Gonzalez v. State

WILNER, J. Petitioner, Gregorio Gonzalez, was convicted in the District Court of second degree assault, based largely on testimony that, while performing a massage treatment on a customer, Ms. Crane, he inserted his finger into her vagina. Gonzalez noted an appeal to the Circuit Court for Montgomery County where, in accordance with Maryland Code, § 12 — 401(f) and (g) of the Cts. & Jud. Proc. Article (CJP), he received a de novo trial before a jury.

During the Circuit Court proceeding, Gonzalez wished to impeach the testimony of Ms. Crane by showing that, in one respect, she testified differently in the District Court. Because, as the result of an equipment malfunction, the proceedings in the District Court were not recorded, Gonzalez summoned two persons who were present during Ms. Crane’s testimony in the District Court — the interpreter appointed to assist Gonzalez and the District Court bailiff — to recount her ⁶⁵ testimony in the District Court. After a voir dire examination of one of the two witnesses, the court refused to allow them to testify, whereupon Gonzalez moved for a mistrial. When that motion was denied, he attempted to withdraw the appeal, which the court refused to permit him to do.

The jury convicted Gonzalez of the second degree assault, and the court imposed a sentence more severe than that imposed in the District Court. Following an inappropriate appeal to the Court of Special Appeals and a transfer of that appeal to this Court, we granted certiorari to consider two questions: (1) whether the Circuit Court erred in refusing to permit the interpreter and the bailiff to testify as to Ms. Crane’s testimony in the District Court, and (2) whether it also erred in refusing to permit Gonzalez to withdraw his appeal and allow the District Court judgment to stand. We need address only the first issue, which we shall find dispositive, although we shall ask the Court’s Standing Committee on Rules of Practice and Procedure to review Maryland Rule 7-112(f)(1) with respect to the second. BACKGROUND Gonzalez was employed as a shampoo assistant at a hair salon in Bethesda.

While living in Argentina, he had been trained and certified in massage therapy, but he was not certified as a massage therapist in Maryland. 1 Apparently as a result of his incorporating neck, shoulder, and arm massages as part of his shampooing, however, one of the salon’s patrons, Ms. Russell, purchased a gift certificate from him for a one-hour massage. Ms. Russell gave the certificate to her brother-in-law, Mr. Crane, as a birthday present. When Mr. Crane’s wife, who was also a customer of the salon and had ⁶⁶ had her neck, shoulders, and arms massaged by Gonzalez during a shampoo, found out about the gift certificate, she scheduled an additional full-body massage for herself, both massages to take place at her home on September 13, 2003. Ms. Crane had her massage first.

During the massage, which occurred in Ms. Crane’s bedroom, Gonzalez allegedly inserted his finger into Ms. Crane’s vagina. She immediately jumped off the table and, wrapped only in the sheet that was covering her during the massage, ran downstairs and complained to her husband, who ordered Gonzalez to leave. As her husband ran upstairs to confront Gonzalez, Ms. Crane, still clad only in the sheet, ran to a neighbor’s house and reported the event to the neighbor. At some point during the following week, Ms. Crane called a friend who was a sergeant at the Bethesda police department for some informal advice and, with that advice, then formally notified the police of the incident.

She also informed the owner of the salon, although the sequence of the reports to the police and the owner of the salon is in dispute and underlies the central issue now before us. As a result of her complaint to the owner of the salon, Gonzalez was discharged from his employment. As a result of her report to the police, Gonzalez was charged in the District Court with second degree assault (Maryland Code, § 3-203 of the Criminal Law Article) and misrepresenting himself as a massage therapist (Maryland Code, § 3-5A-ll(b) of the Health Occupations Article). Trial in the District Court occurred on November 13, 2003.

