Wilson v. State

³²⁰ Moore, J., delivered the opinion of the Court. Convicted in a jury trial of second degree murder and sentenced to a term of 15 years, appellant, Thomas N. Wilson, Jr., contends (1) that the trial court’s expressions of incredulity during the testimony of appellant’s mother constituted reversible error, (2) that the testimony of a defense witness that on the night of the shooting the decedent asked him for a gun was improperly excluded, (3) that the sworn affidavits given to the police by two prosecution witnesses, called as the court’s witnesses, were improperly received and the court then erred in failing to instruct the jury on their limited use; and (4) that at the hearing on appellant’s motion for a new trial the court erred in refusing to consider the results of polygraph examinations, made after the conclusion of the trial, of appellant and his mother, as well as the testimony of the polygraph examiner, and in refusing to permit appellant to lay a foundation for such testimony. We conclude that the third assignment of error must be sustained, and for this reason alone the conviction must be reversed and the case remanded for a new trial. We do, however, also consider appellant’s other contentions for the guidance of the trial court on remand.

Appellant, age 21, shot and killed a neighborhood acquaintance, age 20, after an argument which took place on the street in July, 1972, in the 2600 block of West Forest Park Avenue in Baltimore at about 10:30 in the evening. The weapon used was his father’s single barrel hunting rifle which appellant obtained from his parents’ bedroom after an exchange of angry words between him and the victim. The theory of the defense was that the deceased was in possession of a gun and that the appellant, warned by his mother as they were leaving the scene of the confrontation, wheeled and ducked and fired at his antagonist, killing in self-defense. I With respect to the third assignment of error, the record discloses that on the day of trial the State presented a ³²¹ written motion requesting that the court call, as its own witnesses, three young men, eyewitnesses to the shooting, on the ground that both the witnesses and their parents had been intimidated, specifying instances of such intimidation, that the witnesses were “terrified” and the State could not vouch for their veracity.

Over objection, the motion was granted. 1 The court thereafter called the three witnesses, Alfred Tuck, 24, Mark Craig, 20, and Winslow Holman, 18. After “direct” examination by the court, the three were then cross-examined by the State and the defense, in that order. During the State’s cross-examination of Tuck and Craig, the court received in evidence, over objection by appellant’s trial counsel, affidavits given by them to the investigating police officers during the early morning hours of July 11, 1972, following the shooting on the evening of July 10. Holman’s affidavit was not offered.

Tuck’s affidavit contains the following statement in response to a police officer’s question as to what he knew about the shooting: “A. Yes, i was in the area of Forrest Park Burleith st., visiting some friends, and i saw Joe and Tommy argueing in the street. Tommy said wait a minute, and went into his house on forrest Park then came back several minutes later with a gun, i don’t know if it was a rifle or shotgun, and he told Joe to ‘go ahead’, and Joe said ‘if your going to shoot me, you better kill me’, then Tommy fired and Joe fell to the street and i ran to tell Joe’s Parants and thats it.” (as in the original) During his direct examination by the court, Tuck ³²² responded to a question as to “what happened” when appellant returned to the street; “It was a shotgun. I mean, whatever it was it fired.” Then: “Q. Did you see it or hear it? A. I heard it.

Q. Who had the gun? A. I think it was Tommy.” Upon objection, the court struck the last answer, cautioning the witness and asking the further question: “What did you see? ” To this, the witness replied: “I’m not sure what I see [sic], Your Honor. It could have been a shot fired. I took off with everybody else.” “Q. Now, prior to hearing the shot, did you hear anybody say anything?

A. No, I didn’t. I didn’t pay that much attention, sir.” The State, at the outset of its cross-examination of Mr. Tuck, had him identify his affidavit, including his signature and verification. The testimony then continued in part: “Q. But you did see this defendant with the gun did you not? A. Yes, at the time he returned.

Q. Well, at that time, that was the only gun you saw? A. Right. That was, at the time. Q. Those were the only two arguing in the street at that time, were they not?

