Johnson v. State

Thompson, J., delivered the opinion of the Court. Joseph Johnson, appellant, was convicted by a jury in the Criminal Court of Baltimore of first degree murder and ¹³³ sentenced to life imprisonment. Johnson appeals that conviction and raises the following contentions: 1) that the trial court erred in admitting hearsay evidence which placed the appellant at the scene of the crime on the night of its occurrence; 2) that the trial court erred in excluding statements made by the Assistant State’s Attorney in a previous prosecution for the same crime which were relevant to the credibility of appellant’s former testimony; 3) that the trial court erred in refusing to allow the Assistant State’s Attorney to be called as a witness; 4) that the evidence was not sufficient to justify a conviction of murder in the first degree; and 5) that there was insufficient corroboration of appellant’s prior judicial admissions to sustain a conviction. I FACTS On the evening of January 8, 1972 Gaston Ashley was shot and killed in the Sportsman’s Bar in Baltimore City.

As a result of the police investigation of the homicide the appellant’s brothers, Milton Johnson and Jerry Johnson, were indicted for Ashley’s murder. On February 16, 1972, the appellant met with his attorney, who was also retained to represent his brothers, an Assistant State’s Attorney and two Baltimore City homicide detectives in the State’s Attorney’s office. He gave them a written statement in which he admitted killing Ashley but in which he claimed to have been acting in self-defense. On the evening of the 16th a line-up was arranged.

The appellant and his two brothers were placed in the line-up along with three other men. The appellant was not identified by any of the witnesses at the line-up. His brothers Milton and Jerry Johnson were identified. Subsequently on February 25, 1972, a homicide charge which had been lodged against appellant was dismissed upon the advice of the Deputy State’s Attorney. ¹³⁴ The appellant’s brothers were tried for Ashley’s murder in October 1972 and were acquitted.

At that trial appellant testified that he had shot the deceased in self-defense. After his brothers’ acquittals the appellant was re-charged with Ashley’s murder. At the appellant’s trial, the State called Officer David Rohlfing of the Baltimore City Police Department. Officer Rohlfing testified that on the night of Ashley’s murder he conducted an investigation at the Sportsman’s Bar; that at the time of the investigation there were fifteen people in the bar; that no gun was recovered; and that there were two eyewitnesses to the shooting, Roslynn Massie and Doris Lowe.

The crucial portion of the State’s proof was the aforementioned testimony of the appellant at his brothers’ trial in which he admitted killing the deceased, claiming to have acted in self-defense. Appellant’s counsel objected to the admission of this testimony and claimed that the appellant had not testified voluntarily. A hearing on the objection was held out of the presence of the jury and the objection was overruled. The appellant’s former testimony was read into the record from a partial transcript of his brothers’ trial by the court reporter.

Appellant’s counsel again objected to the admission of the transcript and claimed that it was incomplete in that several pages were not read to the jury. Those pages contained further testimony by the appellant and several bench conferences. The trial court admitted into evidence those pages containing appellant’s testimony but excluded those dealing with bench conferences. At one of these bench conferences just prior to- the appellant’s testimony the following dialogue had taken place: “Mr. Van Bavel [Assistant State’s Attorney]: Mr. Johnson (appellant) has already made a signed implicating statement in front of Mr. Gladstone of our office so, the implicating statement has already been made.

I just would like to advise your ¹³⁵ honor of that. He has already testified to pretty much what I think he’s going to testify to today. The Court: The State has rejected it? Mr. Van Bavel: The State has rejected it.” On cross-examination appellant’s counsel attempted to ask the wdtness if, at his brothers’ trial and in appellant’s presence, any statement had been made by the prosecutor regarding the State’s acceptance or rejection of appellant’s prior extra-judicial admission.

The State objected to the question and the objection was sustained. In its case in chief the defense called Detective Joseph Mon of the Baltimore City Police. Mon testified that during his investigation of the Ashley murder Roslynn Massie had identified appellant’s brothers as the perpetrators from photographs shown to her and that Miss Massie and two other witnesses had done the same at a subsequent line-up in which appellant had participated. Mon testified that appellant had not been identified by anyone.

During cross-examination by the State, the following occurred: “Q. Did Milton Johnson tell you his brother, Joseph Johnson [appellant], was at the Sportsman’s Bar on Frederick Avenue on the evening of January the 8th, 1972 ? Mr. Yankellow [Defense Counsel]: Objection. The Court: Overruled. Mr. Yankellow: If Your Honor please, if that is not hearsay, I don’t know what the heck is.