Although Gonzalez speaks English, that is not his native tongue, and so, at his request, a Spanish interpreter, Ester Davis, was provided for him. Unfortunately, a malfunction of the recording equipment in the court that day led to none of the trial being recorded. Ms. Davis later testified in the Circuit Court that five witnesses testified at the District Court proceeding — Ms. Crane, Mr. Crane, Ms. Russell, Gonzalez, and Gonzalez’s wife. The District Court acquitted Gonzalez of misrepresenting himself to be a massage therapist but convicted him of second degree assault and sentenced him to 180 ⁶⁷ days incarceration, all of which was suspended, a $500 fine, half of which was suspended, and one year of supervised probation.

Gonzalez noted an appeal to the Circuit Court for Montgomery County and elected a jury trial. The first witness was Ms. Crane, who testified to her version of what had occurred. On cross-examination, she was asked how long after the incident she waited to report it to the police and whether her report to the police occurred before or after she complained to the owner of the salon. Ms. Crane responded that she called her friend, the sergeant, the day after the incident, that she made a formal report to the police the following day (two days after the incident), and that she did not complain to the salon owner until after Gonzalez was arrested.

She was very precise on that point. She said that the police had advised her not to talk with anyone at the salon until they obtained a warrant and that she did not go to the salon until seven days later. When asked whether she had testified in the District Court that she and Ms. Russell had gone to the salon three days after the incident, she responded “I 100 percent did not testify to that because that didn’t happen.” After presenting testimony from Mr. Crane and from the neighbor, the State rested. Gonzalez, his wife, and the owner of the salon then testified for the defense.

At the conclusion of that testimony, defense counsel called Ms. Davis, the person who had served as interpreter in the District Court, as a witness, to testify as to what Ms. Crane said at the District Court trial with respect to the sequence of her reports to the police and the owner of the salon. Counsel averred that Ms. Crane’s testimony there differed from that in the Circuit Court and that Ms. Davis would be an impeachment witness. Specifically, he proffered that she would testify that she remembered Ms. Crane’s testimony and that Ms. Crane testified in District Court that she went to the salon before she went to the police. Counsel also advised that he intended to call the District Court bailiff for the same purpose.

The prosecutor, noting that neither witness had been disclosed, objected on the ground that it was improper to call a person ⁶⁸ who served as interpreter as a witness and that her recollection of what occurred would be irrelevant in any event. The court wanted to determine the extent of their respective recollections before allowing the interpreter or the bailiff to testify and, during the jury’s lunch break, subjected Ms. Davis to voir dire examination. The court never questioned the bailiff. Ms. Davis confirmed that she had interpreted for Gonzalez in the District Court, that she was present when Ms. Crane testified, and that Ms. Crane had stated that “a few days” after the incident, she and her sister went to the salon and complained to the owner and that she went to the police “sometime later.” Ms. Davis was not certain whether Ms. Crane claimed that she went to the police the same day as she went to the salon but was certain that she testified that she went to the salon first. 2 She confirmed on cross-examination that “I do remember how she testified.

I know the words she said when she described the incident and what happened after the incident.” The court expressed skepticism as to how that was impeachment evidence and eventually disallowed testimony by either Ms. Davis or the bailiff on the ground that it was a “red herring” and “fundamentally unfair.” The court seemed concerned that Ms. Davis did not have a verbatim recollection or any documentation of Ms. Crane’s testimony and treated the matter as simply Ms. Davis and Ms. Crane having different recollections. It ruled: “If you have a witness that will give definitive testimony, absolutely certain that is what was said, I will allow it. But not a witness who comes in here and says as best as I can remember this is what the witness said. That is fundamentally unfair.” ⁶⁹ Faced with that ruling and complaining as well about the earlier admission of a document, counsel moved for a mistrial.

