Stanley v. State

HARRELL, Judge. Following a bench trial in the Circuit Court for Wicomico County, Larry D. Stanley was convicted of assault with intent to maim and carrying or wearing a deadly weapon. He was sentenced to respective terms of 15 years and three years, to be served consecutively. The latter sentence was suspended in favor of probation.

For the reasons discussed below, we shall vacate the conviction for assault with intent to maim and reverse the conviction for carrying or wearing a deadly weapon and vacate its accompanying sentence, and remand this case for further proceedings consistent with this opinion. ISSUES PRESENTED Appellant presents the following issues for our review, rephrased by us as: I. Whether the trial court properly admitted hearsay statements of the victim as an excited utterance. ⁵¹ II. Whether there was sufficient evidence adduced at trial to sustain appellant’s conviction for carrying or wearing a deadly weapon.

III

Whether there was sufficient evidence adduced at trial to sustain appellant’s conviction for assault with intent to maim.

IV

Whether the prosecutor’s remarks to a potential witness infringed upon appellant’s right to compulsory process so as to warrant the granting of a new trial. FACTS On 16 November 1995, appellant was arrested and subsequently charged with assault, battery, carrying or wearing a deadly weapon, and assault with intent to maim. Prior to appellant’s trial, the victim, in writing, allegedly informed the prosecutor that appellant was not her assailant on 16 November 1995 and was not responsible for her injuries. The prosecuting attorney allegedly approached the victim in the hallway outside of the courtroom and informed her that she would be prosecuted for perjury if she failed to testify truthfully. 1 At trial, Maryland State Trooper L. Edward White, Jr. testified that he responded to an emergency call in the Nokomis Avenue area of Salisbury, shortly before midnight on 16 November 1995.

As Trooper White approached the site of the alleged emergency, he found appellant and the victim walking together on a nearby street. Both had blood on their clothes. According to Trooper White, the victim was bruised, bloodied, upset, and crying. Trooper White and another responding ⁵² Maryland State Trooper separated appellant and the victim, and the victim was brought to an ambulance so that she could receive medical attention.

According to Trooper White, the victim remained upset and crying while in the ambulance. Trooper White testified, over the objection of defense counsel, that, while in the ambulance, the victim told him that she and appellant were involved in a fight, that appellant hit her with his fists, bit her ear, and cut her with a small penknife. The State called the victim to testify, but she was permitted to assert her Fifth Amendment privilege against self-incrimination when asked about the events of 16 November. The defense asked no questions of the victim and called no witnesses of its own.

The State also introduced evidence that the victim was transported to Peninsula Regional Medical Center where she was treated for a laceration and bruises to the head, three 2 cm stab wounds to the chest, as well as a jagged, 5 cm laceration to her ear, which required multiple sutures to close. DISCUSSION I. Appellant first contends that the statements the victim made in the ambulance to Trooper White should have been excluded at trial as hearsay. Hears ay, an out of court statement offered to prove the truth of the matter asserted therein, is generally inadmissible. Md. Rules 5-801(c); 5-802; Grzboski v. Bernheimer Leader Stores, 156 Md. 146, 147-48 , 143 A. 706 (1928); Cassidy v. State, 74 Md.App. 1, 7-8 , 536 A.2d 666 (1988).

The Maryland Rules, however, contain several exceptions to this general exclusionary rule, including one for excited utterances. Md. Rule 5-803(b)(2). Under the excited utterance exception, hearsay testimony is admissible when it is [a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. ⁵³ Id. Accordingly, the trial court ruled that the statement the victim made to Trooper White was admissible at trial pursuant to the excited utterance exception to the hearsay rule.

This Court will not reverse a trial court’s decision to admit testimony under the excited utterance exception unless the trial court abused its discretion in allowing that testimony. Johnson v. State, 63 Md.App. 485, 495 , 492 A.2d 1343 (1985); Moore v. State, 26 Md.App. 556, 566 , 338 A.2d 344 (1975). Because we are not persuaded that the trial court abused its discretion in admitting the hearsay statements of the victim through the testimony of Trooper White, we shall not reverse appellant’s convictions on this ground. We explain.

Hearsay is considered to be generally unreliable because the opponent does not have the opportunity to cross-examine the declarant. The fact-finder, therefore, is unable to evaluate the declarant’s perception, memory, sincerity, and narration. For these reasons, hearsay is generally inadmissible at trial. L. McLain, Maryland Evidence § 272 (1987).

Although the above problems still exist when a declarant makes an out-of-court statement resulting from, and relating to, an exciting or traumatic event, an excited utterance is made at a time when the stress of the event suspends the declarant’s powers of reflection and fabrication. McCormick on Evidence § 272 (4th ed.1992). For this reason, the utterance is considered to be more reliable and, therefore, admissible. The theory of the reliability of an excited utterance is aptly explained by Professor Wigmore: This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock.

Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by ⁵⁴ reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts. Wigmore, Evidence § 1747, (Tillers rev.1983). In Maryland, hearsay statements are generally admissible if made while the declarant is emotionally engulfed by an exciting or traumatic event that produces a spontaneous and instinctive reaction to the situation. Dennis v. State, 105 Md.App. 687 , 661 A.2d 175 (1995), cert. denied, 340 Md. 500 , 667 A.2d 341 (1995); Harmony v. State, 88 Md.App. 306, 319 , 594 A.2d 1182 (1991); Deloso v. State, 37 Md.App. 101, 106 , 376 A.2d 873 (1977); Smith v. State, 6 Md.App. 581, 587 , 252 A.2d 277 (1969).

