Braxton v. State

ALPERT, Judge. Doctor George Franklin Phillips, a prominent Baltimore physician, was murdered shortly after 10:00 p.m. on September 21, 1981. Following a lengthy jury trial in the Circuit Court for Baltimore City (Perrott, J., presiding), Donald ⁵⁴³ Braxton, appellant, was convicted of attempted robbery with a deadly weapon, felony murder, and use of a handgun while committing a crime of violence. Appellant was sentenced to a term of life imprisonment on the felony murder charge and a consecutive fifteen-year term for the handgun violation.

On appeal, appellant asks us to consider: I. Whether the trial court erred by denying appellant the opportunity to deny an admission of guilt attributed to him by a State witness?

II

Whether there was sufficient corroboration of accomplices’ testimony to sustain the convictions?

III

Whether appellant was accorded due process? We find each of appellant’s issues to be without merit and shall affirm his convictions. FACTS A basketball game at City Public School 29 ended shortly before 10:00 p.m. on September 21, 1981. Six teenage youths remained on the school’s playground — Gregory Brittingham, Eric Brown, Dean Wright, Walter Vaughn, Kevin Smith and appellant.

Testifying as State witnesses, Brittingham and Brown explained the events preceding Dr. Phillips’ murder. 1 Brown had taken his father’s gun to school earlier that day and shown it to appellant. As they departed the school grounds that evening, appellant asked Brown if he still had the gun. Without saying anything, Brown handed appellant the gun. Appellant test-fired the gun and stated that “he wanted to make some money.” The six teenagers walked down Bentalou Street and saw Dr. Phillips walking towards his automobile.

Phillips entered his car and appellant said “let’s get him.” Wright grabbed the driver’s side car door, held it open and demanded the doctor’s money. Appellant repeated that demand. Mean ⁵⁴⁴ while, Smith went to the passenger side car door and tried to enter the car. Doctor Phillips reached across the front seat and locked the passenger door.

At that point appellant shot Dr. Phillips and the assailants fled. Dr. Phillips crawled a short distance from his automobile and died minutes later. Brittingham testified that when he saw appellant the following day appellant said, “Don't you know, the man I shot, he was a doctor and he died.” Appellant then took Brittingham to view the police drawn chalk lines where the body had been found. A few days later, when asked why he had shot Phillips, appellant explained that he had to because the doctor had seen his face.

Eric Brown also saw appellant the day after the murder. Brown and his brother met appellant at Wright’s house. Appellant told them that “he shot the doctor because he would have recognized him.” I. As part of the State’s case-in-chief, Lindsay Blackwell, conceded by the appellant in his brief to be “an independent witness, who sought no advantage from the State,” testified that he had overheard a conversation between one Stevie Williams and the appellant. This alleged conversation took place on October 2, 1981, in the bleacher section of Carver High School’s football stadium during a football game.

We set out the pertinent testimony: BY [Assistant State’s Attorney]: Q What, if anything, did Stevie say to Donald Braxton? A He said, “I heard you shot the doctor.” [Appellant’s Trial Counsel]: Objection. THE COURT: Overruled. [Assistant State’s Attorney]: Q What, if anything, did Donald Braxton say? A He said, “Who told you?” ⁵⁴⁵ [Assistant State’s Attorney]: Q Now, tell us everything that you heard Donald Braxton say about that subject alone (a robbery and shooting). [Appellant’s Trial Counsel]: Objection.

THE COURT: Overruled. A He said, Hey, some of the people was with him— [Assistant State’s Attorney]: Q I don’t mean to interrupt, but who did Donald Braxton say was with him? [Appellant’s Trial Counsel]: Objection. THE COURT: Overruled. A Dean. ****** Q What is [Dean’s] full name?

A Dean Wright. ****** [Assistant State’s Attorney]: Q What, if anything, did Donald Braxton say he was doing when he was with them? [Appellant’s Trial Counsel]: Objection. A Held the gun. THE COURT: Overruled. I didn’t hear the answer.

