State v. Booze

ROBERT M. BELL, Judge. The issue presented in this case requires us once again to test the limits of a trial court’s discretion to permit the State to reopen its case in chief at the rebuttal stage of the trial. The Circuit Court for Baltimore City permitted the State to reopen its case at that stage of the trial to present the testimony of a witness, about whom, including the contents of his testimony, it was aware before it closed its case. At the instance of the respondents, Donald Eugene Booze, Jr. and Allen Shelton Snead, the Court of Special Appeals held that ruling to be an abuse of discretion; consequently, that court reversed.

Booze v. State, 94 Md.App. 331 , 617 A.2d 642 (1993). Having granted the State’s petition for writ of certio ⁶⁷ rari to review that decision, 330 Md. 458 , 624 A.2d 954 (1993), we shall affirm. I. [A]n orderly conducted criminal trial anticipates the State adducing all of its evidence in chief and resting its case. The defense follows by producing its evidence tending to establish the accused’s nonculpability, which includes the contradiction or rebuttal of the evidence offered by the State.

Then the State is afforded an opportunity to produce its rebuttal evidence. Mayson v. State, 238 Md. 283, 288-89 , 208 A.2d 599, 602 (1965). The rationale for this procedure was enunciated much earlier: The observance of fixed rules upon the subject [of the orderly manner in which parties are required to introduce their evidence in support of the issues to be tried] is of great importance, not only as a means of avoiding confusion, but to the fair administration of justice. Much of course depends upon the form of the issues joined, and upon whom the onus rests.

The parties must not be allowed to break up the evidence they may intend to offer on any particular issue, and introduce it at different stages of the cause in piecemeals, as the- varying emergencies of the case may seem to require. Such practice would not only greatly prolong trials, but would frequently lead to surprise and injustice. According to the well established practice, the plaintiff, having the right to begin, must put in the whole of his evidence upon every point or issue which he opens, and the defendant then puts in evidence his entire case; and in reply the plaintiff is limited to such new points and questions as may be first opened by the defendant’s evidence. From this general rule there may be departures to meet the requirements of particular cases; but the entire question, as to the mere order of proof, and under what circumstances evidence should be admitted or rejected when offered out of the proper order, in the absence of some positive rule of ⁶⁸ court upon the subject, must be allowed to rest upon the discretion of the court directing the trial, as the tribunal best qualified to judge what the justice of the case may require in these respects....

Bannon v. Warfield, 42 Md. 22, 39 (1875) (citations omitted). See Mayson, 238 Md. at 288-89 , 208 A.2d at 602 . See also Baltimore, C & A Railway Company v. Moon, 118 Md. 380, 393 , 84 A. 536, 540 (1912). It is well-settled that trial courts are vested with broad discretion in the conduct of trials, Hunt v. State, 321 Md. 387, 405 , 583 A.2d 218, 227 (1990), cert. denied, — U.S.-, 112 S.Ct. 117 , 116 L.Ed.2d 86 (1991); McCray v. State, 305 Md. 126, 133 , 501 A.2d 856, 860 (1985); Fleming v. Prince George’s County, 277 Md. 655, 679 , 358 A.2d 892, 905 (1976), including in two areas that are relevant to the resolution of the case sub judice.

