State v. Stanley

• Decision Date: 18 November 1998
• Docket Number: No. 2,2
• Citation: 720 A.2d 323,351 Md. 733
• Parties: STATE of Maryland v. Larry D. STANLEY.
• Court: Maryland Court of Appeals

720 A.2d 323

351 Md. 733

STATE of Maryland v. Larry D. STANLEY.

No. 2, Sept. Term, 1998.

Court of Appeals of Maryland.

November 18, 1998.

Devy Patterson Russell, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Petitioner.

George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

CATHELL, Judge.

This case requires us to examine a criminal defendant's constitutional right to compulsory process under the Sixth and Fourteenth Amendment and the former statute relating to the offense of assault with intent to maim, disfigure, or disable.¹

Because the State's Attorney's comment to the prosecutorial witness about the consequences of perjury was not a threat to prosecute the witness if her testimony did not satisfy the prosecutor but merely a general warning, such comment did not deprive the defendant of his constitutional right to compulsory process.² Furthermore, there was sufficient evidence to convict the defendant of assault with intent to maim, disfigure, or disable the victim because he stabbed her several times in the chest with a deadly weapon.

I. Facts and Procedural History

On November 16, 1995, Larry D. Stanley, respondent and cross-petitioner, hereinafter "respondent," was arrested and subsequently charged with assault with intent to maim, assault, battery, and wearing and carrying a concealed weapon as a result of an attack on victim Tammy Jones. At trial, Trooper L. Edward White, Jr. testified that he responded to an emergency call on November 16 for an assault in progress in Salisbury, Maryland. Trooper White further testified that upon arriving at the scene of the incident, he saw respondent and Ms. Jones walking together on a nearby street. Both respondent and Ms. Jones had blood on their clothes and Ms. Jones, who was upset and crying, had blood on her upper chest and face.

Trooper White and another trooper separated respondent and Ms. Jones, taking Ms. Jones to an ambulance. She continued crying while in the ambulance, but was able to relate to Trooper White what had occurred earlier. Ms. Jones told him that while she and respondent went out for a walk, their conversation escalated into an argument. During their argument, respondent hit Ms. Jones with his fists, stabbed her in the chest with a knife, and bit her ear. Ms. Jones was taken to the Peninsula Regional Medical Center. There, she was treated for a laceration and several bruises to her head, three two-centimeter stab wounds to her chest, and a jagged five-centimeter laceration to her ear, which required multiple sutures.

Prior to respondent's trial, Ms. Jones allegedly informed the prosecuting attorney in a letter that respondent was not her assailant. During the trial, the prosecuting attorney approached Ms. Jones in a hallway outside of the courtroom and informed her that she would³ be prosecuted for perjury if she did not testify truthfully.

Respondent waived his right to a jury and was tried before Judge D. William Simpson in the Circuit Court for Wicomico County on April 19, 1996. At trial, Ms. Jones was called to testify as a State's witness about the events that occurred on November 16, but she asserted her Fifth Amendment privilege against self-incrimination and refused to answer any questions. The defense did not question Ms. Jones and called no witnesses. Respondent ultimately was convicted of all four charges.

Respondent filed a motion for new trial on May 9, 1996. On August 9, 1996, after a hearing on the motion, Judge Simpson denied respondent's motion and sentenced him to incarceration for a period of fifteen years for the assault with intent to maim conviction and three years for the wearing and carrying a deadly weapon conviction, to be served consecutively. Judge Simpson then suspended the three-year sentence and placed respondent on supervised probation for thirty-six months upon his release. The assault and battery convictions merged into the assault with intent to maim conviction for sentencing purposes.

At the hearing on the motion for new trial, respondent argued, inter alia, that the prosecuting attorney committed misconduct during the trial by threatening to charge Ms. Jones with perjury if she did not testify truthfully. During the hearing, the following colloquy took place between the judge and the prosecuting attorney:

THE COURT: ... [D]id you chill [Ms. Jones's] testimony by threatening her? That is what [respondent is] alleging.

[STATE'S ATTORNEY]: There is no evidence of that. I put her on the witness stand. I began to ask her questions, and she began to take the [F]ifth [Amendment] as to some very innocuous questions.... We got her here [to testify].

I think there is no indication of a threat at all.

