Redditt v. State

RODOWSKY, Judge. Petitioner, Augustus Redditt (Redditt), was convicted on multiple counts of robbery with a deadly weapon and related offenses following a jury trial. At that trial the court would not permit a defense witness to take the stand in order to give proffered evidence of improper motive, or bias, on the part of the principal prosecution witness. The basis for exclusion was a violation of the court’s order sequestering witnesses, because the defense witness was in the courtroom during a limited examination of the prosecution witness when that witness was recalled in the defense case.

Under the circumstances described below, and for the reasons set forth below, we reverse the conviction. On Saturday, May 23, 1992, at approximately 11:30 p.m., Cheryl Denise Stokes (Stokes), Nicole Vennie (Vennie), and Veronica Matthews (Matthews) arrived in Vennie’s car at a bowling alley on Security Boulevard in Baltimore County. They planned to attend a “Rock-n-Bowl” event which they believed began at midnight. As they walked from Vennie’s parked car to the building, they noticed a light-blue, Buick Skylark automobile also parked on the parking lot, but with its engine running.

Approximately three parked cars separated Vennie’s car from the Skylark. The Skylark was occupied by two males. After learning that the event began at one a.m., the three women left the building to return to their car. As they were walking between parked cars, with Stokes and Matthews in front and Vennie close behind, they were confronted by two men, one at each end of the aisle between cars.

Stokes saw that the Skylark was unoccupied and that its door was open. The man in front of the group of three women, later identified as Redditt, put a gun to Stokes’s head. He ordered Vennie to take off her jewelry. Vennie was nervous, and the ⁶²⁵ man ordered Stokes to help her.

Stokes refused, complaining that she was too nervous to help. The other man was taking jewelry from Matthews. Vennie attempted to hide her rings from the man with the gun but he noticed them and demanded that she remove them. 1 When all the jewelry was removed, the men ran to the Skylark and sped away. The women, with Vennie driving, gave chase, only to be stopped for speeding by a Baltimore County police officer, James P. Conaboy (Conaboy).

They reported the offense and gave the officer a general description of the men. The man with the gun was described as “a black male, mid-20s, thin build, about five nine.” They described the car, and Vennie said its Maryland license plate was PMB 002. That license was registered to a 1983 Oldsmobile principally garaged in Bel Air, Maryland. Officer Conaboy then inverted the M into a W and found that PWB 002 was registered to a blue Buick Skylark that had been reported as stolen.

The next evening at approximately 11:45 p.m. a Baltimore City police officer arrested Redditt after effecting a stop of the car Redditt was driving, the light blue, Buick Skylark with Maryland tag PWB 002. Redditt fled the vehicle after the stop, but he was apprehended after a two block chase. One month later, on June 22, Officer Conaboy showed Stokes a photographic array. Her contemporaneous written description of the identification made by her on that occasion was that “[njumber three looks a lot like him, but I believe his head was a little smaller.” Number three in the array was Redditt.

Vennie was shown the same photo array, but she could not identify Redditt. Matthews was never shown the array. ⁶²⁶ On a motion in limine the trial court precluded testimony that the Skylark that Redditt was driving at the time of his arrest was stolen. Trial was held on February 4, 1993, commencing at 10:00 a.m. After selection of the jury and completion of opening statements, the court, on motion by Redditt that the State’s witnesses be sequestered, ordered that all witnesses be sequestered.

All of the evidence in the case was taken by 1:30 p.m. that same day. In addition to the facts described above, Stokes and Matthews made in-court identifications of Redditt. At the conclusion of the State’s case Redditt waived his right to testify, and defense counsel indicated that the defense witnesses would be Stokes and the defense investigator who was on call. The court recessed from 12:45 p.m. to 12:52 p.m.

When proceedings resumed Redditt called Stokes. Her examination as a defense witness comprises two pages of transcript, plus one question and answer. The two pages deal with why Stokes had never viewed a lineup, although Conaboy had asked her to do so. Then, defense counsel put the following question: “Q. Ms. Stokes, do you recall making a statement to a young lady yesterday that you don’t care who it is, somebody’s going to pay? “[PROSECUTOR]: Objection. “THE COURT: Wait a second.

I’ll overrule the objection on that. “A. No, I did not.” Out of the presence of the jury, and while awaiting the arrival of the investigator, defense counsel inquired of the court: “[W]ill I be allowed to call the young lady who she made that statement to in rebuttal? “THE COURT: That isn’t rebuttal. This is your case. You can call—I mean is it somebody who’s been outside? Is it somebody— ⁶²⁷ “[DEFENSE COUNSEL]: No, it’s somebody that’s been sitting in the courtroom. “THE COURT: Well, how— “[DEFENSE COUNSEL]: She just told me the statement.

