Angell v. Just

Davidson, J., delivered the opinion of the Court. On 9 April 1973 in the Circuit Court for Frederick County, Mrs. Linda Joan Just, the appellee, filed a petition for a determination of paternity and support. The petition and affidavit attached thereto alleged, among other things, that Mrs. Just and the appellant, Roy Leo Angelí, although not married to each other, had engaged in sexual relations beginning in the fall of 1961 or 1962 and continuing until 8 October 1971. The petition further alleged that as a result of such sexual intercourse a male child, Matthew Evers Just, was born on 10 July 1972.

In his answer, appellant denied these allegations. ⁴⁵ On 21 June 1973 a trial was held before Judge Samuel W. Barrick, sitting without a jury. There was evidence to show that Mrs. Just and Mr. Angelí met each other in 1961 or 1962 and that during those years they had engaged in sexual relations. In 1964 Mrs. Just married someone other than Mr. Angelí. She was divorced in 1967.

She is the mother of two children other than the child alleged to be that of the parties. In 1967 Mr. Angelí married someone other than Mrs. Just. He is the father of two children born of that marriage. Mrs. Just testified that between 1962 and 8 October 1971, the parties did not engage in sexual relations, except for one isolated episode in 1967.

According to Mrs. Just, on 8 October 1971 she left her house at about 9 p.m. She was “riding around” in her car and Mr. Angelí was also “riding around” in his dark green Chevrolet pickup truck. Each of the parties was alone. Mr. Angelí followed Mrs. Just “up to the dam.” According to Mrs. Just, they met between 11 and 12 p.m. and shortly after midnight had intercourse on the seat of Mr. Angell’s truck.

Mr. Angelí denied that he had had sexual relations with Mrs. Just at any time since 1963. He conceded that he owned a pickup truck on 8 October 1971, but denied that he had ever met Mrs. Just while in the pickup truck or had had intercourse with her there. He stated that on 8 October 1971 he was with his wife at the Charles Town Race Course. They returned home between 11:30 p.m. and 11:45 p.m. and went to bed about 12:30 a.m.

Mrs. Angelí generally corroborated the testimony of her husband, explained that she and her husband shared the same bed and emphasized that her husband did not leave home after they returned from the races. The chancellor, after hearing all of the evidence, 1 found Mrs. Just to be a credible witness and held that Mr. ⁴⁶ Angelí was the father of the child. On 22 June 1973 Judge Barrick entered an order declaring Roy Leo Angelí to be the father of the child and reserving judgment on the amount of support payments to be paid. On 11 July 1973 Mr. Angelí petitioned the court for a rehearing.

The petition, sworn to by appellant, alleged, among other things, that prior to the trial appellant had no knowledge that appellee would testify that on 8 October 1971 the parties had had intercourse in Mr. Angell’s pickup truck; and that after the hearing appellant had discovered that between 4 and 12 October 1971 his pickup truck had been in the possession of Kenneth Keeney operator of Thurmont Citgo, for the purpose of repairs. Attached to the petition was an affidavit, sworn to by Mr. Kenneth Keeney, stating that on 4 October 1971 he had towed Mr. Angell’s 1966 Chevrolet pickup truck from Emmitsburg to his Citgo Station in Thurmont, and that between 4 and 12 October 1971 Mr. Angell’s truck had been at his place of business for repairs. Also attached was a copy of an invoice for repairs, signed by Mr. Keeney and indicating that on 4 October 1971 Mr. Angell’s 1966 Chevrolet half-ton truck had been towed from Emmitsburg to the Citgo Station in Thurmont; that on 9 October 1971 a payment of $100.00 was received; that the balance of the bill was to be paid when the truck was picked up; and that the balance was paid on 12 October 1971. During the hearing on the motion, the chancellor found that the proffered evidence relied upon constituted impeachment on a collateral matter and did not therefore constitute an adequate basis upon which to grant a motion for rehearing. 2 The motion for rehearing was denied. ⁴⁷ Testimony concerning the amount of support payments was then adduced. 3 After the chancellor decided that Mr. Angelí could afford to make support payments, the parties compromised on the amount of $10 per week.

