Beghtol v. Michael

ROSALYN B. BELL, Judge. This is an appeal from a jury trial in the Circuit Court for Howard County. The case arises from a three-car collision that occurred on April 27, 1984. The collision claimed the lives of two people who were passengers in Henry Michael’s truck, Michael’s grandson, Eugene W. Riley, III, who died later that day, and Michael’s wife Isabelle, who died 33 days later.

Michael sued James Beghtol and Thomas Lane for the wrongful death 1 of his wife and as personal representative of his wife’s estate; on his own behalf due to personal injuries he sustained in the crash; and on both his own behalf and as personal representative of his wife’s estate, for loss of consortium. Michael’s daughter, and her husband, Eugene W. Riley, II, sued for the wrongful death of their son and as personal representatives of his estate. ³⁹¹ The case was originally set for trial on November 16, 1987. That day, the motions judge granted Beghtol’s motion in limine to exclude the testimony of both Marianna Mardeusz and Gary Kramer who saw Beghtol’s and Lane’s cars travelling down the road prior to the accident. Beghtol then moved for summary judgment, which the motions judge granted.

Michael moved for reconsideration of the grant of the summary judgment and the motion in limine. The motions judge changed his mind on the summary judgment, but let the motion in limine stand and set the case for trial. On the day of trial, the trial judge reversed the prior judge’s decision on the motion in limine on the basis that it was overbroad. While the trial judge ruled that the testimony of Mardeusz and Kramer was admissible, the judge specifically advised appellant’s counsel that he was free to object to any part of the testimony at trial.

The case was tried before a jury which found that Beghtol was negligent 2 and that his negligence proximately caused the damages. The jury did not assess punitive damages against either defendant. Based on these findings, the jury awarded total compensatory damages of $819,762.80 covering all claims. Beghtol’s motions for judgment notwithstanding the verdict and for a new trial were denied.

Beghtol appeals. Appellant raises several issues on appeal: —Did the trial court’s failure to exclude testimony of acts remote from the accident scene result in reversible error? —Did the trial court’s action of calling Defendant Lane as the “court’s witness” unfairly prejudice Beghtol’s defense? —■Did the trial court’s failure to instruct the jury properly on the issue of racing result in reversible error? ³⁹² —Did the trial court’s failure to instruct the jury that it should not be governed by sympathy result in reversible error? We answer all of appellant’s questions in the negative and affirm the judgment entered on the verdict of the jury. We explain.

On April 27, 1984, shortly before 1:00 p.m., Beghtol was driving a Ford Bronco on Route 216 in Howard County, heading east. Lane, his friend, was driving a Corvette in the same direction. Lane pulled his car onto the shoulder of the then single-lane highway to pass the Bronco. The parties disagree about the description of the interaction between the Beghtol and Lane vehicles.

In their respective statement of facts, Michael describes the scene as “horseplay,” while Beghtol does not characterize it at all. After several seconds, Lane tried to speed up so he could get back on the road in front of Beghtol. The cars collided; Beghtol’s car crossed the center line and crashed into Michael’s oncoming Chevrolet pick-up truck. Michael sustained injuries from the accident, and his wife and grandchild, who were passengers in the truck, died as a result of the crash.

TESTIMONY OF ACTS REMOTE FROM THE ACCIDENT Appellant’s first assignment of error concerns the court’s admission of the testimony of Mardeusz. She testified that she saw appellant’s car “speed” past her at a location approximately a mile and a half from the spot where the accident occurred. She later came upon the scene of the collision. Initially, we address appellees’ argument that any errors in admitting Mardeusz’s testimony were not preserved for our review.

Appellees contend that appellant waived his objection because he failed to object at several points during the trial when appellees’ counsel asked questions of Mardeusz concerning the velocity of appellant’s car. We agree. ³⁹³ Appellant’s attorney objected “for reasons previously stated in chambers and on the record” before Mardeusz began to testify. This objection was broad, however, covering her ability to testify at all. Since this objection was vague, it cannot serve as a basis for appellant’s present argument that his objection to Mardeusz’s testimony concerning speed is preserved.

