Clark v. State

⁸⁰ CHASANOW, Judge. Petitioner, Hammel Jay Clark, III, was tried in the Circuit Court for Baltimore City and was convicted by a jury of first degree rape, resisting arrest, and assault. The trial judge sentenced Clark to life imprisonment for the rape and to concurrent ten-year prison terms for resisting arrest and assault. The Court of Special Appeals affirmed the convictions in an unreported opinion.

We granted Clark’s petition for certiorari to consider whether, after a police witness volunteered at Clark’s trial that Clark was “implicated as a suspect” in another rape case, the trial judge abused his discretion by refusing to allow Clark to show, from the same witness, that a DNA test had exonerated him in that other rape. 329 Md. 601 , 620 A.2d 940 . ' I. On July 2, 1991, at about 1:00 a.m., Sherry Cheatems was riding home from work on a bus. During Cheatems’ commute, Clark, who was also on the bus, attempted to engage her in conversation. Cheatems testified that she “was trying to tell him that [she] was not interested.” However, at trial, a defense witness, Keith Nelson, testified that Clark “had his arm around her,” and that he had observed the two “whispering in each other’s ear goo goo laughing, goo goo eyes and necking and all that stuff.” When Cheatems exited the bus near her home, Clark followed her. Cheatems testified that Clark grabbed her around the neck, dragged her into an alley off Monument Street, threatened to cut her throat, and then raped her.

After the alleged rape, Cheatems and Clark walked out of the alley together. Baltimore City Police Officer Robert Reason testified that he saw the pair walking down the street. According to the officer, Cheatems “appeared to [him] to be frightened and crying.” He pulled over his patrol car, approached the two, and ordered Clark to step away from Cheatems so that he could question her. When Reason asked if Clark was bothering her, Cheatems replied that he had just ⁸¹ raped her.

When Reason attempted to place Clark under arrest, Clark moved away from the officer. Believing Clark was trying to flee, the officer grabbed Clark and pushed him against the patrol car. After a brief scuffle, Reason placed Clark under arrest. At trial, the State introduced DNA evidence which confirmed that Clark, in fact, had intercourse with Cheatems.

Clark challenged the chain of custody of several items of clothing and specimens taken for the DNA analysis, and the judge informed the State that he would exclude several items of physical evidence unless the State produced the necessary witnesses to verify the contested chain of custody. In response, the State called Police Officer Robert Winder, a witness whom it had not anticipated calling and who therefore was not previously disclosed. Officer Winder testified that he had witnessed Clark’s blood being drawn and had submitted the extracted samples to Evidence Control for DNA profiling. During cross-examination by Clark’s attorney, Officer Winder indicated in the following colloquy that Clark was a suspect in another rape which occurred at a different location: “[DEFENSE ATTORNEY]: And officer, what was your function in being there while this blood was drawn? [OFFICER WINDER]: Recently I took a report on— THE COURT: Officer, we have to hear you, the jury has to hear you.

Please speak up. [STATE’S ATTORNEY]: Your Honor, may we approach before the officer answers that? THE COURT: Overruled. Go ahead, officer, tell her and answer the question loud and clear. [OFFICER WINDER]: Okay. Originally I answered to a call for a rape in the North Avenue, Curtin Avenue — area where a female reported that she was raped.

And subsequently the suspect, Hammel Clark, was implicated as the suspect in this rape. [DEFENSE ATTORNEY]: And officer, are you aware that a DNA test indicated— [STATE’S ATTORNEY]: Objection, Your Honor. ⁸² [DEFENSE ATTORNEY]: —that Mr. Clark— [STATE’S ATTORNEY]: Objection. THE COURT: Wait. Come up, please. (Counsel and defendant approached the Bench and the following ensued:) * * * * * * [DEFENSE ATTORNEY]: Your Honor, it has now been brought out this was an undisclosed— THE COURT: What was your question? [DEFENSE ATTORNEY]: Is he aware that that case was closed as a result of a DNA test that excluded Mr. Clark? [STATE’S ATTORNEY]: Well, Your Honor— [DEFENSE ATTORNEY]: Because he just indicated he was implicated in that. [STATE’S ATTORNEY]: Well, he indicated that in response to her question.

