Cooper v. State

Per Curiam: "There exists in this State the general rule that a party who produces a witness in court vouches for that witness’ credibility and truthworthiness, and no direct attack upon his veracity should be made by the producing party in the absence of surprise, hostility, or deceit.” Poole v. State, 290 ¹⁹⁰ Md. 114, 118 , 428 A.2d 434, 437 (1981). In order that we might address two questions concerning the voucher rule, we granted certiorari in the case at bar after petitioner’s conviction had been affirmed by the Court of Special Appeals in an unreported opinion. The first question, which was included in the petition for certiorari, was: Did the trial judge err in failing to give a curative instruction requested by Petitioner’s trial counsel that the State is bound by the testimony of its own witnesses when the prosecutor expressly disavowed a portion of the testimony of one of his own witnesses? To this issue we added, on our own initiative, the following further issue: Whether the voucher rule should be continued in Maryland?

Upon examination of the record we find that the issues embraced in the grant of certiorari, in which we are interested as a matter of public importance, are not presented on the facts of this case. Consequently, the writ will be dismissed. On March 4, 1980 the manager of a 7-Eleven Store in Prince George’s County had been robbed by a lone bandit who was armed with a handgun. A description of the getaway car led to the arrest, shortly after the robbery, of the three occupants of that car.

These were Gerald Andre Smith (Smith), Frederick Ricardo Germany (Germany), and the petitioner, James Gary Cooper (Cooper). Smith entered a guilty plea and admitted that he was the gunman who had entered the store. Cooper and Germany were tried jointly. Their defense was that they did not know that Smith was going into the store in order to rob.

As part of its case, the State called Smith as a witness. Smith testified the gun had been furnished to him by Cooper. The prosecutor then showed Smith a handgun but Smith said it did not look like, and was smaller than, the gun which he had used in the robbery. Later in the trial a police officer ¹⁹¹ identified the gun previously shown to Smith as the gun recovered from the backseat of the getaway car.

In closing argument, counsel for both defendants emphasized Smith’s failure to identify the gun that the prosecutor had obviously expected Smith to say was the weapon used in the robbery. In rebuttal the prosecutor stated that Smith had "spun” him. He cautioned the jury to follow the