State v. Collins

Digges, J., delivered the opinion of the Court. This appeal presents a classic constitutional issue— an individual’s right in a criminal case to be confronted by his accusers. Here, the deposition of the prosecution’s principal witness, David Sullivan, was admitted in evidence, over objection, even though it was conceded that the defendant had not received notice it was to be taken and consequently was not present during the interrogation. This witness was deposed after the Grand Jury of Anne Arundel County returned five indictments against John S. Collins, the appellee, charging him with the commission of criminal offenses related to violations of the bribery laws of this State (Maryland Code (1957, 1971 Repl.

Vol.) Art. 27, § 23). These cases were later removed to the Circuit Court for Washington County where they were consolidated and tried by Judge Rutledge, pre ⁷³ siding without a jury. Collins was found guilty and sentenced to imprisonment for two years on each indictment, the terms to run concurrently. On review, the Court of Special Appeals reversed these convictions and remanded the cases for new trials.

It was there held that the defendant’s right to be present and confront the witnesses against him as guaranteed by the provisions of Article 21 of the Declaration of Rights of the Maryland Constitution and the Sixth and Fourteenth Amendments of the United States Constitution had been violated. Collins v. State, 12 Md. App. 239 , 278 A. 2d 311 (1971). We granted the State’s petition for certiorari. The sole issue presented for our determination is whether the trial judge erred in receiving in evidence the deposition of David Sullivan, a member of the Board of License Commissioners for Anne Arundel County.

That board controls the licensing of establishments which sell alcoholic beverages and Collins, the defendant, was its legal counsel. The indictments here charge the defendant, individually and as the board’s attorney, with bribing and conspiring to bribe Sullivan and another board member to vote favorably on two liquor license applications. Following these indictments but before the cases were transferred, Judge Childs in the Circuit Court for Anne Arundel County, at the State’s instance, issued an ex parte order on July 11, 1969, directing that Sullivan be deposed three days later, provided Collins and his attorney were personally served by the sheriff with a copy of the motion and order. Maryland Rule 727 sets out the procedures for taking and using depositions in criminal cases. 1 The questioning was to be conducted ⁷⁴ at the North Arundel Hospital where Sullivan was a critically ill patient suffering from terminal cancer and had but a few days to live.

He died on August 2. Collins was not served with notice of the impending deposition as required by the court’s order, although his attorney was, and on July 14, at the request of the State, a new directive was issued that rescheduled the interrogation for July 19. This new order did not specify the necesity for service by the sheriff but only required that notice be mailed to the appellee at his home address and to the attorney at his office. The State’s Attorney mailed the notice as required by the court, however, the defendant was out of town and did not personally receive it until after the deposition was taken.

Sullivan was deposed on July 19 and though Collins was not present his counsel was. The attorney objected to the proceedings, insisting that his client was being deprived of his right to confrontation, a constitutional guarantee which only the defendant could waive. With this exception noted, he proceeded to cross-examine the witness. ⁷⁵ When these cases were tried on June 22, 1970, the State, after proving Sullivan had died, offered the deposition in evidence. Collins objected and argued that to allow Sullivan to speak through the deposition would strip him of his guaranteed right of confrontation as provided by both the Maryland Declaration of Rights and the United States Constitution.

At an evidentiary hearing on this issue, appellee testified that he had not heard of the July 19 deposition until the day after it was conducted. He explained that from July 11 to July 20 he was not even in Anne Arundel County but instead had piloted his private plane to Falls Church, Virginia, to visit his uncle and then flew directly to Rehoboth Beach, Delaware. Upon his return home on July 20, he found the unopened notice amongst his mail. The State did not refute this evidence but merely showed that in addition to sending the notice on July 14 it made several unsuccessful attempts to personally serve Collins.

Judge Rutledge overruled the objection and the deposition was received in evidence. The State contends that ruling was correct and the convictions should be affirmed. We reject this argument and instead agree with the Court of Special Appeals that the admission of the deposition violated the appellee’s constitutional rights. Article 21 of the Maryland Declaration of Rights guarantees a defendant in a criminal prosecution the right “to be confronted with the witnesses against him.” This fundamental safeguard is also secured by the Sixth Amendment of the Federal Constitution which was made applicable to the states through the Fourteenth Amendment.