That’s what I was trying to bring out. THE COURT: Wait a minute. There was a DNA test done and what happened? [STATE’S ATTORNEY]: Okay. He was arrested on two separate rape charges.

Okay. THE COURT: And the DNA was for the one we are not trying here. [STATE’S ATTORNEY]: No, it was performed in both but they used one blood sample. This is the officer that drew his blood. He drew the blood for the first one because he was the officer who was on the first case. * * * * * Hs [DEFENSE ATTORNEY]: I proffer to the Court that what I was trying to elicit was what his function at the blood drawing was.

My belief was that he would say something along the lines that he was a witness to blood drawing. [STATE’S ATTORNEY]: Well, that is what he testified to. ***** Hs [DEFENSE ATTORNEY]: And he offered that he was there to another case. I believe since he alluded to my ⁸³ client being somehow involved in another case that it is highly prejudicial to the jury if I can’t ask him what became of that case.” (Emphasis added). The court then ordered defense counsel to “stay away from that other case.” Clark contends that the trial judge erred by denying the defense an opportunity to present curative evidence countering Officer Winder’s inadmissible and severely prejudicial testimony. The State acknowledges that the officer’s testimony informing the jury that Clark was “implicated as the suspect in this [other] rape” was not admissible.

In Maryland, it has long been established that evidence of “an accused’s prior arrest, indictment or criminal activity, not resulting in conviction” is inadmissible. Hall v. State, 32 Md.App. 49, 57 , 358 A.2d 632, 636 (1976); see also Arbaugh v. Director, 27 Md. App. 662, 666-67 , 341 A.2d 812, 815 (1975). There is also a general prohibition against admitting evidence of “other crimes” committed by the defendant. Straughn v. State, 297 Md. 329, 333 , 465 A.2d 1166, 1168-69 (1983).

Thus, “in a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same type, is irrelevant and inadmissible.” Ross v. State, 276 Md. 664, 669 , 350 A.2d 680, 684 (1976) (emphasis added). While acknowledging, therefore, that Officer Winder’s testimony would generally be inadmissible, the State seeks to justify the officer’s injection of otherwise inadmissible evidence of Clark’s prior rape arrest. The State argues that defense counsel somehow “opened the door” and invited the improper evidence of the prior rape charge when she asked Officer Winder about his “function” in obtaining Clark’s bloodwork, thereby estopping Clark from complaining about its prejudicial impact. The State asserts that Clark should be precluded from correcting any damaging information his own cross-examination elicited.

The State contends that the trial judge properly refused to allow further questioning of the witness to elicit testimony ⁸⁴ which would have neutralized the officer’s statement. In this case, that evidence would have disclosed that DNA evidence had completely eliminated him as a possible suspect in the other rape. For reasons we will discuss below, we believe the State misconstrues the doctrine of “opening the door.” Further, we believe that the doctrine has no application in this case. We do hold, however, that the doctrine of “curative admissibility,” a doctrine frequently confused with “opening the door,” does apply in this case.

Under this doctrine, the trial judge should have allowed Clark to “cure” the inadmissible testimony of the police officer.

II

Because of the confusion engendered by some cases and some commentators, we begin with a discussion of the doctrines of “opening the door” and “curative admissibility.” In his Maryland Evidence Handbook, Judge Joseph Murphy draws the important distinction between “opening the door” and “curative admissibility.” Judge Murphy writes: “[EJarly cases recognize the important distinction between (1) the right to introduce evidence in response to (a) admissible evidence, or (b) inadmissible evidence admitted over objection (the doctrine of ‘opening the door’); and (2) the prohibition against introducing evidence in response to inadmissible evidence admitted without objection (the doctrine of ‘curative admissibility’).” Joseph F. Murphy, Jr., Maryland Evidence Handbook § 106(D), at 25 (1989) (hereinafter Maryland Evidence Handbook ). A. “Opening the Door” The “opening the door” doctrine is really a rule of expanded relevancy 1 and authorizes admitting evidence which ⁸⁵ otherwise would have been irrelevant in order to respond to (1) admissible evidence which generates an issue, or (2) inadmissible evidence admitted by the court over objection. Generally, “opening the door” is simply a contention that competent evidence which was previously irrelevant is now relevant through the opponent’s admission of other evidence on the same issue. One variant of the typical “open door” scenario, as noted above by Judge Murphy, is inadmissible evidence which is admitted over objection and which makes counter-evidence of the same character admissible.

