Clark v. State

⁹⁴ Orth, J., delivered the opinion of the Court. Each appellant was found guilty by a jury in the Criminal Court of Baltimore of breaking a storehouse and stealing goods of the value of $5 and upwards and sentenced to six years “consecutive with any sentence for Violation of Parole.” Richardson claims error in that the trial court admitted evidence seized by an illegal arrest. Clark claims error in that the trial court admitted in evidence a statement made by him but not disclosed in an answer to a motion for discovery and a statement made by a witness. Both claim error in the refusal of the trial court to permit the issuance of a summons for a defense witness and in allowing the case to go to the jury.

THE ARREST The arrests of appellants were made without a warrant and the evidence now challenged was seized incident to the arrest. Richardson contends that as there was no probable cause for the arrests, the seizure was unreasonable and the evidence seized was therefore not admissible. But no motion was made for the suppression or exclusion of the evidence, Md. Rule 729b, nor was objection made at the trial by Richardson to the introduction of the evidence, Md. Rule 729c. Clark objected to the introduction of the evidence when offered but gave as the ground for the objection, when asked by the court, that “there was testimony of the officer there were fifteen people in the apartment on his first visit and about eight people in the apartment on the second visit and it is not shown who this merchandise belonged to, who it was, how it got to the apartment.” The court considered the evidence to be “sufficient for the Jury to pass upon the question” and overruled the objection.

Thus the question of the legality of the arrest was not tried and decided below and not being properly before us we do not consider it. Md. Rule 1085. 1 ⁹⁵ THE ADMISSION OF CLARK’S STATEMENT Clark filed a pre-trial motion for discovery pursuant to Md. Rule 728. It included a request that he be furnished “with the substance of any and all statements made by him which the State proposes to produce as evidence against him, a copy of any written statement or statements made by him and the substance of an oral confession made by him including the time, manner of taking and place of such statement, confession or conversation and the witnesses thereto with their addresses who were then present.” The State in answer to this request said, “None.” At the trial Officer Earl Gillespie, testifying for the State, said that he was in an apartment in which Clark and Richardson were present. He observed “numerous bottles of whiskey, fifths, pints and half pints.

It seemed to me maybe twenty-five to thirty, forty bottles on the floor by the kitchen table. I asked at this time where the whiskey came from and who it belonged to and at the time Mr. Clark said it was his whiskey and he had bought it.” Counsel for Clark objected on the ground that the State, in answer to the motion for discovery, said that there was no statement of Clark which it proposed to produce as evidence against him. The court overruled the objection saying, “1 don’t think this is a statement in the ordinary sense of the word or legal sense of the word. It is merely an answer to an inquiry made by the police officer at the apartment.” Objection to the statement was not made on the basis that it was obtained during a custodial interrogation within the contemplation of Miranda v. Arizona, 384 U. S. 436 , and we think it clear that it was not.

See Gaudio and Bucci v. State, 1 Md. App. 455 . Nor was it contended that it was not voluntarily made. See Stewart v. State, 232 Md. 318 ; Crumb v. State, 1 Md. App. 98 . The only question presented on review is whether the failure of the State to disclose it in answer to the motion for discovery precluded its admission into evidence.

Clark argues that its admission in the circumstances denied him due process of law in that “the State was allowed to surprise him” by the production of the statement which prevented a fair trial. If the challenged statement was not discoverable under Rule 728, it was not inadmissible by the failure to disclose it. If it was ⁹⁶ discoverable, the mere failure to disclose it did not preclude its admission. 2 There are no sanctions for non-compliance provided by the Rule or by statute. 3 See Jones v. State, 5 Md. App. 180 . The main objectives of the Rule “are to assist the defendant in preparing his defense, and to protect him from surprise.” Mayson v. State, 238 Md. 283, 287 , citing Cropper v. State, 233 Md. 384 .

In the instant case Clark did not show below that he was surprised by the production of the statement nor did he request a continuance to enable him to prepare a defense against it. His objection to the admission of the statement was not a general objection but was made on the ground that the State had failed to disclose it, apparently on the assumption that this mere failure per se rendered it inadmissible. See Md. Rules 522dl and 725f. In the circumstances we cannot say that the lower court erred in overruling the objection to the admission of the statement nor can we find that Clark was denied due process of law thereby. ⁹⁷ THE ADMISSION OF A STATEMENT MADE BY A WITNESS The appellants, jointly tried, were separately represented.

