Johnson v. State

MURPHY, Chief Judge. William Leonard Johnson was convicted by a jury in the Circuit Court for Prince George’s County of second degree rape and assault; he was sentenced to twenty years and three years, respectively, to run concurrently. The judgments were affirmed by a majority of a divided panel of the Court of Special Appeals in an unreported opinion. We granted certiorari.

Prior to trial Johnson moved to suppress evidence of an extra-judicial photographic and an in-court identification of him by the victim. At a pretrial hearing on the motion, an ⁶⁹⁶ in-court line-up was conducted, consisting of Johnson and four other men. The victim did not make an identification. At the guilt stage of the trial, before the jury, she identified Johnson as one of her assailants.

She said that because Johnson’s family knew her name and address, and she was scared of being harmed, she did not identify Johnson at the pretrial in-court line-up. At the conclusion of the State’s case in chief, the defense called one of the men who stood in the pretrial line-up. He testified that after the line-up procedure was over, he saw the victim in the hall. At that point, a bench conference ensued out of the hearing of the jury.

Defense counsel proffered that the witness would testify that he saw the victim engage in conversation with the brother of another woman Johnson was accused of raping. The witness overheard the brother tell the victim that “they are making you look stupid, that now they are saying you are delirious and don’t know what you are talking about. The guy you should have picked out was number two.” Number two was Johnson. Defense counsel further proffered that the victim told a police officer that her assailant was the number two man in the line-up but that she had not identified him because she was scared. 1 The trial judge opined that the proffered testimony was hearsay and was inadmissible.

She observed that if defense counsel wanted to pursue the matter, he could only do so through the man the witness saw speaking to the victim. Before the Court of Special Appeals, Johnson claimed that the trial judge’s suppression of the proffered evidence was erroneous. The intermediate appellate court agreed. It observed that the testimony “was offered solely to impeach the portion of the victim’s testimony wherein ⁶⁹⁷ she had stated that the only reason she had not identified [Johnson] in the line-up was because she was scared.” It declared, we think correctly, that the defense should have been permitted “to offer this [evidence as] impeachment.” The proffered testimony went to the victim’s motive or state of mind when she identified Johnson at trial.

It tended to discredit her testimony by establishing that she may have been prompted to identify Johnson by pointing out her failure to mention the encounter with another victim’s brother, and by suggesting a different reason for her failure to identify Johnson in the line-up other than her fear. The proffered testimony was not offered as substantive evidence, but only to impeach the victim. To that end it was clearly admissible, whether characterized as an exception to the hearsay rule, or as not hearsay at all. Smith v. State, 273 Md. 152, 161 , 328 A.2d 274 (1974); Smith v. Branscome, 251 Md. 582, 592