In the usual case, what constitutes rebuttal testimony rests within the sound discretion of the trial court, Thomas v. State, 301 Md. 294, 309 , 483 A.2d 6, 14 (1984), cert. denied, 470 U.S. 1088 , 105 S.Ct. 1856 , 85 L.Ed.2d 153 (1985); Huffington v. State, 295 Md. 1, 14 , 452 A.2d 1211, 1217 (1982); State v. Hepple, 279 Md. 265, 270 , 368 A.2d 445, 449 (1977); Mayson, 238 Md. at 288-89 , 208 A.2d at 602 ; Lane v. State, 226 Md. 81, 90 , 172 A.2d 400, 405 (1961), cert. denied, 368 U.S. 993 , 82 S.Ct. 611 , 7 L.Ed.2d.529 (1962), whose ruling may be reversed only when it constitutes an abuse of discretion, i.e., it has been shown to be both “manifestly and substantially injurious.” Mayson, 238 Md. at 289 , 208 A.2d at 602 . See State v. Hepple, 279 Md. at 270 , 368 A.2d at 449 ; Kaefer v. State, 143 Md. 151, 160 , 122 A. 30, 33 (1923); 2 Poe, Pleading and Practice § 287, at 249 (Tiffany ed. 1925). The decision whether to vary the prescribed customary order of proof is a matter that is also addressed to the trial court’s discretion. State v. Hepple, 279 Md. at 270 , 368 A.2d at 449 ; Snowhite v. State Use of Tennant, 243 Md. 291, 306 , 221 A.2d 342, 351 (1966); Mayson, 238 Md. at 289 , 208 A.2d at 602 ; Lane, 226 Md. at 90 , 172 A.2d at 405 ; Baltimore C & A Railway v. Moon, 118 Md. at 393 , 84 A. at 540 ; Bannon, 42 ⁶⁹ Md. at 39.

See Wigmore, Evidence § 1867, at 655-660 (6th ed. 1976). Thus, after it has rested, a trial court may permit the State to reopen its case, at the rebuttal, or other, stage of trial, and admit evidence which more properly should have been adduced in the State’s case in chief. State v. Hepple, 279 Md. at 271 , 368 A.2d at 449 . That action will not constitute an abuse of discretion “so long as [it] does not impair the ability of the defendant to answer and otherwise receive a fair trial.” Id. at 270 , 368 A.2d at 449 .

The two discretions — to determine what evidence is rebuttal evidence and to vary the order of proof — are separate and distinct. Hepple v. State, 31 Md.App. 525, 534 , 358 A.2d 283, 290 (1976), aff'd, State v. Hepple, 279 Md. 265 , 368 A.2d 445 (1977). And the factors that inform their exercise are also materially different. With regard to the latter, the judge must consider whether the State deliberately withheld the evidence proffered in order to have it presented at such time as to obtain an unfair advantage by its impact on the trier of facts.

To this end the judge must see whether the proposed evidence is merely cumulative to, or corroborative of, that already offered in chief or whether it is important or essential to a conviction. Id. Other factors which have been identified as important to the assessment of the propriety of the trial court’s exercise of discretion to vary the order of proof include: Whether good cause is shown; whether the new evidence is significant; whether the jury would be likely to give undue emphasis, prejudicing the party against whom it is offered; whether the evidence is controversial in nature; and, whether the reopening is at the request of the jury or a party. Dyson v. State, 328 Md. 490, 502 , 615 A.2d 1182, 1188 (1992), citing State v. Thomas, 179 W.Va. 811 , 374 S.E.2d 719, 722 (1988). 1 Moreover, there is merit to having a predictable trial ⁷⁰ pattern, People v. Olsen, 34 N.Y.2d 349 , 357 N.Y.S.2d 487, 489-92 , 313 N.E.2d 782, 784-85 (1974); “the presentation of evidence must come to an end at some time, and the parties must be forewarned that the desirability of maintaining an orderly trial process militates strongly against receiving evidence” out of turn.

Dyson, 328 Md. at 503 , 615 A.2d at 1188 . Furthermore, “[a] premium must necessarily be placed on preparation and diligence.” Id. The proper inquiry with respect to rebuttal evidence is “whether the evidence explains, or is a direct reply to, or a contradiction of, any new matter that has been brought into the case by the accused.” Hepple v. State, 31 Md.App. at 534 , 358 A.2d at 290 . No matter how much discretion a court may have to vary the order of proof or to admit rebuttal evidence, a court may not exercise either discretion interchangeably with the other.

