Harrod v. State

Wilner, J., delivered the opinion of the Court. Lightning may get away with striking twice in the same place. George Anthony Harrod did not. He was caught and ²³² thereafter convicted by a jury in the Criminal Court of Baltimore of robbery with a deadly weapon, for which he was sentenced to imprisonment for fifteen years, and of using a handgun in the commission of a felony or crime of violence, for which he was sentenced to a concurrent term of five years.

We affirm these convictions. The State’s case against Harrod came primarily from the testimony of Clara Stump and Helen Stephenson, two former employees in a store known as the Edsel Shop. This was a children’s clothing store located in Baltimore City, near the Johns Hopkins Hospital complex. Essentially, their testimony was that Harrod and another man, thought to be Jeffrey Cassell, entered the store on January 10, 1976, when both women were at work.

Harrod pretended to be a customer, and was waited on by Ms. Stump. After examining some items of children’s clothing, he (and Cassell) left the store. They returned about ten minutes later and Harrod stated that he would buy the item he had previously examined. Ms. Stump retrieved the article, accepted $20 from Harrod, and was about to place the money in the cash register when Harrod pulled a gun.

He then herded Ms. Stump and Ms. Stephenson into the back of the store and locked them in the bathroom. When they finally got out, they found the cash register open and the money ($140) gone. Eighteen dollars was also taken from Ms. Stump’s purse. Shortly after this incident, Ms. Stephenson identified Cassell from an array of photographs shown her by the police, and a warrant was promptly issued for his arrest. 1 Nothing of consequence happened with respect to Harrod until June 22, 1976, some five months later, when he again entered the Edsel Shop — this time alone — and again held it up at gunpoint.

Ms. Stump had the misfortune of being present on this occasion as well. About a month later, on July 19,1976, Ms. Stump spotted Harrod on the street outside the shop, and observed him enter a nearby jewelry store. She promptly notified the police; and, as a result, Harrod was identified, tracked down, and arrested. ²³³ The case proceeded against Harrod only with respect to the first incident — the one occurring on January 10. 2 Cassell was joined as a co-defendant charged with two counts of armed robbery, both, apparently, in connection with the January 10 incident. During the course of the trial, however, the State nol prossed these charges against Cassell, and the trial thenceforth proceeded against Harrod alone.

Further facts will be set forth in the discussion of the issues raised by Harrod. Those issues are as follows: 1. Was appellant precluded from impeaching the witness, Clai*a Stump, by use of the transcript of her testimony at appellant’s preliminary hearing? 2. Was appellant’s right to cross-examine State’s witnesses on material issues unduly restricted? 3.

Was the testimony concerning an alleged admission by appellant to his participation in the instant robbery erroneously admitted in evidence? 4. Was the rebuttal testimony of Officer Timothy Murray improperly admitted in evidence? 5. Did the State fail to meet its burden of proof under the eighth count (use of a handgun in the commission of a felony or crime of violence) and was the trial court’s instruction on that count plain error requiring a reversal of appellant’s convictions? (1) Use of the Preliminary Hearing Transcript The complaint here, in appellant’s words, is that he was “precluded from impeaching the witness, Clara Stump, by use of the transcript of her testimony at the appellant’s preliminary hearing.” During her direct examination, Ms. Stump stated, with respect to the January 10 incident, that two men had entered ²³⁴ the store.

She repeated that on cross-examination. Defense counsel then desired to impeach the credibility of the witness by showing that, at Harrod’s preliminary hearing in the District Court, she had testified that three men, rather than two, had entered the store. He proposed, ultimately, to do this by referring to a transcript of that proceeding which purports to show her saying that “there was three men came in.” Counsel began to lay the necessary foundation to establish a prior inconsistent statement when an objection was made to the form of his question. At an ensuing bench conference, the State learned that counsel was in possession of the transcript and proposed to use it for impeachment purposes.

There then ensued, at the bench, a wide-ranging discussion about the transcript. The State objected to the admission of the transcript into evidence primarily on the grounds that the transcript was hearsay, it was unreliable, and it was not properly authenticated. Responding to these objections, the court noted that District Court transcripts tended to be unreliable, and it expressed concern that “you [defense counsel] don’t have anybody to vouch for the reliability of this transcript.” Whatever may have been counsel’s original proposed use of the transcript, after several bench conferences, it became clear that he desired to offer it, or at least the relevant part of it, into evidence. His ultimate motion was not merely to read the question and answer, as shown in the transcript, to the witness and then ask her about them, but rather to place that part of the transcript into evidence as an exhibit.

The court, responding to that motion, allowed the transcript to be marked for identification, but declined to permit the transcript, or any part of it, to be admitted into evidence, stating: “[T]he most untrustworthy document I can think of is a District Court transcript made from a disc which is transcribed by a typist who is not a reporter and doesn’t even hear the testimony. And it may be covered technically by the law... but the byword in ²³⁵ the introduction of any evidence is trustworthiness. And transcripts of District Court hearings are notoriously untrustworthy.” 3 The court did state, however, that it would permit counsel to call as a witness the public defender who was present at the preliminary hearing: “You could put him on. He could say, ‘Yes, I was there,’ and tell whether or not he remembers what she said in answer to that.

