Smith v. State

• Decision Date: 25 November 1974
• Docket Number: No. 50,50
• Parties: Frances Ester SMITH v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 152

273 Md. 152

328 A.2d 274

Frances Ester SMITH v. STATE of Maryland.

No. 50.

Court of Appeals of Maryland.

Nov. 25, 1974.

Jack B. Rubin and Lee Gordon, Assigned Public Defenders, Baltimore, for appellant.

James I. Keane, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

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

LEVINE, Judge.

After being convicted of murder in the second degree in the Criminal Court of Baltimore, appellant took an appeal to the Court of Special Appeals. There, she unsuccessfully sought to attack her conviction on three grounds. The decision on one of those grounds has led to this further appeal. We granted certiorari to review 'the question whether the trial court erred in refusing to permit (certain) testimony aimed at impeaching a key State's witness.'

The major defense to the charge of homicide was that the sawed-off shotgun which caused the death of the victim-appellant's former husband-had been fired accidentally as she struggled to take the gun from him. Among the witnesses testifying for the State was Officer Edward Brown, of the Baltimore City Police Department, who arrived at the scene before the victim, who was still alive, and appellant had been removed. When Officer Brown's partner, Officer Brice, asked the victim who had shot him, he identified appellant. According to the police officers, she acknowledged rather emphatically that she had done so, saying "Yes, I shot the son of a bitch."; and also that she had fully intended to do so. The underlying testimony from which the evidentiary issue arises occurred on cross-examination of Officer Brown when this exchange ensued:

'Q. . . . (W)hat did Mr. Smith say in response to any questions applied to him at that time about this altercation. A. He said that Frances had shot him and he would get her.

'Q. Do you recall Officer Brown approximately on January 23rd, 1973 receiving a telephone call from a Mr. James Watkins of the Public Defender's investigative staff? A. Yes, I do.

'Q. Now in that conversation with Mr. Watkins, isn't it true that you told him at that time that on your visit to the hospital this day in question that the deceased stated or Mr. Smith stated at that time that the shooting was accidental? A. I don't recall saying that.

'Q. Are you positive of that, sir? A. That's correct.

'Q. In other words you never said this statement to anyone or any relatives of Mrs. Smith, the accused or anyone in particular about this? A. No, I have not.'

At the conclusion of appellant's case-inchief, for the purpose of impeaching the credibility of Officer Brown with a prior inconsistent statement, her trial counsel tendered the following proffer:

'. . . Your Honor, the defense would proffer that if James Watkins of the Public Defender's staff was allowed to testify he would state that on the date of January 26, 1973 he had a telephone conversation with Officer Edward Brown of the Baltimore City Police Department. In the course of that conversation Mr. Watkins was informed that the deceased Johnnie Smith, on visiting the hospital (sic), being confronted by Officer Brown, was told (sic) that this incident was an accident.

'THE COURT: I'll sustain the objection. Do you object to the proffer?

'MR. WASE (State's Attorney): Yes, Your Honor. I do.

'THE COURT: I'll sustain the objection to the proffer.

'THE COURT: I haven't made my ruling yet. For the following reasons the testimony would be double hearsay and would be admissible only if it was shown that a statement made by the deceased, alleged statement made by the deceased was a dying declaration. There's no evidence whatever to show that it was such. . . . For that reason the Court will not allow the witness to testify to the hearsay statements or to any statements, such statements made by the decedent on the grounds that they were a dying declaration. You now have an exception.'

On appeal to the Court of Special Appeals, the conviction was affirmed, Smith v. State, 20 Md.App. 254, 315 A.2d 76 (1974), that court holding that the trial judge did not err in rejecting the proffered testimony. In essence, it rested this holding on the proposition that:

'The rule as to impeaching a witness by showing a prior inconsistent statement requires that the statement be with respect to 'material facts (but not in respect to facts that are collateral, irrelevant or immaterial). '' 20 Md.App. at 257, 315 A.2d at 78 (citation omitted).

The court further stated:

'The cross-examination of Officer Brown in the first instance was undoubtedly proper, even if the ostensible statement made by him to James Watkins was as to a 'collateral' fact rather than a 'material' fact. With respect to merely 'collateral' matters, however, the cross-examiner must 'take the answer.' He may only introduce extrinsic evidence of contradiction where the statement in issue was as to a 'material' fact. . . .' 20 Md.App. at 257, 315 A.2d at 78 (emphasis added).

