Smith v. State

Adkins, J., delivered the opinion of the Court. Charged with robbery with a deadly weapon, theft, use of a handgun in the commission of a crime of violence, and battery, appellant Norman Henry Grady Smith was tried by a jury in the Circuit Court for Montgomery County (Latham, J. presiding). He was convicted of theft and battery, and sentenced to concurrent terms of imprisonment for six months for theft and ninety days for battery. On appeal, he contends that: 1. the trial court impermissibly restricted the cross-examination of two State’s witnesses; 2. the trial court, in the presence of the jury, made prejudicial comments about the testimony of a defense witness; 3. he was denied the right to be present at a critical stage of the trial; ⁷³⁰ 4. his motion for a mistrial, based on jury coercion, should have been granted; and 5. the trial court erred in failing to grant a continuance.

Background Although the sufficiency of the evidence to sustain Smith’s conviction is not an issue in this case, his contentions can best be discussed in the light of the rather bizarre facts presented to the trial court. The testimony of the prosecuting witness, Penelope Stuelant, supported in various particulars by other evidence, was that on September 26, 1981, she was employed by Visions Escort Service, in the District of Columbia. Early in the morning on that date, Visions received a telephone call requesting that an escort be sent to what later turned out to be Smith’s address in Wheaton, Maryland. Stuelant called a number given her by the Visions dispatcher and spoke with a young man whose voice she later identified as Smith’s.

She was given directions to Smith’s home and arrived there between 5:00 and 6:00 a.m., driven by cab driver Charles Stroman. Smith met her at the front door and accompanied her to his attic bedroom, where he paid her the agreed fee of $55 for escort services. He then requested her to engage in sexual acts she described as "kinky” and which she declined to perform. Smith became abusive and refused to let her leave.

After some forty-five minutes, Stuelant persuaded him to allow her to depart by saying there was a cab waiting outside, and that if she did not contact Visions, the police would be called. The two walked downstairs and out the front door. When Smith observed neither cab nor police, he drew a pistol and demanded Stuelant’s pocketbook. A struggle ensued, during which Stuelant was injured.

Smith snatched her pocketbook, which contained the $55 as well as other money, and ran into the house, slamming the door. She screamed and pounded on the door with her shoe until the police arrived, in massive ⁷³¹ force. They ordered Smith and his parents out of the house, handcuffed them, searched the house, and eventually took the Smiths to the police station. Stuelant was transported to a hospital for treatment of her wounds.

According to the defense, presented through the testimony of Smith and other evidence, the call to Visions had been accomplished not by Smith but, unbeknownst to him, by a friend who was a "known prankster”. Smith was checking his dog when he heard a knock on the door. He opened it to find Stuelant. Not knowing who she was or why she was there, he at first refused to admit her.

After some discussion, he agreed to give her fifteen cents to make a call from a pay phone. When he started upstairs to get change, she followed him. He threatened to call the police; she turned and went downstairs; he pushed her out the door. Stuelant then opened her purse and started to remove a gun.

A struggle for the gun ensued during which Stuelant was injured. Eventually, Smith broke away and reentered the house. His parents held the door shut while he called the police, who arrived in due course and, as stated, in massive force, concluding the incident by taking the Smith family to the police station. Restriction of Cross-Examination As our brief recital of the facts indicates, the credibility of Stuelant’s testimony was important to the State’s case.

Among the ways the defense sought to undermine her credibility was to show that she was a prostitute. This she stoutly and steadfastly denied, although she admitted that on occasion she had granted sexual favors in exchange for money. During her extensive cross-examination by the defense, the following occurred: Q. Now, during the course of your profession, would it be accurate to say that you have to deceive people to be a successful prostitute? A. Deceive who? ⁷³² MR.

JORDAN [Prosecutor]: I object, Your Honor. Q. You have to lie? MR. JORDAN: I object.

THE COURT: Wait a minute, the objection will be sustained. * * * MR. BERMAN [Defense Counsel]: Well, prostitutes are known to lie, are they not? MR. JORDAN: I object.

THE COURT: Objection sustained. Q. You are know [sic] to lie? MR. JORDAN: Object.