On 7 August 1973 an order was entered denying the motion for rehearing and requiring appellant to pay $10 per week for child support. On 28 August 1973 this appeal was noted. It is well settled in Maryland that the grant or refusal of a rehearing lies within the sound discretion of the trial court. S & G Realty v. Woodmoor Realty, 255 Md. 684, 690 , 259 A. 2d 281, 284 (1969); Lancaster v. Gardiner, 225 Md. 260, 269 , 170 A. 2d 181, 185 (1961); Hancock v. Stull, 199 Md. 434, 437 , 86 A. 2d 734, 735 (1952); Bailey v. Bailey, 186 Md. 76, 81 , 46 A. 2d 275, 277 (1946).

The action of the trial court upon such motion will not be disturbed on appeal except under the most compelling and extraordinary circumstances. A.S. Abell Co. v. Skeen, 265 Md. 53, 59 , 288 A. 2d 596, 599 (1972); Carlile v. Two Guys, 264 Md. 475, 477 , 287 A. 2d 31, 33 (1972); Butler v. State, 19 Md. App. 601, 613 , 313 A. 2d 554, 560 (1974); Jones v. State, 16 Md. App. 472, 477 , 298 A. 2d 483, 486 , cert. denied, 268 Md. 750 (1973). We believe there are compelling circumstances in this case which justify a finding that the trial court abused its discretion. The trial court denied the rehearing because it found the proffered evidence to be “merely impeaching” on a “collateral” matter.

We do not agree. In McCormick’s Handbook of the Law of Evidence (2d ed. 1972), in § 47, entitled “Impeachment by ‘Contradiction’: Disproving the Facts Testified to by the First Witness,” the rule that a witness may not be impeached by producing extrinsic evidence of “collateral” facts to “contradict” a previous witness’s assertions about those facts is considered. In determining what is to be regarded as within the “protean word of art, ‘collateral,’ ” McCormick says: “The inquiry is best answered by determining what ⁴⁸ facts are not within the term, and thus finding the escapes from the prohibition against contradicting upon collateral facts. “Finally, a third kind of fact must be considered. Suppose a witness has told a story of a transaction crucial to the controversy.

To prove him wrong in some trivial detail of time, place or circumstance is ‘collateral.’ But to prove untrue some fact recited by the witness that if he were really there and saw what he claims to have seen, he could not have been mistaken about, is a convincing kind of impeachment that the courts must make place for, although the contradiction evidence is otherwise inadmissible because it is collateral under the tests mentioned above. To disprove such a fact is to pull out the linchpin of the story. So we may recognize this third type of allowable contradiction, namely, the contradiction of any part of the witness’s account of the background and circumstances of a material transaction, which as a matter of human experience he would not have been mistaken about if his story were true. This test is of necessity a vague one because it must meet an indefinite variety of situations, and consequently in its application a reasonable latitude of discretionary judgment must be accorded to the trial judge.” (Footnotes omitted.) Id. at 98-99.

While this analysis is made in the context of determining what constitutes collateral facts upon which a witness may not be impeached by extrinsic evidence, we find it equally useful in determining what constitutes collateral or material evidence upon which a new trial may be granted. We believe that the evidence proffered here relates to material facts which are inextricably interrelated with the material issue in this case, whether the parties did in fact ⁴⁹ engage in an act of intercourse which resulted in the birth of the child whose paternity is being determined. Mrs. Just testified that on 8 October 1971 she had sexual relations with Mr. Angelí on the seat of his dark green Chevrolet pickup truck. Had she been uncertain as to the date or the ownership and description of the truck the proffered evidence might well have involved “collateral” matters, since it would not necessarily have rebutted the inference that intercourse between the parties might have occurred at some other time in some other truck.