A State’s witness testified on direct examination that on 30 October 1967 she had been in the apartment of one June Cowan. The appellants came in sometime after her arrival about 1:25 A.M. and thereafter left. They and another person named Melvin Henson came back about 4:00 A.M. She was in the bedroom and heard a knock on the door. A policeman came in and then went outside with Henson.

While they were outside she heard Richardson say, “Let’s get rid of this (bottles of whiskey) before the police comes back and asks about the burglary.” This testimony came in without objection. At the conclusion of her direct testimony she was cross-examined by Clark’s attorney and then by Richardson’s attorney. Richardson’s attorney, in the cross-examination, read from a statement the witness had previously given the police, attempting to show that she had changed her “story.” The statement contained the remark made by Richardson overheard by the witness to which she testified on direct examination and in the opinion of the court “included practically everything she testified to but with some more details with what happened before and after.” The statement was offered by Richardson and over objection by Clark was admitted “as to Richardson only.” The court so instructed the jury in its charge. On appeal Clark claims that the admission of the statement of the witness, even though it was as to Richardson only and the jury were so instructed, was reversible error under Bruton v. United States, 391 U. S. 123 , 88 S. Ct. 1620 .

Although Bruton must be given completely retroactive application, Roberts v. Russell, 392 U. S. 293 , Smithson v. State, 5 Md. App. 378 , Clark’s reliance on Bruton is ill-placed. We thought it clear in Lipscomb v. State, 5 Md. App. 500 , 506 “that the constitutional predicate underlying Bruton is the Sixth Amendment right of an accused to confront and cross-examine the witnesses against him” which right is applicable to State prosecutions. See Pointer v. Texas, 380 U. S. 400 . The instant case is unlike Bruton , however.

Here the challenged statement was not that of a co-defendant, the witness who gave the statement did testify at the trial and was cross-examined by Clark. ⁹⁸ Clark’s Sixth Amendment right to confront and cross-examine the witness was not violated; the rationale of Bruton is not applicable to the facts here. The statement was offered by Richardson, admitted only as to him and the jury so instructed. In Delli Paoli v. United States, 352 U. S. 232 , the Court said, at 242, “Unless we proceed on the basis that the jury will follow the court’s instructions where those instructions .are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense.” Although Bruton overruled Belli Paoli to the extent that in the context of the denial of confrontation and cross-examination the risk “that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored,” 88 S. Ct. 1627 , it said, “We agree that there are many circumstances in which this reliance (that the jury will follow the court’s instructions) is justified. Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions, instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. ‘A defendant is entitled to a fair trial but npt a perfect one.’ ” 88 S. Ct. at 1627.

Assuming that the statement was not properly admissible as to Clark, 4 we find no reversible error in the circumstances. THE REFUSAL TO CONTINUE THE CASE TO SECURE THE PRESENCE OF A BEFENSE WITNESS After the State rested its case in chief the appellants elected not to testify. Richardson offered no evidence. One witness testified on behalf of Clark and the case went over to the next day.

The next morning, out of the presence of the jury, the appellants requested that they “be allowed either a summons ⁹⁹ and/or a bench warrant be issued for the production of a witness, Georgianna Princie.” Clark’s attorney told the court that his client “called me at home about 10:00 o’clock last night, saying he finally located the witness who lived at a different address. I talked to someone on the phone represented to me to be Georgianna Princie and she gave me information which would be valuable rebuttal to the testimony of Katherine Walls. I would like to have the opportunity to produce this witness in court to testify in this matter before the case proceeds any further.” Richardson’s attorney made the same request. Both said they had no other testimony to offer.

The court refused to continue the case, saying: “The name of this witness has been known to the State and to both Defendants ever since the alleged offense occurred in October 1967. The name of Miss Princie was listed as a witness by the State in its Answer to Interrogatories on Motion for Discovery filed by the Defendant Clark and in addition to that, it seems clear from the evidence Miss Princie was known to Clark even prior to the alleged offense. Since the name of this witness has been known to him for at least several months, it seems to me it is too late at this stage after all the testimony has been concluded and the case is ready to go to the jury for the Court further to delay the trial and hold up the proceedings to obtain a witness who has