Patterson v. State

O’Donnell, J., delivered the opinion of the Court. Following a domestic argument, Douglas Lynn Patterson died on the night of Sunday, June 25, 1972, as a result of internal bleeding caused by a stab wound in his chest. His wife, the appellant, Mary Theresa Patterson, was indicted for his murder. Following a five-day jury trial in the Circuit Court for ⁵⁶⁵ Harford County (presided over by Judge Albert P. Close) she was convicted on February 17, 1973, of murder in the second degree and thereafter sentenced to a term of 20 years. 1 On the morning of the trial the prosecutor filed a motion for appropriate relief under Maryland Rule 725 a asking that the trial court call Mrs. Edna Gentile as the court’s own witness for the purpose of direct examination by the court and with cross-examination to be allowed both the State and the defense.

As reasons for the relief requested the motion alleged that the witness possessed material and relevant knowledge of the circumstances surrounding the homicide and the actions and words of the decedent immediately prior to the stabbing, that the State could not vouch for the veracity of the witness and that a miscarriage of justice would result from the failure of the witness to testify. Following the impaneling of the jury, the prosecutor, in chambers, in support of his motion, proffered that although Mrs. Gentile had been summoned as a State’s witness the prosecution could not vouch for her veracity because she had made inconsistent statements, plus the fact that she was the mother of the appellant; that she had refused to speak with the prosecutor about the case; that on the night of the homicide she had given an oral statement to State Police officers, only after having spoken with her husband and after she had urged him “don’t tell the police anything;” that the oral statement varied materially with the sworn testimony she had given the Grand Jury and varied as well materially with the statement given her daughter’s counsel, and that because of the blood relationship with the accused it was believed that she would not be candid in her testimony. It was additionally proffered that at the time of the homicide Mrs. Gentile had been the only person present in the Patterson home, other than the three-year-old child of the parties, and that the personal knowledge she possessed ⁵⁶⁶ made her testimony necessary for a fair determination of the appellant’s guilt or innocence. Appellant’s counsel objected to the motion and countered by moving to suppress the oral statements given by Mrs. Gentile which might be used by the State in presenting its case-in-chief, or by the court in examining her, should the motion be granted. 2 In order to protect the witness against any possible charge of perjury Judge Close appointed counsel to represent her and, out of the presence of the jury, received evidence in support of the State’s motion.

In those proceedings two Maryland State Troopers testified that when they visited the Patterson home Mrs. Gentile, who was described as “upset,” remained in a bedroom until her husband came to the premises, that although she exhorted her husband not to tell the police anything he counseled her that the police were “only doing their job” and that “if she knew anything [about the homicide] to tell them.” Mrs. Gentile then told the police that Douglas Patterson and her daughter had planned “to go out for the evening;” that she was scheduled to “baby sit;” that after Mrs. Patterson had gotten dressed she heard the victim express his change of mind and saw her daughter enter a small bedroom, used as a television room, where her son-in-law was seated in a chair; that when he repeated his refusal to “take his wife out” her daughter began waving a knife in front of him. Subsequently she saw Douglas Patterson rise from the chair with blood on the front of his clothing and stagger into the kitchen where he collapsed. Because she was “upset” she refused to give the police a written statement that evening; an appointment was made for her to be interviewed at the police barracks the following day. She later refused to give a statement out of the presence of her attorney and her account of the incident was never reduced to writing.

It was further elicited that when Mrs. Gentile testified under oath before the Grand Jury she stated that the ⁵⁶⁷ argument had commenced in the television room and continued in the kitchen; that she was never present in the same room where the parties were arguing. She further gave testimony that the first time she had ever seen the knife was, following the stabbing, when the trooper removed it from the kitchen sink; she denied that she had ever seen her daughter brandishing the knife and stated that during the argument her son-in-law had left the television room and that when she next saw him he was lying wounded on the kitchen floor. It was additionally pointed out that a statement she had subsequently given the appellant’s trial counsel differed substantially from what she had orally related to the police on the night of the killing. 3 Judge Close after hearing argument on that, as well as on other motions, granted the State’s motion to have Edna Gentile called “as the court’s witness” and before the State closed its case-in-chief she, over defense objection, was called as the last witness, with the court questioning her initially and both the State and the defense cross-examining her. In her direct appeal to the Court of Special Appeals the appellant asserted inter alia that the trial court abused its discretion in granting the State’s motion and in having Edna Gentile testify as the court’s own witness during the presentation of the State’s case-in-chief.