When that was denied, he indicated that he wanted to withdraw the appeal and asserted that, under Maryland Rule 7-112(f), Gonzalez had the right to withdraw his appeal at any time. The Rule, in its relevant part, actually provides that “(1) An appeal shall be considered withdrawn if the appellant files a notice withdrawing the appeal or fails to appear as required for trial or any other proceeding on the appeal [and] (2) Upon a withdrawal of the appeal, the circuit court shall dismiss the appeal, and the clerk shall promptly return the file to the District Court.” The Rule does not, at least facially, set a time deadline on when an appeal may be withdrawn, specifically whether it may be withdrawn after the case is called in the Circuit Court, or a jury is sworn, or evidence is presented, or the State rests, or the case is submitted for decision to the judge or jury, or even after a verdict is rendered. The court responded that the Rule did not permit a withdrawal of the appeal after the issues had been joined, a jury selected, and evidence taken. It considered counsel’s request as a motion to dismiss the appeal and denied the motion.

The case was then presented to the jury which, as noted, found Gonzalez guilty of second degree assault. During closing arguments, the prosecutor stressed Ms. Crane’s credibility. Upon the verdict, the court sentenced Gonzalez to five years incarceration, all of which was suspended, a fine of $2,500, and three years of supervised probation, and also ordered that he submit to examination and treatment by a specified therapist. DISCUSSION The thrust of Gonzalez’s argument with respect to the disallowance of testimony by Ms. Davis and the bailiff is that (1) the credibility of Ms. Crane was central to the State’s case, as Gonzalez denied ever inserting his finger into her vagina or engaging in any other sexual or assaultive conduct, (2) Ms. Davis and the bailiff would have impeached her credibility by showing that she gave testimony in the District Court, in the same case, that was markedly different from that which she ⁷⁰ gave in the Circuit Court, at least as to the sequence of her reports, and (3) the inability of those witnesses to recall precisely the verbatim testimony given by Ms. Crane went only to their credibility, not to their competence as witnesses, and that credibility was for the jury, not the judge, to resolve.

The State responds that the court’s disallowance of their testimony was not based on its assessment of their credibility but rather its conclusion that there was an insufficient foundation for their testimony. In that regard, the State relies largely on the discretion accorded to trial judges in the overall conduct of a trial. Whether we view the court’s ruling as founded on lack of credibility or lack of foundation is unimportant. It seems clear, from what the court said, that it adopted the view that a person — a proposed witness — is not allowed to recount prior testimony by another person, given in the proposed witness’s presence and however relevant that evidence may be, unless the proposed witness has either an essentially verbatim recollection of the prior testimony to be recounted or some documentation of it that the court finds adequate.

That is not the law. It is, of course, undisputed that the credibility of a witness may be impeached by showing that the witness has made statements which contradict the witness’s trial testimony as to material facts, provided a proper foundation has been established. See Stewart v. State, 342 Md. 230, 236 , 674 A.2d 944, 947 (1996). That includes statements made by the witness in the form of testimony at a prior judicial proceeding.

The issue here is one of method — how and under what circumstances may such inconsistent statements made in the form of testimony given during an earlier judicial proceeding be proved? This Court and the Court of Special Appeals have dealt with that issue, sometimes in the context of proving former testimony for impeachment purposes and sometimes to establish the testimony of a witness who died prior to the second proceeding. ⁷¹ In Ecker v. McAllister, 54 Md. 362 (1880), a defendant attempted to impeach the testimony of two witnesses for the plaintiff by showing inconsistent testimony on their part at a prior trial in the case. He proposed to prove the inconsistent testimony by offering into evidence his own bill of exceptions from the first trial, which purported to recite the testimony given by those witnesses. Noting that the document was neither written nor signed by the witnesses whose testimony it purported to contain, that it was prepared by counsel, and “for aught we know, may have contained but a part of the testimony given,” this Court held the document inadmissible and announced that “[t]he only proper mode of proving what a witness orally testified to on a former trial is to examine witnesses for that purpose who heard his evidence given.” Id. at 371-72 . 3 That statement was quoted and confirmed a year later in Herrick v. Swomley, 56 Md. 439 (1881), where this Court held inadmissible a certified copy of “notes of evidence” made by a court stenographer in an earlier case tried in Pennsylvania.