In other words, to uphold an exercise of discretion by the trial court, it must be clear that the trial court was indeed exercising the particular discretion it purported to exercise. Huffington v. State, 295 Md. 1, 15 , 452 A.2d 1211, 1217 (1982); Mays v. State, 283 Md. 548, 553-55 , 391 A.2d 429, 431 (1978). As we have seen, the normal rule “is that the plaintiff will be required to go fully into his own case-in-chief on [those] issues as to which he holds the substantial affirmative, and where, therefore, the burden of proof rests on him; and hence, in reply to the case made by the defendant, he will ordinarily be limited to what is strictly rebutting evidence,” Poe, supra, § 287, at 249 (footnote omitted), but that there are exceptions necessitated by the requirements of particular cases. Id.

Those exceptions should truly be extraordinary; the trial court should be reluctant to grant reopenings. Dyson, 328 Md. at 502-03 , 615 A.2d at 1188 ; United States v. Billingsley, 474 F.2d 63, 67 (6th Cir.), cert. denied, 414 U.S. 819 , 94 S.Ct. 42 , 38 L.Ed.2d 51 (1973). This is so because “of the desirability of maintaining an orderly trial” and “the very strong probability” that the trier of fact will give undue emphasis or ⁷¹ prominence to evidence offered on reopening at the rebuttal stage of trial. Dyson, 328 Md. at 503 , 615 A.2d at 1188 .

II

The respondents were charged with the murders of Antonio Brandon Henderson and Isaac Durant and related offenses. Notwithstanding that the State was required to disclose, without request, “pretrial identification of the defendant by a witness for the State,” Maryland Rule 4-263(a), on the day before the scheduled trial date, the State had disclosed only that it would furnish those witnesses at a later date. The respondents, thereupon, filed a motion to compel discovery. Following a hearing conducted by the judge in charge of criminal matters, the State was ordered to disclose the names of its pretrial identification witnesses to the respondents’ counsel, but not to the respondents. 2 In pretrial proceedings, conducted before the trial court over the next three days, defense counsel interviewed the State’s identification witnesses.

Trial began on November 21, 1991. The State’s case lasted until November 25, 1991. Three of the State’s witnesses placed each of the respondents in possession of a handgun. Two of those witnesses, Michael Brooks and Jaquetta Jones, testified to seeing the respondents fire those guns.

Indeed, Miss Jones said that she saw each respondent fire two shots. The third witness, Dante Jones, said that he saw each respondent with a gun and heard shots, but denied seeing the respondents fire their weapons. Another State’s witness, Officer Constantine, testified to encountering the respondent Snead fleeing from the area of the shooting and to hearing, at that time, gun shots coming from the direction from which Snead was running. ⁷² After the State rested its case, the respondent Booze also rested; however, the respondent Snead called two witnesses. The theory of Snead’s defense was that the respondents were fleeing from a gun battle in which they were in no way involved.

One of Snead’s witnesses, Catherine Bennett, testified that she saw Snead running after hearing gunshots. She also testified that the gunshots were being fired at the respondent Snead. His other witness, Laurie Ward, stated that she was with the respondents when the shooting started. She denied that either respondent had a gun.

Snead’s theory of defense, which applied equally to Booze, was, of course, supported by Officer Constantine’s testimony. The State presented a rebuttal case. One of its rebuttal witnesses was Perry S. Knight, the nephew of one of the victims. When it became apparent that Knight was an eyewitness to the shooting, the respondents objected, arguing that his testimony was not proper rebuttal evidence.

The State’s response was that Knight’s testimony, because it accounted for the gunshots that were fired while the respondents were running from the scene, directly rebutted the defense theory that the respondents were fleeing from a gun battle in which they were not involved. Having discovered that the State learned of Knight prior to closing its case — Knight’s statement was dated November 21 — the court accepted that, to the extent that his testimony explained the source of the gunfire from which the respondents were fleeing, it was proper rebuttal; however, it was concerned about the rest of his testimony. As to that, the court determined that “it was not proper rebuttal because it is direct — it is evidence you should have put on in your case-in-chief.” As to why the State offered that testimony in rebuttal, as opposed to in its case-in-chief, and the court’s reaction to that explanation, the following colloquy is revealing: [The Prosecutor]: Your Honor, because I needed — I—I had to see — see, I could tell by the way they were putting on their defense that they were going to try to say that there was a gun battle going up the street and that that— The Court: I understand that,— ⁷³ [The Prosecutor]: But I was not— The Court: —but this witness— [The Prosecutor]: But I was not sure so I had to wait to see that that was their defense. The Court: Oh, come on now.

