Stevenson v. State

⁷¹⁹ MOTZ, Judge. Appellant Earl Godfrey Stevenson was tried and convicted by a jury in the Circuit Court for Anne Arundel County (Goudy, J. presiding) of second-degree rape and lesser included offenses. The trial court merged the lesser included offenses into the rape conviction and imposed a 15 year sentence, with all but seven years suspended and gave appellant credit for 52 days already served. The court then imposed an identical concurrent sentence upon appellant’s plea of guilty to the charge of battery upon the same victim occurring at an earlier date.

On appeal, appellant raises the following questions: 1. Did the trial court err in restricting the impeachment of the complaining witness? 2. Did the trial court err in admitting evidence of a battery by appellant upon the complaining witness ten months prior to the incident for which he was on trial? 3. Did the trial court err in permitting the prosecutor to argue the law in closing argument? 4.

Did the trial court err in refusing to advise the complaining witness that, as appellant’s wife, she possessed a privilege not to testify against him? (i) The complaining witness, Merchal Stevenson, had been married to appellant for 10 years. They separated in October, 1989. Ms. Stevenson testified that from that time on she wanted appellant out of her life, and even though she changed the locks on their house, he would not leave her alone.

Rather, during the ensuing fifteen months, he frequently visited her at work, followed her around, and slept in a truck outside of their marital home. He constantly demanded that she have intercourse with him because the Bible required that of a wife. Finally, on January 12, 1991, appellant broke into her home, expressed a desire to resume their marriage, demanded that she have intercourse with him, and when she refused, raped her. Her testimony was then elicited as to an incident which occurred the previous ⁷²⁰ March, in which appellant broke into her home, implored her to have intercourse with him, and when she refused, battered her and cut her hair off with a butcher knife.

The admission of this evidence, and other evidentiary rulings by the circuit court, form the basis of this appeal. Further facts will be set forth within as necessary. (ii) Appellant claims that his right to impeach the victim was improperly restricted in several respects. We consider each impeachment question independently.

(a) The first concerns a tape recording that the, appellant apparently made of a conversation he had with Ms. Stevenson. The State claims that the issue is not preserved for review because appellant did not object to the circuit court’s ruling to exclude the evidence from the trial. At trial, before appellant attempted to question Ms. Stevenson about this conversation, appellant’s counsel, recognizing that the trial court might not allow the jury to hear the tape, requested a discussion in chambers. The court recessed until the following morning, at which time counsel for appellant and the State met with the judge in his chambers where the tape was played (a transcript of the tape has been provided to this Court).

The judge ruled that appellant could not “play this tape in front of this witness [Ms. Stevenson] and say ‘Is this what you said’ or parts thereof, and my ... I’m sustaining the objection.” Defense Counsel then said, “I understand, Your Honor, and if I can have an opportunity to continue cross examination.” The State claims that counsel’s response to the judge’s ruling amounted to a waiver of the issue now advanced on appeal, relying on Sims v. State, 319 Md. 540, 549 , 573 A.2d 1317 (1990), and Johnson v. State, 310 Md. 681, 685-89 , 531 A.2d 675 (1987). The State’s reliance on these cases is misplaced. Both Sims and Johnson address the failure to object to jury instructions, which ⁷²¹ is governed by Md.Rule 4-325.

Objections to evidentiary rulings are governed by Md.Rule 4-328. Defense counsel’s attempt to persuade the judge that this evidence was admissible was sufficient, under Md.Rule 4-823(c) to “makef ] known to the court the action that the party desires the court to take,” regardless of counsel’s acceptance of the judge’s ruling on the matter. See Dyson v. State, 328 Md. 490 , 615 A.2d 1182 (1992); Prout v. State, 311 Md. 348 , 535 A.2d 445 (1988). Although preserved for appellate review, appellant’s argument with regard to the tape recording is merit-less.

It is within the sound discretion of a trial court to determine whether extrinsic evidence of relevant matters should be admitted. Thus, in order to reverse the trial judge’s ruling on this matter, we must find an abuse of discretion. Harmony v. State, 88 Md.App. 306, 321-22 , 594 A.2d 1182 (1991). The proponent of evidence bears the responsibility of first establishing its admissibility; this was not done in the case at hand.

Appellant failed to demonstrate Ms. Stevenson’s consent to recordation of the conversation. In the absence of that consent, admission of the tape recording would have violated the Maryland Wiretap and Electronic Surveillance Law. Md.Code (1957, 1989 Repl.Vol., 1992 Cum.Supp.), § 10-401 through § 10-414, Cts. and Jud. Proceedings Art. Moreover, appellant does not cite any instances in which the tape recording is in any way contrary to Ms. Stevenson’s trial testimony.

The taped statements that appellant asserts are relevant to her credibility address the fact that Ms. Stevenson was sorry that appellant was “having to go through all this,” which was entirely consistent with her trial testimony. Accordingly, the circuit court did not abuse its discretion in excluding the tape recorded conversation, which seems to have been made without Ms. Stevenson’s knowledge or permission and in which she does not appear to have made any statement inconsistent with her trial testimony. ⁷²² (b) Appellant complains that the trial judge erred in preventing defense counsel from asking Ms. Stevenson two questions on cross examination. These questions were: “Do you recall telling Detective Guy that you had never contacted a lawyer?” “And did you tell Detective Guy that you only stayed at the residence when Mr. Stevenson was not at home?” In response, the State asserts that no proper foundation was laid and, even if it was, the questions were objectionable. “[Tjhere is no unvarying formula or ritual required for the establishment of a foundation to impeach.” Bane v. State, 73 Md.App. 135, 155, 533 A.2d 309 (1987) (quoting Devan v. State, 17 Md.App. 182, 193 , 300 A.2d 705 , cert. denied, 268 Md. 747 (1973)). The purpose of the foundation requirement is to allow a witness to reflect on the prior statement so that she can admit or deny it, and if necessary or desirable, explain it.