A. Right. Right. ³²³ Q. Didn’t you also tell the police officer that the deceased, Mr. Harris, told the defendant to go ahead and said, ‘If you’re going to shoot me, you had better kill me’?” After a somewhat evasive response, the State pressed the witness: “Q. Well, what exactly did he say? A. He said something about, ‘If you’re going to shoot, shoot.’ I didn’t say that part about killing. I don’t know. ‘Shoot, if you’re going to shoot.’ ” On cross-examination by defense counsel: “Q. If [the decedent had a gun in his possession], you didn’t see it, is that it?

A. Right, sir.” And on further cross-examination by the State: “Q. You saw the shots fired by the defendant that hit Joe Harris, did you not? A. What I was saying, what I’m saying, is that I was in conference with Eugene Banks, and my back was turned. I heard the shot fired, and we turned around, and we seen the defendant [decedent] laying on the ground. “Q. But at that time, that morning after what happened, you had a fresher recollection of what, in fact, did happen, did you not? A. I was still puzzled about certain things about what happened.

Q. It’s also been some time, has it not? A Yes it has. Q. Since this happened? A. Yes, it is.

MR. MITCHELL: No further questions.” ³²⁴ The State thereupon offered the witness’ affidavit in evidence. In response to vigorous opposition by the defense, the court stated in part: “. .. it’s even better than oral testimony It’s signed and written and it’s within this court’s discretion, to allow that not as substantive evidence, but to impeach the witness, and the jury, of course, in determining whether or not to believe his testimony on the witness stand, has the right to consider the fact that he’s made to a large degree an inconsistent statement on another occasion. So, I’ll overrule your objection.” When the witness Mark Craig testified, he was also interrogated by the court in the first instance and was thereafter cross-examined by the State and by defense counsel.

He told the court that he had observed the two men arguing and appellant leave and return with a gun. He continued: “A. . . . Well, next thing I know, the gun just went off somehow. Q. Did you hear it?

A. Yes. Q. And were you looking in the direction of where it went off? A. I wasn’t looking in the direction, but I saw where it went off. Q. I see.

Then you looked in that direction. What did you see? A. Then, like I said, I heard a shot, and I turned around, and Arthur was laying on the ground.... Then the defendant went back down the street.” Questioned by the State, Craig verified his signature on the affidavit given to the police.

He was asked if it accurately described what had happened that evening and he replied, “As far as I can remember, right.” The testimony continued in pertinent part: ³²⁵ “Q. They started arguing as if they were going to fight or something? Do you remember saying that? A. Well, yes. Q. ...

Do you remember saying that Tommy walked away from Bunky, and said, Til be right back .. . [and] came back with either a rifle or shotgun? A. Yes. Q. Do you remember also saying ... to the police officers at the time that Arthur Harris said, ‘Tommy, if you shoot me, you had better kill me? A. Yes.

Q. Then you remember saying that then Tommy shot Bunky and ran down the street, and jumped into his car, and drove off in it? A. Yes. There was a shot, and Tommy was the only one that I could see with a gun, was Tommy, and there was a shot.” On cross-examination by the defense Craig was pressed as to whether the words imputed to the decedent were not suggested by the detective, but answered, after initial hesitation: “Those words were mine.” “MR. FREEDMAN: ...

I would like you to explain to this jury how come those words, that quote of Bunky’s, is in your statement exactly like the one in Tuck’s statement? Can you or can’t you explain that? THE WITNESS: Yes, I can, because that’s what he was saying.” At the conclusion of Craig’s testimony, the State offered his affidavit and it too was received, over objection, the court ³²⁶ overruling the objection for the “same reason” as earlier stated. The pertinent passage in Craig’s affidavit was as follows: “I got up off the car and walked up to them to see what they were arguing about.

Tommy walked away from Bunky and said ‘I’ll be right back.’ He left. Tommy went into his house and came back with a rifle or shotgun. It had only one barrell. Tommy said something to Bunky and they started arguing again.

