Knoedler v. State

WILNER, Judge. On the evening of February 28, 1981, a fire was discovered in the master bedroom of appellant’s apartment at 6713 Havenoak Road in Baltimore County. Three months later, appellant was charged in a five-count criminal information with four counts of arson under Md.Code Ann. art. 27, §§ 6, 7, and 8, and one count of willfully setting a fire with intent to defraud an insurance company (art. 27, § 9). The State eventually nol prossed three of the arson counts.

After a non-jury trial in February, 1982, the Circuit Court for Baltimore County convicted appellant of the remaining count of arson—maliciously setting fire to his own dwelling house—but acquitted him of the insurance fraud. Four years later, it sentenced him to five years in prison. 1 Hence, this appeal, in which appellant argues that the trial court erred: (1) “in permitting a witness to testify as an expert where the State failed to disclose in discovery that the witness would testify as an expert.” (2) “in admitting evidence of Appellant’s financial circumstances.” ⁷⁶⁷ (3) “in admitting evidence of alleged statements made by Appellant during the course of a telephone conversation in the absence of a foundation establishing that Appellant was the person who made the statements.” and (4) “in its admission of documentary evidence.” We find no reversible error in any of those respects, and so shall affirm. (1) The Unrevealed Expert Appellant’s first complaint concerns the testimony of County Fire Department Captain Jerry Zwick. Captain Zwick, one of the first firefighters to arrive at the scene, testified without objection to what he observed, including that the back bedroom had sustained substantial damage.

The objection came when he began to describe the concept of “flashover,” which he defined as “the point in time where all of the combustibles within a room reach their ignition point” and “spontaneously burst into flames.” When the prosecutor asked whether that flashover had been reached when the “nozzle crew” arrived, appellant objected on the ground that “[s]o far I’ve heard the only person to be an expert in this case is the Inspector Ruley.” The State then proceeded to interrupt the examination and qualify Captain Zwick as an expert. At the conclusion of that voir dire, the court afforded appellant an opportunity to cross-examine on Zwick’s qualifications, whereupon counsel said that he had no cross-examination—that “[t]he concern I have is now we have another individual now testifying as an expert on behalf of the State with no prior notice that this individual would be testifying as an expert and rendering an expert opinion.” The objection was overruled and Captain Zwick was permitted to testify as an expert. He stated that the fire started right below the bedroom window and that he could not find anything in that area to indicate that it had started accidentally. ⁷⁶⁸ Appellant’s sole complaint here is that the State failed to disclose Captain Zwick as an expert witness, a failure that he deems violative of Md. Rule 4-263. We see no violation and no error.

Md. Rule 4-263(b)(l) requires the State, upon request, to disclose the name and address of “each person then known whom the State intends to call as a witness at the hearing or trial to prove its case in chief or to rebut alibi testimony.” Section (b)(4) of the Rule requires the State, upon request, to “[p]roduce 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 ... and furnish the defendant with the substance of any such oral report and conclusion____” Nothing in these sections (or any other sections) of the Rule requires the State to categorize its proposed witnesses as expert or non-expert. Captain Zwick was listed as a witness on the Criminal Information. In June, 1981, appellant requested the information allowed under Rule 4-263(b)(l) and (4), to wit: “2. Disclose the name and address of each person whom the State intends to call as a witness at a hearing or trial to prove its case in chief.” and “8.

Produce and permit the Defendant to inspect and copy all written reports or statements made in connection with the Defendant’s case by each expert consulted by the State____” In response to those requests, the State disclosed the witnesses it intended at that time to call, which included Fire Investigator John Ruley, but not Captain Zwick. It also informed appellant that, upon reasonable notice, he or his counsel could “inspect and copy all written reports or statements made in connection with this case by each expert consulted by the State.” Captain Zwick had indeed made a written Fire Incident Report. Whether appellant or his ⁷⁶⁹ attorney actually saw the report before trial is not clear. On November 30, 1981—nearly three months before trial, the State supplemented its answer to appellant’s discovery request and informed him of its intention to call Captain Zwick as a witness.

It is clear, then, that the State fully complied with the Rule and with appellant’s actual request. It was obliged to do no more. (2) Appellant’s Financial Circumstances Appellant complains here of two inquiries by the State into his financial circumstances, inquiries that he contends are proscribed by Vitek v. State, 295 Md. 35 , 453 A.2d 514 (1982). The first inquiry came during the examination of Irene Taylor, the resident manager of the apartment complex where appellant had lived and where the fire occurred.

Ms. Taylor had brought with her the business records of the landlord pertaining to appellant’s tenancy, which she said were kept in the ordinary course of business. The initial part of the examination revealed that appellant’s lease expired on the day of the fire and that he had not sought to renew it. The file also contained appellant’s payment record, and over objection Ms. Taylor was permitted to testify that “at times he was lenient; he was late with his payments.” The State also introduced, over objection, exhibits showing that on five occasions—in June, August, and December of 1980 and in February and March of 1981—the landlord had sought repossession of the apartment because one month’s rent was late. The second inquiry involved essentially a single question to appellant on cross-examination.

Without objection, appellant admitted that he had owned a business known as Dundalk Supply and that it had gone “out of business” in 1979 or 1980. The objection came when the prosecutor asked why it went out of business, the answer being “[i]t was not making money.” Appellant denied that the business went bankrupt. ⁷⁷⁰ In Vitek , the defendant was charged with robbery. At issue was whether it was proper for the State, through cross-examination, to show that he had just been released from jail on the day of the robbery, that he had no job, ahd that he had little or no money. The Court held that such evidence “was irrelevant to the main issue of guilt or innocence and could not be used to infer motive.” Id., 40 , 453 A.2d 514 .

In reaching that conclusion, the Court quoted from a Michigan case and thus adopted the notion that it would not “ ‘assume that wealth exerts a greater attraction on the poor than on the rich.’ To do so would ‘effectively establish a two-tiered standard of justice and demolish pro tanto the presumption of innocence.’ Our system of justice and its constitutional guarantees are simply too fragile to permit this type of unfounded character assassination.” Id., 41 , 453 A.2d 514 . See also United States v. Mullings, 364 F.2d 173 (2d Cir.1966), also cited by the Court [295 Md.], at 45-46, 453 A.2d 514 ; for the same proposition. Having adopted that view—that as a general rule it is inappropriate to use the defendant’s poverty to establish a criminal motive—the Court hastened to point out: “This is not to say that evidence of an accused’s financial situation is never admissible. However, we agree with the appellant that in order for such evidence to be admissible, there must be something more than a ‘general suspicion’ that because a person is poor, he is going to commit a crime.

We hold that while normally it is not allowable to show impecuniousness of an accused, such evidence would be admissible under special circumstances.” Vitek, supra, 295 Md. at 41 , 453 A.2d 514 . The Court did not undertake to define what “special circumstances” would have to exist in order to make evidence of