White v. State

¹⁰⁴ BISHOP, Judge. Appellant Robert Armstrong White was convicted by a jury in the Circuit Court for Montgomery County, of first degree rape, robbery with a deadly weapon, burglary, and carrying a concealed weapon. He was sentenced for these convictions and an unrelated arson conviction to a term of life plus fifty years. Appellant raises the following issues: I. Did the trial court err by: A. Failing to suppress introduction of the pre-trial voice identification because appellant and his counsel were not present at an audio tape replay of the voice line-up; B. Limiting appellant’s cross-examination with reference to police visual line-up guidelines; C. Not allowing appellant to introduce the remainder of an article written by appellant’s voice identification expert, a portion of which the State read in the voir dire; and D. Limiting the scope of appellant’s voice identification expert’s testimony?

II

Did the trial court err in permitting a State rebuttal expert witness to testify after the expert was present in the courtroom during prior testimony, despite a general witness exclusion order?

III

Did the trial court err in allowing the prosecutor to read to the jury during closing argument from reported opinions of Maryland appellate courts? FACTS On May 15, 1984 the victim was accosted in her bedroom by an intruder who held a sharp object to her neck and ordered her to keep her head down. > The intruder proceeded to rob and rape the victim who was not able to see the intruder’s face during the approximately twenty minute ordeal, but did hear him speak extensively and was able to ¹⁰⁵ notice that he was wearing red sweat pants and white tennis shoes. Shortly after the victim reported the incident, appellant, wearing red sweat pants and white tennis shoes, was apprehended by police officers in the vicinity of the victim’s home. When he was approached by the police appellant gave his brother’s name, and, in a subsequent search, the police recovered a razor, a nail clipper, and a nunchaku 1 from appellant’s person.

On May 22, 1984 the police held a “live” voice line-up during which the victim narrowed her selection down to appellant and one other individual. Over two months later, on July 30, 1984, after listening to an audio tape of the voice line-up, the victim identified appellant’s voice as that of her assailant. Neither appellant nor his attorney was present at the audio tape replay. Pretrial, appellant unsuccessfully moved to suppress the results of the voice identification.

At trial, the State presented an audio-video tape of the voice line-up to the jury. Appellant presented a voice identification expert witness who was allowed to testify as to general standards to measure accuracy in voice identification. Appellant also presented an expert who testified that a sperm sample taken from the victim did not match a sperm sample given by appellant. The State presented expert rebuttal testimony on this issue.

I. Voice Identification Four issues are raised related to the pretrial voice identification. Appellant first asserts a right to counsel violation; second he alleges error in the trial court’s limitation of the ¹⁰⁶ scope of defense counsel’s cross-examination with reference to police visual line-up guidelines; third he claims the court erred in preventing the reading of a portion of an article read by the prosecutor during the voir dire of his voice identification expert; and fourth he alleges error in the trial court’s limitation of his voice identification expert’s testimony. A. Presence of Appellant and Counsel at Voice Line-up At the first of the two voice line-ups, with both appellant and his attorney present, five police officers and appellant stood behind the victim and each in turn read a series of threats which the assailant had used. Each participant also read a passage taken from the Washington Post.

The victim chose as possibilities the voices of appellant and one other participant. On July 30, 1984 at the audio tape replay, appellant or counsel not being present, the victim identified appellant’s voice as that of her assailant. Appellant, analogizing to post-indictment line-up cases, asserts that the absence of his attorney at the audio tape replay violated the right to counsel and further argues that the lack of his presence at the “critical stage” of the replay violates fundamental fairness. For these reasons, appellant contends that the trial court should have suppressed the results of the voice identification procedure.

In our review of the denial of a pretrial suppression motion under Rule 4-252, we must consider the record of the suppression hearing only and not the record of the trial itself. Jackson v. State, 52 Md.App. 327, n. 5 , 449 A.2d 438 , cert. denied, 294 Md. 652 (1982). The State asserts that the absence of the defendant and the lack of counsel at the audio replay were not raised in the trial court. The State is partially correct.