Appellant was well aware that the trial judge ruled “at least part of the testimony ... is relevant and admissible ... that leaves you free, of course, to object to the testimony at trial and rulings will be made at [the] time the testimony’s presented.” —Continuing Objections— Appellant urges us that this general objection at the start of Mardeusz’ testimony served as a continuing objection. Continuing objections have only recently become a recognized part of Maryland trial practice with the addition of Rule 2-517(b). See P. Niemeyer & L. Richards, Maryland Rules Commentary at 297 (1984). Rule 2-517(b) provides: “At the request of a party or on its own initiative, the court may grant a continuing objection to a line of questions by an opposing party.

For purposes of review by the trial court or on appeal, the continuing objection is effective only as to questions clearly within its scope.” In the case at bar, appellant’s counsel did not ask for a continuing objection, nor did the court grant one sua sponte. The Court of Appeals has enunciated the rule that “[i]f the trial judge admits the questionable evidence, the party who made the motion [in limine ] ordinarily must object at the time the evidence is actually offered to preserve his objection for appellate review.” Prout v. State, 311 Md. 348, 356 , 535 A.2d 445 (1988). Clearly, a motion in limine is not the equivalent of a continuing objection, nor is appellant’s broad objection to Mardeusz’ testimony tantamount to a continuing objection. There is no equivalent to a continuing objection.

Though specific objections to every question will preserve the issue for review, they cannot be equated with continuing objections which were instituted ³⁹⁴ precisely to avoid the interruptions of specific objections. We hold that there was no continuing objection to preserve appellant’s objection to Mardeusz’ testimony as to the speed of the cars. Specific Objections In the absence of a continuing objection, specific objections to each question are necessary to preserve an issue on appeal. See Baltimore & Ohio R.R. v. Plews, 262 Md. 442, 470-71 , 278 A.2d 287 (1971).

Appellant did not object to the first question or answer in connection with speed, although he did specifically object to some questions asked by appellees in Mardeusz’ testimony. These questions were leading questions and questions relating to the speed of the vehicles. As a result, appellant contends he is entitled to review of the relevance of those questions. Appellant' would like to have it both ways: his specific objections preserved those issues, and where he failed to object his motion in limine preserved the issues.

This is patently incorrect. Appellant could easily have preserved the issues had he either made a continuing objection which covered speed and remoteness when the issue was first raised or had he objected to every question, which, as he admits, he failed to do. The result of these omissions is the waiver of the objections and a failure to preserve the issue for our review. Rules 2-517 and 8-131; L. McLain, Maryland Evidence, §§ 103.1, 103.3, 103.12 (1987). —Federal Case Analogy— Appellant cites Werner v. Upjohn Co., 628 F.2d 848, 853 (4th Cir.1980), cert. denied, 449 U.S. 1080 , 101 S.Ct. 862 , 66 L.Ed.2d 804 (1981) which involves Federal Rule of Evidence 103(a)(1) to support his argument that his objections have preserved the issue.

Federal Rule of Evidence 103(a)(1) provides: “In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context____” ³⁹⁵ Werner stands for the proposition that a party need not state the specific grounds for an objection if the reason for the objection is clear from the context of the trial. Werner does not mean that a party can fail to object to a question and later claim that his or her pretrial motion implies a standing objection to a particular line of questioning. A party must still object at the appropriate times. Werner does not persuade us that the Maryland Rules allow a party to fail to object and later contend a motion in limine served as a continuing objection.

Rule 2-517(a) provides in pertinent part: “An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.” The rule is clear and is not identical to Federal Rule 103(a)(1). Rule 2-517 provides for a waiver of the objection if not made, while the Federal Rule provides that the objection is not waived if the specific grounds are apparent from the context. Appellant did not act in accordance with the Maryland Rule.

Thus, we hold that the issue is not preserved for our review. Even if the issue were preserved for our review, the result would be unchanged. The ruling of the trial judge regarding the admissibility of Mardeusz’ testimony was within his discretion. See Reid v. Humphreys, 210 Md. 178, 185 , 122 A.2d 756 (1956).

