Brafman v. State

Digges, J., delivered the opinion of the Court. Error was, as the State concedes, committed by the Circuit Court for Baltimore County when, over a timely objection, it allowed hearsay testimony to be received into evidence at the trial of Mark Jay Brafman, the petitioner. In that trial Brafman was convicted by a jury of rape and six associated offenses and sentenced to imprisonment for a total of 23 years. The Court of Special Appeals, while recognizing that error was perpetrated, determined, in an unreported opinion, that under the circumstances here presented it was harmless and affirmed the circuit court’s judgment.

Brafman v. State (No. 269, decided December 31, 1974). We are unable to agree that the error was harmless and will therefore reverse and remand the case for a new trial. During the course of the petitioner’s trial Captain Raymond Donovan of the Baltimore County police department, in pertinent part, testified as follows: “Q. [Mr. LaVerghetta (Asst. State’s Atty.)]: Did there come a time, after Mr. and Mrs. [Leonard J.] Brafman had seen their [16-year-old son, the petitioner], that they had conversation with you?

A. Yes, there was. Q. Where did this conversation take place? A. In my office in the Baltimore County Police headquarters. Q. Did there come a time, in your presence, when Mr. Brafman broke down and — Mr. Lipsitz [(defense counsel)]: Just a moment.

I object, your Honor. ⁶⁷⁸ The Court:. . . Continue with your questioning. Q. At any time did Mr. Brafman make any comments to you concerning his son, Mark Jay Brafman? Mr. Lipsitz: I object.

The Gourt: Overruled. The witness: Yes, he did. Q. What if anything did he say to you? Mr. Lipsitz: I object, your Honor.

The Court: Yes, overruled. Q. You may answer. A. I was explaining the nature of the charges against his son, Mark Jay Brafman, and during that time Mr. Brafman or the elder Brafman, became very emotional and began to cry and stated, I knew it, I knew it. [(Emphasis added.)] Mr. Lipsitz: I will have to, your Honor, move for a mistrial with all due respect to .. . the Court and counsel. The Court: The motion for mistrial is denied » 1 Being hornbook law, it requires no citation of authority to hold that the admission of this hearsay evidence, over petitioner’s objection, was error.

However, since “[w]rong directions which do not put the traveler out of his way, furnish no reasons for repeating the journey,” 1 2 we must determine whether, in the milieu of this case, the error was harmless. We will consider the mistake made in this case, the receiving of hearsay testimony into evidence over timely ⁶⁷⁹ objection, on the plane of evidentiary error although it might possibly be said to be of constitutional dimension, as involving a denial of the right to confrontation guaranteed both by the sixth amendment of the United States Constitution and by Article 21 of the Maryland Declaration of Rights. This is of no real moment, however, since this Court, in an opinion authored by Judge O’Donnell, recently held in Dorsey v. State, 276 Md. 638 , 350 A. 2d 665 (1976), that the test for harmless error to be applied to state constitutional and nonconstitutional mistakes in criminal cases is the same as that mandated by the Supreme Court of the United States in Chapman v. California, 386 U. S. 18 , 87 S. Ct. 824 , 17 L.Ed.2d 705 (1967), for federal constitutional errors in criminal cases. See Brown v. United States, 411 U. S. 223, 230-32 , 93 S. Ct. 1565, 1570-71 , 36 L.Ed.2d 208 (1973); Milton v. Wainwright, 407 U. S. 371, 372-78 , 92 S. Ct. 2174, 2175-78 , 33 L.Ed.2d 1 (1972); Schneble v. Florida, 405 U. S. 427, 430-32 , 92 S. Ct. 1056, 1059-60 , 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U. S. 250 , 89 S. Ct. 1726 , 23 L.Ed.2d 284 (1969); Bumper v. North Carolina, 391 U. S. 543, 550 , 88 S. Ct. 1788, 1792 , 20 L.Ed.2d 797 (1968); Fahy v. Connecticut, 375 U. S. 85, 86-87 , 84 S. Ct. 229, 230 , 11 L.Ed.2d 171 (1963); Ross v. State, 276 Md. 664, 673-74 , 350 A. 2d 680, 686-87 (1976) (applying Dorsey to evidentiary error); Younie v. State, 272 Md. 233, 245-49 , 322 A. 2d 211 (1974) (applying Chapman to constitutional error).

In Chapman , it is important