State v. Collins, 251

• Court: Court of Appeals of Maryland
• Writing for the Court: Argued before HAMMOND; DIGGES; The sole issue presented for our determination is whether the trial judge erred in receiving in evidence the deposition of David Sullivan, a member of the Board of License Commissioners for Anne Arundel County. That boa
• Citation: 288 A.2d 163,265 Md. 70
• Parties: STATE of Maryland v. John S. COLLINS.
• Docket Number: No. 251,251
• Decision Date: 15 March 1972

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265 Md. 70 288 A.2d 163 STATE of Maryland
v.
John S. COLLINS. No. 251. Court of Appeals of Maryland. March 15, 1972.

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[288 A.2d 164] Clarence W. Sharp, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Edward F. Borgerding, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

James R. White, Baltimore (Hamilton O'Dunne, Baltimore, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

DIGGES, Judge.

This appeal presents a classic constitutional issue-an individual's right in a criminal case to be confronted by his accusers. Here, the deposition of the prosecution's principal witness, David Sullivan, was admitted in evidence, over objection, even though it was conceded that the defendant had not received notice it was to be taken and consequently was not present during the interrogation. The witness [288 A.2d 165] was deposed after the Grand Jury of Anne Arundel County returned five indictments against John S. Collins, the appellee, charging him with the commission of criminal offenses related to violations of the bribery laws of this State (Maryland Code (1957, 1971 Repl.Vol.) Art. 27, § 23). These cases were later removed to the Circuit Court for Washington County where they were consolidated and tried by Judge Rutledge, presiding

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without a jury. Collins was found guilty and sentenced to imprisonment for two years on each indictment, the terms to run concurrently. On review, the Court of Special Appeals reversed these convictions and remanded the cases for new trials. It was there held that the defendant's right to be present and confront the witnesses against him as guaranteed by the provisions of Article 21 of the Declaration of Rights of the Maryland Constitution and the Sixth and Fourteenth Amendments of the United States Constitution had been violated. Collins v. State, 12 Md.App. 239, 278 A.2d 311 (1971). We granted the State's petition for certiorari.

The sole issue presented for our determination is whether the trial judge erred in receiving in evidence the deposition of David Sullivan, a member of the Board of License Commissioners for Anne Arundel County. That board controls the licensing of establishments which sell alcoholic beverages and Collins, the defendant, was its legal counsel. The indictments here charge the defendant, individually and as the board's attorney, with bribing and conspiring to bribe Sullivan and another board member to vote favorably on two liquor license applications. Following these indictments but before the cases were transferred, Judge Childs in the Circuit Court for Anne Arundel County, at the State's instance, issued an ex parte order on July 11, 1969, directing that Sullivan be deposed three days later, provided Collins and his attorney were personally served by the sheriff with a copy of the motion and order. Maryland Rule 727 sets out the procedures for taking and using depositions in criminal cases. ¹ The questioning was to be conducted

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at the North Arundel Hospital where Sullivan was a critically ill patient suffering from terminal cancer and had but a few days to live. He died on August 2. Collins was not served with notice of the impending deposition as required by [288 A.2d 166] the court's order, although his attorney was, and on July 14, at the request of the State, a new directive was issued that rescheduled the interrogation for July 19. This new order did not specify the necessity for service by the sheriff but only required that notice be mailed to the appellee at his home address and to the attorney at his office. The State's Attorney mailed the notice as required by the court, however, the defendant was out of town and did not personally receive it until after the deposition was taken. Sullivan was deposed on July 19 and though Collins was not present his counsel was. The attorney objected to the proceedings, insisting that his client was being deprived of his right to confrontation, a constitutional guarantee which only the defendant could waive. With this exception noted, he proceeded to cross-examine the witness.

Rule 727 is the authority in this State for permitting the use of depositions in criminal cases. Section b provides that: 'If a deposition is taken at the instance of the State, the accused shall have the right to be present at the taking thereof . . .' (emphasis added.) This privilege is also incorporated in Rule 775 which deals with

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the right of an accused to be present at all vital stages of his trial. It states:

'The accused shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided in this Rule. The accused shall have the right to be present at the taking of a deposition taken at the instance of the prosecution.' (Emphasis added.)

The prerogative of the defendant to have his accusers confront him is a keystone to our concept of criminal justice-grounded on the unwavering belief that an individual should be afforded the opportunity to challenge the witnesses against him through cross-examination.

'The power of cross-examination has been justly said to be one of the principal, as it certainly is one of the most efficacious, tests, which the law has devised for the discovery of truth. By means of it the situation of the witness [288 A.2d 167] with respect to the parties, and to the subject of litigation, his interest, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description are all fully investigated and ascertained. . . . It is not easy for a witness, who is subjected to this test, to impose on a Court or jury; for however artful the fabrication of falsehood may be, it cannot not embrace all the circumstances to which a cross-examination may be extended.' 1 Greenleaf, Law of Evidence, § 446 (16th ed. J. Wigmore 1899).

This statement has long met with our approval. Fine v. Kolodny, 263 Md. 647, 653, 284 A.2d 409 (1971); Ridgeway, Inc. v. Seidman, 243 Md. 358, 364, 221 A.2d 393 (1966); Regester v. Regester, 104 Md. 1, 10-11, 64 A.

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286 (1906). A similar view was recently reiterated by Mr. Justice Marshall, speaking for the Supreme Court in Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255 (1968) where he said:

'Many years ago this Court stated that '(t)he primary object of the (Confrontation Clause of the Sixth Amendment) . . . was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony...