Williams v. State

Thompson, J., delivered the opinion of the Court. Harry Benson Williams complains of his convictions for possession and control of heroin by a jury sitting in the Criminal Court of Baltimore; concurrent sentences of five years were imposed. The basis for appellant’s complaint is that the trial judge committed reversible error by admitting irrelevant and prejudicial evidence at the behest of an over zealous prosecutor. We agree.

In order to put the case in proper perspective, a careful review of the testimony is required. Officer Robert Sharp testified that on May 25, 1970, he saw the appellant at about 4:40 p.m. walking south on the east side of the 1100 block of Pennsylvania Avenue in Baltimore. The officer testified that he was on routine patrol with Officer (now Detective) Thomas West and that, although both officers were in uniform, they were traveling in an unmarked radio car. At the time he observed the appellant, the latter was carrying a small carton of chocolate milk in his hand.

When the appellant got alongside of the vehicle he exclaimed “Oh, God damn!” and ³²³ started running eastbound through a vacant lot. “Once he was on the lot, the chocolate milk went, little carton went. Out came the bag and Harry started spitting on the bag.” The officer clarified that appellant pulled a “clear plastic baggy bag” containing white capsules from his coat pocket as he ran. After discarding the milk carton and spewing chocolate milk into the pouch, appellant dropped the pouch as he ran through the lot. The officer gave pursuit, stopping to grab the bag and apprehended him “a good block, maybe two” away.

The officer identified a proffered bag and 125 gelatin capsules, both stained with a brown material, as the pouch, and its contents, appellant had dropped. It was stipulated the capsules contained heroin hydrochloride. During the pursuit Officer Sharp had drawn his revolver because he had heard that appellant “was a shooter” and had been told that “Harry is not a man to cross.” He also “didn’t want any interference from the type of people that hang in that area.” A search of appellant’s person at the scene of his apprehension revealed neither narcotics nor a weapon; appellant was, however, in possession of $274 in U.S. currency. On cross-examination the officer stated that he got out of the car but didn’t immediately pursue the appellant until after he saw the bag; he had hesitated because 5 days earlier he and Officer West had arrested appellant and “I didn’t want to seem like I was harassing him.

Maybe this is what slowed me down.” He further testified that on the prior occasion, the officers had recovered about 1,000 capsules from Williams and another subject. He stated that his colleague, Officer West, did not directly pursue the appellant but came up to the scene while he was holding him. Under cross-examination Officer Sharp apologized that on direct he “was going a little too fast” and said that appellant pulled the pouch not from his coat but from his “right pants pocket.” Harry Benson Williams testified in his own behalf that immediately prior to his arrest he was on his way to see ³²⁴ his bail bondsman with $270 received from his mother and wife to pay on a debt. He testified that he had stopped at a grocery store “just to get some cookies” and was walking alone in the 110 [1100] block of Pennsylvania Avenue.

He was wearing a blue work uniform with a short sleeve shirt and no coat. He “heard this heavy noise coming up the street. I thought it was a fire engine. Light was going around.

So, I stopped and when I stopped, the car pulled up like it was coming up on the curb. I looked and I heard an officer say, ‘Come here, Harry.’ I looked at him. I seen a gun pointing at me like this. I turned to my left and started running ...

I kept on running until he shot.” He categorically denied having been in possession of the bag or the capsules, denied throwing anything on the ground, and denied that he had a container of chocolate milk. “When I finally stopped, the first thing the officer do, he searched me ... he started pushing me around a little bit, calling me a couple of names . . . T got you now, you bastard. . . . How the hell did you get out? I got your ass now.’ ” Another officer [West] arrived on the scene and a small crowd of people gathered. “. . .

