Mayfield v. State

ALPERT, Judge. This case requires our examination of the criminal defendant’s right to testify in his own behalf. For the reasons stated herein, we hold that the appellant’s statutory right to testify in his own behalf was impermissibly restrained requiring a reversal of his conviction. FACTS On the afternoon of January 19,1982, Kevin Chase accompanied his friend, Anthony Carroway, to the George Street Apartments, a “project building” in downtown Baltimore.

The purpose of Carroway’s visit was to repay money loaned him by Cedric Allen. Allen resided on the tenth floor of the building. Because the lobby was crowded, the men decided to take the stairs. According to Chase, when they got to the third-floor landing, Sylvester Mayfield, appellant, motioned them into the hallway, put a gun at Carroway’s side, and ordered them to give him their money.

Understandably, both men complied. Chase described the gun as a black revolver resembling a magnum [handgun]. Chase testified ⁵⁴⁴ he was robbed of $240; Carroway stated between $240 and $250 was stolen. Appellant then escaped by ascending the stairs.

Chase and Carroway returned to the lobby, hypothesizing that their assailant would have to depart through that area of the building. Carroway hoped “to talk to him to see if I could get my money back.” Approximately one hour later, appellant emerged from the elevator into the crowded lobby. Several events transpired in the span of a few seconds. As Carroway recognized his accoster, he noticed two Baltimore City police officers entering the lobby.

Carroway tapped an officer on the shoulder and said, “I just got robbed by that dude right there.” Appellant recoiled, turned his back and threw an object into the elevator the precise instant its door was closing. Agent Bruce Dolinka testified that the object “landed with the sound of a large hard metal object.” In the ensuing chaos, Dolinka and his fellow officer grabbed appellant, Chase and Carroway, pressed them to a wall and frisked them. Chase and Carroway were subsequently released after they gave statements to the police. When questioned, appellant identified himself as Robert Wilson.

A post-arrest search of appellant recovered $332. Appellant was charged with robbery with a deadly weapon and related offenses. He was tried on October 27 and October 28, 1982 before a jury in the Criminal Court of Baltimore. Appellant contended that the activities at the George Street Apartments were in fact a drug deal gone awry, and that Chase and Carroway falsely accused appellant in order to blackmail him.

On cross-examination, appellant sought to establish that Chase had visited appellant’s mother and sister and offered not to testify if they paid him. Chase denied going to see either woman, but admitted receiving telephone calls from a woman identifying herself as appellant’s sister offering money not to testify against her brother. Carroway also testified that he had received two calls from appellant’s sister proposing that she could have her ⁵⁴⁵ lawyer arrange for him to get his money back if he didn’t press charges. Appellant, after conferring with his counsel, elected not to testify, expressing concern about his past criminal record.

Defense counsel named appellant’s mother as the only defense witness for the purpose of rebutting Chase and Carroway’s testimony regarding the phone calls. The State objected to the mother’s testimony because she had not been sequestered during the State’s case-in-chief. The Assistant State’s Attorney stated he did not request sequestration, relying on defense counsel’s statement that there would be no defense witnesses unless the defendant decided to testify. The trial court sustained the State’s objection and pointed out that appellant’s counsel was aware that his line of questioning of Chase might require the mother’s rebuttal testimony.

Appellant’s counsel then explained that his actions resulted from the expectation that appellant’s sister would appear and present a receipt which he could use to confront Chase with respect to the alleged extortion. The woman did not appear. This explanation did not persuade the court to change its decision because counsel did not have the receipt when cross-examining Chase. Appellant then advised the court that he had no defense witnesses.

The jurors returned to the jury box, and the defense rested. The court informed the jury: . . . [A]s you heard, the defense has rested its case and there will be no testimony from defense and that will conclude all the testimony in this case. The jurors were then excused for the day. When trial resumed the next morning, appellant informed the court that he now wanted to testify.

Your Honor, I wish to testify on my own behalf because I mean without the testimony I don’t think that it would be, I don’t think I could really get a fair trial. Because there’s one side as it stands now. I have been denied the testimony of my mother which is a key witness. I don’t see any way possible to get a fair trial. ⁵⁴⁶ The State objected on the grounds appellant had given a “fair waiver” to exercise his testimonial privilege.

The court sustained the objection and did not permit appellant to testify. THE COURT: I’m going to sustain the objection. I believe the Defendant has rested his case, he had adequate opportunity to consult with counsel about whether or not he wanted to testify. Mr. Kaplan indicated he had talked several times previously with the Defendant.

Although those discussions were before my ruling on his mother’s testimony. Even after my ruling on his mother’s testimony, there was every opportunity for the Defendant to speak up before the jury left yesterday. He did not. Even after the jury left yesterday we were going over instructions, the Defendant was here throughout the entire time and never said anything. .

He is saying something now for the first time this morning. What the Defendant is seeking to do is reopen his case at this time. I believe it’s a matter for the discretion of the trial Court whether or not to allow him to reopen his case. I do not think he has shown good cause.