During the recess I found out about it. “THE COURT: Is there an objection? “[PROSECUTOR]: Yes, your Honor. “THE COURT: Yes. Number one, it’s your own witness. This is your case. You called Ms. Stokes back as your own witness. “THE COURT: ... [I]n any event, we’re in the defense’s case.

Ms. Stokes was your witness, in addition to which the other—the witness that you want to call is somebody that certainly by the break you knew that you might want to call, and she sat through and listened to Ms. Stokes’ testimony.” Redditt was convicted and sentenced. He appealed to the Court of Special Appeals where he argued that the circuit court “erred in refusing appellant the opportunity to impeach the State’s key witness with a prior inconsistent statement.” The intermediate appellate court, in an unreported opinion, rejected that argument. The appellate court noted that the first reason given by the trial court, ie., that Redditt would be impeaching his own witness, was no longer valid in light of the abolition of the voucher rule by former Maryland Rule 1-501, now Rule 5-607. The second ground relied upon by the trial court, violation of the sequestration rule, was a valid ground for excluding the witness from testifying, in the view of the Court of Special Appeals.

That court reasoned that “[djefense counsel was informed during a recess of the alleged comment by Ms. Stokes to this witness. At that point, the defense should not have allowed the prospective witness to remain in the courtroom and listen to further testimony.” 2 ⁶²⁸ Redditt petitioned this Court for a writ of certiorari, which we granted. His petition presents this question: “Is the testimony of a defense witness which impeaches a key State’s witness admissible in spite of a nominal violation of the sequestration rule?” There was no cross petition by the State. I Former Maryland Rule 4-321, in effect at the time of Redditt’s trial, provided in relevant part as follows: “(a) Exclusion.—On motion of any party made before testimony begins the court shall order that witnesses other than parties be excluded from the courtroom before testifying, and it may do so on its own initiative or on motion of any party made after testimony begins.

The court may continue the exclusion of a witness following the testimony of that witness if a party indicates that the witness may be recalled to give further testimony____ “(b) Order.—The court may order the witness, parties, attorneys, and all other persons present in the courtroom not to disclose to any witness excluded under this Rule the nature, substance, or purpose of testimony, exhibits, or other evidence introduced during the witness’ absence. “(c) Exclusion of Testimony.—The court may exclude all or part of the testimony of the witness who receives information in violation of an order under this Rule.” 3 “The purpose of the sequestration of witnesses has been said to be to prevent them from being taught or prompted by each other’s testimony.” Bulluck v. State, 219 Md. 67, 70-71 , 148 A.2d 433, 435 , cert. denied, 361 U.S. 847 , 80 S.Ct. 102 , 4 L.Ed.2d 85 (1959); see also Brown v. State, 272 Md. 450, 477 , ⁶²⁹ 325 A.2d 557, 571 (1974); 6 J.H. Wigmore, Evidence § 1838, at 461 (Chadbourn rev. 1976) (Wigmore). The Court of Special Appeals has said: “The essential purpose of the Rule is to prevent one prospective witness from being taught by hearing another’s testimony; its application avoids an artificial harmony of testimony that prevents the trier of fact from truly weighing all the testimony; it may also avoid the outright manufacture of testimony.” Hurley v. State, 6 Md.App. 348, 351-52 , 251 A.2d 241, 244 , cert. denied, 255 Md. 742 (1969). When there has been a violation of a sequestration order, whether there is to be a sanction and, if so, what sanction to impose, are decisions left to the sound discretion of the trial judge. Brown v. State, 272 Md. at 477-78 , 325 A.2d at 571 ; Cunningham v. State, 247 Md. 404, 417 , 231 A.2d 501, 508 (1967), cert. denied, 390 U.S. 908 , 88 S.Ct. 832 , 19 L.Ed.2d 877 (1968), vacated in part, 408 U.S. 938 , 92 S.Ct. 2867 , 33 L.Ed.2d 757 (1972) (capital punishment); Mayson v. State, 238 Md. 283, 290 , 208 A.2d 599, 603 (1965).

Violation of a sequestration order does not result in a per se exclusion of the witness’s testimony. Rather, inasmuch as “'[t]he ascertainment of the truth is the great end and object of all the proceedings in a judicial trial,’ we think that the complete exclusion of the testimony of witnesses for a violation of the sequestration rule is not lightly to be imposed as a penalty upon even an offending party.” Frazier v. Waterman Steamship Corp., 206 Md. 434, 446 , 112 A.2d 221, 226 (1955) (quoting Parker v. State, 67 Md. 329, 332 , 10 A. 219, 220 (1887)); see also Brown v. State, 272 Md. at 478 , 325 A.2d at 572 ; Gwaltney v. Morris, 237 Md. 173, 176 , 205 A.2d 266, 268 (1964). Maryland appellate courts have expressed some guidance for the exercise of discretion in this area. In Brown v. State this Court outlined one procedure that might be followed: ⁶³⁰ “When ... the trial court was notified of an apparent violation by the witness of the order of sequestration, it was then incumbent upon the trial judge to make an investigation pursuant to the discretionary power vested as to the imposition of any sanction.

