Hutchins v. State

MURPHY, Judge. At a bench trial in the Circuit Court for Calvert County, Richard Lee Hutchins (appellant) was convicted of stealing a 1986 Nissan Maxima. He has presented but one question for our review: “Did the trial court err when it refused either to exclude expert rebuttal testimony or to provide appellant with an opportunity to obtain his own experts?” The trial court’s refusal to exclude expert testimony was based on the conclusion that the State is not required to furnish the defendant with the report of an expert who is called as a rebuttal witness. That conclusion was wrong.

We are, however, persuaded beyond a reasonable doubt that the error was harmless. FACTS On October 28, 1992, Scott Hansen parked his Nissan at a prominent location near the Paris Oaks Shopping Center in Calvert County and put a “for sale” sign on the vehicle. The emergency brake was then working properly. He saw the vehicle again in the early morning hours of October 29, 1992, when he removed some tools from the trunk and some papers ⁶⁴³ from the glove compartment.

Both the front and rear Maryland license tags were then in their correct places of display. That evening, Mr. Hansen noticed that the car was gone. He promptly notified the Calvert County Sheriffs Department that it had been stolen. He next saw his vehicle on the following morning, after it had been recovered by the District of Columbia police.

At that time, both license plates were in the trunk, papers that had been in the glove compartment were scattered throughout the passenger compartment, and the emergency brake cable was broken. The State’s case in chief established that, on the morning of October 29th, using the name of Richard Johnson, appellant hired Shubert’s Towing, Inc. to tow the Nissan to 321 New York Avenue in Washington, D.C. At that location, appellant paid the tow truck operator with a check drawn on a closed account. In his opening statement, appellant’s trial counsel conceded that appellant had exercised control over the vehicle, but asserted that this was done only after appellant purchased it for $3,000.00 in cash from a man who claimed to be the owner. That man had allegedly identified himself to appellant as Chris Joblonski. 1 Appellant’s counsel concluded his opening statement by telling the court: Now, we will introduce some forms that turned out to be bogus, but they were purportedly from Giblonski [sic] where Giblonski [sic] had indicated to my client that Giblonski [sic] had purchased the vehicle out at a Sheriffs auction out in Virginia.

So, that gave him the title and what he thought was a valid business transaction ... ... So, we’re not disputing the facts. But he’s saying he was duped into what he thought was a valid transaction. Appellant testified as follows.

He operated Richard’s Auto Sales on Marlboro Pike in Capital Heights and also sold cars ⁶⁴⁴ at the Washington, D.C. lot where the Nissan was recovered. He was at the Paris Oaks Shopping Center helping a Mend open a tatoo shop when he saw the man who identified himself as Chris Joblonski “showing” the Nissan to someone else. Joblonski had a key to the Nissan and told appellant that he had purchased this vehicle at “a police sale.” From the documentation Joblonski showed him, appellant was convinced that the vehicle had been legitimately purchased at an auction of vehicles that had been impounded by the Arlington County (Virginia) Police Department. Appellant bought the car from Joblonski for Three Thousand Dollars ($3,000.00) in cash.

Even though appellant did not receive a Maryland registration when he bought the car, he was satisfied that Joblonski did give him sufficient documentation to obtain a valid Maryland title. 2 He did not bother to obtain a certificate of title after learning that the car was stolen. When he discovered that the car had been removed from his lot, appellant contacted the District of Columbia police. When he learned that a warrant had been issued for his arrest, he drove to Calvert County, turned himself in, tried to explain what had occurred and asked the police to look at the documentation he had received from Joblonski. He contacted the investigating officer the next day and arranged to meet with her, but she lost interest in talking to him about the case.

He also filed suit against Joblonski in the District Court for Prince George’s County, but could not establish that Joblonski had been served with the complaint. Appellant claimed that the following items were turned over to him by Joblonski. Each was introduced into evidence during his direct examination: 1. A key with the letters ILCO molded into it. 2.

A copy of a notarized document allegedly issued on October 26, 1992 by the Arlington County, Virginia Police ⁶⁴⁵ Department. This document stated that, in a transaction identified as “Ref. Vehicle # 91 04 16094,” on that very date, for the amount of $3,000.00, a 1986 Nissan Maxima 4-Door VIN # JN1HU11159GT131413 was sold under the authority of a Virginia statute to Day’s Auto Sales, 6907 Old Branch Ave., Clinton, Md., 20745. 3. A business card containing the following information: Day’s Auto Sales Chris Joblonski Sales Man 6709 Old Branch Ave.