Appellant contends that the statements the victim made to Trooper White in the ambulance should have been excluded because the record does not disclose with specificity the amount of time that elapsed between the alleged attack and her statements that Trooper White testified to at trial. We do not find this argument persuasive. This Court has previously held that, while the proximity in time between the underlying exciting or traumatic event and related utterance is an important factor in determining the admissibility of that statement, it is not determinative. Honick v. Walden, 10 Md.App. 714, 717 , 272 A.2d 406 (1971).

In the instant matter, the trial record does not disclose the specific amount of time that elapsed between the event that caused the victim’s excited utterance and her related statement to Trooper White. Nonetheless, our review of the record indicates that the time lapse was not so great so as to make the utterance presumptively unreliable. Although there is no absolute limit on the amount of time that may elapse between an utterance that will be admissible at trial and the corresponding exciting event, the utterance becomes less reliable as time passes. Our previous decisions indicate that four-and-one-half to five hours may represent the outer limit of time that may elapse between the exciting event ⁵⁵ and an admissible utterance.

Cassidy v. State, 74 Md.App. 1, 21 , 536 A.2d 666 (1988). The record in the instant case demonstrates that the victim’s hearsay statements were made within the time frame of increased trustworthiness discussed in Cassidy for two reasons. First, the testimony of Trooper White indicates that the actual assault on the victim probably occurred within an hour of the victim’s statements to Trooper White in the ambulance. Second, the exciting event which caused the victim’s statements to Trooper White continued until a few minutes before the excited utterance was made.

Trooper White testified that he had occasion to respond to the area in which he found appellant and the victim based on an emergency call he received “right before midnight.” He further testified that, based on the information he received, he believed that the emergency call referred to the alleged altercation between the victim and appellant. During the intervening period between the time Trooper White received the emergency call and the time of the victim’s utterance, the troopers responded to the scene, appellant and the victim were separated, and the victim received emergency medical care. After giving her statement to Trooper White, the victim was transported to Peninsula Regional Medical Center. The record specifies that the victim was registered there at 12:07 a.m.

The time frame established by Trooper White’s testimony demonstrates that the victim’s statements in the ambulance necessarily did not occur so far after the exciting event so as to be presumptively unreliable. The ongoing nature of the exciting event also demonstrates that the statement the victim made to Trooper White was not presumptively unreliable due to an extended passage of time. The victim’s excited utterance was made after the cessation of the exciting and traumatic event, appellant’s alleged accosting of the victim. Trooper White testified that, when he encountered the victim, she was bloodied, bruised, upset, crying, and required medical attention.

She was also in the company of her alleged assailant. The traumatic and exciting event remained ongoing at least until the victim was separated from appellant, and perhaps continued further. When the victim ⁵⁶ made her statements to Trooper White, she had been physically separated from appellant for only a matter of minutes. Nevertheless, the victim, while undergoing medical treatment in the ambulance, could see appellant standing just outside.

Trooper White testified that the victim remained upset and crying while she received medical attention. Based on the foregoing, we agree with the trial court’s conclusion that the victim’s statements relating to the exciting event she had just experienced, i.e. her altercation with appellant, were made while she was still under the stress and excitement of that event.

II

Appellant next argues that the evidence presented at trial was insufficient to sustain his conviction for carrying and wearing a deadly weapon. On appeal, the State concedes that it failed to meet its burden of proof at trial with respect to this offense. Because we agree that the State failed to prove, beyond a reasonable doubt, that appellant was carrying or wearing a deadly weapon we shall reverse appellant’s conviction on this charge. Pursuant to Md. Ann.Code art. 27 § 36(a)(1) [ejvery person who shall wear or carry any dirk knife, bowie knife, switchblade knife, star knife, sandclub, metal knuckles, razor, nunchaku, or any other dangerous or deadly weapon of any kind, whatsoever (penknives without switchblade and handguns, excepted) concealed upon or about his person ... shall be guilty of a misdemeanor, and upon conviction, shall be fined not more than $1,000 or be imprisoned in jail, or sentenced to the Maryland Department of Correction for not more than three years.

(1996 Repl.Vol.)(emphasis supplied). In order to convict an accused for carrying or wearing a deadly weapon under the statute, the State must prove, beyond a reasonable doubt, that the purported deadly weapon did not fall within the statute’s penknife exception. Anderson v. State, 328 Md. 426, 433-34 , 614 A.2d 963 (1992); Washington v. State, 293 Md. 465, 475 , ⁵⁷ 445 A.2d 684 (1982). The record before us indicates that a knife was involved, but the State presented no evidence to demonstrate the type of knife used.

Rather, the only evidence introduced at trial indicated that the knife was a penknife. Trooper White testified that the victim told him that appellant “had a small penknife.” The State offered no evidence to contradict this testimony. Because the State failed to prove beyond a reasonable doubt that the knife used in this attack did not fall within the statutory exception for penknives, we shall reverse appellant’s conviction for carrying or wearing a deadly weapon and vacate his sentence for that offense. Appellant further contends that, because a reversal of his conviction for carrying or wearing a deadly weapon is warranted, his sentence of fifteen years for assault with intent to maim should also be vacated and remanded to the trial court for resentencing.

Because the trial judge chose to suspend his sentence for carrying or wearing a deadly weapon in favor of probation, appellant contends part of his 15 year term might have been suspended, absent the deadly weapon conviction. Neither the trial court record nor Maryland law supports appellant’s contentions. As we noted in Wink v. State, probation is a matter of grace, not an entitlement. 76 Md.App. 677, 682 , 547 A.2d 1122 (1988), aff'd, 317 Md. 330 , 563 A.2d 414 (1989). Simply put, appellant is not entitled to probation for one count simply because it had been granted for another