That court, in affirming her conviction in Patterson v. State, 22 Md. App. 13 , 321 A. 2d 544 (1974), held that “there was an adequate showing of the need to do so and that in calling her [as the court’s witness] the court did not abuse its discretion.” We granted certiorari limited solely to the question whether the trial court abused its discretion by granting the State’s motion for appropriate relief and in calling Edna Gentile as its own witness during the State’s case-in-chief. ⁵⁶⁸ Although in Hewitt v. Md. Board of Censors, 241 Md. 283, 291 , 216 A. 2d 557, 561 (1966), this Court rejected the procedure where the trial judge mobilized, on his own initiative, the entire jury panel as a pool of witnesses to review a motion picture and to answer a questionnaire concerning whether or not it was “obscene,” and stated: “The trial judge ordinarily should wait for the party on whom the burden of proof rests to procure, produce and examine in open court, the witnesses he hopes will prove his case,” and although in Wilson v. State, 20 Md. App. 318, 321 , 315 A. 2d 788, 790 (1974), where the trial court had granted the State’s motion that three young men, eyewitnesses to the shooting, be called as the court’s own witnesses on the ground that they had been intimidated, were “terrified” and that the State could not vouch for their veracity, the authority of the trial judge to call and examine the witnesses was not there at issue, no prior appellate decision in this state has ruled on whether a trial judge may, in the exercise of his sound discretion, call and examine witnesses under appropriate circumstances. In all jurisdictions, however, in which the question has been considered the authority of the trial court to call a witness in a criminal prosecution as the court’s witness on its own motion, or at the request of one of the parties has been recognized. 4 In those cases where neither the prosecution nor the defense is willing to vouch for the veracity of the witness and the witness appears to possess ⁵⁶⁹ material evidence the invocation of the procedure is generally held to be within the sound discretion of the trial court; some courts limit the procedure to those cases where material injustice would otherwise result. See Annot., 67 A.L.R.2d 538 , 540-42 (1959). A succinct summary of the rule is stated in 98 C.J.S. Witnesses § 350, at 70-71 (1957), as follows: “This power of the court to call witnesses and allow cross-examination by either or both sides extends to criminal cases.

This does not mean that every witness may be so called, or that cross-examination may include everything that may affect credibility. The calling of a witness as the court’s witness in a criminal case, either for or against accused, is a matter resting in the sound discretion of the court. The court’s discretion should be exercised with great care; and some showing should be made to the court, in the absence of the jury, to justify the court in calling witnesses as its own. Ordinarily, the court should call a witness as its own only when it is shown that otherwise there might be a miscarriage of justice.

The court may call a witness whose veracity and integrity will not be vouched for by the prosecution or accused, or a witness who is hostile to the party calling him. The power of the court to call witnesses may be exercised with respect to witnesses present at the commission of the crime. . . .” In accord 2 C. Torcia, Wharton’s Criminal Evidence § 503 (13th ed. 1972); C. McCormick, Evidence § 8 (2d ed. 1972); and 58 Am. Jur. Witnesses § 4 (1948).

See also 9 J. Wigmore, Evidence § 2484 (3d ed. 1940). The new Federal Rules of Evidence expressly recognize the right of a court, on its own motion, or at the suggestion of a party, to call witnesses, with all parties entitled to cross-examine the witnesses thus called. Rules of Evidence for United States Courts and Magistrates, Rule 614 (a). In a commentary to the Rule it is stated as being in accord “with ⁵⁷⁰ usual practice and the common law tradition in recognizing the trial judge’s right to call and question witnesses in both civil and criminal cases.” 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 614[011, at 614-3 (1975).