The Court: I will overrule the objection. A. Yes, he did.” At this juncture of the trial, defense attempted to call the prosecutor as its witness. (The prosecutor, Mr. Van Bavel, had also prosecuted appellant’s brothers). Defense counsel articulated two reasons for doing so: first, to establish the fact that the prosecutor had called Roslynn Massie at the trial of appellant’s brothers and second, that at appellant’s ¹³⁶ brothers’ trial the prosecutor had rejected the prior extra-judicial statement made by the appellant.

The trial court refused to allow the prosecutor to be called. The defense then called Roslynn Massie. Miss Massie ’testified that she was in the Sportsman's Bar at the time of Ashley’s murder and that she had been called by the prosecution to testify in the trial of appellant’s brothers. She identified the appellant’s brothers (who were present in the courtroom) as Ashley’s murderers and stated that she did not see the appellant in the bar at the time of the shooting.

This was virtually the same testimony she had given at the appellant’s brothers’ trial. II HEARSAY Appellant first contends that the trial court erred in allowing Detective Mon to testify as to a conversation he had with appellant’s brother and that that error prejudiced appellant and thus requires a reversal. Mon was allowed to testify over timely objection of appellant’s counsel that he had been told by Milton Johnson (appellant’s brother) that the appellant had been in the Sportsman’s Bar on the night of the homicide. We have no problem in finding that the trial court erred in admitting said testimony.

Mon’s testimony was clearly a communication in court of a statement made out of court and was used to establish the truth of the matter asserted therein. It thus depended for its value upon the credibility of the out-of-court declarant and as such was hearsay. Wilkins v. State, 11 Md. App. 113, 131 , 273 A. 2d 236 (1971); Quiles v. State, 4 Md. App. 354, 358 , 243 A. 2d 661 (1968). Our finding that the admission of Detective Mon’s hearsay testimony was erroneous does not, of course, end our inquiry.

We must determine whether the error was prejudicial or harmless. The effect of the erroneous admission of hearsay testimony was succinctly dealt with in 2 Wharton’s Criminal Evidence § 272, at 21 (13th ed. 1972): “Where hearsay evidence has been improperly ¹³⁷ admitted over the objection of the adverse party, the error will require a reversal if the evidence relates to a material issue or is prejudicial to such adverse party. If the hearsay evidence is neither material nor prejudicial, the error will be ignored, provided that the conviction is amply supported by other competent evidence. Thus, the admission of hearsay evidence will not constitute reversible error where it is merely cumulative.” We are thus faced with a factual inquiry into whether the statement by Detective Mon that the appellant’s brother had said that the appellant was at the scene of the homicide on the night in question was prejudicial.

From our review of the record and trial transcript we hold that it was prejudicial. There was no evidence produced at trial which placed the appellant at the scene of the crime other than the prior statements made by the appellant. The credibility and voluntariness of these statements were strenuously and repeatedly challenged by appellant’s trial counsel in a variety of ways. These statements were at no time independently corroborated other than by the hearsay now in question.

Indeed an eyewitness, Miss Massie, testified that the appellant’s brothers had committed the crime and that she did not see the appellant at the bar at the time of the shooting. The cases cited by the State, White v. State, 7 Md. App. 416 , 256 A. 2d 174 (1969), Richardson & Thomas v. State, 7 Md. App. 334 , 255 A. 2d 463 (1969), Grice v. State, 2 Md. App. 482 , 235 A. 2d 316 (1967) and Lewis v. State, 2 Md. App. 318, 234 A. 2d 487 (1967) are inapposite. In both Richardson and White , the hearsay was not only supported by the testimony of several deputy sheriffs but was also admitted by the defendants at trial. In Lewis , the hearsay, in the form of testimony inferentially identifying the defendant as one of the perpetrators of the crime, was held to be cumulative because the defendant was positively identified by the victim, a police officer and an accomplice.

In Grice , the hearsay, in the form of an out-of-court identification of the victim’s wallet and papers, was held cumulative because the ¹³⁸ wallet, with identifying papers, was in evidence and available to the jury. We are therefore not convinced by the State’s argument that the error was harmless. As discussed above, the hearsay testimony was the only evidence which connected the appellant with the crime other than his much disputed prior statements. It also was the only independent corroboration of those statements.

In short, except for the appellant’s prior statements, it was