Bunky did not move because Tommy had the gun. Bunky said ‘Tommy if you shot me you better kill me.’ . . . Tommy and Bunky kept arguing. Then Tommy shot Bunky, ran down the Street jumped into his car and drove off in it.

He drove down Forrest Park Ave.” (as in the original) it is apparent from the trial court’s explanation for overruling the objection that the court relied upon the rules of evidence relating to the use of prior inconsistent statements for purposes of impeachment in receiving the affidavits of Tuck and Craig. Appellant in his brief also places principal reliance upon the law limiting the use of such statements, citing Green v. State, 243 Md. 154 , 220 A. 2d 544 (1966) and Vandergrift v. State, 13 Md. App. 277 , 282 A. 2d 528 (1971), and argues that the lower court committed reversible error in failing to instruct the jury on their limited use. The distillation of these and other Maryland cases which are concerned with the subject of surprise is that while evidence of extrajudicial statements made by a witness not a party and whose declarations are not binding as admissions is admissible to contradict him and therefore afford the party calling him an opportunity to show why he called him, such statements are not probative evidence on the merits and are not to be treated as having any substantive or independent testimonial value. 2 ³²⁷ The record before us discloses that indeed no instruction as to the limited use of the statements for the former purpose was given by the court. It also discloses that appellant requested no such instruction nor did he object to the failure of the court to so instruct.

Were we in fact confronted with a situation involving the use of prior inconsistent statements to impeach a witness, our present inquiry would have to be whether this Court should take cognizance of a plain error in instructions, assumed to be material to the rights of the accused, such error being, however, one of omission and not one of commission. Brown v. State, 14 Md. App. 415 , 287 A. 2d 62 (1972); Taylor v. State, 17 Md. App. 41 , 299 A. 2d 841 (1973). That question does not present itself, however, on the facts before us because the law relating to the use of prior inconsistent statements is inapplicable here. Tuck’s in-court testimony, as indicated earlier, was that he saw appellant and no one else with a gun, that appellant and the decedent were engaged in argument, that the decedent told appellant, “Shoot, if you are going to shoot,” and that although he did not see the shot fired because his back was turned, he “heard the shot fired” and when he turned around saw the decedent lying on the ground.

The version of the decedent’s remark insisted upon by Tuck in court was slightly at variance with the version in his affidavit, “If your going to shoot me, you better kill me,” and his insistence in court that he did not see the shot fired, but only heard it, was arguably at variance with his statement to the police, “Tommy fired and Joe fell ³²⁸ to the street”; arguably, because the latter is also construable as a mere inference by Tuck from observations which he verified in his testimony in court. The test of what amounts to a self-contradiction is well stated in 3A Wigmore, Evidence § 1040 (Chadbourn rev. 1970) where it is said: “As a general principle, it is to be understood that this inconsistency is to be determined, not by individual words or phrases alone, but by the whole impression or the effect of what has been said or done.” (Emphasis in original) Wigmore quotes with approval United States v. Holmes, 1 Cliff. 98, 116 (1858), as follows: “Directness, in the technical sense, is not necessary to give the evidence that character, nor is it necessary that the contradiction should be complete and entire, in order to admit the opposing testimony.” Despite the lower court’s conclusion that self-contradiction had been shown with respect to Tuck’s testimony, we are not persuaded that this was so as respects either the details of his testimony or its “whole impression or . . . effect.” Nor do we find inconsistency with respect to the testimony of Craig. In court, Craig confirmed that his affidavit accurately described the events of the shooting “as far as [he] remember[ed].” He testified that of the two disputants only appellant had a gun, that the decedent told appellant “Tommy, if you shoot me, you had better kill me,” and that based on his inference from his observations he had indeed told the police that appellant shot the decedent before jumping in his car and driving off. In no material respect whatever, therefore, did Craig contradict the statements made in his affidavit but, on the