The Court: You have got to be pretty thick— It having been determined that Knight’s testimony was not proper rebuttal, for the most part, 3 the State requested, at the trial court’s suggestion, that its case be reopened. The court granted its motion even though the court believed that the State “should have ... put him on as part of your case — which was closed today” and that “it was a terrible mistake in judgment of you to hold him back until the end of the trial.” When defense counsel, objecting to the ruling, asked why the State should be allowed to reopen its case, the court replied, “[b]ecause they are. I mean, I can use my discretion — I think [the prosecutor] used bad judgment by springing it this way instead of putting it on as a part of [her] case-in-chief.” Later, it also mused, “Now the next question is do you deny the State the right to call a witness because a witness was not called and the soonest he would have been would have been this morning before the rebuttal witnesses — I mean, before the defense witnesses that you produced,” noting that the amount of prejudice under the circumstances was considerably less than it could have been had the evidence been offered after a lengthy defense case. In this case, Knight’s testimony was presented on the same day that the State closed its case and after only two witnesses and two hours of defense testimony.

After further discussion, during which it referred to Mays, 283 Md. 548 , 391 A.2d 429 , as supportive of its position, the trial court observed: “the only critique I have of the State over this and it is not serious is that they should have put him on this morning before they closed their case and not waited ⁷⁴ until after one of the defendants made a defense.” On the other hand, the trial court quite candidly stated: Look. Their reasons are phony. I do not accept them. It is improper rebuttal and she is wrong and she should not have done it, but that does not mean that the jury has to be deprived of relevant evidence.

That is not the way to punish the State or the defense for that matter for not putting on the evidence when they should have.

III

In this case, we are not called on to determine whether the trial court, in fact, exercised its discretion to reopen the State’s case. The record is crystal clear in that regard, that the trial court purported to, and intended, to vary the order of proof — to reopen the State’s case. Indeed, the court recognized, early on, that the bulk of the testimony Knight would give was not rebuttal at all; rather, it was “direct” testimony which should have been offered in the State’s case-in-chief. In short, the court clearly recognized the distinction between exercising its discretion to determine what is rebuttal evidence and reopening the State’s case to receive evidence properly adducible in chief and purported to exercise the latter.

Thus, as the trial court recognized, this case is very much like Mays . That, however, does not end the inquiry. Whether the trial court abused its discretion in varying the order of proof was not an issue in Mays . Rather than the propriety of its exercise, the question addressed was whether the court, in fact, exercised its discretion to reopen the State’s case.

Whether, in varying the order of proof, a trial court abused its discretion must be determined from the totality of the circumstances. More particularly, the inquiry must be directed at determining whether, by permitting the State’s case to be reopened, the defendant’s ability to receive a fair trial has been impaired. This, in turn, requires consideration of the nature of the evidence, %.e., whether it is cumulative or ⁷⁵ corroborative of other evidence already adduced by the State in its case-in-chief, the reason for the timing of the offer of the evidence, and, of course, the effect of its late admission into evidence. Although aware, since the first day of trial, of Knight, an eyewitness to the murders, as well as the substance of his testimony, the State presented its case without that testimony, opting to hold it for rebuttal; the State intentionally chose to forego using Knight’s testimony in its case-in-chief for use later in the proceedings, in the event that the respondents offered a defense. 4 One of the respondents, Snead, did offer a defense, in which he took advantage of an aspect of the State’s case that was favorable to his defense, ie., Officer Constantine’s testimony that, when he encountered Snead fleeing the area, he heard gunshots coming from the same direction as Snead.

The State then sought to “spring” Knight’s testimony into the case as rebuttal evidence. The court recognized that, ⁷⁶ for the most part, the testimony was not rebuttal 5 ; it rejected any notion that, other than the establishment of the source of the