Worthington v. State

Morton, J., delivered the opinion of the Court. Appellant, Larry Raymond Worthington, was convicted by a jury sitting in the Criminal Court of Baltimore (Grady, J., presiding) of assault with intent to murder and unlawful use of a handgun. Concurrent sentences of 25 years and 15 years were imposed. According to the victim, Michael Bray, he and his friend, Catherine Roppelt, were driven to the home of Thomas Goldsborough in Dundalk, Maryland, by appellant and his girlfriend, arriving sometime after 3 a.m. on January 26, 1976.

After “smoking a few bowls of pot” Bray was invited to go outside with Goldsborough and appellant, ostensibly to show him “something by the railroad tracks.” Bray testified: “We walked down to the railroad tracks. He [appellant] said, ‘Look here.’ He showed me something. He pointed to the railroad cars, line of boxcars like this. I went to look like this.

And he had a pistol. Shot me right in the back of the head once. I'went down to the ground, stunned me. Busted my skull in the back.

First I didn’t know what happened. It’s quick. And it was a flash and knocked me straight to the ground. All I saw was red and like I was half dizzy and knocked out.

I shook it off. It was only a matter of seconds. And blood was ⁴⁸⁹ running on my face. And I looked up, and he was holding a pistol.” Later, Bray testified that he “was shot three times in the head and once in the back.” On cross-examination Bray stated: “When I was in the hospital, when I was first shot, I wanted to take matters in my own hands.

I wanted to kill Mr. Worthington. Mister — I’m being respectful to him. But after I thought about it, my family, mother and father, everybody talked to me, said it’s best I go to the courts and let the police handle it rather than kill and go to jail. I have been in jail.

I don’t want to go back. When I was first in the hospital, I was mad, of course. I was in pain. I was in misery.

And I told the police officer that I would take care of matters myself. That was the first statement. The second time I told them I know who did it, I will take care of it.” Bray denied, however, that he told the police that he did not know who shot him. Appellant attempted to impeach this statement with the testimony of Officer William Chaffinch of the Baltimore City Police Department who stated that when he interviewed Bray on the morning of January 26,1976, Bray told him that “he did not know [who shot him] as he was shot from the rear.” Endeavoring further to impeach Bray’s credibility, appellant called Leroy Brunner, Jr., a licensed private investigator, to the witness stand.

Brunner stated that he interviewed and took a statement from Bray on April 26,1976. Replying to questioning from appellant’s counsel, Brunner read the following, apparently inconsistent excerpts from Bray’s statement into the record: “ T believe Goldsborough * * * pushed me forward. Then I got shot in the back of the head first, then shot two more times in the head and once in the back. I went down on my knees.

When I got myself together and had almost went unconscious, I turned around and saw Goldsborough and Worthington’ — ⁴⁹⁰ now he has the correction, ‘looking at me, then they ran.’ ” “ ‘After I was operated on, police interviewed me again. I told them that I didn’t have anything to say. I didn’t know who did it. I made a statement saying two unknown white guys jumped me from behind, and I didn’t get a good look at them.’ ” Through the testimony of Brunner, appellant also attempted to impeach the credibility of Bray's friend, Catherine Roppelt, who, as a State’s witness, had previously stated that appellant was present and had a gun on the night of the shooting.

Brunner read an excerpt from an interview with Ms. Roppelt which he had conducted on August 31,1976, in which she stated that she “was rather intoxicated at the time and really not capable of knowing what was going on.” On cross-examination of Brunner the State called for the admission of the original statements of Bray and Ms. Roppelt in their entirety. After deleting several extraneous sentences, the statements were then admitted into the record over appellant’s objection. 1 In his argument to the trial judge concerning the admissibility vel non of the entire statement, the prosecutor stated: “The State’s position, the defense has put in select portions of those two statements to show prior inconsistent statements. I’m offering it in evidence as prior consistent statements as to all the questions which he so carefully avoided bringing up, and I think I have a right to do that. He has waived any contention he has as to work product.” Appellant now contends that the admission of the Bray and Roppelt statements in their entirety constituted reversible error.

