Sanders v. State

Orth, J., delivered the opinion of the Court. On May 19, 1966, the appellant was convicted with a co-defendant, Clyde H. Bickford, of the crimes of robbery with a deadly weapon and conspiring to rob with a deadly weapon, by a jury in the Circuit Court for Montgomery County, Judge Kathryn J. Shook, presiding. He was sentenced to imprisonment for a term of ten years for each offense, the sentences to run consecutively. On appeal the appellant contends: 1.

The trial court erred in denying a motion for judgment of acquittal ; ⁶³⁴ a) with regard to the offense of robbery with a deadly weapon. b) with regard to the offense of conspiring to rob with a deadly weapon. 2. The trial court erred in preventing certain witnesses from testifying for the appellant. We shall first consider the second contention. William Howard Clements, who was also arrested for the robbery for which the appellant was convicted and who was an admitted participant in the crime, was granted immunity by the State to testify for the prosecution.

He was the State’s key witness and the conviction of the appellant depended in large measure on his detailed and lengthy testimony. Sandra Lee Clements, the wife of William Howard Clements, was called by the defense to testify on behalf of the appellant. She was asked on direct examination if Clements had made any statements to her relative to the case. She answered “Yes” and objection was made to the next question, “What did he say?” The objection was overruled and the witness said Clements had made such statements when he came to their apartment in the early morning of December 23rd.

At this point the trial court requested a conference at the bench. After discussion off the record, counsel for the appellant put the following proffer on the record: “Your Honor, I proffer to show by this witness that she would testify that on December 23, 1965, in the early morning hours following his release on personal bond that the witness, Billy Clements, came to the apartment of the witness, now on the stand, and told her he had involved innocent people and that Sanders was not guilty of anything but he had gotten off and he went along with anything the police told him.” Although the record does not disclose an objection by the State, the Court said, “All right. The objection of the State is sustained,” and the bench conference was concluded. The defense called Floyd William Spong.

He testified that he had a conversation about the robbery with Clements at the Dark Horse Bar in Rockville just before Christmas of 1965. When asked ⁶³⁵ what the conversation was the State objected. At the bench, defense counsel made the following proffer: “MR. HEENEY: Your Honor, this witness would say that in the presence of Johnny Seward, Richard Mallory, Patsy Wilson, that the witness, Billy Clements, stated that Douglas Sanders had no knowledge of or any part of the robbery at the H & I or any of the charges against him and that he, Billy Clements, had only agreed to what the Detective said to save himself and that he would not face 20 years in prison if there was any way out of it and would not care if he had to make a deal to give him his grandmother to do it.

I have got to ask you something. I’m thinking about —I made a terrible mistake in this case and I think the State’s Attorney is right that I should have asked first when Billy Clements was on the stand — I should have asked him these questions. I calculated wrong. It was a matter of trial strategy and I think I have calculated wrong in view of the Court’s ruling and I earnestly ask Your Honor to let me correct this somehow so we don’t .have any criticism of me later on.

THE COURT: I don’t see how they can criticize you. MR. HEENEY: I should have asked Clements if he had made any statements to this fellow. THE COURT: I don’t see how that would have had any particular effect on the trial of the case.

We haven’t as yet found out what the verdict would be. I’m going to have to sustain this objection for the same reason that I sustained it as to Mrs. Clements. MR. HEENEY: Could we do this, Your Honor.

Could we call Billy Clements as the Court’s witness and let me ask him that question I think that— MR. LOHM: (Assistant State’s Attorney) I object to that. MR. HEENEY: But I have made a mistake and I want to clear it.

THE COURT: Well, we are going to go over until ⁶³⁶ tomorrow. I’ll think about it. But at this point, I don’t believe I could do that very lightly or whether it is proper to do it at all. I will certainly consider it and hold it off until tomorrow.

(Conclusion of bench conference.)” It appears from the record that the objection was sustained although there is no affirmative ruling. The defense called Johnny Edward Seward. He was asked if he talked to Clements about the robbery. The witness stated that he had, on December 23, 1965.

There was objection to the question as to what Clements said about the robbery. The following took place at the bench : “THE COURT: Is it the same proffer ? MR. HEENEY: Yes, Your Honor.

This witness would testify that he talked to Billy Clements concerning this robbery and that Billy Clements had only agreed to what the Detective said to save himself and that he would not face 20 years in prison if there was any way out and I would not care if I had to make a deal to give them my grandmother to do it. MR. LOHM: Same objection for the same reason. THE COURT: The Court will sustain it.

MR. HEENEY: Your Honor, to save time and because we know what the ruling is going to be, I was going to call one more witness, Patsy Wilson, and Patsy Wilson would testify to the same conversation that Billy Clements had, because it was in the presence of her as well as Spong and as well as Seward and he made the same statement that Sanders was not involved in this robbery and that Clements just did it to save himself from going to prison for 20 years. THE COURT: All right. For the same reason the Court will sustain the objection.

(Conclusion of bench conference.)” Later in the trial, the following transpired at the bench: “MR. HEENEY: Your Honor, after some thought trying to figure how I can cure what I feel is an error on my part, I’d like to call Billy Clements to the stand. ⁶³⁷ I think he is available and I would like the Court to, since he was the State’s witness and obviously is not my witness and cannot really vouch for his testimony, I wonder if you would declare him a hostile witness. You don’t have to tell the jury that, but just let me ask him this impeaching question that I should have asked. THE COURT: What impeaching question?

MR. HEENEY: Did he have a conversation with these people that I put on the stand and did. he say that Sanders was in the clear ? THE COURT: That’s not an impeaching question. He hasn’t testified as to what he said to them.

MR. HEENEY: That’s true. I could ask him that question and if he denied it, I then could produce the witnesses that I had before to ask them whether or not— THE COURT: —I don’t think you could ask that question. I think you would have to call him as your witness and ask him if he had a conversation with these people and then what they said.

MR. LOHM: I object to this. Before you can impeach a witness you have to be surprised and he is going to put Billy on the stand knowing what he is.going to say but expecting him to say things that would be contrary to what his own witnesses are going to say. THE COURT: I think you have to take a chance and call him as your witness.

MR. LOHM: Your Honor, I’m going to take advantage of Article 35. When he produces a hostile witness he is bound by what he says under these circumstances and — ■ MR. HEENEY: Don’t you understand what I am saying.

I made a mistake in the trial of this case and I’m doing my best to cure it so justice could be done with these Defendants. MR. LOHM: I have all the sympathy in the world for you, but I have none whatsoever for your client. I’m going to try this case according to the rules. ⁶³⁸ THE COURT: This does raise a serious question.

When Mr. Lohm tried to elicit from Miss McCaffrey a statement similar to the one you are attempting to elicit from the three witnesses that you produced and did not testify, you objected and the Court sustained that objection. Now, if Mr. Lohm objects, I would have to seriously consider as to whether or not I should sustain that objection in view of the fact I sustained yours. MR. HEENEY: I’m not quite clear, Your Honor, what that was.

THE COURT: You recall that Miss McCaffrey was asked on cross-examination, I believe by you, — on direct examination by Mr. Lohm, if she had a telephone conversation with Sanders or Clements. My recollection falters here. MR. LOHM: Sanders in Baltimore.

She had a conversation with Sanders in Baltimore on a couple of occasions. MR. HEENEY: I don’t see how I could have objected to that. THE COURT: It may have been with Clements.

I believe it was with Clements and you objected. MR. HEENEY: I’m sure I would have. THE COURT: And the Court sustained the objection because it was out of the presence — it was hearsay as to your client so I think you have to take your chances. 1 ⁶³⁹ MR.

HEENEY: I’ll call Billy Clements. THE COURT: Call the jury back. (Conclusion of bench conference.)” Defense counsel then called William Howard Clements. The record discloses the following: “THE COURT: Ladies and gentlemen of the jury, this will be a direct examination in as much as counsel for Mr. Sanders has called this witness.