Pointer v. Texas, 380 U. S. 400 , 13 L.Ed.2d 923 , 85 S. Ct. 1065 (1965); Franklin v. State, 239 Md. 645, 647 , 212 A. 2d 279 (1965). Both Rules 727 and 775 embody this basic constitutional tenet. Rule 727 is the authority in this State for permitting the use of depositions in criminal cases. Section b provides that: “If a deposition is taken at the instance of the State, the accused shall have the right to be present at the taking thereof . . .” (emphasis added).

This privilege is also incorporated in Rule 775 which deals with ⁷⁶ the right of an accused to be present at all vital stages of his trial. It states: “The accused shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided in this Rule. The accused shall have the right to be present at the taking of a deposition taken at the instance of the prosecution.” (Emphasis added.) The prerogative of the defendant to have his accusers confront him is a keystone to our concept of criminal justice — grounded on the unwavering belief that an individual should be afforded the opportunity to challenge the witnesses against him through cross-examination. “The power of cross-examination has been justly said to be one of the principal, as-it certainly is one of the most efficacious, tests, which the law has devised for the discovery of truth. By means of it the situation of the witness with respect to the parties, and to the subject of litigation, his interest, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description are all fully investigated and ascertained. ...

It is not easy for a witness, who is subjected to this test, to impose on a Court or jury; for however artful the fabrication of falsehood may be, it cannot embrace all the circumstances to which a cross-examination may be extended.” 1 Greenleaf, Law of Evidence, § 446 (16th ed. J. Wigmore 1899). This statement has long met with our approval. Fine v. Kolodny, 263 Md. 647, 653 , 284 A. 2d 409 (1971); Ridgeway, Inc. v. Seidman, 243 Md. 358, 364 , 221 A. 2d 393 (1966); Regester v. Regester, 104 Md. 1, 10-11 , 64 A. ⁷⁷ 286 (1906).

A similar view was recently reiterated by Mr. Justice Marshall, speaking for the Supreme Court, in Barber v. Page, 390 U. S. 719, 721 , 20 L.Ed.2d 255 , 88 S. Ct. 1318 (1968) where he said: “Many years ago this Court stated that ‘ [t]he primary object of the [Confrontation Clause of the Sixth Amendment] . . . was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.’ Mattox v. United States, 156 U. S. 237, 242-243 , 39 L. Ed. 409, 411 , 15 S. Ct. 337 (1895). More recently, in holding the Sixth Amendment right of confrontation applicable to the States through the Fourteenth Amendment, this Court said, ‘There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.’ Pointer v. Texas, 380 U. S. 400, 405 , 13 L.Ed.2d 923, 927 , 85 S. Ct. 1065 (1965).” As positive as this mandate is, we acknowledge that traditionally there are limited exceptions to the confrontation requirement. That right was analyzed by this Court in Jones v. State, 205 Md. 528, 533 , 109 A. 2d 732 (1954) where we quoted the statement of Mr. Justice Cardozo for the Supreme Court in Snyder v. Massachusetts, 291 U. S. 97, 107 , 78 L. Ed. 674 , 54 S. Ct. 330 (1934): ⁷⁸ “ ‘Nor has the privilege of confrontation at any time been without recognized exceptions, as for instance dying declarations or documentary . evidence. * * * The exceptions are not even static, but may be enlarged from time to time if there is no material departure from the reason of the general rule.’ ” But these aberrations have only been permitted after close scrutiny has disclosed that this type of evidence is both necessary and so intrinsically reliable that it need not be subjected to the rigors of cross-examination. 2 Likewise, the right of confrontation is generally not violated when the accused has been given a prior opportunity to cross-examine the witnesses whose testimony is to be used against him. Contee v. State, 229 Md. 486 , 184 A. 2d 823 (1962), cert. denied, 374 U. S. 841 (1963).

(Testimony from first trial, after reversal, was admissible at second trial when the witness was no longer competent.) It is clear that the admission of the deposition in evidence in this criminal proceeding is not permitted by any of the recognized exceptions to the right of confrontation. Therefore, to be