Taliaferro v. State
| Decision Date | 10 February 1983 |
| Docket Number | No. 101,101 |
| Citation | 295 Md. 376,456 A.2d 29 |
| Parties | Vernon Thaddeus TALIAFERRO v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Michael R. Braudes, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.
Alexander L. Cummings, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.
Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ., and W. ALBERT MENCHINE, Specially Assigned Judge.
Petitioner, Vernon Thaddeus Taliaferro (Taliaferro), was convicted on May 22, 1980, in a jury trial before the Circuit Court for Prince George's County, of robbery with a deadly weapon and use of a handgun in the commission of a felony. On the last trial day petitioner sought to introduce the testimony of an alibi witness whose identity was disclosed to the State for the first time on that date. Acting under Md.Rule 741, 1 the trial court excluded the proffered alibi evidence. There was no other proof from the defense. The conviction was affirmed by the Court of Special Appeals in an unreported opinion. We granted certiorari to consider whether "the trial court's ruling that Petitioner's sole witness would not be permitted to testify constitute[d] an abuse of discretion and/or a denial of due process." We shall hold that, on the facts of this case, there was no abuse of discretion or denial of due process.
The victim was John Leo Parker (Parker), an adult, who resided at his mother's home at 6801 Walkermill Road, in District Heights. On September 1, 1979, at approximately 9:05 p.m., Parker was at home, alone. He answered a knock at the door. It was a man, who was unknown to Parker, inquiring about someone named "Billy". The light inside the house was on, as well as were two lights outside on the porch. Parker and the man conversed face to face, at a distance of two feet, for an estimated five minutes. Then a second man came up behind the first and pointed a cocked handgun at Parker over the shoulder of the first man. Parker was spun around and led through the house to his mother's room which the men ransacked. Jewelry, later valued at a minimum of $5,000, was taken. Parker was left tied up. That evening the police showed Parker a photographic array which did not include Taliaferro's picture. Parker selected one photograph as a "lookalike." On November 1, 1979, the police showed Parker another photographic array. It contained a picture of Taliaferro whom Parker identified as the robber with whom he had conversed. At trial, Parker also made an identification of Taliaferro in person.
Petitioner was arrested on November 28, 1979 and released on cash bail the next day. He remained on bail continuously until his sentencing. An indictment of Taliaferro and a second man 2 was returned December 19, 1979. Counsel entered her appearance for Taliaferro on January 8, 1980. On February 1, 1980 the State filed a motion for discovery requesting, inter alia, the "name and address of each witness other than the defendant whom the defendant intends to call as a witness to show he was not present at" 6801 Walkermill Road, District Heights, Maryland on September 1, 1979, at approximately 21:05 hours. 3 Under Md.Rule 741 e 1 disclosure of any alibi witnesses was due to be furnished by February 11. No written response was ever made.
On February 14, 1980 a notice was sent to petitioner's counsel, with a copy to Taliaferro at his address in Baltimore City, setting trial for April 11, 1980 and setting a pretrial conference for March 27, 1980. By a notice dated March 3, 1980, with copy to petitioner personally, trial was reset from April 11 to May 21, 1980. A March 28, 1980 notice, with copy to petitioner personally, reset the pretrial conference from March 27 to May 6, 1980.
Taliaferro was present with his attorney at the pretrial conference. The court was advised that there would be one defense witness. 4 Counsel for both parties signed a pretrial memorandum at that conference which reads in part:
Counsel further certify that ... the names of all witnesses now known have been exchanged by the parties and that this case is ready for trial.
Counsel certify that all witnesses are available for the trial date ....
On the morning trial was scheduled to begin, May 21, Taliaferro's counsel requested a continuance. She advised the court that Taliaferro had given her the name and telephone number of a "Karen Bellamy" at the first interview, that counsel had never been able to reach the witness by telephone, but that Taliaferro had that day given counsel the witness' address. The requested continuance was denied. Trial of Taliaferro's case began at 2:55 p.m. on May 21, with the selection of the jury. A motion to suppress the photographic identification was heard and denied. Trial on the merits proceeded with the testimony of Parker and of the investigating police officer. On cross-examination, Parker admitted that, at the time of the crime, he was on probation for storehouse breaking. Court adjourned at 5:20 p.m.