He never, according to Mr. Kaplan, he never anticipated his mother testifying to begin with, and because his name was never, because Mr. Kaplan never gave the mother’s name as a witness, he never could have anticipated his mother was going to testify. And notwithstanding the fact that he never anticipated his mother’s testimony until last moment, he still had several conversations with Mr. Kaplan prior to the commencement of the trial and/or the beginning stages of the trial as to whether or not he was going to testify. Mr. Kaplan has so stated this yesterday. I would also point out that, and the State can correct me if I’m wrong, the State has excused the two witnesses in the case who were victims in the case.

They are not present in Court today and therefore not available to be able to be recalled as rebuttal witnesses if the State should decide that their rebuttal testimony would be desirable and needed. Is that correct? ⁵⁴⁷ MR. TICKNER: That’s correct, Your Honor. THE COURT: So the State is put at a disadvantage in this regard.

A further reason for my ruling is that to allow the Defendant to testify at this time, in my judgment, would allow him to present his defense in a more distinctive and advantageous atmosphere for himself, rather than have his testimony immediately following all of the State’s witnesses as would have been the case yesterday, if he had elected to testify. It would be waiting for a new day to dawn, the beginning of a new day, his testimony alone goes before the jury today after the jury was told the case was all over, as far as testimony is concerned, after motions had been heard, after instructions to the jury, ready to come in to the Courtroom, they’re ready to hear closing arguments and instructions. And all of a sudden, they’re told now you’re going to hear the Defendant’s version. I think this gives the Defendant an undue advantage in the atmosphere of his testimony.

And for all of these reasons, I sustain the State’s objection. Appellant was found guilty of two counts of robbery with a deadly weapon and two related counts of use of a handgun in the commission of a crime of violence. He was sentenced to 25 years imprisonment without parole pursuant to Maryland’s mandatory sentencing, Maryland Code Ann. Art. 27, § 643B. Three arguments are presented to us in this appeal: I. The trial court erred prejudicially in refusing to permit Appellant to testify in his own behalf.

II

The court erred in invoking the sequestration rule to prevent the testimony of Appellant’s mother.

III

The prosecutor’s comments in closing argument concerning Appellant’s failure to produce exculpatory evidence were so prejudicial as to deny Appellant a fair trial. We believe appellant should have been permitted to testify and that the trial court abused its discretion in failing to ⁵⁴⁸ permit appellant to reopen his case. Therefore, we shall reverse the conviction below. Accordingly, we need not address the other issues presented on appeal.

THE LAW Today, in Maryland, the criminal defendant’s right to testify is embodied in Md.Cts. & Jud.Proc.Code Ann. § 9-101. Unless otherwise provided in this subtitle: (1) A person shall not be excluded from testifying in a proceeding because of incapacity from crime or interest in the matter in question; and (2) litigants and their spouses are competent and compellable to give evidence. In 1973, prior to the Code revision which resulted in the Courts and Judicial Proceedings Article, the right to testify was phrased in these terms: In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes and offenses, and in all proceedings in the nature of criminal proceedings in any court of this State, and before a justice of the peace or other officer acting judicially, the person so charged shall at his own request, but not otherwise, be deemed a competent witness; but the neglect or refusal of any such person to testify shall not create any presumption against him.... Art. 35, § 4 (repealed in 1973).

Understandably, a comparison of the phraseology of these two statutes could lead to the honest inquiry as to why the clear articulation of the right to testify found in Art. 35, § 4 was befogged by the more general wording of the present statute. We explain the answer to this inquiry by examining the roots of § 9-101 — the common law concept of disqualifying those witnesses who have an “interest” in the litigation. Historically, the disqualification of parties and interested persons in criminal and civil cases was based on the following syllogism: Exclusion of testimony is the appropriate safeguard against false decisions; those with interest in the ⁵⁴⁹ underlying facts of the case are likely to speak falsely; ergo, those persons should be totally excluded. 2 Wigmore on Evidence § 576 (3d ed. 1940). Until the 16th century, the criminal defendant tried his own case without the benefit of the assistance of counsel or the ability to present his own witnesses.

The accused was permitted to answer the charges against him, question the witnesses presented by the Crown and present his case to the jury. These “rights” provided little to the defendant’s cause, however, since the accused’s testimony was unsworn and thus not viewed as competent evidence for the jury’s consideration. State v. Douglas, 292 Or. 516 , 641 P.2d 561, 568-69 (1982) (Lent, J., concurring). The disqualification of criminal defendants’ testimony was maintained by the early colonists.

During the early part of the nineteenth century, however, a reform movement attempted to lessen the impact of testimonial disqualification. The movement was based on the concept that all relevant evidence should be furnished to the trier of fact. Ferguson v. Georgia, 365 U.S. 570, 575 , 81 S.Ct. 756, 759 , 5 L.Ed.2d 783 (1961). Opponents to this movement feared that once the defendant was permitted to testify, the cross-examination he would be subjected to would make him appear guilty, eviscerating the right against self-incrimination.

State v. Douglas, supra 641 P.2d at 571 (Lent, J., concurring). It was not until 1864 that an American jurisdiction permitted a criminal defendant to testify at his own trial. Ferguson v. Georgia, supra 365 U.S. at 577 , 81 S.Ct. at 760 . Every American jurisdiction, with the exception of Georgia, enacted similar provisions by 1899.