But, now, that’s a live witness who was a witness to a prior contradictory statement. But, I’ll not accept... a District Court transcript to support a position of a prior contradictory statement.” In addressing the issue raised, we start with the proposition that the credibility of a witness may be impeached by showing that he has made statements which contradict his trial testimony in respect to material facts, provided a proper foundation has been laid. See State v. Kidd, 281 Md. 32 (footnote 8 at page 46) (1977) 4 This would, of course, include statements made by a witness at a preliminary hearing. DeToro v. Pepersack, 332 F. 2d 341 (4th Cir., 1964), cert. denied 379 U. S. 909 (1964).

Thus, after laying a proper foundation, he was entitled to offer credible evidence that Ms. Stump had stated, at the preliminary hearing, that three people had entered the store. The question was whether the “transcript” of the hearing was the appropriate vehicle with which to establish that proposition. To address that issue, we first must consider what it is we are dealing with. In circuit court proceedings, an official court reporter is present in court, and he personally and contemporaneously records his immediate sensory perceptions of what has ²³⁶ transpired.

When he prepares a transcript, he does so from what he personally has recorded; and his transcript represents the only official record of the proceeding. 5 Thus, a court reporter’s certificate generally attests both to the recordation and the transcription. 6 By way of contrast, there are no official court reporters in the District Court. Proceedings there are electronically recorded, not always under the best of circumstances. That recording — the tape or disc — is the actual, and only, neutral and official record of what transpired. 7 When a transcriber prepares a transcript from such a recording, he is therefore not relying on his notes or his recollection, but only upon a recording that he is in no better position than anyone else to interpret. The primary proposition to be proved was that Ms. Stump had testified, in the District Court, that three men had entered the store.

When the transcript purporting to show that was offered, and the State objected that the transcript was unreliable, it raised a secondary issue that had to be dealt with before the primary proposition could be resolved; namely, whether the assertion in that document that Ms. Stump had so testified was itself sufficiently trustworthy to be laid before the jury as substantive evidence. In that context, ²³⁷ defense counsel was offering a document for its truth; he was proposing to ask the jury to accept as true the written statement of an out-of-court declarant (the transcriber), not even made on personal knowledge, that Ms. Stump had made a particular statement. And he offered this in lieu of the primary evidence of what she had actually said — the recording from which the transcript was made — or the testimony of a witness who was present at the hearing and could state upon personal knowledge what was said. It is clear that the document was hearsay.

The question is whether it is admissible under any of the available exceptions to the hearsay rule. The only exceptions asserted or even suggested at trial were the statutory “business record” and “public record” exceptions embodied in Md. Annot. Code, Courts article, §§ 10-101 and 10-204. Before dealing specifically with these statutes, however, we note that there is a considerable body of law, in Maryland and elsewhere, concerning the proper ways in which to prove the testimony of a witness given at an earlier proceeding.

McCormick offers four such methods; namely: 8 “(1) Any firsthand observer of the giving of the former testimony may testify to its purport from his unaided memory____ “(2) A firsthand observer may testify to the purport of the former testimony by using a memorandum, such as the judge’s, counsel’s, or the stenographer’s notes, or the stenographer’s transcript, to refresh the present memory of the witness. “(3) In most states the magistrate’s report of the testimony at a preliminary criminal hearing, and the official stenographer’s transcribed notes of the testimony at the trial of a case, civil or criminal, are admitted, when properly authenticated, as evidence of the fact and purport of the former testimony either by statute or under the hearsay exception for ²³⁸ official written statements. There is generally no rule of preference for these reports, however, and any observer, including the stenographer himself, may be called to prove the former testimony without producing the official report or transcript.[ 9 ] “(4) A witness who has made written notes or memoranda of the testimony at the time of the former trial, or while the facts were fresh in his recollection, and who will testify that he knows that they are correct may use the notes as memoranda of past recollection recorded ” (Emphasis in the original.) It should be carefully noted that only the notes or transcript prepared by a person actually present and in a position to hear the testimony may be used, and then only when authenticated or verified by a live witness subject to cross-examination. The Maryland Court of Appeals has not stepped beyond this cautious approach, but instead has consistently taken a very restrictive view about the use of stenographic transcripts to prove the testimony of a witness given at an earlier proceeding. The precursor of the issue first arose in Ecker v. McAllister, 54 Md. 362 (1880).

There had been a previous trial in that case, but the judgment had been reversed and a new trial ordered by the Court of Appeals. In the second trial, defendant attempted to impeach the testimony of two witnesses for the plaintiff by showing their testimony at the first trial. He proposed to do this by offering into evidence his own bill of exceptions from the first trial, which apparently contained a statement of what the two witnesses had said. The Court of Appeals concluded that the document was inadmissible, stating, at pages 371 and 372, that “the 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.” This clear and direct statement was reaffirmed by the Court in Herrick v. Swomley, 56 Md. 439 (1881).