The Court of Special Appeals then correctly posited:

'The question at bar is whether the disputed conversation between Officer Brown and James Watkins dealt with a 'collateral' fact or a 'material' fact. . . .' 20 Md.App. at 258, 315 A.2d at 79 (emphasis added).

Relying heavily on McCormick on Evidence, § 47 (2d ed. 1972), 3A Wigmore on Evidence, § 1020 (Chadbourn rev. 1970) and the landmark case of Attorney-General v. Hitchcock, 1 Exch. 91 (1847), the court held:

'In the case at bar, the critical 'fact, as to which the prior self-contradiction is predicated' is an ostensible statement from the ultimate murder victim, from his hospital bed, to Officer Brown, in which he stated that the gun had gone off by accident. That statement was neither shown nor alleged to have been 'a dying declaration.' It did not, therefore, qualify as an exception to the hearsay rule, and was inadmissible as direct evidence. Since the appellant could not have offered evidence of such a statement 'for any purpose independently of the self-contradiction (of Officer Brown),' the fact of the statement was 'collateral' and not 'material.' Under the circumstances, Judge Harris ruled properly in refusing to permit extrinsic evidence for the purpose of contradicting the trial testimony of Officer Brown that he had never heard such a statement. . . .' 20 Md.App. at 260, 315 A.2d at 79 (emphasis added).

Implicit in this opinion is a recognition that the proffered testimony was, itself, not hearsay, since it was being offered only to impeach a key State witness, and not for its truth. The court, however, affirmed the trial court on the ground that extrinsic evidence may not be used to impeach a witness on a collateral matter; that the test for determining when evidence is collateral is whether the fact upon which the prior inconsistent statement was predicated could have been shown in evidence for any purpose independently of the contradiction; and that since the fact upon which the prior statement was predicated-the victim's statement to Officer Brown that the shooting was accidental-was not a dying declaration and, thus, hersay, it would not have been admissible independently of the contradiction. Hence, the court reasoned, it was collateral, and could not be used to impeach the witness's credibility.

A witness generally may be cross-examined on any matter relevant to the issues, and the witness's credibility is always relevant. Therefore, a witness, whether a party to the action or not, may be cross-examined on such matters and facts as are likely to affect his credibility, test his memory or knowledge, show his relation to the parties or the cause, his bias, or the like, Harris v. State, 237 Md. 299, 302, 206 A.2d 254 (1965); Howard v. State, 234 Md. 410, 415, 199 A.2d 611 (1964); Kantor v. Ash, 215 Md. 285, 290, 137 A.2d 661, 69 A.L.R.2d 585 (1958). There are, however, restrictions upon the extent to which extrinsic evidence may be used to impeach a witness, such evidence generally not being allowed on a collateral or irrelevant matter. In such cases, the cross-examiner is bound by the answer of the witness, Harris v. State, Howard v. State, both supra; City Pass. Ry. Co. v. Tanner, 90 Md. 315, 320, 45 A. 188 (1900).

Cross-examination, of course, is not without limitations. There may be cases where the subject matter has no relevance at all, not even to impeach the witness's credibility. An early example is Sloan v. Edwards, 61 Md. 89 (1883), a case of assault and battery. There, a defense witness testified that he saw the plaintiff after the incident, and that the latter was not hurt. The witness was asked on cross-examination whether he had subsequently told the plaintiff that the assault had been a great outrage, to which he replied in the negative. The plaintiff then sought unsuccessfully to impeach the witness by introducing extrinsic evidence that he had made such a statement. Our predecessors affirmed on the ground that the prior statement, even if admitted by the witness, had no relevance to the case. The Court said:

'It is true, the credit of a witness may be impeached by proof that he has made statements out of court, inconsistent with his testimony given in court. But it is a general rule that a witness cannot be cross-examined as to any fact, which, if admitted, would be wholly collateral, and irrelevant to the matters in issue, for the purpose of contradicting him by other evidence, and in this manner to discredit his testimony. And if the witness answer such an irrelevant question without objection, evidence cannot afterwards be admitted to contradict his testimony on the collateral matter. . . .' 61 Md. at 105 (emphasis added).

In essence, the Court held that evidence which is otherwise irrelevant cannot become relevant simply because it is capable of being contradicted, and will thereby impeach the witness; and that if such irrelevant evidence is...