A He had the gun. Appellant contends that the trial judge committed reversible error when he denied the appellant the right (through hearsay) to deny, contradict, or disprove the admissions attributed to him by Blackwell and that he was denied the right to submit evidence as to the entire conversation that took place involving himself and Stevie Williams at the football stadium. He asserts that the prosecutor “persistently took the position that any attempt by the defendant to deny he made the statements to Mr. Williams in Mr. Blackwell’s hearing would be self-serving hearsay” and that “the court just as persistently agreed with him.” ⁵⁴⁶ It is a general rule that self-serving declarations— that is, statements favorable to the interest of the declarant — are not admissible in evidence as proof of the facts asserted in the declaration. This rule is the same in criminal prosecutions. 2 Wharton’s Criminal Evidence § 303 (13 ed.

Torcía 1972) (and cases cited therein); 29 Am.Jur.2d Evidence § 621 (1967) (and cases cited therein). See also Kaefer v. State, 143 Md. 151, 158-59 , 122 A. 30 (1923). 2 Under this general rule, the real objection is the hearsay character of the self-serving statements, but it is subject to a number of exceptions. For- example, the accused in a criminal prosecution is entitled to the benefit of the entire conversation in which an admission introduced in evidence against him was made, notwithstanding the fact that a part of the conversation is self-serving. Williams v. State, 205 Md. 470, 473 , 109 A.2d 89 (1954); 2 Wharton’s Criminal Evidence § 304; 29 Am.Jur.2d Evidence §§ 535, 622.

A criminal defendant may also introduce self-serving statements to demonstrate that his actions were performed under direction of the law. 2 Wharton’s Criminal Evidence § 305. We acknowledge the appellant’s right (through admissible evidence) to deny, contradict or disprove the admissions attributed to him by Blackwell. Our thorough examination of the record reveals, however, that the trial judge was attempting to exclude inadmissible self-serving statements of exoneration uttered by appellant. We shall explain our conclusion by reviewing 1 the testimony of Williams and appellant.

A. The Stevie Williams’ Testimony The trial judge’s decision can be best understood in light of the arguments by counsel out of the presence of the jury before Stevie Williams took the witness stand: ⁵⁴⁷ [Assistant State’s Attorney]: Well, Your Honor, I don’t pretend to know what Stevie Williams is going to testify to tomorrow. I know what he testified to in front of the grand jury, and I would say, it is entirely improper. That if [Appellant’s Trial Counsel] follows this line of questioning: And were you present when Donald Braxton had a conversation with Lindsay Blackwell? and the answer is: Yes, I was, and if [Appellant’s Trial Counsel] then asked: What was that conversation? I say, it is not admissible for Stevie Williams to say Donald Braxton denied any involvement in the murder.

THE COURT: I think you are right. It is hearsay. And if [Appellant’s Trial Counsel] is bringing him on the stand for any reason closely proximating that, I ask that he may want to reconsider putting him on the stand. [Appellant’s Trial Counsel] is going to have to make that judgment on his own. [Appellant’s Trial Counsel], I think, knows what hearsay is and its exceptions. [Appellant’s Trial Counsel]: Your Honor, I am not going to argue that at this time. I proffer the question and [Assistant State’s Attorney] can object to it. [Assistant State’s Attorney]: I ask that the question not be asked.

THE COURT: Wait a moment, gentlemen. I realize the hour is growing late and tempers are getting high. [Appellant’s Trial Counsel]: I’m calm. [Assistant State’s Attorney]: I’m pretty calm too. THE COURT: Fine. Stay that way.

Now, let us go through the same procedure, gentlemen, that we have with these other witnesses, where there has been a possible Fifth Amendment problem. [Appellant’s Trial Counsel], interrogate the man after he’s been advised of his constitutional rights, and you will know exactly what it is. I am not going to let hearsay come in if I can avoid it. So let us just handle it the same way we did the other witnesses when there was a Fifth Amendment problem. Now, anything else we should take up? ⁵⁴⁸ The court then recessed until the next morning, Tuesday, March 16, 1982.

Further discussion on Stevie Williams’ testimony ensued. [Assistant State’s Attorney]: I have already alerted the Court that Stevie Williams at one point admits that he was present and hears the statement of the defendant denying his involvement of the shooting. THE COURT: That is not admissible, and I have ruled that. [Assistant State’s Attorney]: Does the witness know that? [Appellant’s Trial Counsel]: I am not going to ask him that, [Assistant State’s Attorney]. THE COURT: [Appellant’s Trial Counsel] heard the Court’s ruling. [Assistant State’s Attorney]: As long as we understand, Your Honor, we are not going to hear that. THE COURT: I don’t want to screen any witness.

