Williams v. State

MOYLAN, Judge. The appellant, Tracy Irving Williams, was convicted by a Dorchester County jury, presided over by Judge Donald F. Johnson, of possession with intent to distribute cocaine and related offenses. On this appeal, he raises the contentions: 1) that Judge Johnson erroneously permitted a prior conviction to be used to impeach the credibility of a defense witness without engaging in the balancing test required by Maryland Rule 1-502; 2) that Judge Johnson erroneously allowed the prosecutor to question the appellant about his failure to bring an alleged alibi promptly to the attention of the authorities; 3) that Judge Johnson erroneously allowed the prosecutor to question a defense alibi witness about why she did not more promptly contact the police or the State’s Attorney; 4) that Judge Johnson erroneously sustained the State’s objection to proffered defense testimony on the ground that it was hearsay; and 5) that Judge Johnson erroneously denied his motion for a mistrial during the testimony of Patrolman Doyle. Nonpreservation The short answer to the appellant’s iirst contention is that the argument he now makes was never made below and the issue is, therefore, not preserved for appellate review.

During the cross-examination of defense witness Lester Dem-by, the State sought to impeach his testimonial credibility by showing, over objection, that the witness had been convicted of theft. After having objected, defense counsel argued strenuously that theft is not an impeachable offense. In this opinion, it is unnecessary to point out that theft is a crimen falsi and a ⁷¹⁶ proper predicate for testimonial impeachment because that argument is not, on appeal, any longer being pursued by the appellant. But see Beales v. State, 329 Md. 263, 270 , 619 A.2d 105 (1993); Wicks v. State, 311 Md. 376, 382 , 535 A.2d 459 (1988).

On appeal, the appellant now advances the very different argument that even when the conviction in question is a proper instrumentality for testimonial impeachment, it still may not be used for that purpose unless and until the trial judge balances the value of the evidence against the danger of unfair prejudice, as required by Maryland Rule l-502(a). Without intimating for a moment that we think the trial judge abused his discretion in this regard, the short answer to the contention is that the appellant never raised the issue of balancing below. Nothing with respect to such balancing was brought to the judge’s attention. No ruling was made in that regard.

We have no idea whether, in the privacy of his conscience, the judge did or did not engage in any balancing. Quite simply, the issue was never raised. What was preserved is not being pursued; what is being pursued was not preserved. A Second Instance of Nonpreservation The appellant’s second contention is that Judge Johnson erroneously permitted the State to inquire into the appellant’s post-arrest but pre-Miranda silence.

Although this would not offend constitutional due process under Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976), it would offend the Maryland law of evidence under our decision in Wills v. State, 82 Md.App. 669, 678 , 573 A.2d 80 (1990). The appellant, however, failed to preserve the point for appellate review. The critical exchange was: [Prosecutor]: Did you tell the police officers that Miss Jones could vouch for your whereabouts? [Appellant]: No, I haven’t. I told my lawyer. [Prosecutor]: Did you tell the State’s Attorney’s Office? [Appellant]: No. ⁷¹⁷ [Defense Counsel]: Objection, Your Honor; the defendant has no necessity of talking to the police or the State.

The Court: I realize that. The objection is overruled. The appellant failed to object after the first question in this regard was asked. He answered the question and the answer was in the record without objection.

Even when the prosecutor asked a second question bearing on the same subject, no objection was immediately lodged and the answer came in. It was only then that the appellant objected. The appellant, however, never moved to have the answer stricken from the record. As Judge Chasanow explained for the Court of Appeals in Bruce v. State, 328 Md. 594, 628-629 , 616 A.2d 392 (1992), the preservation requirements for this sort of objection are very strict.

The Court of Appeals there pointed out that, if the objectionable nature of the question is clear, the objection must be immediately forthcoming before the answer is given. Bruce v. State explained, 328 Md. at 628 , 616 A.2d at 409 : The Maryland Rules provide, however, that “[a]n objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.... ” Md.Rule 4-323(a). Therefore, “[i]f opposing counsel’s question is formed improperly or calls for an inadmissible answer, counsel must object immediately.

Counsel cannot wait to see whether the answer is favorable before deciding whether to object.” 5 L. McLain, Maryland Evidence § 103.3, at 17 (1987); Moxley v. State, 205 Md. 507, 515 , 109 A.2d 370, 373 (1954). (emphasis supplied). It is only when an objectionable answer is given unexpectedly in response to an unobjectionable question that the offended party has slightly more leeway. Even in such a circumstance, however, it is required that the offended party move immediately to strike the objectionable answer.

The Court of Appeals explained, 328 Md. at 628-629 , 616 A.2d at 409 : ⁷¹⁸ The strict rule that an objection made at an inappropriate time will waive the objection, however, will give way when “the question is unobjectionable, but the answer includes inadmissible testimony which was unforeseeable from the question.” 5 L. McLain, Maryland Evidence § 103.3, at 18; Moxley, 205 Md. at 515 , 109 A.2d at 373 ; see also Klecka v. State, 149 Md. 128, 132 , 131 A. 29, 30 (1925) (objection need not be made before answer if “ ‘the inadmissibility was due not to the subject of the question, but to some feature of the answer.’ ”). In these circumstances, objecting counsel may move to strike the witness’s response immediately after the grounds for objection have become apparent, as Rule 4-323(a) provides, (emphasis supplied). In the Bruce v. State case itself, it was held that defense counsel should have spotted immediately that the question was objectionable. The failure to make an immediate objection, therefore, was deemed to be a waiver of the objection.

