharton's Criminal Evidence, 462 (13th Ed. 1972), 29 Am.Jur.2d Evidence, Sect. 292 & 293 (1967). Evidence of such attempts by another is not admissible, however, where there is no evidence to connect the accused therewith. In order to make admissible evidence of attempts by a third person to influence a witness not to testify or to testify falsely, it must be established that such attempts were done by the authorization of the accused. State v. Graves, supra; People v. Terry,57 Cal.2d 538, 21 Cal.Rptr. 185, 370 P.2d 985 (1962); cert. denied, 375 U.S. 960, 84 S.Ct. 446, 11 L.Ed.2d 318 (1963); People v. Moore, supra; 29 Am.Jur.2d, Evidence, Sect. 293 (1967).

Neither the State nor the defendant challenges the validity of this principle. However, the State argues that 'the closeness of the relationship between the appellant and Reynolds was sufficient to allow the prosecutor to make inquiry into the attempts by Reynolds to have Womble and Lemon change their testimony.' In effect, the State contends that the close relationship between Saunders and his cousin under the facts of this case indicates that appellant authorized attempts to induce witnesses to testify falsely. We disagree. A thorough review of the record indicates that other than the fact that Reynolds was a cousin of the appellant, there is no evidence to link the appellant to the alleged abortive attempts of Reynolds.

Although the authorization by the accused may be proved by direct or circumstantial evidence, People v. Caruso, 174 Cal.App.2d 624, 345 P.2d 282, 292 (1959) (cases cited therein), and an inference may be sufficient to connect the accused, State v. Esposito, 73 R.I. 94, 54 A.2d 1 (1947), the fact that the third party and the accused are related has not been held to be adequate proof, by itself, of the necessary authorization. People v. Terry, supra. In Tyler v. State, 145 Tex.Cr.R. 315, 167 S.W.2d 755 (1942), the Court found that an accused is not bound by the ffforts of relatives or friends to suppress evidence unless his connection with the third party is clearly shown. People v. Perez, supra, citing People v. Moore, supra, held that '(i)n the instant case it is not denied that the person identified by conplaining witness as the person making the offer was defendant's brother. But mere relationship, of itself, has never been held sufficient, respondent's contention to the contrary notwithstanding.'

In this regard, the State relies on State v. Graves, supra, which held that '(t)he close relation demonstrated between this accused and his wife convinces us that, though the evidence of her attempt to induce an alibi witness to lie is prejudicial, it is admissible as revealing consciousness of guilt on the part of the accused.' In Graves, the Supreme Court of Louisiana, citing People v. Terry, supra, as authority, accepted the general principle that before such attempt (to induce a witness to testify falsely) is admissible, there must be some evidence to connect the accused therewith or show that the attempt by a third person was made with the authorization of the accused. The Court went on to hold that the prosecutor's erroneous argument to the jury that the defendant attempted to induce an alibi witness to lie when in fact, defendant's wife had allegedly made such attempt, was made harmless by trial court's admonition to the jury and by the...