The question there was whether notes of evidence given in a case tried in ²³⁹ a Pennsylvania court, certified by an “official stenographer” of that court, were admissible. Relying on Ecker v. McAllister; and pointing out that the document was “nothing more than a copy of the notes of evidence taken by a stenographer, appointed for that purpose, for the convenience of the court and members of the bar”, the Court concluded that the stenographer’s notes were inadmissible. The guarded view of the Court as to the use of stenographer’s notes was expressed again in M. & C.C. of Balto. v. Biggs, 132 Md. 113 (1918). There, counsel had been allowed, at a second trial of the case, to read to the jury a stenographic copy of the testimony of a deceased witness who has testified at the first trial.

The Court stated: “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 the jury a copy of the evidence reduced to writing from the stenographer’s notes. ” (Emphasis supplied.) The dicta in Biggs to the effect that prior testimony may be proved by the stenographer, but not, in his absence, from his notes, was made firm in Holler v. Miller, 177 Md. 204 (1939). There, at a second trial, the stenographer who recorded the testimony at the first trial was called as a witness to prove, for purposes of impeaching a witness, the testimony of that witness given at the first trial. The stenographer apparently had no independent recollection of the particular testimony at issue, and his original notes had been destroyed. He did, however, have the transcript which he had made from his notes, and “which he knew to be a true extension of his notes”; and he was permitted to read the particular testimony from that transcript.

The Court sustained that approach, commenting (with citations omitted) at pages 207 and 208: “It is not disputed that relevant admissions of a party made in a former proceeding may be placed in evidence____But on the authority of [M. & C.C. of ²⁴⁰ Balto. v. Biggs] it is denied that they may be introduced directly by a stenographer’s transcript of testimony during the course of which the admissions were made. In that case, however, the court held only that an attorney could not merely read what he offered as a transcript. And in the case of Herrick v. Swomley . . . the notes of a Pennsylvania stenographer, certified under the Act of Congress, were excluded as not a part of the record which could be introduced in this state without supporting testimony. 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 transcript in evidence, did not render it inadmissible as supposed.” Snyder v. Cearfoss, 190 Md. 151 , supra, relied on by McCormick, did little more than repeat and reaffirm what the Court had said and done in Holler v. Miller. The stenographer, who was present and recorded the testimony at the earlier proceeding, authenticated, through her testimony, the transcript that had been made from her notes. Although Wigmore suggests that, “on principle”, a stenographer’s notes should be admissible without the authenticating testimony of the stenographer, he recognizes that courts have “generally declined” to permit that in the absence of statutory authorization. 10 Although a number of ²⁴¹ States have enacted such statutes, specifically making certified stenographic transcripts admissible as evidence, 11 it does not appear that Maryland has done so.

Courts article, § 10-101, provides that “a writing or record made in the regular course of business as a memorandum or record of an act, transaction, occurrence, or event is admissible to prove the act..and that “the lack of personal knowledge of the maker of the written notice may be shown to affect the weight of the evidence but not its admissibility.” (Emphasis supplied.) Subsection (c) of that section, however, provides that “the practice of the business must be to make such written records of its acts at the time they are done or within a reasonable time afterwards.” It is not clear, despite Maryland District Rule 1326, that the transcript was made “in the regular course of business”. What is crystal clear, both in fact and from Maryland District Rule 4, is that, with respect to the transcript (as compared with the electronic recording) it was not the practice of the court to make “such written records of its acts at the time they are done or within a reasonable time afterwards.” Indeed, it is not the practice of the court to make these transcripts at all, unless, in the case of a trial (as compared, for example, with a preliminary hearing) there is an appeal from the judgment, or unless a party otherwise asks for a transcription. Accordingly, we conclude that the transcript of the preliminary hearing was not admissible under § 10-101. 12 Section 10-204 provides that a copy of a “public record, book, paper, or proceeding of any agency of the State” or political subdivision of the State shall be received in evidence in any court “if certified as a true copy by the custodian of the record, book, paper, or proceeding, and if otherwise admissible.” This statute, enacted as part of the code revision process, was intended to be an amalgamation of a series of “public records” statutes, each pertaining to a particular ²⁴² State agency, that were previously codified in Md. Annot. Code art. 35. 13 Assuming, arguendo, that the transcript in question qualifies as a “copy of a... proceeding” of a State agency, which we need not decide, it is clear that it was not “certified as a true copy” of that proceeding “by the custodian of the ... proceeding”.

There was no showing, in the first instance, that the transcriber was the custodian of the “proceeding”, or the original disc. Moreover, as the trial judge pointed out, her certificate did not state that the transcript was a “true copy”, but only that it was the “official transcript” and that she transcribed the disc recording. On its face, therefore, the transcript did not comply with the requirements of the statute. 14 Accordingly, although counsel could have offered evidence of the alleged prior inconsistent statement in other ways, the transcript itself was inadmissible; and the court therefore committed no error in sustaining the State’s objection to it. 15 (2) Restriction of Cross-Examination as to Identification of Cassell As noted, the case initially proceeded against both Harrod and his co-defendant Jeffrey Cassell. Ms. Stump, the State’s first witness, positively identified Harrod as the man who twice robbed her and the store.

With respect to the January 10 incident, she stated