I really think that’s highly unnecessary unless we have a Fifth Amendment problem. We have spent most of the morning resolving the problem, there is no Fifth Amendment problem with Mr. Williams. [Appellant’s Trial Counsel] heard me say yesterday, that that particular question and answer would not be admissible, and I am going to rely on his good judgment. More important, upon his common sense not to get himself into that situation, after the Court has specifically ruled. [Assistant State’s Attorney]: I am not worried so much about [Appellant’s Trial Counsel], I am worried about the witness who might not be aware of that ruling of the Court, and might somehow in answer to some question slip in that the defendant denied it. I think perhaps to prevent that possibility, maybe the witness could be warned. [Appellant’s Trial Counsel]: Your Honor, I am not going to ask the question.

If someway in cross examination he could blurt it out, it is really still testimony that is ⁵⁴⁹ admissible. I have never made an issue out of it because I never intended to ask him that. I never asked that and don’t know what his answer is. Perhaps defense counsel never intended to ask a question of Stevie Williams the potential answer to which was of such great concern to the prosecutor.

Defense counsel may have elected, possibly for tactical reasons, not to ask Stevie Williams what, if anything, the appellant said to him at the football game. In any event, we note that at no time did defense counsel advise the court that he was offering the Stevie Williams testimony not for the truth of appellant’s response but in order to impeach the testimony of Lindsay Blackwell. See, e.g., Smith v. State, 273 Md. 152, 161 , 328 A.2d 274 (1974). Neither did defense counsel suggest to the court that the alleged denial was being offered as an exception to the hearsay evidence rule or under the doctrine of verbal completeness.

For a discussion of the verbal completeness doctrine, see Bowers v. State, 298 Md. 115, 134 , 468 A.2d 101 (1983). Although the prosecutor submitted a hypothetical question and answer, the appellant submitted no proffer of testimony. Therefore, appellant’s present theory of admissibility was neither tried nor decided by the trial judge and we ought not consider it. See Brown v. State, 1 Md.App. 571, 576 , 232 A.2d 261 , cert. denied, 248 Md. 733 (1967); Maryland Rule 1085.

One of the principal purposes of this rule is to require counsel to bring the position of their clients to the attention of the lower court at the trial, so that the trial court can pass upon and possibly avoid or correct any errors in the proceedings. See Clayman v. Prince George's Co., 266 Md. 409, 416 , 292 A.2d 689 (1972). Finally, as we said in Funkhouser v. State, 51 Md.App. 16, 24 , 440 A.2d 1114 (1982), “the grant of a motion in limine cannot in and of itself constitute reversible error.” Accordingly, we hold that refusal to permit an answer to a question which on its face called for hearsay (a self-serving declaration) is not error where trial counsel fails to show that the purpose of the question is to elicit non-hearsay ⁵⁵⁰ or evidence which would be considered as an exception to the hearsay rule. Assuming arguendo that the trial judge should have assumed that the controversial testimony was being offered as an exception to the hearsay rule, error in that regard was harmless beyond a reasonable doubt.

Any error of exclusion was cured by facts established otherwise. Baldwin v. State, 226 Md. 409, 414-15 , 174 A.2d 57 (1961). See also 5 Am. Jur.2d Appeal & Error § 806 (1964).

Lindsay Blackwell’s testimony was contradicted by the appellant himself and also by the testimony of Stevie Williams when he indicated that because of crowd noise nobody could hear anyone else without shouting; by the testimony of Rufus Maurice Rouse, who confirmed that the crowd was so noisy that it was impossible to hear conversations and that he did not hear any conversation with the appellant; and by William Campbell, who indicated that the appellant himself was not talking about the shooting and that the crowd was so noisy nobody could have overheard any such conversation. Campbell further indicated that the appellant was not present during the football game when the others were discussing the murder. B. Appellant’s Testimony Appellant also contends that he was denied the right “personally to deny that he made the incriminating statements attributed to him therein by Mr.