The officer that fired the gun told the officer, ‘Harry don’t have nothing on him,’ so the [other] officer said, ‘Yeah,’ and went around the Avenue and come back up around through the lot and he come back up there with a bag.” West confronted appellant with the bag and when he denied having possession of it called him “a damn liar.” The appellant testified that about fifteen officers eventually searched the lot and in his presence “found a few daggers, a few guns, and some more narcotics.” The appellant testified that on May 20th, five days before his arrest for the instant offense, he had been arrested by the same two officers here involved. On that occasion after having been handcuffed he was thrown to the ground and beaten by Officer Sharp and Officer West had taken his glasses and “crushed them with his feet” so that he “couldn’t see nothing.” Appellant testified that ³²⁵ this recent mistreatment was his motive for running when accosted by these same two officers. For some reason this apparently relevant testimony that tended to explain his flight was stricken by the court. On cross-examination, over almost continual objection, the witness was questioned about: his past and present employment record; his means of support, including his wife’s earnings, his parents’ and sisters’ contribution; the amount of his bail in the present case, in the case resulting from the May 20th arrest, and in cases under other outstanding indictments; appellant was asked whether he knew Robert Lee Thompson a/k/a Pearl Street Reds, Clarence Turner a/k/a Big Ditty, Joseph Eugene Wynn a/k/a Jerry Wynn, Raymond Vernon Banks a/k/a Inky Dink, Jerry Christian and Melvin Stanford; he was asked if he frequented the area of Fulton and Baker Streets and the 1100 to 1200 block of Pennsylvania Avenue; he was asked the monetary value of his diamond rings, his watch, his coat and boots; he was asked if he was in the habit of carrying a gun, or if he owned a gun; he was asked if he had ever been convicted of a crime; if in 1964 he had been convicted of assault with intent to murder and sentenced to four years; and the Assistant State’s Attorney was allowed to read into the record a formal indictment charging possession of a concealed deadly weapon under which appellant “thought” he might have been convicted.

The defense called Detective Thomas West, who testified that on May 25, he and Officer Sharp were conducting a routine patrol in a blue and white radio car with a blue dome on top and with “Police” written on the vehicle and that both officers were in uniform. The witness testified that as he was driving the vehicle his companion, Officer Sharp, observed the appellant and remarked “Here comes Harry.” The witness testified that although he did not know if appellant had been convicted of any prior narcotic violations, “we knew Harry Williams to be a narcotic violator,” and as a routine matter, he stopped ³²⁶ the automobile to observe appellant. As the car stopped a “very short distance” from appellant, he looked at the officers and said, “Oh, God damn” and began to run. Officer Sharp jumped out of the car and gave pursuit.

The witness observed appellant in possession of what appeared to be a chocolate milk container and “attempting to open a baggy with his hand while running and spitting chocolate milk in the bag ... I could see something white that was in the bag ... I don’t know if they were pills or not.” The witness drove around the block in attempt to “head him off.” When he next saw them, Officer Sharp had the appellant in custody. The witness testified that Officer Sharp recovered’ the bag in which he had previously seen “something white,” and that he “never saw Officer Sharp pull a gun.” After appellant’s arrest, the vacant lot was searched and to the best of his knowledge “nobody else recovered anything.” At the conclusion of Detective West’s testimony, the defense rested.

Officer Sharp was recalled by the state as a rebuttal witness. He admitted that during the chase of appellant he had pulled his gun but denied firing it. During the rebuttal examination Officer Sharp was asked, through separate questions, whether he was familiar with Robert Lee Thompson, a/k/a Pearl Street Reds, Clarence Turner, a/k/a Big Ditty and Joseph Eugene Wynn, a/k/a Jerry Wynn. Immediately upon the initiation of this line of questioning, appellant’s attorney objected and was allowed to approach the bench.

He argued that there had been no showing that such apparently collateral inquiry had any relevancy to the case. The court voiced an assumption that the Assistant State’s Attorney was about to establish such relevancy. The Assistant State’s Attorney pointed out that appellant denied knowing Robert Lee Thompson and that “I am prepared to prove he does know him.” The court allowed the testimony saying “I think it is relevant only so far as credibility is concerned. It goes to the weight of the evidence.” Over repeated and vigorous objection, the officer was ³²⁷ allowed to testify that on various occasions (some over two years old) he had seen the appellant in company with each of the named individuals.