The inquiry then conducted by the trial court involved a question of law as to whether or not the testimony of [the offending witness] would remain admissible or be excluded.” 272 Md. at 478 , 325 A.2d at 572 . Hurley v. State, 6 Md.App. 348 , 251 A.2d 241 , emphasized whether the witness called by the State had remained in the courtroom as the result of design, and whether there was any prejudice to the accused, based on the purpose of the sequestration rule. McKnight v. State, 33 Md.App. 280 , 364 A.2d 116 (1976), rev’d on other grounds, 280 Md. 604 , 375 A.2d 551 (1977), presents a review of the case law of Maryland and other jurisdictions and distilled the following principles. “ Tf a witness disobeys the order of withdrawal, while he may be proceeded against for contempt and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.’ ” Id. at 290, 364 A.2d at 121 -22 (quoting Holder v. United States, 150 U.S. 91, 92 , 14 S.Ct. 10, 10 , 37 L.Ed. 1010, 1010 (1893) (emphasis added)). “ ‘[I]t was error for the trial court to disqualify a witness merely because of his disobedience to a rule requiring sequestration and in the absence of some showing of particular circumstances indicating that the witness remained in court with the consent, connivance, procurement or knowledge of the party seeking to use the witness or of his attorney.’ ” Id. at 290, 364 A.2d at 122 (quoting Robinson v. Tennessee, 340 F.Supp. 82, 85 (E.D.Tenn.1972), aff'd, 474 F.2d 1273 (6th ⁶³¹ Cir.), cert. denied sub nom. Bailey v. Tennessee, 414 U.S. 848 , 94 S.Ct. 137 , 38 L.Ed.2d 96 (1973)). “ ‘If the order of exclusion is knowingly disobeyed, the court unquestionably has the power to refuse to admit the disobedient person to testify; and it ought to exercise this power, in its discretion, whenever there appears any reason that the proposed testimony was important, that the witness had heard the other testimony, and that he wished to know its tenor.’ ” Id. at 291, 364 A.2d at 122 (quoting 6 Wigmore, § 1842, at 477).

In McKnight the trial judge had excluded the testimony of a defense witness. The Court of Special Appeals upheld the exclusion based upon the facts set forth below: “The record reveals that the witness had been in court at least throughout the morning session, during which time the appellant and a series of alibi witnesses testified in the appellant’s behalf. [The offending witness] had been summoned as a witness for the defense; counsel for the defense had specifically informed the court that morning that [the witness] would not be called. It was apparently obvious to the court that the witness had been seated in the courtroom the entire day. No explanation is given for the failure of the appellant or his counsel to detect his presence.

It is further noteworthy that defense counsel made no proffer as to what the testimony of the witness would have been had he been allowed to testify. If he was another alibi witness, his testimony would have been merely cumulative. If he had substantive information concerning the charges against the appellant, counsel should have proffered to the trial court what that evidence would have been so that we would have it before us on review. Under all the circumstances, however, to hold that the trial court abused its discretion in refusing to allow [the offending witness] to testify would make the sequestration rule a nullity.” 33 Md.App. at 293 , 364 A.2d at 123 .

The facts of a number of Maryland decisions demonstrate the extent to which the decision whether to exclude is influ ⁶³² enced by the degree of schooling in the details of the evidence obtained by the potential witness as a result of the sequestration order violation. For example, Gwaltney v. Morris, 237 Md. 173 , 205 A.2d 266 , was a wrongful death action. While the widow of the decedent was being cross-examined, three witnesses for the defendant entered the courtroom and remained for up to seven minutes before they were noticed by defense counsel. Two of the defense witnesses were adult children of the decedent by prior marriages.

This Court held that there was no abuse of discretion in refusing to exclude the testimony of these witnesses. This was because “their testimony was limited and in essence was to the effect that their father was a heavy drinker throughout his life, that the marital relationship between the decedent and [his widow] was not good, and a divorce was contemplated. It is improbable from the very nature of their testimony that they would in fact have learned anything which would assist them in testifying.” Id. at 176 , 205 A.2d at 267 . Similarly, in Frazier v. Waterman Steamship Corp., 206 Md. 434 , 112 A.2d 221 , a personal injury claim by a stevedore against the owner of a vessel claimed to be unseaworthy, the principal factual issue was whether the stevedore was caused to slip and fall through a hatch from one deck to another because there was grease on the upper deck.

Witnesses were sequestered. At the close of the first day of testimony, during which the plaintiff and his key supporting witness had testified, defense counsel conferred with the defense witnesses and disclosed to them the testimony of the plaintiff and his witness. This Court held that allowing the