Standifur v. State

⁵⁷³ WEANT, Judge. On 16 November 1984 a Cecil County jury found appellant Larry Ramoun Standifur guilty of daytime housebreaking and theft over $300. Appellant’s motion for new trial was denied on 4 January 1985. The following questions are presented on appeal: 1.

Did the trial court err in admitting into evidence the extrajudicial statement of James Clyde Richard? 2. Was the trial court’s instruction regarding the inference to be drawn from Appellant’s possession of a stolen gun reversible error? For the reasons stated below, we reverse and remand for a new trial. Facts During the daytime hours on 2 September 1983, the home of Lynn and Dale Jackson was entered and several items were taken.

Mrs. Jackson testified that she locked the doors before she left for work in the morning; when she returned home the house had been broken into. At trial, Mr. Jackson identified a small shotgun, introduced by the State, as one of the items stolen from his house. This was the only missing item recovered by the police. Police investigating the breaking and entering discovered that, in addition to the kitchen door having been forced open, a reflector, originally located at the end of the driveway, had been knocked to the ground.

Investigation did not reveal when the marker had been displaced. The reflector was found to contain minute smears of a white and greenish substance, which investigators assumed to be paint. Police removed the substance from the reflector, but never analyzed it. Bruce Burkett testified that he had purchased Mr. Jackson’s shotgun from a man named Sly, whom he described as a stocky black man.

Burkett paid $75 for the gun and received a handwritten bill of sale from Sly. After he bought the gun, Burkett sold it to the Bel Air Gun Ex ⁵⁷⁴ change. When detectives who had recovered the gun from the Exchange interviewed him about the gun, Burkett gave them the bill of sale. Winfred Henderson testified that he was one of three men who committed the housebreaking.

He claimed that appellant and a man known as Colonel Henry were his accomplices. Henderson said that the three of them were out riding in his sister’s green and white van when they decided to commit a burglary. Breaking into the Jacksons’ house through the side door, they stole, among other things, several guns. Henderson identified the shotgun as one of the guns which they had stolen from the Jacksons’ house and had then sold to a man named Sly.

Henderson, contrary to Burkett, described Sly as a white man. Henderson claimed that it was actually Colonel Henry who sold the gun to Sly, but that all three alleged accomplices were present at the sale. Henderson, testifying as part of a plea agreement with the State, admitted that he would lie if it would help his situation, that it was not unusual for him to lie, and that he had lied to many people in the past. He also admitted telling the police he would tell them anything to save his own neck.

Henderson did clarify that he had never lied to the police, and on redirect he stated that when he said he would tell the police anything they wanted to know, he meant anything he knew about the burglary. He further stated that he never told the police he would tell them anything they wanted to hear. Henderson also admitted that he and appellant had had many confrontations in the past over appellant’s treatment of Henderson’s sister with whom appellant had lived for several years. Robert A. Faul, Maryland State Police, testified that he investigated the housebreaking.

The details of Faul’s testimony for the State appear later. For the defense, Trooper Faul testified that during his investigation he interviewed Mr. and Mrs. Jackson’s neighbors to determine whether they had seen anything take place at the time of the ⁵⁷⁵ break-in. One neighbor told Faul that on the day of the crime, she drove past the Jacksons’ house and observed a blue van parked in the driveway. She further observed two white males standing next to the van.

Appellant, a black man, testified that he did not remember exactly where he was on the day in question, but that he was either at work or at home. He denied any participation in the crime and stated that he could not identify the shotgun introduced by the State. He further denied ever being in possession of the gun or participating in the sale of the gun to Sly. Appellant testified that Henderson had lied about appellant’s participation in the crime because of differences the two had experienced in the past concerning appellant’s treatment of Henderson’s sister.

Appellant said that when he asked Henderson why he had lied about appellant’s involvement in the theft, Henderson told him it was because he did not want to go to jail. Appellant also claimed that Henderson told him that he would say anything to avoid going to jail. Extrajudicial Statement of James Clyde Richard In an evidentiary hearing during trial, the State sought to introduce the hearsay declaration of James Clyde Richard a/k/a “Sly.” Sly, as the trial court aptly noted, is on the fly; he cannot be found. The substance of Sly’s assertion was presented to the trial court in a proffer by the Assistant State’s Attorney: Basically, Your Honor, in a nutshell, the proffered testimony would be that when Trooper Faul, having traced down Sly through the fact that he had sold this gun to Mr. Burkett, when Trooper Faul interviewed Sly, Sly said he bought it from Colonel Henry; that when he bought it from Colonel Henry, Mr. Standifur, Mr. Henry and Mr. Henderson had driven up in a green and white VW van; that he paid Thirty Dollars to Mr. Henry for the purchase of this shotgun; and that at the time he did so, he suspected that it might be stolen.

He suspected that it was probably stolen because it was common knowledge ⁵⁷⁶ that these guys were breaking and entering to support their habit. Our examination of the record fleshes out the circumstances giving rise to Sly’s statement. Having learned from Burkett that the shotgun identified as belonging to the victim had been purchased by Burkett from Sly, Faul and several other police officers went to Sly’s apartment. When they arrived, Sly attempted to flee out the back doors but police stationed in the rear apprehended him and brought him back into the apartment.

There he told Trooper Faul that he thought he was going to be arrested for drug involvement and that he was a heroin addict. Only after Faul told Sly that he was there to discuss a gun did Sly agree to talk. Sly then told Faul that he had purchased the gun from Colonel Henry (one of appellant’s alleged accomplices) and that appellant had been present during the transaction. Later, Sly went with police to the station where he made a written statement to the effect that he had no knowledge that the gun was stolen.

As the evidentiary hearing continued, Trooper Faul took the stand. Faul testified that police efforts to locate Sly were unsuccessful. At no time was Trooper Faul asked by counsel or by the court about the substance of his conversation with Sly or about the circumstances surrounding the conversation. The content of Sly’s assertion was before the trial court only as a result of the State’s proffer (quoted above) of what Faul would relate.

Nor was Faul asked about the circumstances surrounding the subsequent taking of Sly’s conflicting written statement. The Assistant State’s Attorney had, however, previously told the trial judge that “by that time [arrival at the station] I think Sly had realized that he had possibly implicated himself on [a] receiving stolen property charge, because by the timé they got to the barracks his tune had changed to one of T bought it in good faith and I sold it in good faith.’ ” Over defense counsel’s objection, the trial court ruled the hearsay testimony admissible as a declaration against Sly’s penal interest — an admission of the possession of stolen goods. ⁵⁷⁷ 1. Preservation of Issue on Appeal We must initially resolve an important procedure issue: When an evidentiary ruling is made and objected to during the trial but at a hearing away from the jury, and the ruled upon evidence is then immediately presented to the jury without objection, is the issue presented there “tried and decided” by the lower court and thus preserved for our review within the meaning of Md.Rule 1085? 1 During the State’s case-in-chief, the Assistant State’s Attorney, anticipating a defense objection to the hearsay testimony he was about to introduce, approached the bench, described the testimony, and suggested that the court might wish to hear arguments. The court then sent the jury to lunch and proceeded with a full evidentiary hearing.

At the hearing’s conclusion, the judge ruled the out-of-court statement admissible. Defense counsel then initiated the following exchange: [DEFENSE COUNSEL]: Your Honor, if I may, I just want to be — if the Court’s going to make a decision, just note my objection and the reason. THE COURT: Go ahead. [DEFENSE COUNSEL]: I’m assuming— THE COURT: I’m going to permit it. [DEFENSE COUNSEL]: —the Court is going to permit the evidence. I would just again object, stating basically that I don’t feel the State has met the criteria to allow this evidence in.

And for that reason, I feel it should be excluded and not permissible. Having clearly objected to the court’s ruling on the hearsay question, defense counsel next requested that the hearsay testimony be limited to specific relevant statements. The court agreed to this separate request and the State’s Attorney indicated that he understood the limitation. When ⁵⁷⁸ the jury returned, Trooper Faul, who had also been questioned at the hearing, testified to the substance of the out-of-court statement as limited by the court and understood by counsel in the prior hearing.

On appeal, the State argues that the objection made to the evidentiary ruling at the hearing was waived because it was not renewed when Trooper Faul actually took the stand. Rule 1085 is the source of the requirement that for a question of admissibility of evidence to be preserved for appellate review, that testimony must generally have been objected to in the court below. See Lapelosa v. State, 44 Md.App. 202, 207 , 407 A.2d 786, 789 (1979). The rationale for this requirement is that a timely objection brings the issue to the trial court's attention immediately, enabling it to hear arguments and rule on the issue, thus preventing the trying of cases in a piecemeal fashion.

See Clayman v. Prince George’s County, 266 Md. 409, 416 , 292 A.2d 689, 693 (1972). In short, the timely objection requirement is imposed to ensure that this Court does not review an issue which has not been “tried and decided” below. There is no doubt but that counsel in the instant case objected. The timing of the objection is at issue.

The State analogizes the situation at bar to that of a grant or denial of a motion in limine, relying on Funkhouser v. State, 51 Md.App. 16 , 440 A.2d 1114 , cert. denied, 293 Md. 331 (1982). But there, this Court stated: [The grant or denial of a] motion in limine is not a ruling on evidence. It adds a procedural half step to the offer of evidence. It serves the useful purpose of raising and pointing out before trial, certain evidentiary rulings that the court may be called upon to make.