The locations of such isolated sightings varied; however, they included the vicinity of Baker and Fulton Streets and the “lower end” of Pennsylvania Avenue, an area infamously known as “The Bottom” and as previously testified by Detective West, an area with an extremely high incidence of narcotics violations. When Officer Sharp was excused, the Assistant State’s Attorney requested to “take the stand myself as a final rebuttal witness ... to the extent of seeing the rings on Mr. Williams’ fingers yesterday morning before the luncheon recess in this court room.” He pointed out that although the appellant admitted possessing the rings, he had testified they were in his pocket and denied having them on his fingers during the trial. Appellant’s attorney suggested that if the Assistant State’s Attorney wished to testify in narrative form he would agree and not require that a second Assistant State’s Attorney be called for the purpose of questioning the witness. After a brief explanation to the jury that the testimony about to be heard was procedurally irregular in form, the court allowed the Assistant State’s Attorney to be sworn and to testify that he observed the appellant wearing two diamond rings earlier in the trial; he described one such ring in specific detail.

The reception or rejection of evidence particularly on cross-examination is, and for very practical reasons, must be in the discretion of the trial judge. Long v. State, 7 Md. App. 256 , 254 A. 2d 707 and Burley v. State, 5 Md. App. 469 , 248 A. 2d 404 . The cross-examination may be broad enough to permit any question which reasonably tends to explain, contradict or discredit the witness or which tends to test his accuracy, memory, veracity, character or credibility. DeLilly v. State, 11 Md. App. 676 , 276 A. 2d 417 .

As pointed out in that case, however, discretion in the trial judge is not unlimited. It should also be noted that the reception or rejection of improper evidence ³²⁸ is not reversible error unless there is demonstrable prejudice. Barger v. State, 2 Md. App. 565 , 235 A. 2d 751 , Duncan v. State, 5 Md. App. 440 , 248 A. 2d 176 ; see Santoni v. State, 5 Md. App. 609 , 249 A. 2d 200 . In the instant case, appellant denied having possession of the narcotics involved and brought into evidence an earlier arrest by the same two police officers; he testified to certain statements tending to indicate, if believed, that the two officers were out to “get him.” Appellant was improperly impeached and it is apparent that the error was not harmless.

I Associates The most serious error, in our view, was allowing, under the circumstances of this case, questions pertaining'to persons with distinctive aliases who had received publicity indicating their involvement in the illegal narcotics trade. Although the trial judge admitted the earlier questions “subject to exception,” upon the assurances of the Assistant State’s Attorney that their relevancy would be shown, it soon became apparent that the only evidence the state could produce was that the appellant, on a very few occasions, over a long period of time, had been seen in the company of these individuals. 1 The state was not in a position to show a long and intimate contact with these persons. At this point the court should have declined to permit further questioning along this line, as such “evidence” to a lay jury would likely be viewed as proving a lot more than its legal worth. To permit these convictions to stand, based in part as they are, on irrelevant and dangerously inflamatory evidence, is to permit guilt by association in its most rampant form.

We have located few cases dealing directly with this subject but attempts by the state to so secure convictions have been condemned. See Cheny v. Ohio, 7 Ohio 222 , Ohio v. Jennings, 166 Ohio 364 , 142 N.E.2d 529 ; ³²⁹ People v. M’Graw, 66 App. Div. 372 , 72 N.Y.S. 679 ; People v. Pettanza, 207 N. Y. 560 , 101 N. E. 428 . We limit our holding to the casual associations alluded to in the instant case. We are not here concerned with a case where the accused has been shown to have been in long and intimate association with known narcotics dealers, nor under circumstances that clearly indicate that the parties were at the time and place observed, engaged in illegal activities; nor are we concerned with probable cause for an arrest.

We shall later discuss the admission of the rebuttal evidence concerning these limited associations. II Prior Convictions The law is well settled that a witness, including an accused, may be cross-examined about prior convictions which have some tendency to impeach his credibility. Braxton v. State, 11 Md. App. 435 , 274 A. 2d 647 ; Johnson v. State, 9 Md. App. 166 , 263 A. 2d 232 ; Huber v. State, 2 Md. App. 245, 257 , 234 A. 2d 264 . In Huber, supra, we said that this did not mean that the details of a particular crime could be shown — only the fact of the conviction.

In the instant case, the appellant was asked if he was in the habit of carrying a gun. The question was in violation of the rule that while convictions may be shown, other specific acts of misconduct cannot be shown. 3A Wigmore, Evidence, §§ 979 & 980 (Chadbourn Ed.). See Burley v. State, 8 Md. App. 702 , 262 A. 2d 769 ; Poff