Newman v. State

ROBERT M. BELL, Judge. Appellant, Ronald Wayne Newman, was charged with raping and otherwise sexually abusing a thirteen year old girl who babysat his girlfriend’s children at his home. Following a jury trial in the Circuit Court for Prince George’s County, he was convicted of two counts of sex offense in the third degree and of child abuse. Although on his appeal to this court appellant challenges his conviction on six grounds, we need only consider three: 1.

The trial judge improperly admitted the unsworn pretrial statement of a defense witness, which statement contained details, furnished by the alleged victim, of certain sexual and other offenses, including some not on trial; 1 2. There was insufficient evidence to sustain the charge of child abuse. 3. The trial judge plainly erred by precluding appellant’s attorney during his closing argument from quoting a passage on reasonable doubt from a Supreme Court case. We find that the trial judge committed reversible error in admitting the statement of the defense witness under the ⁸⁹ doctrine of “verbal completeness” and thus, we remand for a new trial.

We will address the remaining issues for the guidance of the trial court on remand. As expected, the chief witness against appellant was the victim. After identifying appellant, she gave the following testimony. When she was twelve years old, in June, 1983, without her parents’ permission, she advertised for a babysitting position and obtained a position babysitting the children of appellant’s girlfriend at appellant’s home.

In all, the victim babysat at appellant’s home at least ten times, excluding November and most of December, 1983. Although her first assignment babysitting at appellant’s home was arranged by appellant’s girlfriend, appellant, as he did throughout this period, transported her between her house and his. The first time the victim babysat, nothing out of the ordinary occurred. The next month, in July, she babysat at appellant’s home a second time without incident.

As appellant was driving her home, however, he felt her vagina, “underneath” her clothes, without her consent. The victim did not report the incident to her parents or tell anyone else about it because she was “too embarrassed.” A similar incident occurred after completion of her next babysitting assignment at appellant’s home — while the victim was being driven home, appellant felt the victim’s breasts. This incident also went unreported, again, because she was embarrassed and also because, having seen appellant hit his girlfriend’s children, she was afraid of him. Nor did she report yet another incident in which appellant felt her vagina while bringing her home.

On this occasion, she said that appellant told her, “If you tell anyone what I did to you, you will get hurt.” On some occasions when the victim babysat at appellant’s home, appellant and his girlfriend would remain at home and engage in sexual intercourse in the living room in her presence. On other occasions, the victim slept over. The first time she slept over, she slept, at appellant’s suggestion, in appellant’s bed. She was told that there were no ⁹⁰ other beds in the house.

Although she was not involved in any sexual activities, appellant and his girlfriend engaged in sexual intercourse in her presence. The next time she slept over, appellant touched her between her legs. In the middle of September, 1983, while babysitting at appellant’s home, the victim, who had gone to appellant’s room, was pushed on the bed and, when she attempted to get up, hit in the face. After forcing her to take off her clothes, appellant raped her.

At the time of the rape, the victim saw a knife in the room. After the rape, appellant felt her breasts and between her legs. As he was taking the victim home, he told her that if she told anyone what had happened to her while babysitting he would hurt her. The victim did not report the rape, and she continued to babysit at appellant’s home.

In addition to sexually abusing her, appellant made the victim drink something which made her tired and sleepy. She drank it because appellant said he would hurt her if she did not. The victim last babysat at appellant’s home on New Year’s Eve, 1983. Shortly after that assignment, which was completed without incident, appellant accused the victim of stealing his checks.

Thereafter, the victim told one of her friends what appellant had done to her. She later told her friend’s mother, Mrs. Lechman, who subsequently gave a statement recounting that conversation to the police. On cross-examination, appellant, in addition to asking the victim questions designed to attack her credibility, specifically asked the victim if she had told Mrs. Lechman that she had not babysat at appellant’s home on New Year’s Eve. The victim absolutely and unequivocally denied having made that statement. 1.