The appellant conceding generally the validity of the right of the court to call as its own witness one whose integrity or veracity cannot be vouched for by the party calling him, nonetheless contends that the trial court abused its discretion in that the evidence educed was insufficient to justify the court’s invocation of the procedure, and that the court exercised its discretion carelessly when Edna Gentile testified before the State closed its case since this affected the burden of proof, diminished the trial judge’s role as an impartial arbiter and, in the eyes of the jury, conveyed the impression that the trial judge, by assuming the role of prosecutor, was helping to prove the State’s case. It seems clear that upon the facts presented in the proceedings below the procedure invoked by the trial court was premised upon the “voucher” rule which requires a party to vouch for the credibility and veracity of the witnesses he produces. In Proctor Elec. Co. v. Zink, 217 Md. 22, 32 , 141 A. 2d 721, 726 (1958), Judge Prescott (later Chief Judge) stated for this Court: “It is unquestionably the general rule that a person who produces a witness vouches for him as being worthy of credit, and no direct attack upon his veracity should be made by the party who produces him in the absence of surprise, hostility or deceit.

Murphy v. State, 120 Md. 229 [ 87 A. 811 (1913)], 3 Jones, Evidence Civil Cases, (4th Ed.) secs. 853, 854.” See also Stehle Equip. Co. v. Alpha Const. & Dev. Co., 247 Md. 210, 214 , 230 A. 2d 654, 656 (1967). In State, use of Chenoweth v. Balto.

Contracting Co., 177 Md. 1 , 6 A. 2d 625 (1939), the appellants contended that they had the right to impeach their own witnesses by cross-examining them as to other statements, made at other places and at other times, in conflict with their testimony and by offering proof of such contradicting statements. In rejecting that contention Judge Offutt who delivered the opinion for the Court stated the rule well when he said: ⁵⁷¹ “The rule in this state, applicable to such cases, is that a party will not be allowed to impeach his own witness by proof of contradictory statements made on other occasions, nor will he be permitted to cross examine such witness as to any such statement, unless he has been enticed or entrapped into calling him by statements, made to the party or his attorney by the witness, which were inconsistent with his testimony in the particular case in which he is being examined. Upon proof that he has been so surprised or entrapped, the party calling the witness may, to explain why he called him, not only cross examine him as to prior contradictory statements, but offer proof thereof. Such proof however is not substantive evidence and its only effect is to impeach the credibility of the witness.

In the absence of any proof of surprise or entrapment, the party calling the witness may not offer proof of prior conflicting statements, but he may by any competent witness prove facts however inconsistent with those to which the witness under examination testified, although a collateral incident of such proof is to impeach the witness. [Citing cases.] To warrant the application of that rule it is not enough that the treacherous or deceitful statements have been made, but they must have been made to the party calling the witness or to his attorney, or to some person to be communicated to them. 70 C. J. 1032, Murphy v. State, 120 Md. 229 , 87 A. 811 , Ann. Cas. 1914B, 1117, 1133. The reason for the rule is the protection of a party who has been entrapped into calling a treacherous witness who has, by statements made prior to the trial to the party or his attorney, induced the party calling him to reasonably believe that his testimony would be favorable to his contention. 70 C. J. “Witnesses” secs. 1227-1229. The wrong at which the rule strikes is the introduction of a hostile witness under the reasonable and well founded belief that he is ⁵⁷² friendly, and that his evidence will be favorable to the party calling him, when that belief is induced by statements of the witness to the party calling him, to his attorney or to some other person with instructions to communicate the statements to them or either of them.” 177 Md. at 15-16 , 6 A. 2d at 632 . This evidentiary principle has been equally applied in both criminal and civil cases.