Id. at n. 6. Federally prosecuted defendants were conferred this right in 1878. 18 U.S.C. § 3481 . The common law notion of interest similarly applied to parties in a civil action due to their obvious stake in the outcome of the case. This disqualification also eroded under the theory that those who possess the most information about the action, the parties themselves, should be permitted ⁵⁵⁰ to put this information to the fact finder.

The disqualification was first removed by Connecticut in 1849 and today all American jurisdictions permit testimony by interested parties in a civil case. Wigmore on Evidence, supra at § 577. An examination of the relevant Maryland statutes reveals that “interested witnesses” (other than criminal defendants) were qualified to testify in 1864. Md.Ann.Code, art. 37, § 1 read: No person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest, from giving evidence, either in person, or by deposition, according to the practice of the courts, in the trial of any issue joined or hereafter to be joined, or of any matter or question, or on any inquiry arising in any suit, action or proceeding, civil or criminal, in any court, or before any judge, jury, justice of the peace or other person having, by law or by consent of parties, authority to hear, receive and examine evidence; but that every person so offered may and shall be admitted to give evidence, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question, or inquiry, or of the suit, action or proceeding in which he is offering as a witness, and' notwithstanding that such person offered as a witness may have been previously convicted of any crime or offence; but no person who has been convicted of the crime of perjury shall be admitted to testify in any case or proceeding whatever, and the parties litigant, and all persons in whose behalf, any suit, action or other proceeding may be brought or defended, themselves, and their wives and husbands shall be competent and compellable to give evidence in the same manner as other witnesses, except as hereinafter excepted.

(emphasis added.) So that there would be no misunderstanding that the word “interest” used in § 1 would be construed to include the criminal defendant, § 3 of Article 37 was enacted. It stated: ⁵⁵¹ No person who, in any criminal proceeding, is charged with the commission of an indictable offence, or any offence punishable on summary conviction, shall be competent or compellable to give evidence for or against himself, . . . See Davis v. State, 38 Md. 15, 45-49 (1873). Maryland criminal defendants were unequivocably granted the right to testify in 1876 when Art. 37, § 3 was repealed and replaced by: In the trial of all indictments, complaints, and other proceedings, against persons charged with the commission of crimes and offenses, and in all proceedings in the nature of criminal proceedings, in any court of this State, and before a justice of the peace or other officer acting judicially, the person so charged shall, at his own request but not otherwise, be deemed a competent witness; but the neglect or refusal of any such person to testify shall not create any presumption against him.

No change was made in Art. 37, § 1. Section 1 of Art. 37 later became § 1 of Art. 35. Section 3 of Art. 37 was embodied in § 4 of Art. 35. In 1970, the Commission to Revise the Annotated Code of Maryland was established to improve the Code’s organization, eliminate obsolete or unconstitutional provisions and resolve inconsistencies in the law.

To that end, in 1973 the Commission reorganized and transferred much of Article 35 into the newly-created Courts and Judicial Proceedings volume of the Annotated Code. The Commission recommended a simplification of the language and style of Article 35, § 1. Sec. 9-101. General.

Unless otherwise provided in this subtitle, every person is competent to be a witness. The Commission’s Report to the General Assembly makes it clear that the suggested provisions were stylistic and not intended to make any substantive changes in the existing law. The Commission’s proposal would indeed have achieved this result so far as former Art. 35 §§ 1 and 4 were ⁵⁵² concerned. Since the Commission draft did not “otherwise” provide, a criminal defendant, as well as any other person who at common law would have been incompetent because of conviction of crime or interest would have been competent to testify.

Rather than adopt this suggested language, the General Assembly, when it enacted Ch. 2, Laws of 1973 (1st Spec. Session), opted to continue using the essence of the language used in Art. 35, § 1. Additionally, Art. 35, § 4 was repealed in 1973 and re-enacted in part in Md.Cts. & Jud.Proc.Code Ann. § 9-105. That section, however, deals solely with the competency to disclose the confidential communications between spouses during the marriage.

The language concerning the criminal defendant’s competency to testify disappeared without explanation. We are then left with the task of determining whether the General Assembly intended to repeal the criminal defendant’s right to testify or whether it was intended that the provisions of Md.Cts. & Jud.Proc.Code Ann. § 9-101 would preserve and encompass that right. That section provides in pertinent part: Unless otherwise provided in this subtitle: (1) A person shall not be excluded from testifying in a proceeding because of incapacity from crime or interest in the matter in question; and (2) litigants and their spouses are competent and compellable to give evidence. (emphasis supplied.) The term “incapacity from crime” refers to those witnesses excluded from testifying as a result of a conviction of an infamous crime. 2 Wharton’s Criminal Evidence § 369 (13 ed.

Torcía 1972). Thus, we must determine whether the words “interest in the matter in question” includes or excludes a criminal defendant. It is well settled that “a change in the phraseology of a statute in a codification will not as a general rule modify the law, unless the change is so radical or material that the intention of the Legislature to modify the law appears unmistakeably from the language of the