Neither point was raised at the suppression hearing itself, but lack of counsel was raised in the written suppression motion. Although we will not consider the issue of whether appellant had a right to be present at ¹⁰⁷ the playing of the tape, Rule 1085, we will consider the right to counsel issue. Although appellant was not indicted before the “live” voice line-up he was indicted before the tape replay. The Sixth Amendment right to counsel attached at that time.

Kirby v. Illinois, 406 U.S. 682, 689-90 , 92 S.Ct. 1877, 1882 , 32 L.Ed.2d 411 (1972). The issue is whether the Sixth Amendment requires counsel to be present at the replaying of a taped voice line-up. Appellant cites out of state authority holding that a criminal defendant has a right to counsel during a voice line-up. Appellant also analogizes to post-indictment visual line-up cases which clearly set forth the rule that the Sixth Amendment requires counsel to be present at a visual line-up.

See Gilbert v. California, 388 U.S. 263, 272 , 87 S.Ct. 1951, 1956 , 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 236-37 , 87 S.Ct. 1926, 1937 , 18 L.Ed.2d 1149 (1967). The State analogizes to photo array cases where it is equally clear that there is no right to have counsel present at that pretrial procedure. See United States v. Ash, 413 U.S. 300, 321 , 93 S.Ct. 2568, 2579 , 37 L.Ed.2d 619 (1973). Two factors compelled the Supreme Court to require counsel’s presence at a visual line-up.

First, the trial-like confrontation between the victim and the defendant, Ash, 413 U.S. at 314 , 93 S.Ct. at 2576 ; Wade, 388 U.S. at 228-30 , 87 S.Ct. at 1932-34 , and second, line-up procedures could not be reproduced at trial for defense counsel to challenge them adequately, so counsel needed to be present to observe the actual procedure. Ash, 413 U.S. at 316 , 93 S.Ct. at 2577 ; Wade, 388 U.S. at 236-37 , 87 S.Ct. at 1937 . The absence of these two problems in the photo array context caused the Supreme Court not to require defense counsel’s presence in a post-indictment photo identification procedure. Ash, 413 U.S. at 317-21 , 93 S.Ct. at 2577-79 .

There are no post-Gilbert/Wade Maryland cases which deal with the right to counsel at a voice identification ¹⁰⁸ procedure. 2 A majority of other states and the federal courts have held that a criminal defendant has no right to have counsel present at a voice line-up procedure. 3 The issue presented to us here is not the right to counsel at the “live” voice line-up, but rather at the taped replay. The “live” voice line-up situation is arguably analogous to a “live” visual line-up. The taped replay of the voice line-up, however, is more analogous to a photo-array identification. See United States v. Otero-Hernandez, 418 F.Supp. 572 , ¹⁰⁹ 574-75 (M.D.F1.1976).

As in photo-array cases, the defendant is not present, so confrontation is not a problem, and the procedure is capable of exact repetition, so that defense counsel can later review it. Otero-Hernandez, 418 F.Supp. at 574-75 . See Ash, 413 U.S. at 317-18 , 93 S.Ct. at 2577 . As stated in United States v. Otero-Hernandez, The court observes that a tape recording, [of a voice line-up], like a photograph, has a degree of permanence which would permit counsel to effectively reconstruct the out-of-court session during a trial confrontation.

Any indication that the out-of-court procedure was suggestive of defendant or was otherwise conducted in an improper manner can be tested and resolved by adversary proceedings at trial. * * * * it * Accordingly, this court concludes that a voice spread is functionally equivalent to a photo spread rather than a line-up. Therefore, there is no constitutionally mandated requirement that defendant’s counsel be present or invited at the time such an out-of-court identification is made. 418 F.Supp. at 575 (citations omitted). We adopt the reasoning of United States v. OteroHernandez and hold that a criminal defendant has no right to have counsel present at a replay of a voice line-up. B. Exclusion of Evidence of Visual Line-Up Guidelines Montgomery County Detective Wayne Grant testified at trial about the procedure utilized in the pretrial voice identification.

During cross-examination appellant’s trial counsel asked: If you have been setting up a photographic line-up, do your regulations or training materials, in-service training materials indicate the number of individuals that should be in one of those line-ups? ¹¹⁰ The trial , court sustained the State’s objection based on lack of relevance. At the ensuing bench conference, the appellant’s counsel pursued the point: THE COURT: The guidelines have no bearing on whether or not it is a proper line-up. MS. KOVACH: [Appellant’s trial counsel]: No, but it is some background as to what the jury could use for a parameter.

THE COURT: The jury uses common sense. The jury observes what in fact happened. They are the ones that determine whether or not it was fair and whether or not she is accurate. In State v. Cox, 298 Md. 173 , 468 A.2d 319 (1983) the Court of Appeals stated: [C]ross-examination will not be permitted on matters that are immaterial or irrelevant to the issue being tried.

In this regard, the trial judge plays a significant role; for he must balance the probative value of an inquiry against the unfair prejudice that might inure to the witness. Otherwise, the inquiry can reduce itself to a discussion of collateral matters which will obscure the issue and lead to the fact finder’s confusion. 298 Md. at 179 , 468 A.2d 319 (citations omitted). Here, the judge acted within the broad discretion afforded him when he determined that evidence of police regulations regarding visual line-ups was irrelevant to the voice line-up issue. Appellant’s reliance on Bailey v. State, 63 Md.App. 594 , 493 A.2d 396 (1985) is not persuasive.

In Bailey this Court interpreted Eley v. State, 288 Md. 548 , 419 A.2d 384 (1980) to establish the proposition that a defendant may show that better evidence would have been available, if the State had followed normal procedures. 63 Md.App. at 609 , 493 A.2d 396 . Here, however, the “normal procedure” which the defendant sought to introduce did not pertain to the challenged voice identification, but rather to visual photographic line-ups. No “normal procedures” for voice identification were proffered, and, in fact, Detective Grant ¹¹¹ testified that specific guidelines for voice-identification did not exist. While it is arguable that standard photo line-up procedures might be somewhat analogous, their admission in this case was properly within the trial court’s discretion.

C. Exclusion of Remainder of Article Read at Voir Dire In the voir dire of appellant’s voice identification expert witness, Brian Kleper, the prosecutor read a passage from an article co-authored by the witness: Q. MR. DEAN: [The Assistant State’s Attorney] Well, would it be fair to say this statement: Finally it must be stressed that virtually all research on the oral perceptual approach to speaker identification has been carried out under laboratory conditions, a situation that makes it difficult to generalize to the forensic model. Is this a fair statement as well? A. Yes, sir.

If I am not mistaken, I believe that that is from an article that I wrote. % S]8 * -¡5 * ifi MR. DEAN: Okay. I object to any further testimony. THE COURT: I will allow it, on some limited testimony, with regard to certain factors.

Defense counsel unsuccessfully sought to introduce the remainder of the document the prosecutor read. Appellant contends that it was error to allow the prosecution to read part of a document to the jury and not allow appellant to introduce the balance of the document. The document, however, was not read to the jury as evidence, but in the voir dire qualifying Mr. Kleper. The “rule of completeness” therefore does not apply.

See Bowers v. State, 298 Md. 115, 132-35 , 468 A.2d 101 (1983). In addition, the issue is not properly preserved. There was no proffer of what the remaining portion of the document contained. With nothing either in the record or appellant’s brief to support factually a contrary conclusion, ¹¹² we must defer to the “reasonable discretion of the trial judge,” 298 Md. at 135, 468 A.2d 101 , not to allow the balance of the paragraph to be read.

D. Scope of the Testimony of Appellant’s Voice Identification Expert Witness Appellant does not challenge the reliability or suggestiveness of the voice identification on due process grounds, but argues that the trial court erred in precluding the scope of the testimony of Brian Kelper, the defense’s voice identification expert. The trial court allowed the expert to testify about general principles of voice identification, but did not allow proffered testimony as to specific defects of the voice identification procedure utilized in this case. The trial court allowed Mr. Kleper to testify generally as to voice identification, including a detailed listing of nine factors which affect its reliability. Appellant’s trial counsel then attempted to question Mr. Kleper as to specific problems with the voice line-up in this case and the proper administration of voice line-up procedures generally: From the standpoint of past research in this area for speaker identification, is there any variable that you use in — or would use factors in setting up this type of thing?

MR. DEAN: Objection. THE COURT: Sustained. Defense counsel continued to press the point at an ensuing bench conference: MS.