Hankins v. State, 80 Md.App. 647, 656-57 , 565 A.2d 686 (1989). “To impeach a witness with a prior oral inconsistent statement, the examiner must inform the witness of when, where, and to whom the statement was made, and of its substance.” Id. at 657 , 565 A.2d 686 . On a review of the record, it is not at all clear that appellant did lay a proper foundation for these questions. In any event, it was not error to sustain the prosecution’s objections to the questions. Although a witness may be impeached on matters likely to affect her credibility, “a witness may not be impeached by showing [s]he has made statements which contradict h[er] testimony in respect to facts that are collateral, irrelevant, or immaterial to the issues of the case.” Kantor v. Ash, 215 Md. 285, 290 , 137 A.2d 661 (1958).

Accord State v. Cox, 298 Md. 173, 178 , 468 A.2d 319 (1983). The questions objected to here involve whether Ms. Stevenson told a police detective that she had not contacted a lawyer about certain of her living arrangements. They were immaterial to the matter being litigated. To allow such cross-examination would only have obscured ⁷²³ the real issue involved in the case and needlessly confused the jury.

See Cox, 298 Md. at 178 , 468 A.2d 319 . (c) Appellant next argues that the trial judge erred in not allowing defense counsel to question a witness about whether Ms. Stevenson “drove down to the Commissioner’s office to post bail” for appellant Not only is it within the trial judge’s discretion to exclude such collateral evidence, but the evidence had been previously adduced at trial. Ms. Stevenson earlier admitted that she had driven to the Commissioner’s office with her friend to post bail for appellant. “Where competent evidence of a matter is received, no prejudice is sustained where other objected to evidence of the same matter is also received.” Jones v. State, 310 Md. 569, 589 , 530 A.2d 743 (1987), aff'd in part, sentence vacated, 486 U.S. 1050 , 108 S.Ct. 2815 , 100 L.Ed.2d 916 (1988). It follows then that where competent evidence of a matter is received, appellant sustains no prejudice when cumulative evidence of that matter is excluded.

(d) Appellant further complains that the trial judge should have allowed him to recall a witness. Whether a witness, after her examination has been completed, may be recalled, either to explain her original testimony, or to give additional testimony, is a matter resting solely in the discretion of the trial judge. Corens v. State, 185 Md. 561, 568 , 45 A.2d 340 (1946). See also Davenport v. State, 89 Md.App. 517, 521-522 , 598 A.2d 827 (1991).

It is clear from the record that the judge discussed the matter at length with counsel for the State and appellant’s counsel before deciding to refuse appellant’s request to recall the witness. It was well within the court’s discretion to refuse to allow the recall of the witness. (iii) The next error alleged by appellant is the admission of testimony by Ms. Stevenson of appellant’s battery of her 10 ⁷²⁴ months prior to the incident for which he was on trial. Ms. Stevenson testified that in March, 1990, appellant broke into the house, asked her to make love to him, to “render unto him” because she was his wife and the Bible said a woman should “render unto her husband.” When she refused to do so, appellant started scuffling and came at her with “a butcher knife” and cut off her shoulder length hair.

Originally, this earlier battery offense was to be tried with the rape offenses; however, after the jury had been chosen, but before the trial began, appellant pled guilty to the battery. Before considering the merits of this issue, we address the State’s contention that the matter is not preserved for review. Appellant objected ten times as the State began eliciting testimony from Ms. Stevenson concerning the previous event. After these objections, most of which were overruled, appellant stopped and did not request that a continuing objection be put on the record to the entire line of questioning.

In order to preserve this issue properly and fully, appellant should have made a continuing objection. On this record, however, even in the absence of such an objection, we are reluctant to find that appellant failed to preserve his objection to this testimony. The admission of the testimony as to the previous battery was, in any event, not error. Generally, evidence of other crimes is inadmissible if offered to prove that the accused is guilty of the crime for which he is on trial.

Harris v. State, 324 Md. 490, 496-97 , 597 A.2d 956 (1991). “Evidence of other crimes may be admitted, however, if it is substantially relevant to some contested issue in the case and if it is not offered to prove the defendant’s guilt based on propensity to commit crime or his character as a criminal.” State v. Faulkner, 314 Md. 630, 634 , 552 A.2d 896 (1989). Numerous specific exceptions to the other crimes rule have been recognized by our appellate courts, i.e., evidence that tends to establish motive, intent, absence of mistake, a common scheme or plan, identity, opportunity, preparation, or knowledge. Id. The Court of Appeals, however, has made it clear that these “recognized ‘excep ⁷²⁵ tions’ to the exclusionary rule are not exclusive.” Harris, 324 Md. at 501 , 597 A.2d 956 .

Here, appellant’s sole defense to the rape