Anderson v. State

DEBORAH S. EYLER, J. In the Circuit Court for Montgomery County, Russell Anderson, the appellant, was tried by a jury on two counts of first-degree rape of Rosa Molina. According to Molina, a firearm was used in the rape, and a second man, co-defendant Timothy McLaughlin, also raped her. According to the appellant, who testified at trial, his sexual encounter with Molina was consensual. The jury convicted the appellant and McLaughlin and both were sentenced to two consecutive terms of life in prison. 1 The appellant challenges two rulings by the trial court admitting extrinsic evidence that, two weeks after the day Molina maintains she was raped, the police searched his apartment and found a handgun.

In fact, the search was in connection with an entirely different case, and the handgun found during the search could not be shown to be the weapon used against Molina. The court ruled, however, that the evidence was admissible to impeach by contradiction the appellant’s testimony, on cross-examination, that he did not have a handgun in his apartment at the relevant time. We conclude that the trial court’s rulings were an abuse of discretion. The evidence in question was extrinsic evidence concerning a collateral matter.

It had virtually no probative value. And the danger that its admission would unduly prejudice the appellant and would confuse and mislead the jurors greatly outweighed any probative value it might have had. ⁵¹² We shall reverse the judgments of conviction and remand the case for further proceedings. FACTS AND PROCEEDINGS Based on DNA evidence, the appellant and McLaughlin were charged, in 2012 with raping Rosa Molina on December 22, 1989. The rapes were committed in the basement laundry room of the apartment building in which Molina was living with her husband, young daughter, brother-in-law, and sister-in-law.

In late 1989/early 1990, the appellant and McLaughlin were co-workers and friends. McLaughlin’s sister lived in the same apartment building as Molina. The appellant and his girlfriend were living in an apartment in Washington, D.C. Molina did not know the appellant, McLaughlin, or McLaughlin’s sister. The case went to trial in April of 2013.

Molina was called by the State and testified that on the afternoon of December 22, 1989, she was doing laundry in the basement of her apartment building when a man entered, approached her, and held a long black gun against her head. A second man entered the laundry room, closed the door, and turned the lights off. Both men were wearing black masks. Molina only could see their eyes.

Each man raped her as the other man held the gun to her head. When they were finished, they left the laundry room. Molina went to her apartment and told her husband what had happened. After wiping her vaginal area off with tissues, taking a bath, and changing her clothes, she called the police and reported the rape.

The police took a statement from her and collected her clothes and the tissues. She was transported to a hospital, where she underwent a vaginal examination. On cross-examination, the defense elicited several inconsistencies between the facts Molina reported to the police after the rape and the facts she testified to at trial. Of importance here, Molina acknowledged that when the police interviewed her she told them that the gun that was held to her head was blue with a wooden handle, not long and black. ⁵¹³ The State also called the investigating police officers, including two who interviewed Molina.

One officer questioned her in Spanish, as she did not speak English, and translated what she was saying into English. He testified that Molina told him that after both men left the laundry room one man returned, and then Molina’s sister-in-law entered the laundry room; and that for some time, both women and one of the men were in the laundry room together. In addition, the State called the emergency room doctor and a forensic biologist. Together their testimony established the chain of custody of the evidence from which DNA was obtained in 2012, and the process by which that DNA was determined to match DNA from the appellant and McLaughlin.

The appellant took the stand and testified as follows. On December 22, 1989, he got off work at 8:00 or 9:00 a.m., having worked an extended overtime night shift. He walked to McLaughlin’s sister’s apartment building to find McLaughlin, who had agreed to lend him money to pay his rent. He and McLaughlin’s sister entered the apartment building at the same time.

They took the elevator and got off at the sister’s floor, where they encountered McLaughlin and Molina “touching each other” and “laughing and playing.” The appellant had never seen Molina before. McLaughlin’s sister said she wanted to see her brother inside her apartment. McLaughlin whispered something in Molina’s ear, took some money out of his pocket, put it in her “shirt-type area,” “smacked her on the butt,” and left with his sister. Molina grabbed the appellant’s hand and led him to the elevator and then to the basement laundry room.