Trial resumed at 9:30 a.m. on Thursday, May 22 with brief testimony from Parker's mother as to the value of the property taken. The State rested. Petitioner's counsel advised the court that Taliaferro had "been in touch with the witness that I was telling you about" and that Taliaferro was "trying to get someone here" from Baltimore. A delay of 1 1/2 hours was requested so that Taliaferro could "try to get him here." 5 At 10:10 a.m. the court recessed until 11:30 a.m. after denying the defense motion for a judgment of acquittal. The jury was brought back into the courtroom at 12:05 p.m. and excused for lunch with instructions to report back at 1:30 p.m.
Colloquy and testimony in the afternoon of May 22 reveal that Taliaferro had spoken by telephone that morning with an Edward Rich, Jr. (Rich) in Baltimore. Taliaferro is also a resident of Baltimore. Taliaferro's father had gone to Baltimore and brought Rich to the court house in Upper Marlboro. At 1:25 p.m., in the court house corridor, Rich had been introduced to the prosecutor as an alibi witness. Court reconvened at 1:30 p.m. with the jury in the box. The prosecutor, at sidebar, objected to Rich testifying because "a couple of minutes before court I started to talk to the gentleman--I do not believe that gives me fair opportunity to pursue this gentleman's background to investigate the evidence that he proposes to give, and if necessary, to get any rebuttal witnesses to his testimony." The court was asked to preclude the witness from testifying.
Defense counsel stated that she had not known what Rich was to testify to until Rich came to the court house. She had asked Taliaferro previously for witnesses and he had given the name of the friend, Caroline Bellamy, whom counsel had been unable to get to court because of lack of an address.
The court, after stating that the only alternative to excluding the testimony was a continuance, asked the prosecutor what he would have done had Rich's name been disclosed as an alibi witness the preceding week. This colloquy ensued:
Ladies and gentlemen of the jury, how many of you are winding up your jury service this week?
The defense proffered that Rich would testify that he had injured his back and head on August 22, 1979, had been confined to his house for approximately three months, and that during at least the first three or four weeks of the confinement, Taliaferro had been at his house each evening, including September 1, the evening of the crime. Defense counsel suggested "a couple of simple telephone calls would provide the investigation" sought by the State, and that it could be done that day. The State replied that "there is a little more involved than a mere record check." He said there might be other factors which he would like to check out in addition to Rich's record and his disability. In the course of his argument the State's Attorney stated that "[i]f the court wants to continue [the case], it is fine with me ..." and also that he was "willing to go along with" putting the case off for a few more days.
Following a recess, the trial judge, after outlining most of the procedural history of the case, ruled that he was exercising his discretion to refuse to permit the alibi testimony, for failure to comply with Rule 741 d 3.
Taliaferro elected not to testify. After a conference with counsel in Chambers the court resumed the bench and advised defense counsel that it would give her
the opportunity if you like, to put in the record the efforts that the defendant has made over a period of whatever time to locate and produce this alibi witness because I don't know that there is anything in...
To continue reading
Request your trial
-
Kadish v. Kadish
...spring break; Memorial Day weekend; and four vacation weeks in the summer.11 Mother does not challenge the court's consideration of the Taliaferro factors before us. Taliaferro v. State , 295 Md. 376, 390-91, 456 A.2d 29 (1983). We note that Mother also did not address the factors below at ......
-
Warehime v. Dell
...that a trial court must exercise its discretion in imposing sanctions in light of the factors established in Taliaferro v. State, 295 Md. 376, 390-91, 456 A.2d 29, cert. denied, 461 U.S. 948, 103 S.Ct. 2114, 77 L.Ed.2d 1307 (1983); see also Shelton v. Kirson, 119 Md.App. 325, 331, 705 A.2d ......
-
Corry v. O'Neill
...96, 106-111, 599 A.2d 449 (1991); Starfish Condo Ass'n v. Yorkridge Service Corp., 295 Md. 693, 458 A.2d 805 (1983); Taliaferro v. State, 295 Md. 376, 398, 456 A.2d 29, cert. denied, 461 U.S. 948, 103 S.Ct. 2114, 77 L.Ed.2d 1307 (1983); Md.Rule 2-433(a). Clearly, in this case, a remedy barr......
-
Faith v. Keefer
...whether any resulting prejudice might be cured by a postponement and, if so, the desirability of a continuance.... Taliaferro v. State, 295 Md. 376, 390-91, 456 A.2d 29, cert. denied, 461 U.S. 948, 103 S.Ct. 2114, 77 L.Ed.2d 1307 (1983); see also Warehime, 124 Md.App. at 45, 720 A.2d 1196; ......