As Judge Chasanow explained, 328 Md. at 629 , 616 A.2d at 409 : The question in the instant case, then, is whether or not Bruce’s counsel could or should have known from the question that the answer would be objectionable. We believe that Bruce’s counsel should have been able to anticipate the type of answer called for by the question and thus should have been able to perceive grounds for an objection as soon as the question was asked—before the answer, (emphasis supplied). In this case, the objection was not immediately made and there is, therefore, nothing preserved for appellate review. Impeaching the Alibi Defense The appellant’s third contention is far more interesting.

It involved a similar factual circumstance but in a different doctrinal context. Mia Jones was both the girlfriend of the appellant and the mother of his children. The crime for which the appellant was convicted occurred on November 20, 1992. Mia Jones learned on December 15 that the appellant had been charged with the November 20 crime.

According to her later trial testimony, she remembered that the appellant had ⁷¹⁹ been at home with her and their two children that entire day and that he did not leave the house. The trial took place on March 2, 1993. After Mia Jones testified to that alibi, the prosecutor inquired as to whether, at any time between December 15 and March 2, she went to the State’s Attorney’s Office or to the police to notify them that a terrible mistake had been made and that an innocent man was being brought to trial for a crime he could not possibly have committed. Unlike the situation involved in Wills v. State, 82 Md.App. 669 , 573 A.2d 80 (1990), where it was the defendant’s post-arrest silence that was used adversely against him, the situation with an alibi witness does not involve the balancing of relevance versus the possible compromise of a defendant’s right to silence.

Indeed, the only argument made, at trial or on appeal, with respect to the cross-examination of Mia Jones has been one asserting exclusively that the inquiry lacked relevance. There has been no argument that prejudice outweighed relevance, but simply that the inquiry was utterly devoid of any relevance whatsoever. We cannot agree. At the actual trials of criminal defendants, spurious alibis proliferate like weeds.

The rarer bona fide alibi as often as not precludes the trial. In those cases where a demonstrable mistake has clearly occurred—"where an innocent person is being falsely charged—it is not uncommon for a delegation of a lawyer, a clergyman, and a medley of relatives, friends, neighbors and other good citizens “to pound on the door” of the State’s Attorney’s Office or of the grand jury or of the police department or of all three in order to rectify the miscarriage immediately and to see that all charges are promptly dismissed. That is the instrumentality by which charges sometimes are dropped. In a criminal trial involving an alibi defense, it is necessary for the fact finder to determine whether to believe or to disbelieve the alibi.

It is crucial for the fact finder to decide whether the alibi is of the spurious or of the bona fide variety. In resolving that question, knowledge of the circumstances of when and how the “miscarriage of justice” was brought or not ⁷²⁰ brought to the attention of the authorities clearly would be helpful. Information bearing on that question would be, by definition, relevant. A ruling on the relevance of evidence is “a matter which is quintessential^ within the wide discretion of the trial judge.” Best v. State, 79 Md.App. 241, 259 , 556 A.2d 701 , cert. denied, 317 Md. 70 , 562 A.2d 718 (1989).

We cannot say that Judge Johnson clearly abused that discretion in deeming the evidence relevant in this case. Indeed, the concocted alibi is generally played close to the vest and does not invite premature exposure or scrutiny. The bona fide alibi, by contrast, is frequently trumpeted from the rooftops and welcomes maximal exposure and scrutiny. Surely, these contrasting characteristics have some pertinence in assessing the credibility of an alibi defense.

An emerging body of case law recognizes the appropriateness of cross-examining alibi witnesses about their at-times inexplicable (or at least strange) pretrial passivity. The Court of Appeals of New York, in People v. Dawson, 50 N.Y.2d 311 , 428 N.Y.S.2d 914 , 406 N.E.2d 771 (1980), deemed such inquiry to be legitimate. In order for pre-arrest silence to have relevance, however, it is necessary, as pointed out at 428 N.Y.S.2d at 921 n. 4, 406 N.E.2d at 777 n. 4, that the prosecutor: lay a “proper foundation” for this type of cross-examination by first demonstrating that the witness was aware of the nature of the charges pending against the defendant, had reason to recognize that he possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant and, finally, was familiar with the means to make such information available to law enforcement authorities. Such a predicate was established in this case.

Mia Jones became aware of the charges pending against the appellant on December 15, 1992. She was fully aware of the fact that she possessed absolutely exculpatory information. As the appellant’s live-in girlfriend and the mother of his children, moreover, she had a reasonable motive for wishing to exonerate him. A permissible inference could be drawn that she was ⁷²¹ familiar with some means to make such information known to law enforcement authorities.

People v. Dawson cautioned that “a citizen ordinarily has no legal obligation to volunteer exculpatory information to law enforcement authorities,” 428 N.Y.S.2d at 918 , 406 N.E.2d at 775 , and admonished the prosecutor not “to suggest through his questioning that a witness has a flaw in his moral character or is generally unworthy of belief solely because he or she failed to come forward prior to trial.” It also pointed out, on the other hand, that a citizen possessing exonerating information has the opportunity to come forward even if not the obligation to do so and that the failure to come forward may well have evidentiary significance. The New York Court of Appeals explained, 428 N.Y.S.2d at 919 , 406 N.E.2d at 775 : It does not necessarily follow, however, that an individual’s previous silence may never be used as a basis for impeaching his testimony at trial. Whether or not a private citizen has a legal obligation to volunteer information, there exists a wide variety of situations in which the natural impulse of a person possessing exculpatory information would be to come forward at the earliest possible moment in order to forestall the mistaken prosecution of a