He first argues that the statements were not admissible as prior consistent statements, as argued by the prosecutor, because they were “made long after the motive ⁴⁹¹ to fabricate existed.” See, e.g., Kelly v. State, 151 Md. 87 (1926); Lanasa v. State, 109 Md. 602 (1909); Boone v. State, 33 Md. App. 1 (1976). We do not agree for we think both statements were properly admitted under the doctrine of “verbal completeness.” The doctrine was discussed by the late Chief Judge Brune in Feigley v. Balto. Transit Co., 211 Md. 1 (1956). There he set forth, at pages 9-10, the following statements from Wigmore on Evidence, 3rd Ed., Vol.

VII, § 2114: “ ‘(4) When a witness of a party has been impeached by prior utterances showing bias or self-contradiction, fairness requires that he be allowed to explain away their effect, if he can (ante, Sections 952,1044 and 1058). One way of explaining may be to give the remainder of what he said at the time. Here, then, the putting in of the explanatory parts is justifiable equally on two principles * * And in § 2115, the author continues: ‘The general phrasing of the principle, then, is that when any part of an oral statement has been put in evidence by one party, the opponent may afterwards (on cross-examination or re-examination) put in the remainder of what was said on the same subject at the same time. This phrasing leaves something to be desired in definiteness, but it is practically applied without much difficulty and with little or no quibbling. ‘Its most common application is to conversations in general, including the admissions of an opponent and to inconsistent statements of a witness used in impeachment * * V ” 2 In the case at bar, when appellant sought to impeach the credibility of Bray and Ms. Roppelt by their prior utterances, it was fair and proper to permit the State, under the doctrine of “verbal completeness,” to introduce their prior statements ⁴⁹² in their entirety.

See 3A Wigmore, Evidence § 1045 (Chadbourn rev. 1970); 7 Wigmore § 2113 (3d ed. 1940). Appellant also contends that the following excerpt from the Roppelt statement is inadmissible by virtue of the rule prohibiting the admission of hearsay: " 'Question: Did anyone tell you who shot Bray? ‘Answer: Bray told me in the hospital Larry did it. I was asked was that the guy who had the peg leg and Mike said, yes. I asked why he shot him.

He wouldn’t say. I asked him if he was going to press charges. Mike said he wasn’t going to press charges. I asked why.

Mike said he wanted to get Larry himself. I told him that was crazy, let the police handle it.’ ” In our view, this contention likewise runs counter to the rule of completeness. McCormick, in his work on Evidence 131 (2d ed. 1972), does point out that the element of hearsay might add new considerations to the rule of completeness and, accordingly, notes that “the trial judge should exclude [such statements] if he finds that the danger of prejudice outweighs the explanatory value.” Our review of the record convinces us that the trial judge did not abuse his discretion in admitting the Roppelt statement in its entirety. Indeed, a perusal of Roppelt’s statement reveals the possibility, by reason of its attention to detail, that when she stated that she was “intoxicated and not really capable of knowing what was going on,” she did not mean to imply, as she testified on cross-examination, that she did not remember what happened at the apartment.

By allowing the jury to examine all relevant portions of her statement, the trial judge enabled it to reach an intelligent conclusion as to her intoxication and perception on January 26,1976. Certainly, in balance, we cannot say that its prejudicial effect outweighed its explanatory value. Appellant argues that the admission of Ms. Roppelt’s statement violated his right to confront all witnesses against him as guaranteed by the sixth amendment to the United States Constitution and article 21 of the Maryland Declaration of Rights. In concluding that this contention is ⁴⁹³ without merit we observe, once again, that Roppelt’s statement was taken by Brunner, a private investigator hired by appellant.

As such, it strains our imagination to argue that appellant did not have an opportunity to cross-examine her since, in effect, her entire statement was given in response to appellant’s own out-of-court questioning. Moreover, once appellant initiated questions concerning Ms. Roppelt’s statements to Brunner, it is clear that he could not thereafter “invoke the Sixth Amendment as a justification for presenting what might have been a half-truth.” United States v. Nobles, 422 U. S. 225, 241 (1975). Appellant next contends that the Bray and Roppelt statements were inadmissible because they were the work product of his trial counsel. In Hickman v. Taylor, 329 U. S. 495 (1947), the Supreme Court recognized that a privilege existed rendering certain materials prepared by an