THE COURT: Sustained. Citing, inter alia, Reese v. State, 54 Md. App. 281 , 458 A.2d 492 (1983) and Cox v. State, 51 Md. App. 271 , 443 A.2d 607 (1982), cert. granted July 20, 1982, Smith argues that the trial judge’s refusal to permit Stuelant to answer defense counsel’s questions was error because when the subject-matter of the examination is credibility, the judge’s normally broad discretion to limit cross-examination does not operate. In Reese, we discerned error because the trial judge had excluded reliable evidence of the victim’s mental condition — a condition which, it appears, "affected the victim’s contact with reality as well as his ability 'to recollect issues in any kind of detail.’ ” 54 Md. App. at 288 . In Cox, we reversed because the trial judge did not permit testimony that the prosecuting witness had previously made a criminal accusation in another case, and had then admitted the accusation to be false — a specific instance of past dishonesty.

Thus, the circumstances of Reese and Cox are factually distinguishable from those in the case at bar. But we did say, in the former case, that "[w]hat is referred to as a 'broad discretion’ of the trial judge [to limit cross-examination on the issue of credibility], upon examination, becomes a rather narrow one.” 54 Md. App. at 286 . ⁷³³ Despite the narrow limits of judicial discretion in this context, it nevertheless does exist. "The trial judge in liberally permitting a broad scope of credibility inquiry must balance not only the waste of judicial time factor ... against the value of exploration, but must take particular care not to permit annoying, harassing, humiliating.and purely prejudicial attacks unrelated to credibility.” Reese v. State, supra, 54 Md. App. at 289-90 . Furthermore, even when cross-examination as to credibility is involved, the judge retains discretion to decide "whether the particular question posed is a proper one.” Cox v. State, supra, 51 Md. App. at 298 (Wilner, J., concurring).

Finally, in deciding a judge has erred in limiting cross-examination, we may consider whether the defendant has been prejudiced by the court’s ruling. Fletcher v. State, 50 Md. App. 349, 356-57 , 437 A.2d 901 (1981). In the case before us, the questions to which objections were sustained were in part without proper foundation (no showing was made or attempted as to Stuelant’s expertise as to the truthfulness of prostitutes); they were unduly broad; and some were argumentative. Thus, they were improper in form.

Moreover, the trial judge may well have concluded that they were designed to harass or humiliate the witness. And the prohibition of this particular line of questions, in addition to its bearing on the conservation of judicial time, was scarcely prejudicial to Smith. Defense counsel’s lengthy cross-examination of Stuelant had elicited much material bearing on her credibility, including numerous instances of prior inconsistent statements, her prior exchanges of sexual favors for money, and the fact that she had lied to public authorities in order to obtain welfare payments while she was employed. We do not think Judge Latham erred in sustaining objections to the questions now before us.

Smith also contends that his cross-examination of Charles Stroman was impermissibly limited. Stroman, it will be recalled, drove the taxicab in which Stuelant was conveyed to Smith’s abode. He was waiting in the wings when Stuelant and Smith emerged from the house after their ⁷³⁴ unproductive forty-minute encounter. He testified for the State, and in several respects substantiated Stuelant’s version of the facts.

During cross-examination, Stroman admitted that he knew Stuelant and that he had given her rides before. He denied knowledge of who her employer was, did not know the nature of her work, and did not know her as a prostitute. He testified that he did not get a percentage of her earnings. He was asked: Q. You are aware that it is against the law to transport a woman across state lines for immoral purposes?

An objection to this question was sustained. According to Smith, this ruling was improper because "[h]ad Stroman admitted awareness that driving Stuelant between the District of Columbia and Maryland was a crime, it would have raised an inference that a major portion of his testimony was a self-serving lie.” We disagree. In addition to other possible defects, the question was too broad. It is "knowing” interstate transportation for immoral purposes, not the mere fact of such transportation, that is proscribed. 18 U.S.C. §§ 2421-2422 .

Judge Latham did not err in sustaining the objection to this question. Prejudicial Comments About Defense Testimony As we have noted, the police response to the Smith residence following the final struggle between Smith and Stuelant was massive. Fifteen to twenty officers and numerous vehicles arrived. The Smiths were forced to come out of their homes at rifle-point, and were, according to their testimony, especially that of Mrs. Smith (appellant’s mother) treated with something less than courtesy.