The Ecker/Herrick rule had been given some elasticity in Waters v. Waters, 35 Md. 531 (1872). The Court, though confirming that the testimony of a deceased person given at a former trial could not be proved by the notes of such testimony prepared by one of the attorneys present at the trial, concluded that it was permissible for the attorney, sworn as a witness, to refresh his memory by consulting his notes “and then to state what recollection he had of the testimony given by the deceased witness after he had read the notes.” Id. at 539 (internal quotations omitted). ⁷² We can take judicial notice of the fact that there was no electronic — audio or video — recording of court proceedings when those eases were decided, and, although court stenographers, employed to make verbatim recordings of court proceedings, did exist in two of the civil courts in Baltimore City at the time, their employment elsewhere came later. 4 Absent the employment of a stenographer to make a verbatim record, the only written evidence likely to be available of what occurred was in the form of notes made by the judge or someone else present that summarized, in varying detail and for varying purposes, some or all of the testimony by the witnesses and other aspects of the proceeding. In that setting, the Court’s view that prior testimony could be proved only by testimony from someone who was present and heard it was understandable and made sense. In later cases, this Court and the Court of Special Appeals broadened that view somewhat to take account of the availability of stenographic transcripts.

In Mayor & City Council of Baltimore v. Biggs, 132 Md. 113 , 103 A. 426 (1918), the trial court allowed counsel, in a second trial in the case following a ⁷³ reversal of the initial judgment, to read “a stenographic copy of the testimony of a deceased witness who testified at the first trial.” Id. at 120 , 103 A. at 428 (internal quotations omitted). Although, in light of appellant’s admission that his exception was “not important” this Court indicated that it would not reverse the judgment on that ground, the Court largely reaffirmed what it had said in Ecker and Herrick : “While the testimony of a deceased witness may be proved by the stenographer who took the testimony and who testified from his notes, or by a witness who heard the testimony, it is not proper to allow counsel to read to the jury a copy of the evidence reduced to writing from the stenographic notes.” Id. In Holler v. Miller, 177 Md. 204 , 9 A.2d 250 (1939) the plaintiff wanted to prove the testimony of a defendant given in another case involving the same incident. She called the court stenographer from that case, who stated that his notes had been destroyed and that he had no personal recollection of the testimony given, but the court allowed him to read the testimony from a transcript that he had made from his notes.

The defendant objected on the grounds that the testimony recounted by the stenographer was not all of the testimony given by the witness and that the stenographer was not using the transcript to refresh his recollection but was essentially using it as an exhibit. This Court found no error. Distinguishing both Herrick and Biggs , the Court held: “When, as here, the stenographer himself, by his testimony in court, verifies the transcript as an authentic extension of his notes, the case is different. In addition to the assurance of authenticity afforded by his oath, there is official character in the transcript because the stenographer is appointed by the court, under the authority of a statute for the very purpose of preserving testimony....

It is settled that he may testify from his notes, without reference to independent recollection.... And his transcript is only a more convenient form of testimony from his notes.... Therefore the fact that the stenographer in this instance had no independent recollection, and was in reality introducing the tran ⁷⁴ script in evidence, did not render it inadmissible as supposed.” Holler, supra, 177 Md. at 208, 9 A.2d at 251-52 (citations omitted). Snyder v. Cearfoss, 190 Md. 151 , 57 A.2d 786 (1948) also involved testimony by an official court stenographer who read from a transcript prepared from her notes.

Citing Biggs and Holler , this Court confirmed that a stenographer may testify from his/her notes without reference to independent recollection. In Bryant v. State, 207 Md. 565, 587 , 115 A.2d 502, 512 (1955), the Court repeated that, if a party desires to call a witness to recount testimony given by an absent witness at an earlier proceeding, it is