They “started making out.” The appellant put his coat on the floor and they had sexual intercourse on top of it. He did not force himself on Molina and she did not push him away or tell him she did not want to have sex. He did not use a condom and ejaculated inside of Molina. Afterward, while they were getting dressed but were not yet fully clothed, a woman entered the laundry room and spoke to Molina in Spanish.

The ⁵¹⁴ appellant could not understand what the woman was saying, but could tell she knew Molina and was “agitated or serious— angry.” Molina answered the woman in Spanish and started to cry. The appellant finished getting dressed, left the laundry room, and went to McLaughlin’s sister’s apartment to get the money. He then went home to the apartment in D.C. where he was living with his girlfriend. We shall include additional facts in our discussion of the issues.

DISCUSSION A. On January 5, 1990, exactly two weeks after Molina reported that she had been raped, a woman from Washington, D.C., called the District of Columbia Metropolitan Police (“D.C. Police”) and reported that the appellant had raped her at gunpoint. The D.C. Police immediately obtained and executed a search warrant for the appellant’s apartment. They seized several items, including a handgun they found in the living room closet. The police report of the search (“D.C. Police Report”) describes the handgun as a “Revolver, 36 cal., Navy Model, from the Hawes Firearm Co., black with brown wood grips, black electrical tape wrapped around grip, cylinder and hammer, Serial # 7547.” On the third day of trial, the prosecutor informed defense counsel of the existence of the D.C. Police Report and furnished them copies.

Before the appellant’s counsel called the appellant to testify, he moved to preclude the prosecutor from using the D.C. Police Report on cross-examination and from introducing it into evidence. He argued that the report had not been timely disclosed and, in any event, whatever probative value it might have was substantially outweighed by the danger of unfair prejudice in admitting it. The latter argument was based largely on the fact that the State was not contending that the handgun found in the police search of the appellant’s apartment on January 5, 1990, was the weapon that was used against Molina. ⁵¹⁵ The trial court ruled that the State had not committed a discovery violation and that the prosecutor could use the report for impeachment. The judge observed that the report had not “been offered in any way, shape, or form, as substantive evidence in the [Sjtate’s case ... that this is in fact the gun” and that it “is not coming in as evidence [and] does not go back to the jury.” He stated that the report was “simply going to be used if the situation presents itself for purposes of cross examination,” and cautioned that the report’s use would need to be “carefully limited.” On cross-examination of the appellant, the prosecutor established that in 1989 he and his girlfriend were living in a particular apartment in D.C., and were the only people living there. 2 When asked whether he had purchased a .36 caliber Navy Model handgun, black with a wood handle, the appellant answered, “No.” He also denied ever owning a handgun or any gun.

He acknowledged that there had been a closet in the living room of the apartment in which he and his girlfriend had been living, but said that other than coats and some boxes of mail he could not remember what was in it. The prosecutor showed the appellant the D.C. Police Report, describing it only as “what’s been marked for identification as State’s 24.” She gave the appellant an opportunity to read it, which he did. He was not asked to identify what he was looking at, and did not do so. The appellant then testified that he had shared the living room closet with his girlfriend.

When asked whether it was true that in 1989, a .36 caliber Navy Model revolver was kept in that closet, he answered “No.” 3 ⁵¹⁶ At that point, the prosecutor requested a bench conference and moved to admit the D.C. Police Report into evidence, under Rule 5 — 616(b)(2). Over a hearsay objection, the trial court ruled that the report would be admitted for the sole purpose of showing that on January 5, 1990, a handgun was found in the living room closet of the appellant’s apartment. The court made clear that before the report would come into evidence the prosecutor would have to redact it to eliminate everything other than the address of the apartment, the date of the search, and the list of items recovered. The appellant’s testimony concluded, the defense rested, and court recessed for the day.

