Spence v. State

COLE, Judge. Petitioner, Kelly Spence, was convicted in the Circuit Court for Baltimore City of robbery with a deadly weapon and common law burglary for an incident that occurred on January 30, 1986. On that date, some young men broke a basement window and entered the home of Lucille Rowe. Rowe testified that three young males attacked her in her home, locked her in a closet, ransacked her house, and stole jewelry, cash and her automobile.

She was unable to identify any of her attackers. Brian White, a friend of Spence’s, testified at trial that on January 31, 1986, Spence came to his home and left Ms. Rowe’s automobile. Spence was also attempting to sell some items of jewelry. White admitted that he also operated the vehicle.

One of the alleged accomplices, Vincent Cole, had pled guilty on April 30, 1987, to the same crimes perpetrated against Rowe and was sentenced to ten years, to be served consecutively to a life sentence he was then serving. The plea was accepted and the sentence imposed by the same judge who presided over Spence’s jury trial that began on May 19, 1987. Cole was called to testify as a State’s witness at Spence’s trial. At that point in the proceedings, Spence’s counsel, at a bench conference, voiced his concern ⁵²⁸ that Cole’s attorney was not present and that Cole had not yet been apprised of his fifth amendment rights.

The prosecutor’s response was, “He pled guilty, he faces — there is no self-incrimination. He is in no jeopardy forever.” During the bench conference with Cole, the judge, and both attorneys, Cole made it clear that he did not want to testify, that he wished to consult with his attorney, and that his testimony would be exculpatory as to Spence since he would testify that Spence was not with him when the crime was committed. The prosecutor indicated Cole would testify that Spence was not involved, but that his purpose for calling Cole was to get before the jury prior out-of-court statements Cole had made to police officers that, in fact, Spence was one of the perpetrators of the burglary and robbery of Mrs. Rowe. He also indicated that Cole may deny telling the police that Spence was involved.

The Assistant State’s Attorney represented that “there has been this tremendous change and he’s decided to take every tack he can, including fabricating, fabricating testimony as to what happened during the confession____” The State then requested that the court call Cole as a court’s witness since Cole was going to state that Spence was not with him when the crime was committed, and the prosecutor wanted to impeach that testimony. 1 When the court noted a possible perjury prosecution if Cole now testified that Spence was not involved, the prosecutor pointed out that Cole’s prior inconsistent statements about Spence’s involvement were not under oath, so the State could not charge Cole with perjury. Over defense ⁵²⁹ counsel’s objection, the court called Cole as a court’s witness and ordered, under threat of contempt, that Cole testify. Cole’s entire direct examination by the court was as follows: “BY THE COURT: Q Mr. Cole, did there come a time — First of all, do you know the Defendant here on trial? A Yes, I do.

Q Did there come a time on January 30th, 1986, at 9:30 that you had occasion to be at 419 North Rock Glen Road? A Me Myself? Q Yes. A Yes.

Q Would you tell the ladies and gentlemen of the jury who you were there with? A Arthur Johnson. Q Were you there with anyone else? A No. I wasn’t.

Q All right. Counsel.” The Assistant State’s Attorney repeatedly cross-examined Cole about statements he gave to various police officers. Cole admitted confessing to police officers, but denied that he told police that Spence was one of the perpetrators. He testified that the officers had asked him if he knew Kelly Spence, and he told them that he was acquainted with Spence, but did not tell police that Spence was one of his accomplices.

Over objection, the prosecutor also questioned Cole by reading from Detective Naylor’s typed notes of an oral statement allegedly given by Cole in which Cole acknowledged committing the crime with his brother, Johnson, and Spence. Cole contended that Naylor’s notes were inaccurate, and he denied that he told Naylor that his brother or Spence were involved. The State’s next witness, predictably, was Detective Naylor. Naylor was permitted to testify, over objection, to the conversations he had with Cole, wherein Cole acknowledged ⁵³⁰ committing the burglary and robbery of Mrs. Rowe and told Naylor that the other participants in the crime were his brother Jeffrey Cole, Tony Johnson, and Kelly Spence.

Spence appealed his convictions to the Court of Special Appeals. In an unreported opinion affirming the convictions, the intermediate appellate court held that Cole’s extrajudicial statements, including the incriminatory statements concerning Spence, were properly received into evidence for the purpose of impeaching Cole. It is obvious that the prosecutor’s sole reason for prevailing on the court to call Cole as a court’s witness was to get before the jury Cole’s extrajudicial hearsay statement implicating Spence. The prosecutor knew that Cole’s testimony would be exculpatory as to Spence.

The inescapable conclusion