Appellant’s defense was aimed at attacking the credibility of the victim and showing “her motive for making false allegations many months after the events allegedly occurred.” When the victim testified at trial that she had last ⁹¹ babysat in appellant’s home on New Year’s Eve, 1983 and denied having told Mrs. Lechman that she had not babysat on that date, appellant called Mrs. Lechman to show that the victim had made a prior inconsistent statement. After she was shown a statement and had identified and authenticated it as the statement she gave to the police, Mrs. Lechman was questioned as follows: Q. One point that I am permitted to ask you about is this — a point in your statement begins: “She was also upset that a man had accused her” — “that the man,” rather, “had accused her of stealing some checks from him.” Do you remember Michelle telling you that? A. Yes. Q. Did she also say to you that she was supposed to have been babysitting for him on New Year’s Eve, but did not?

A. Right. Q. Did she say shortly after that, he called her at her home and accused her of stealing them? Did she say that to you? A. Yes.

Q. Did she also tell you that she had not stolen them, that she hadn’t been at his house for a while? A. That’s correct. Q. So she told you all of those things? A. Right.

The State’s cross-examination consisted solely of inquiry as to the victim’s physical and emotional state when she spoke to Mrs. Lechman and as to Mrs. Lechman’s actions following the conversation. After all of the evidence had been presented and both sides had rested, the State moved Mrs. Lechman’s entire statement into evidence: MR. CHAZEN: [State’s Attorney]: For the reason that under the doctrine of verbal completeness, that where defense counsel read into the Court part of the state ⁹² ment, that I think it is fair and that case law backs me up that the jury should then have the benefit of the entire statement so they get the whole picture, not just a couple sentences where he wants to show she was inconsistent in one or two sentences, and then get rid of consistencies throughout the whole thing. Appellant objected, stating: MR.

BOURS: I don’t think there is anything else in that statement that bears on the topic that I used as the testimony for the defendant. The topic that we were talking about in our testimony was only whether or not [the victim] claimed that she had not babysat on New Year’s Eve. That is the only topic we discussed in her testimony. I think I would not characterize my admitting that statement in evidence so much as allowing the witness to refresh her recollection by looking at it.

She agreed. She testified here in effect to the same effect of what is in the statement. So I think her testimony stands without reference to the statement, if necessary. The other matters that are in that statement do not explain or clarify the part that she did testify about.

They go into the details of the alleged rape incident. All I went into was the question of whether or not [the victim] said that she hadn’t babysat for the defendant. The statement was admitted. Noting that the victim’s credibility was the focal point of the defense (indeed, the central issue in the trial) and that, in effect, Mrs. Lechman’s statement was “the allegations of [the victim], not the witness,” appellant contends that the trial judge erred in admitting the statement for several reasons: first, the statement contained matters which exceeded the scope of the direct examination; second, it was not rebuttal testimony; third, it Contained' allegations of uncharged crimes; 2 fourth, it was prejudicial and denied ⁹³ confrontation because it was introduced after the close of the evidence, when the victim was no longer available for cross-examination; and fifth, “it was classic hearsay and not admissible under any traditional exception.” Appellant requests that we find the error to be reversible and remand for a new trial.

Contending that it “was entitled to introduce the remainder of [Mrs. Lechman’s] statement because it related to the same subject, [the victim’s] statements to the witness about her contacts with Appellant, and, [because] it was relevant evidence,” the State urges that the trial judge correctly admitted the statement under the rule of “verbal completeness.” In an attempt to limit the scope of our review, it also argues, that appellant’s voluntary statement of the grounds for his objection preserved only those grounds stated. But, notwithstanding the preceding argument, the State hedges, recognizing that we may not adopt the trial judge’s rationale for the ruling, and submits an alternative basis — “the ... statement [is] a memorandum employed to refresh a witness’ present recollection introduced by an opposing party.” — on which the statement could have been admitted. We agree that when a party volunteers the grounds on which he relies for his objection, he ordinarily waives all grounds not mentioned, and preserves for review only those stated, von Lusch v. State, 279 Md. 255 , 368 A.2d 468 (1977). On the other hand, when the offering party volunteers the grounds upon which it relies for admissibility and the trial judge admits the evidence without specifically adopting those grounds, his ruling may be affirmed on appeal if the record discloses a proper basis for its admission.