KOVACH: [Appellant’s counsel] Well, I was going to ask him, basically, revolving around voice lineup situations, what some of the hazards are in considering the factors that he has presently gone into. THE COURT: Well, I understood that those were all [the] hazards. MS. KOVACH: Well, they are all hazards, Your Honor.

No, but going into the specifics of some of the hazards, meaning the number of individuals who are in a particular ¹¹³ lineup. And how that affects the validity of the identification. THE COURT: Sustained. MR.

DEAN: Thank you. THE COURT: That is the jury’s determination. £ s}¡ sjc * sfc * MS. KOVACH: Would Your Honor allow me to go into, what is the scientific literature of the accuracy of voice identification? THE COURT: No, the reliability of this identification is a question for the jury, not something the witness can testify to.

The witness has testified, and may testify as to factors, which influenced an identification. The jury will hear the identification itself, the voices, on the tape, and they will be aware of the factors. So there is no need for him to tell them what they are. MS.

KOVACH: I know, but he could expound upon it a bit further. * * * * * * THE COURT: No, I will not permit that, because there have not been any tests regarding the Court’s identification of lineups, themselves. Subsequent cross-examination of Mr. Kleper revealed that he had no specific experience in analyzing, conducting or studying voice line-ups used in criminal investigations. In Stebbing v. State, 299 Md. 331 , 473 A.2d 903 , cert. denied, — U.S. —, 105 S.Ct. 276 , 83 L.Ed.2d 212 (1984) the Court of Appeals set forth the test for appellate review of exclusion of expert testimony. ‘[T]he admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal. It is well settled, however, that the trial court’s determination is reviewable on ap ¹¹⁴ peal, and may be reversed if founded on an error of law or some serious mistake, or if the trial court has clearly abused its discretion.’ ...

A trial judge has discretion to determine whether proffered opinion evidence of questionable relevance will be sufficiently helpful to the jury to justify an excursion into the subject through direct, cross and redirect. 299 Md. at 350 , 473 A.2d 903 , (quoting Raithel v. State, 280 Md. 291, 301 , 372 A.2d 1069 (1977)) (other citations omitted). We find that the trial judge was within his discretion in restricting Mr. Kleper’s expert testimony. Mr. Kleper was allowed to testify about factors which the jury could apply to the voice identification process used in this case. Since Mr. Kleper had no experience in applying his expert knowledge to voice line-ups, the trial court’s decision to allow the jury to hear only standards was not an abuse of discretion.

Appellant further contends that the trial court erred in ruling that an expert may not provide evidence which states an opinion on a question which must be answered by the jury. Expert opinion which will aid the trier of fact is admissible even on issues of “ultimate fact.” Cider Barrel Mobile Home v. Eader, 287 Md. 571, 584 , 414 A.2d 1246 (1980). The trial court’s statements to the contrary were in error. We, however, interpret the trial court’s desire to let the jury hear only the standards and apply them to reflect its finding that further expert testimony would not in fact have aided the jury.

Also, since there was evidence that no experiments have been performed on voice line-ups, there was no scientific basis for further expert testimony on this issue under the “scientific community” standard set forth in State v. Collins, 296 Md. 670, 680-81 , 464 A.2d 1028 (1983).

II

Sequestration of State’s Expert Witness At trial, appellant presented expert testimony that a sperm swabbing taken from the victim’s vagina after the ¹¹⁵ rape was inconsistent with a sperm sample provided by appellant. In rebuttal the State presented Dr. Dickman as an expert witness to refute the variance between the swabbing sample and the appellant’s sperm. Upon first learning of the State’s rebuttal expert, during the defense case, a bench conference occurred wherein defense counsel objected to the expert’s testimony based on violation of the sequestration order. The court overruled the objection.

Appellant’s counsel then proceeded with the defense case. Later, the State called Dr. Dickman to rebut the testimony of appellant’s expert. At a bench conference defense counsel objected: MS. KOVACH: Your Honor, I am going to object to the use of this witness, because I was [not] aware of the doctor’s name until today, or later yesterday afternoon, or whenever it was.

I did not get the proper notice as far as being able to talk to the witness or any report from this witness. THE COURT: Well, it is my understanding he just got the witness, and he did not know yours. Let us stop the game playing. I have not seen anything untoward by