Hill v. State

Orth, J., delivered the opinion of the Court. Marvin Gilmor Hill (appellant) was found guilty upon court trial in the Criminal Court of Baltimore of robbing Theresa Moriarity with a deadly weapon, violently stealing from her $2447.35. When the case came on for trial, defense counsel moved that the witnesses be excluded from the courtroom until called upon to testify. Maryland Rule 753.

The granting ⁶⁷ of the request was obligatory on the court and the court complied with the mandate of the Rule. Swift v. State, 224 Md. 300 . The Clerk then asked, “Is the State and Defense satisfied, now, that all witnesses for both sides have been excluded?” The Assistant State’s Attorney said that all the State’s witnesses had been excluded. Defense counsel said: “I have requested my client to furnish me with any witnesses that he might have, and he has told me that he has no witnesses.

Is this correct, Mr. Hill?” Appellant answered: “Yes.” The case proceeded to trial, the State adduced testimony and rested, and appellant testified in his own behalf. At the conclusion of his testimony defense counsel, remarking that he had asked him before but would ask him again, asked appellant were there any witnesses he wished counsel to summons in his defense. Appellant said: “No one can testify to the fact where I was at this day, no more than just my girl friend, you know — my girl friend or brother or so.” The transcript reads: “BY MR. STERN (defense counsel) : Q Did you want me to put them on your behalf as defense witnesses ?

A Yes, I would like for you to. Q Okay. And your girlfriend is in the courtroom? A Yes, she is.

Q Well, of course, she was not excluded. THE COURT: I don’t see how you are going to put her on, Mr. Stern, when you asked for exclusion of witnesses, and now you want to put her on ? MR. STERN: Well, the reason being your Hon- or, I had asked the defendant, earlier, if there were any other witnesses that he had, and he said no.

I just wanted to go over that. THE COURT: He said that at the beginning of the trial, didn’t he? ⁶⁸ MR. STERN: Yes. THE COURT: Very well.

I don’t see how you can put her on at this time. MR. STERN: Okay. All right.

You may step down. THE COURT: Besides which I don’t see what value her testimony would be, anyway, to establish an alibi for a date like this, at this point.” Appellant claims error. We do not agree. We stated in Hurley v. State, 6 Md. App. 348 , 351-352 that the essential purpose of the Rule is to prevent one prospective witness from being taught by hearing another’s testimony; its application avoids an artificial harmony of testimony that prevents the trier of fact from truly weighing all the testimony; it may also avoid the outright manufacture of testimony.

We said that it is within the sound discretion of the trial judge to determine whether to admit the testimony of a witness where there has been a violation of the exclusion order. The witness whose testimony appellant desired was not summoned by appellant, and in fact, it affirmatively appeared that he did not contemplate calling her. It was only after all the testimony was in that it appeared that he would “like” to have her testify. If she could have given evidence tending to establish that he was not at the scene of the crime during its commission, although no proffer of her expected testimony was made, this would certainly have been known to him before trial.

We note that he was positively identified by the victim and an eyewitness in court and that these identifications were made while he was seated among spectators in the courtroom as he requested. To permit the desired witness to testify in the circumstances would tend to bring about precisely what the Rule seeks to prevent for it appeared that she was in the courtroom while all the testimony was given. We construe the court’s