Clinton, MD 20745 Ph: 499-3555 Fax: Pager 590-4512 4. An original Maryland Dealer’s Bill of Sale 3 bearing Control No. 301531; 5. An original Maryland Motor Vehicle Administration Notice of Exclusion of Modification of Implied Warranty; 4 6. A copy of the front page of a District of Columbia Bill of Sale.

Exhibits 4, 5 and 6 were incomplete. Prominently displayed on each of these forms was a requirement that, at the time of the sale, the vehicle’s odometer reading be entered at the proper place on the form. Someone had entered the vehicle’s make, model and VIN number, on each form. The vehicle’s odometer reading, however, had not been filled in on any of the forms.

The prosecutor was not surprised by any of the defense exhibits. As appellant’s trial counsel stated in his motion for new trial: Several days prior to trial he gave the State a copy of the paperwork Mr. Hutchins claimed to have received from the person he bought the car from. Using this gratuitous ⁶⁴⁶ information the State then was able to contact two expert witnesses to devastate the defense. The State called four rebuttal witnesses.

Mr. Hansen testified that he never lost possession of his one car key. The word “Nissan” was molded onto that key. Asked to examine the key produced by appellant (on which the letters ILCO appeared), Mr. Hansen stated that he had never seen it before. Deputy Kristine Gehrand of the Calvert County Sheriffs Office testified that within the past week she went to 6709 Old Branch Avenue in Clinton, Maryland where she learned that a business called Clinton Cycles has occupied that premises for the past eighteen years.

Melvin Richards and Fred Hardin were called as “rebuttal experts.” Mr. Richards was received as “an expert auctioneer which includes buying and selling of automobiles.” Mr. Hardin was received as an “expert in the dealings of buying and selling cars.” Appellant’s trial counsel interposed a discovery objection to the testimony of Richards and Hardin. 5 6 The State responded by stating, ‘Your Honor, the State never knows when a defendant is going to testify ... These are rebuttal witness ⁶⁴⁷ es.” The court ruled that the State is not obliged to disclose the conclusions of experts who are being held in reserve for possible rebuttal: [The prosecutor] is right, they don’t know whether the defendant is ever going to testify ... they would have a right to bring somebody in and try to rebut that particular testimony. Both Richards and Hardin told the court that they had sold autos to appellant in the past and that they had never heard of Day’s Auto Sales. Each expert also testified that Maryland law (1) prohibits dealers from selling anywhere other than at authorized locations, and (2) requires that, at the time of any sale, the odometer reading be filled in on the Bill of Sale and on the Notice of Exclusion or Modification of Implied Warranty.

Finally, each expert testified that, in transactions between auto dealers, the “Notice of Exclusion” form is not filled out. Mr. Richards also produced copies of records from his business, Colonial Auction Services. Those documents showed that the Arlington County Police Department form bearing “Ref. Vehicle 91 04 16 094” was notarized on August 31, 1992, and recorded the August 15, 1992 sale of a 1979 Dodge 2 Door with an odometer reading of 81,933 miles.

The defense asked the court for a two week continuance, explaining: Your Honor, among other things we would like to have time to try to contact somebody from Dave’s [sic] Auto Sales. The second thing is we would like to have time to bring in some wholesalers, talk to other wholesalers about whether they only sell on or off the lot as there has been testimony to. We would like to have time to try to track down Chris Giblonski [sic]. For those reasons we would like to have a continuance.

That request was denied. DISCUSSION In circuit court criminal matters, discovery is con ⁶⁴⁸ trolled by Rule 4-263, 6 which provides in subsection (b)(4) that, upon request of the defendant, the State shall: Produce and permit the defendant to inspect and copy all written reports or statements made in connection with the action by each expert consulted by the State, including the results of any physical or mental examination, scientific test, experiment, or comparison, and furnish the defendant with the substance of any such oral report and conclusion. The circuit court prosecutor who intends to call an expert during the State’s case in chief must, if requested to do so, comply with two requirements: (1) Disclosure of the name and address of each person whom the State intends to call to prove its case-in-chief is required by Rule 4-263(b)(l); (2) Disclosure of the expert’s report or the substance of the expert’s