Id. at 24, 440 A.2d at 1119 (emphasis added). In Funkhouser , at a pretrial hearing on a motion in limine, defense counsel objected to the grant of the State’s motion to exclude certain evidence. On appeal, this Court found it important that defense counsel had made no proffer of just what the evidence would be, and further, that ⁵⁷⁹ “he made no attempt whatsoever to introduce the evidence at trial by way of a proffer out of the hearing of the jury ____” Id. at 24 , 440 A.2d at 1119 (emphasis added). Because none of the evidence the defense had desired to introduce was presented to the trial court for a ruling, there was nothing to review on appeal.

This Court concluded that the grant of the motion did not, in and of itself, preserve error. Id. at 24-25 , 440 A.2d at 1119 . In the instant case there is neither a motion in limine nor is there any similar motion. There is a ruling on evidence.

Unlike Funkhouser , we have a proffer, a full evidentiary hearing during trial, a firm ruling by the trial court, and a strenuous objection by defense counsel to that ruling. Nevertheless, appellee would have us require defense counsel to have immediately renewed his objection when the evidence was received by the jury because otherwise “one is left to guess what the trial court would have ruled in the face of a specific objection during Faul’s testimony.” This argument implies that the entire evidentiary hearing was for naught and that the trial court would have reversed its immediately preceding ruling on the very evidence it had just ruled admissible. We think this unlikely. It is a long-standing rule in Maryland that any objection to the admission of evidence is waived by the subsequent admission, without objection, of the same evidence at a later point in the proceedings.

See, e.g., Spriggs v. Levitt & Sons, Inc., 267 Md. 679, 682-83 , 298 A.2d 442, 444 (1973). This, of course, must be so for otherwise it would become the trial court’s burden to keep track of its previous rulings. It is also said that “cases are legion in the Court of Appeals to the effect that an objection must be made to each and every question, and that an objection prior to the time the questions are asked is insufficient to preserve the matter for appellate review.” Anderson v. State, 61 Md.App. 436, 460 , 487 A.2d 294, 306 (1985) (quoting Sutton v. State, 25 Md.App. 309, 316 , 334 A.2d 126, 130 (1975)). While we ⁵⁸⁰ believe the aforementioned cases correctly state the law in Maryland, we think the rule inapplicable to the facts of the case before us.

The prosecution here anticipated and preempted the logical moment for an objection to the “question” (meaning here the actual interrogatory addressed to the witness) by approaching the bench to initiate argument on the issue. When the evidentiary hearing had concluded with the trial court’s firm ruling against him, counsel objected strongly. To require another objection immediately would be pointless and would be tantamount to the reinstitution of the requirement that objecting counsel take formal exception to the overruling of their objections. Here we have one transaction — a proffer of evidence, a ruling, and an objection after which the prosecutor posed his question.

This is no different in substance from the scenario in which a question is asked, an objection is made, counsel approach and argue at the bench, the objection is overruled, and the same question is posed again to the witness. In that situation our review would certainly not be precluded by counsel’s failure to renew his objection to the repeated question, so long as the grounds argued on appeal were the same as those “tried and decided” by the trial court. 2 Here we are only missing the initial objection which was precluded by the circumstances. It is axiomatic that the law does not require the doing of a useless or futile thing, yet the State urges that we demand just that. We decline to do so.

Here the actual testimony was introduced immediately after the trial court ⁵⁸¹ ruled that it was admissible. The facts of this case do not present a situation where the trial court had a weekend, a day, or even an hour to reconsider his ruling. Had the facts of this case fallen within any of the latter hypothetical situations, we might well have been compelled to find that defense counsel’s failure to renew the objection was grounds for nonpreservation. Although it may have been prudent for defense counsel to re-object, under the circumstances we are convinced that he complied with the spirit and substance of the rule. 2.

Admissibility of Hearsay The admission of hearsay evidence in a criminal trial raises not only common law evidentiary questions, but also certain constitutional considerations. When exculpatory hearsay testimony of an unavailable declarant is introduced by the defense, the fourteenth amendment compels its admission when persuasive guarantees of trustworthiness are found and when exclusion, on the facts of the case, would deprive the defendant of a fair trial. See Chambers v. Mississippi, 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973); Foster v. State, 297 Md. 191 , 464 A.2d 986 (1983), cert. denied, 464 U.S. 1073 , 104 S.Ct. 985 , 79 L.Ed.2d 221 (1984). On the other hand, when the prosecution offers inculpatory hearsay, no such due process concerns exist on the part of the State.

In this latter situation, the defense