See Duffy v. State, 243 Md. 425, 433 , 221 A. 2d 653, 657 (1966); Green v. State, 243 Md. 154, 157 , 220 A. 2d 544, 546 (1966); Green v. State, 243 Md. 75, 80 , 220 A. 2d 131, 134 (1966); Sellman v. State, 232 Md. 344, 348 , 192 A. 2d 788, 790 (1963); Bruce v. State, 218 Md. 87, 94-95 , 145 A. 2d 428, 431-32 (1958); Murphy v. State, supra; Rinard v. Nationwide Mut. Ins. Co., 269 Md. 1, 6 , 304 A. 2d 252, 255 (1973); Stehle Equip. Co. v. Alpha Const. & Dev.

Co., supra; State, use of Chenoweth v. Balto. Contracting Co., supra. Although a party cannot impeach its own witness, it is not absolutely bound by that witness’s testimony. Duffy v. State, supra; Green v. State, supra ( 243 Md. 75 , 220 A. 2d 131 ).

Such a party is not incidentally precluded from discrediting such a witness and may prove the truth of material facts, or that the witness is mistaken, by other evidence oral or written and the resultant conflict then becomes a question for the jury to decide. Rinard v. Nationwide Mut. Ins. Co., supra; Tie Bar, Inc. v. Shartzer, 249 Md. 711, 714-15 , 241 A. 2d 582, 584 (1968).

In arguing that the State should have been permitted to call Mrs. Gentile as its own witness and then used the “traditional options to impeach her” the appellant overlooks the holdings in State, use of Chenoweth v. Balto. Contracting Co., supra, and in Green v. State, supra, ( 243 Md. 154 , 220 A. 2d 544 ), since the State, well aware of the conflict between her accounts of the incident, could certainly not satisfy the trial court that it had “been taken by surprise” and since any such inconsistent statements used for impeachment purposes would have been admissible only to show why the witness had been called by the prosecution ⁵⁷³ and could not be received as having any substantive or independent testimonial value. In a number of reported cases, on facts substantially similar to those presented to Judge Close, it has been held that there was no error on the part of the trial court in making such a witness the “court’s witness.” In People v. Banks, 7 Ill. 2d 119, 128-29 , 129 N.E.2d 759, 764 (1955), cert. denied, 351 U. S. 915 (1956), it was held that the trial court had properly made the fiance'e of the defendant, who was an eyewitness to the homicide with which he was charged, a court witness, where she had given inconsistent statements to the police and to the defendant’s lawyer concerning a gun, and the prosecutor expressed doubt as to her veracity and integrity as a witness, the court observing: “Mrs. Williams witnessed the shooting of Dudley by the defendant. There was ample cause for the State’s Attorney to doubt her veracity and integrity.

Yet without her testimony there was a definite likelihood of miscarriage of justice.” In People v. Hinderhan, 405 Ill. 435, 438 , 91 N.E.2d 430, 432 (1950), where the defendant was charged with taking indecent liberties with his minor child it was held that the trial court did not abuse its discretion in calling his wife as a court witness where she had been at the scene of the crime shortly after the act had been committed, had made a written statement concerning the facts and later changed her position and made statements at variance with those formerly given which made the prosecutor unwilling to vouch for her credibility. In People v. Peterson, 364 Ill. 80, 89 , 4 N.E.2d 37, 41 (1936), in a manslaughter prosecution a companion of the defendant, who was an eyewitness to the incident and who had given contradictory and inconsistent testimony at the coroner’s inquest, was called as a court witness when the prosecutor stated that he could not vouch for the witness’s credibility. In People v. Daniels, 354 Ill. 600, 605 , 188 N. E. 886, 888-89 (1933), the witness undertook to offer testimony, to the surprise of the prosecutor, different from that given by him before the Grand Jury as well as at a preliminary hearing and the recall of the witness as a “court witness” was held not to be prejudicial error. In People v. ⁵⁷⁴ Dascola, 322 Ill. 473, 486 , 153 N. E. 710, 715 (1926), it was held not to be error when the trial court called as its witness the daughter of the two defendants (husband and wife) on trial for