The next morning, before the jurors were brought into the courtroom, the prosecutor announced that she planned to call Detective Juanita Terrell as a rebuttal witness. She identified Detective Terrell as “the original investigator from the D.C. case” who “was in charge of a law enforcement search of [the appellant’s apartment]” on January 5, 1990, in which the “weapon in question” was found. The prosecutor’s stated purpose in calling Detective Terrell was to “remedy the issue of any hearsay with respect to” the D.C. Police Report. In the ensuing conversation among counsel and the court, the prosecutor said, as she had said before, that the State was not contending that the handgun seized from the appellant’s apartment was the same weapon used against Molina.

Defense counsel argued that whether a handgun that was not the handgun used against Molina was or was not present in the appellant’s apartment two weeks after Molina’s rape was a “collateral issue” that extrinsic evidence ordinarily could not be used to prove; and that in deciding whether such evidence was admissible the court needed to engage in a Rule 5-403 weighing process. On that point, defense counsel asserted that the impeachment value of Detective Terrell’s testimony was slight but its potential for unfair prejudice was great, because the handgun seized from the appellant’s apartment on January 5, 1990, “more or less match[ed]” the description of the weapon Molina had given the police on December 22,1989. ⁵¹⁷ The court found that the evidence that a handgun was recovered in the search of the appellant’s apartment on January 5, 1990, was not being used substantively; it was being used solely to discredit his testimony that no such handgun was in his apartment on the date of the search. The court concluded that the probative value of the State’s evidence “far outweighs any prejudice.” The judge later supplemented his ruling to explain that it was based mainly on the close temporal relationship between the rape on December 22, 1989, and the police search of the appellant’s apartment on January 5, 1990. Detective Terrell took the stand and testified that on January 5, 1990, she was in charge of a “law enforcement related search” of the appellant’s apartment in the District of Columbia.

The prosecutor showed the detective a document, which the prosecutor described as “what’s been marked as State’s Exhibit 25.” It was another copy of the D.C. Police Report. The prosecutor asked Detective Terrell whether the document refreshed her recollection about the search, and she replied that it did. The prosecutor then asked, “[Wjhat, if anything, did that search yield related to a weapon?” Detective Terrell answered that the search yielded a handgun, which she described using the terminology in the report. On cross-examination, Detective Terrell testified that she was not present during the search of the appellant’s apartment and that the words “Navy Model” in the description of the handgun that was seized did not refer to the color of the handgun.

On redirect examination, the detective explained that, even though she was not present when the search was carried out, she was the lead detective in the case in which the search was being conducted and was in charge of maintaining the evidence seized in the search, including the handgun. Upon the conclusion of Detective Terrell’s testimony, defense counsel again objected to her being allowed to testify and moved for a mistrial or to have her testimony stricken on the ground that it was not based on personal knowledge. The ⁵¹⁸ court overruled the objection, denied the motion for mistrial, and denied the motion to strike. In her “opening” closing argument, the prosecutor said nothing about the handgun seized from the appellant’s apartment.

McLaughlin’s lawyer did not comment about it either. Counsel for the appellant mentioned the handgun briefly, observing that it was a “red herring” because it had no connection to this case and pointing out that the appellant’s girlfriend also was living in the apartment and there was no forensic evidence, such as DNA or fingerprints, linking the handgun to the appellant. In her rebuttal closing, the. prosecutor argued as follows about the appellant’s testimony and Detective Terrell’s testimony: Evidence doesn’t lie. People lie.

And the fact of the matter is [the appellant] got up on that stand, and he took that oath, and he lied. And how do we know that he lied? ... That witness [referring to Detective Terrell] wasn’t put on in the [S]tate’s case in chief. That witness came on after [the appellant] took the stand.

After [the appellant] got up there and despite questioning otherwise, said nope, not my apartment, not 87 Seton Place, 2nd floor is there a gun. That’s a lie. [The appellant] is a liar. That witness [again referring to Detective Terrell] came up to show that, yes, January 5th, a mere two weeks afterwards, and what kind of gun was it? The blue one.