But here the record shows that Mrs. Just repeatedly and persistently maintained, on both direct and cross-examination, that the alleged act of intercourse took place on 8 October 1971, a date about which she could not have been mistaken because it was her birthday, and that it took place on the seat of Mr. Angell’s Chevrolet truck, a locale about which she could not have been mistaken, given her long acquaintance with Mr. Angelí and her ample opportunity for observation. By her own unequivocal testimony, Mrs. Just eliminated the possibility that the alleged act of intercourse took place on a date other than 8 October 1971 in a truck other than the Chevrolet owned by Mr. Angelí. Mr. Angelí proffered evidence which, if true, proves that on 8 October 1971 he did not have possession or control of his truck. Because of the certitude of Mrs. Just’s testimony, the evidence proffered by Mr. Angelí, if believed, serves not only to refute her testimony concerning the locale of the alleged act of intercourse but also to show that her whole story, including the alleged act of intercourse itself, was untrue.

It is for this reason that we are convinced that the proffered evidence is material and not collateral. Nor do we agree that the proffered evidence concerning the possession and control of Mr. Angell’s truck on 8 October 1971 is “merely impeaching.” It is well settled that a new trial will not be granted upon a ground of newly discovered evidence “where it appears that such evidence can have no effect other than to discredit the testimony of a witness at the original trial, contradict the witness’s statements, or impeach a witness, unless the testimony of the witness who ⁵⁰ was sought to be impeached, was so important to the issue and the evidence impeaching the witness so strong and convincing that a different result would necessarily follow were a new trial granted.” (Emphasis added.) 58 Am. Jur. 2d New Trial §§ 173-74 (1971), and cases cited therein. Although no Maryland case has explicitly so held, an analysis of Maryland cases relating to the use of impeaching evidence as the basis for a new trial indicates that the same rule applies here.

Thus, newly discovered evidence which alleges a conflict of interest on the part of a witness testifying at the original trial, does not constitute a proper basis upon which to grant a new trial. Gott v. Carr, 6 G. & J. 309 (1834). Such evidence, while it casts doubt upon the credibility of the witness, does not show either a state of facts different from that to which the witness testified, or that the state of facts to which the witness testified did not in fact exist. It is not, therefore, so strong and convincing as to necessitate a different result.

Similarly, newly discovered evidence which contradicts allegedly perjured testimony given by a witness at the original trial does not constitute a proper basis upon which to grant a new trial where the allegedly perjured testimony was not relied upon by the court in reaching its determination. Wilmer v. Placide, 127 Md. 339, 343 , 96 A. 621, 623 (1916). Such evidence does not compel the grant of a new trial even though it might have established facts different from those to which the witness testified, or negated the existence of facts described by the witness, because the testimony of the witness sought to be impeached was not so important to the issues as to necessitate a different result in the event that the testimony was disbelieved. However, newly discovered evidence which directly contradicts material facts testified to by a witness at the original trial and which, if believed, would probably require a different result, does constitute a proper basis for a new trial.

Thus, in Wash., B. & A. R. Co. v. Kimmey, 141 Md. 243 , 118 A. 648 (1922), a motion for new trial was filed by the defendant on the day of the rendition of the verdict in the ⁵¹ original trial. At the hearing on the motion, affidavits were filed and evidence was adduced tending very strongly to show that the condition to which the plaintiffs claim for damages mainly referred was not the result of the accident on account of which the suit was brought but had existed long before its occurrence. The plaintiff had testified at the trial that before the accident she was in perfect health. The depositions in support of the motion for a new trial were directly to the contrary and indicated that preceding the accident the plaintiff had constantly suffered from the very condition which she had asserted was the result of the accident.

At the time of the presentation of these affidavits in open court no objection was made to them and they were admitted into evidence. Before the conclusion of the hearings a motion ne recipiatur as to the affidavits was filed on the ground that notice of a desire to file affidavits had not been given in the motion nor had the affidavits been filed within ten days of the motion for a new trial, as then required by the rules of the trial court. The motion ne recipiatur was granted and the trial court, having no newly discovered evidence before it, refused to order a new trial. The Court of Appeals found that the rule regarding notice about and timely filing of affidavits had been waived by the plaintiff and that the trial court had erred in granting the motion ne recipiatur.

The Court held that as a result of this error the appellant was deprived of the exercise of the judgment and discretion of the trial court upon the case, and ordered a new trial. In reaching this result, the