Robeson v. State, 285 Md. 498 , 403 A.2d ⁹⁴ 1221 (1979). Therefore, we will first address the State’s alternative theory for the admissibility of the statement. Because it is the testimony of the witness, not the memory stimulant, that is admitted into evidence, a document, including the witness’ own statement, may be used to refresh recollection “without restriction by rule as to authorship, guarantee of correctness, or time of making.” Askins v. State, 13 Md.App. 702, 711 , 284 A.2d 626 (1971). This is so because the document is not evidence; it is only an aid in the giving of testimony.

McCormick on Evidence, § 9, 3rd ed. 1984, p. 21, Baker v. State, 35 Md.App. 593 , 371 A.2d 699 (1977). The document will not be admitted at the behest of the party calling the witness unless it is independently admissible under the hearsay rule or one of its exceptions. McCormick, supra. The opposing party, however, may use it during its examination of the witness and may even offer it for impeachment purposes.

Wilson v. State, 20 Md.App. 318, 330 , 315 A.2d 788 (1974). See Baker v. State, supra, 35 Md.App. at 600 , 371 A.2d 699 (“The opposing party, of course, has the right to inspect the memory aid, be it a writing or otherwise, and even to show it to the jury. This examination, however, is not for the purpose of testing the competence of the memory aid (for competence is immaterial where the thing in question is not evidence) but only to test whether the witness’s memory has in truth been refreshed”). The object of the attempt at impeachment is to show that the document did not refresh the witness’ recollection or that the recollection allegedly refreshed is unreliable or even that the document itself is false.

See e.g. U.S. v. Rappy, 157 F.2d 964, 967-68 (2nd Cir.1946). It is then the impeachment of the refreshed recollection of the witness on the stand, not the bolstering of testimony previously given by other witnesses, at which the admission of the document is directed. Here, no issue was raised regarding the reliability of Mrs. Lechman’s recollection or the accuracy of her state- . ment.

Significantly, the State refrained from cross-exam ⁹⁵ ining her on those issues. Interestingly, the significance of the remainder of the statement was principally to show its consistency with the victim’s trial testimony. Nothing in the statement itself tended to impeach Mrs. Lechman’s recollection. Given this state of the record, the statement was not admissible as a memorandum used to refresh recollection offered by the opposing party. 3 Furthermore, the effect of the admission of the statement was to allow it to be received and used by the jury as substantive evidence, with the predictable result that it would bolster the victim’s prior testimony by showing “consistencies throughout the whole thing.” For this reason as well its admissibility cannot be justified.

We now turn to the State’s theory that the statement was admissible for verbal completeness. Where a party has introduced a part of a writing, oral statement or conversation, his opponent may afterward introduce the remainder of the writing, oral statement or conversation which was written or said on the same subject at the same time. 7 Wigmore, Evidence, § 2115 (Chadbourne rev. 1978); Feigley v. Balto. Transit Co., 211 Md. 1 , 124 A.2d 822 (1956); Worthington v. State, 38 Md.App. 487 , 381 A.2d 712 (1978); White v. State, 56 Md.App. 265 , 467 A.2d 771 (1983) cert. den., 299 Md. 137 , 472 A.2d 1000 (1984). This is equally true in the situation where a part of a statement is introduced or referred to in the course of impeaching a witness by showing bias or a prior inconsistent statement.

Worthington v. State, supra. This principle is referred to as “verbal completeness,” the rationale for ⁹⁶ which is fairness in allowing an explanation to be given as to the impeaching material and in providing a complete picture for the trier of fact. Although, as Wigmore points out, the right to introduce the remainder is universally conceded for every kind of utterance without distinction, in each case where the applicability of “verbal completeness” is at issue, the relevant inquiry is what are its scope and limits in that case: The ensuing controversies are in effect concerned merely with drawing the line so that the opponent shall not, under cloak of this conceded right, put in utterances which do not come within its principle and would be otherwise irrelevant and inadmissible. In the definition of the limits of this right, there may be noted three general corollaries of the principle on which the right rests, namely: (a) No utterance irrelevant to the issue is receivable; (b) No more of the remainder of the utterance than concerns the same subject, and is explanatory of the first part, is