(Emphasis added.) Counsel for McLaughlin lodged an objection, which was overruled. After closing arguments, the prosecutor approached the court and asked permission to withdraw Exhibit 24 — the D.C. Police Report she had used in cross-examining the appellant, and that the court had ruled would be admitted into evidence subject to redaction. (It never was redacted.) The prosecutor explained that she wanted to withdraw the exhibit “just because we had a live testimony just to preserve the record.” The court granted the request and the D.C. Police Report was ⁵¹⁹ not made part of the evidence and was not submitted to the jury. 4 During deliberations, the jurors asked for Exhibit 24. Their request was denied.

B. Rule 5 — 616(b) governs the admissibility of extrinsic evidence to impeach a witness by contradiction, ie., to contradict a fact or matter testified to by the witness. Evidence is “extrinsic” when it is “proved through another witness, or by an exhibit not acknowledged or authenticated by the witness sought to be contradicted.... ” Lynn McLain, 6 Maryland Evidence State And Federal § 607:8, at 553 (3d ed. 2013) (hereinafter “McLain”) (footnote omitted) (citing 3A Wigmore § 878 (rev. 1970)). The rule states: (b) Extrinsic impeaching evidence. (1) Extrinsic evidence of prior inconsistent statements may be admitted as provided in Rule 5-613(b). ⁵²⁰ (2) Other extrinsic evidence contradicting a witness’s testimony ordinarily may be admitted only on non-collateral matters.

In the court’s discretion, however, extrinsic evidence may be admitted on collateral matters.... (Emphasis added.) The D.C. Police Report and Detective Terrell’s testimony were “extrinsic evidence” that the State was using to impeach the appellant’s testimony by contradiction. As discussed, the appellant testified, on cross-examination, that there was no handgun in his apartment when he lived there in late 1989/ear-ly 1990. The D.C. Police Report showed that a handgun was present in the appellant’s apartment, as one was recovered by the police in a search of the apartment on January 5, 1990.

Detective Terrell’s testimony established the same thing. Thus, the D.C. Police Report and Detective Terrell’s testimony each contradicted the appellant’s testimony. Rule 5 — 616(b)(2) is derived largely from the holding in Smith v. State, 273 Md. 152 , 328 A.2d 274 (1974), which preceded the 1994 adoption of the Maryland Rules of Evidence. In Smith , a husband was shot by his wife and was taken to a hospital, where he later died.

Before the husband’s death, a police officer questioned him about the incident. The husband identified his wife as the shooter and said he “would get her.” Id. at 155 , 328 A.2d 274 . After the husband died, the wife was charged with second-degree murder. At trial, her defense was that the shooting was accidental.

The officer testified about what the husband had told him. On cross-examination, he said he remembered getting a telephone call from an investigator from the Office of the Public Defender. When asked “isn’t it true” that he told the investigator that the husband had told him the shooting was accidental, the officer denied that. In the defense case, the wife sought to call the investigator, proffering that he would testify that, in his telephone call with the officer, the officer said the husband had told him the shooting was accidental.

The court ruled the testimony inadmissible hearsay. The wife was convicted and the case ulti ⁵²¹ mately was heard by the Court of Appeals, which reversed, holding that the trial court had abused its discretion by precluding the investigator from testifying. The Court noted that a witness, including a party, “may be cross-examined on any matter relevant to the issues, and the witness’s credibility is always relevant.” Smith, 273 Md. at 157 , 328 A.2d 274 . It recognized, however, that there are “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.” Id. “In such cases, the cross-examiner is bound by the answer of the witness....” Id.

The Court also observed that some evidence is irrelevant, even to credibility, and that “evidence which is otherwise irrelevant cannot become relevant simply because it is capable of being contradicted, and will thereby impeach the witness.... ” Id. at