THE COURT: Are you saying that you didn't threaten her to prosecute her for perjury?

[STATE'S ATTORNEY]: No, sir.

A few minutes later, respondent's counsel called Ms. Jones as a witness and asked her about the conversation she had with the prosecuting attorney in the hallway outside the courtroom during the trial. Ms. Jones testified as follows:

[MS. JONES]: [W]ell, I was told that if I get up on the stand and perjure myself, I am going to be charged with perjury and sent to jail.

THE COURT: You were told if you perjured yourself, you could be charged with perjury?

[MS. JONES]: Yes.

After Ms. Jones stepped down from the witness stand, the following was said:

THE COURT: If we assume the truth of what she just testified to, what did the prosecutor do wrong?

[DEFENSE COUNSEL]: The prosecution threatened her with perjury.

THE COURT: If she perjured herself.

[DEFENSE COUNSEL]: Perjury, prosecution, Your Honor.

THE COURT: If you perjure yourself.

She didn't say if you say this, if you say that, or anything of that nature.

If you believe what that witness just testified to, every bit of which the prosecutor denies, all she told the witness was, if you he, you could be prosecuted for perjury.

She didn't say, if you say X, you will be prosecuted for perjury. If you say Y, you will be prosecuted for perjury. Just if you lie.

When you get up, if you tell the truth, you won't. If you lie, you will.

What is wrong with that?

[DEFENSE COUNSEL]: Well, as a prospective defense witness,[⁴] Your Honor, and in receipt of the letter that that witness gave the State, I believe that there was another way to do this.

That in one of the cases that I gave you indicates that way, should be done by the Court, not by the prosecutor. At that point, the prosecutor should not have interfered with that potential defense witness.

That is my point, and that is what the law is.

THE COURT: Well, under the evidence presented, I do not believe that the prosecution committed prosecutorial misconduct based on the evidence that has been presented before the Court today.

The prosecution was the one calling the witness, not the defense. The prosecution was the one who secured the presence of the witness in court, not the defense, and all the prosecution is alleged to have had done is said tell the truth. If you lie, you could be prosecuted for perjury.

That's what the evidence before the Court is.

I do not believe that is sufficient to warrant a new trial to the defendant. I believe there was a sufficient basis for the excited utterance, and I do not find anything in the record with respect to the witness's assertion of her fifth amendment right that would give rise to a right to a new trial. So, I am going to deny your Motion for New Trial.

Respondent appealed to the Court of Special Appeals. That court, as relative to this appeal, held there was sufficient evidence to convict respondent of assault with intent to maim. That court then held that the prosecutor's statements as to her admonition of the witness, should have been in the form of sworn testimony, and vacated the conviction for assault with intent to maim pending a remand to the circuit court and a rehearing on the motion for new trial to determine whether the State's Attorney's conduct was inappropriate in advising Ms. Jones she would be charged with perjury if she lied. See generally Stanley v. State, 118 Md.App. 45, 701 A.2d 1174 (1997)

. The State petitioned this Court for Writ of Certiorari and respondent cross-petitioned. In its brief, the State presents the following question for review:

Did the Court of Special Appeals erroneously hold that [respondent's] convictions should be vacated pending a rehearing of [respondent's] motion for a new trial because the record was insufficient for the trial court to determine whether the prosecutor's alleged remarks to the victim prior to trial regarding perjury charges for failing to testify truthfully deprived [respondent] of his constitutional right to compulsory process?

Respondent presents the following questions for our review:

1. Did the Court of Special Appeals err in holding that [respondent's] conviction for assault with intent to maim should be vacated pending a rehearing of [respondent's] motion for new trial because the trial court failed to obtain sworn testimony from the prosecutor?

2. Did the Court of Special Appeals err in concluding that [respondent] could be convicted of assault with intent to maim without sufficient proof of injury or intent?

With respect to petitioner's question and respondent's first question, we hold that the Court of Special Appeals erred in vacating respondent's convictions because, regardless of whether the prosecutor provided sworn testimony, her remarks to the victim did not deprive respondent of his constitutional right to compulsory process. As to respondent's second question, we hold that the Court of Special Appeals did not err in holding that there was sufficient evidence to convict him of assault with intent to maim. Accordingly, we shall reverse in part and affirm in part the...