We will not overturn his decision in the absence of a clear abuse of discretion. Reid, 210 Md. at 185 , 122 A.2d 756 . Here we see no abuse of that discretion. DEFENDANT LANE AS “COURT’S WITNESS” Appellant’s second argument focuses on the alleged prejudice that resulted from the court calling co-defendant Lane as its witness.

His argument is without merit. As appellees were about to call Lane to the witness stand, appellant realized that Lane’s testimony would differ from ³⁹⁶ what he said at his deposition. The judge suggested taking Lane’s deposition in court, out of the presence of the jury, so appellant could learn what Lane’s testimony would be at trial. During this “deposition” Lane recanted his earlier testimony in which he had shouldered full responsibility for the accident.

In a very emotional statement, Lane told the court that as a result of appellees’ opening statement suggesting that appellee Henry Michael had blamed himself for the accident, Lane felt he simply had to tell the truth about the accident. Appellant declined the opportunity to cross-examine Lane out of the presence of the jury. Upon learning of Lane’s new version, appellees asked the court to call Lane as a court’s witness. Appellant moved for a mistrial.

The court called Lane as its witness and denied the motion for mistrial. The court admonished appellees’ counsel not to ask Lane the reasons why he had altered his testimony. He was, however, permitted to show the disparate testimony between Lane’s prior deposition and his current position at trial, which he did not do. On cross-examination appellant addressed the issue of Lane’s change of testimony.

After cross-examination, in a bench conference, appellees’ counsel asked the judge if he could now raise the issue of why Lane changed his testimony since appellant had already impeached Lane with the prior inconsistent statement. The trial judge permitted counsel to “just bring up the reason why he changed his testimony.” First, appellant theorizes that the court conditioned its agreement to call Lane as the court’s witness on the understanding that appellees would not be permitted to inquire why Lane changed his testimony. Appellant believes the court stated he could inquire and impeach Lane based upon his prior deposition testimony, and appellees would not thereafter be able to ascertain from Lane why he changed his testimony. This is simply incorrect.

The court did not, as appellant contends, change the rules. Rather, the judge followed the law as it applies to the impeachment of witnesses: “A witness who has been impeached by proof ³⁹⁷ of a prior inconsistent statement may be rehabilitated by denying or explaining the statement____” McLain, § 613.1. See also Virginia Freight Lines, Inc. v. Montgomery, 256 Md. 221, 226 , 260 A.2d 59 (1969); Campbell v. State, 203 Md. 338, 344-45 , 100 A.2d 798 (1953). This is precisely what appellees’ counsel did after appellant opened up this area by showing the jury that Lane’s prior deposition contradicted his testimony at trial.

We hold that the trial judge was correct in permitting appellees’ counsel to examine Lane as to the reasons why he changed his testimony; the jury determines the value of Lane’s altered testimony. Second, appellant contends that the court erred when it called Lane as a court’s witness. Generally, where neither the prosecution nor the defense is willing to vouch for the veracity of the witness 3 and the witness appears to possess material evidence, calling the witness as the court’s witness is within the sound discretion of the trial court. Patterson v. State, 275 Md 563, 569, 342 A.2d 660 (1975).

While Patterson is a criminal case, its reasoning applies equally to civil cases such as the case before us. In Scarborough v. State, 50 Md.App. 276, 282 , 437 A.2d 672 (1981), cert. denied, 292 Md. 639 (1982), we outlined the use of five factors to determine when it is appropriate to call a court’s witness: “(1) the prosecutor’s inability to vouch for the veracity or integrity of the witness; (2) the close relationship between the witness and the defendant; (3) the existence of contradictory or inconsistent statements by the witness; (4) the hostility of the witness; and (5) the necessity for the testimony, i.e., where the witness possesses material evidence.” ³⁹⁸ We analyze the court’s decision with respect to these factors. In the case sub judice, appellees could not vouch for Lane’s veracity because of his recently conflicting versions of the events in question. Lane and appellant had been close friends since childhood.

The witness’s hostility could not be determined by appellees since the court instructed counsel not to interview Lane in the days between the disclosure of the change of heart and his court testimony. Finally, even appellant admits