This version was suggested in Lake Roland Ry. v. Weir, 86 Md. 273 , 37 A. 714 (1897), in which Judge Boyd discussed the principles behind “opening the door” to answer inadmissible evidence entered over objection: “If after objection is made to testimony, the trial court admits it, the plainest principles of justice, to say nothing of consistency in the Court’s rulings, would require that the other party be permitted to meet it. The ruling of the Court in the first instance determines it to be competent, and the party offering it should not be permitted to object to the other side contradicting or explaining it on the ground that it is incompetent, when the Court has held, at his instance, that evidence on that subject is admissible.” Id. at 277 , 37 A. at 715-16 . In sum, “opening the door” is simply a way of saying: “My opponent has injected an issue into the case, and I ought to be able to introduce evidence on that issue.” Two cases from this Court seem to have discussed this doctrine, State v. Werner, 302 Md. 550 , 489 A.2d 1119 (1985) and Washington v. State, 293 Md. 465 , 445 A.2d 684 (1982). ⁸⁶ In Washington , an eyewitness testified at trial, implicating the defendant in a murder. During defense cross-examination, the witness acknowledged that she had previously failed to identify the defendant in a pretrial lineup.

On the State’s redirect, the witness, over defense objection, attributed this apparent inconsistency to anonymous threats she had received prior to the pretrial identification. The trial judge denied defense counsel’s motion for a mistrial, and the jury subsequently convicted the defendant of second degree murder. This Court affirmed the conviction and held that evidence of anonymous threats was admissible, if only to rehabilitate the witness once the defense had raised the issue of her prior failure to identify the defendant. The Court observed that “[p]emitting one side to impeach a witness by showing a prior inconsistency, and not permitting the other side to explain the inconsistency by such probative evidence, does not comport with even-handed administration of justice.” Washington, 293 Md. at 471 , 445 A.2d at 687 .

In other words, the cross-examination was admissible but it also “opened the door” to the witness’s otherwise irrelevant explanation that although she had recognized Washington in the lineup, she did not identify him due to the. anonymous death threat she had received. In Werner , the State tried to go through a door not yet opened. The alleged victim of multiple sexual offenses was asked on direct examination to explain her five-year lapse in bringing a complaint against her stepfather. Apparently attempting to preempt the defendant’s attack on her credibility, the witness attributed her delay in reporting the sexual assaults to her recent discovery, years after the alleged assaults had ceased, that the defendant had also assaulted her younger sister.

As in Washington , the Court held that this otherwise irrelevant evidence can become “admissible in a criminal case to rehabilitate a State’s witness once the witness has been impeached in a substantial respect,” but not before. Werner, 302 Md. at 560-61 , 489 A.2d at 1124 . Unlike Washington , however, the door in Werner was not yet opened. The State first introduced the irrelevant and inadmissible explanation ⁸⁷ when no one had yet raised the issue of delay in reporting.

The Court upheld the Court of Special Appeals’ reversal of the conviction, but noted that if defense counsel had chosen during cross-examination to impeach the witness about her delay in reporting, then the State subsequently could have elicited the victim’s otherwise inadmissible explanation that she had decided not to report the offense until she heard about her younger sister’s similar complaint. Id. at 563 , 489 A.2d at 1125 . We must emphasize that the “opening the door” rule has its limitations. For example, it does not allow injecting collateral issues into a case or introducing extrinsic evidence on collateral issues.

Such evidence is also subject to exclusion where a court finds that the probative value of