(Bench conference as follows.) MR. HEENEY: Your Honor, in view of your remark you just made to the jury, I den want the record to show that the reason I am calling Mr. Clements is because I forgot on cross-examination to ask him what I consider to be a very important question. That’s why I am calling him now. (Conclusion of bench conference.)” The witness testified that he knew Johnny Seward, Floyd Spong and Patsy Wilson.

The record then shows as follows: “Q. (Mr. Heeney) On December 23, 1965, did you have a conversation with the three of them concerning the H & I robbery ? MR. LOHM: Objection.

THE COURT: Just answer yes or no. THE WITNESS : I don’t remember if I did or not. Q. (by Mr. Heeney) Did you on that date tell those people that I named that— MR.

LOHM: —I object to any further interrogation at this point. MR. HEENEY: It is proper to object after the question is asked. ⁶⁴⁰ THE COURT: Come up to the bench. (Bench conference as follows.) THE COURT: Now, I realize you are in a position of wanting to cross-examine him, but you may not because he is your witness and he has answered the questions and does not remember having the conversation.

That’s the end of that. MR. HEENEY: Could I bring back those other witnesses and state there was a conversation and what that conversation was ? THE COURT: It would be objectionable as it was before you called him to the stand.

MR. HEENEY: Unfortunately, I know that to be true and now what I am trying to do is to cure my mistake. THE COURT: You may have gotten that same answer if you asked it on cross-examination and you’d be in the same position. So your record is clear now.

MR. HEENEY: You don’t think that if I had gotten that answer on cross-examination that I would have been permitted to produce these witnesses and ask them the question ? THE COURT: No, not if he doesn’t remember.” With regard to the second contention, it is necessary to review the principles of law pertaining to the impeachment of witnesses by proof of contradictory statements. Provided a proper foundation has been laid, the credit of a witness may be impeached by showing he has made statements which contradict his testimony in respect to material facts (but not in respect to facts that are collateral, irrelevant or immaterial).

Davis v. State, 38 Md. 15 ; Joppy v. Hopkins, 231 Md. 52 , 56 and cases cited; Kantor v. Ash, 215 Md. 285, 290 ; Mahan v. State, 172 Md. 373, 380. To lay the foundation for such evidence, the witness must be first interrogated as to the time, place and person to whom such contradictory statements were made. Brown v. State, 72 Md. 468. As the Court said in Brown at page 475: “This is but fair and just to the witness, in order that he may be enabled to refresh his recollection in re ⁶⁴¹ gard to such statements, and afforded the opportunity of making such explanations as he may deem necessary and proper.” See also O’Brien v. State, 126 Md. 270, 285 ; Baltimore Transit Co. v. Castranda, 194 Md. 421, 439 .

The witness, whether a party to the suit or not, may be cross-examined on such matters and facts, and the proper foundation having been laid, the proof of prior contradictory statements can be submitted for the consideration of the jury in estimating the credit to be given the testimony of the witness. Leister v. State, 136 Md. 518, 523 ; Moxley v. State, 205 Md. 507, 516-517 ; Campbell, etc. v. Patton, 227 Md. 125, 141. If in laying the foundation, the witness denies making the designated statement or states that he does not remember whether he did or did not make it, impeaching testimony can be offered. Moxley v. State, supra, at page 516.

See also Myers v. State, 137 Md. 482, 490 , in which it was held that it was permissible to prove that on a prior occasion the witness had admitted certain facts, although when asked about them did not deny them but said he was unable to recall them. In Harris v. State, 237 Md. 299 , cited by the appellant, the Court said at page 302: “The general rule is that a witness may be contradicted or impeached by other witnesses on such matters and facts (except in respect to matters and facts that are collateral, irrelevant or immaterial) as are likely to affect his credibility. Likewise a witness may be cross-examined for the same purpose.” We do not