*1 v. STATE OF MARYLAND THOMAS WAYNE COX Term, 928, September [No. 1981.1 April Decided 1982. *2 JJ., and Lowe and argued
The cause was before Wilner, Judge Associate of the Court of E. Orth, Jr., Charles (retired), assigned. specially Appeals Defender, Offutt, Assistant Public with whom Gary S. Defender, brief, Murrell, appellant. Public Alan H. General, Goldsmith, Attorney with G. Assistant Diane Sachs, Attorney General, A. H. Sandra Stephen were whom County, and Dana O’Connor, Attorney for Baltimore State’s Attorney County, for Baltimore Levitz, State’s M. Assistant brief, for appellee. on the Lowe, J., J., of the Court. opinion delivered the filed
Orth, J., 286 infra. filed opinion page at dissenting Wilner, infra. page at concurring opinion prison assailant had been released from alleged Her He day. year girl assault on the 18 old was barbaric. His sexual engage vaginal her two acts forced intercourse, sodomy in fellatio. The duress he face, beating about her head employed physical was a vicious bruised, bowed, bloody and battered. body, leaving her was, "I ain’t had a conduct His to her for his brutal excuse drag was able to As soon as she woman in six months.” home, suffering and while still three to her herself the blocks stress the severe emotional and under physical pain acute had told her mother what experience, her she caused shortly the incident police occurred and informed Her to a call to them. response prompt their upon thereafter (he was an habitué of the her was not unknown assailant Wayne him Thomas and she identified neighborhood), crime, at the locale of forthwith arrested Cox. Cox was ground way hospital. on the pointed out which she and it was there "disarranged,” to be appeared at the scene had been which underpants, her recovered police from her and articles rape, during stripped from were his clothes of Cox’s arrest At the time pocketbook. just got like he down dirt... "had a lot of loose dusty and stains on his grass There were ground.” rolled around on knees, and four at the pants and on his at the elbows jacket on his arm. or scratches "newly made” abrasions Court for in the Circuit Cox was tried before first in the guilty rape County. He was found Baltimore law degree first and common offense degree, a sexual *3 imposed he is to sentences assault. Under the concurrent in prison. natural life remainder of his spend the II physi- dispute the testimonial At his trial Cox did not delicti of the crimes. He establishing corpus cal evidence however, proof doubt on the did, to cast a reasonable attempt that he was the criminal by the to show presented State to establish an parade of witnesses agent. produced He locality scene ofthe crime him in the ofthe They placed alibi. before, alleged were after the time the crimes during and committed, to account for his they attempted but have been so as to indicate that he during period activities the critical It is manifest that the perpetrator. could not have been the witnesses, testimony of the alibi at least jury discounted the opportunity that it found that Cox had the to the extent to him. We note and did commit the criminal acts ascribed concerning offered Cox that there was no evidence of his explain on or to the condition fresh scratches his arm any an-unworthy as to clothing. Nor was there evidence designation the victim’s prompted motive which Cox as her attacker. that went before evidence
Beyond question,
charged
find that the crimes
it to
legally
sufficient
them. See Williams
committed
and that Cox
committed
were
452-460,
cert.
This was done Hochheimer, and Criminal Procedure The Law Crimes 1897). (1st Wharton, § 472. It was supra, § See 2 322 ed. rule was ago general well in this State that the long settled veracity of witness impeach "that in the credit order reputation general to his the examination must confined State, Rau v. 133 permitted particular and not as to facts.” (1919). policy of this rationale 613, 616, A. 867 Md. 105 specific acts tends to confuse issues was evidence unfairly surprise Wigmore the witness. 3A Evidence (Chadbourn 1970). State, § v. 103 979 rev. See Richardson Ackerman, 112, (1906); 118, 76 Md. Md. 63 A. Wise v. (1892).1 375, 392, 25 424A. sustaining
From the of the trial comments guided by the common objection, is manifest that he was veracity ill law rule. His reliance on that rule was conceived First, clearly seeking two the defense was not for reasons. establish, by attempting pursuant impeach prosecutrix rule, truth veracity reputation resides, bad. veracity, community in which she Second, veracity law rule became it seems that the common 760, 1971, upon passage defunct in of ch. Acts this State State, history, Taylor 1. For rule v. 278 Md. discussions of the and its see 150, 155, 360 (1976); 472,478, A.2d 430 Comi v. 202 Md. A.2d denied, 410, 412-413, (1953); Berger cert. 346 U.S. A.2d 146 *5 276 § 9-115 of the now Courts and Proceedings Judicial Article (Md. Vol.), Code Repl. subtitle, 1980 "Character wit
ness.” Whether the statute served to modify
rule,
as the
Court ofAppeals
stated in Durkin v.
445, 449,
284 Md.
(1979),
it,
The rule that in our opinion govern does admissibility of the challenged question also comes from the common law. It is hereinafter referred "credibility to as the rule.” It applies upon cross-examination of the sought witness to be impeached; one of the main functions of cross-examination is "to light shed on the credibility of the testimony.” direct McCormick, Handbook § of the Law of Evidence (Hornbook 1972). Series, 2 context, ed. In this "the test of relevancy is not whether the answer sought will elucidate any issues, of the main but whether it will to a useful extent aid the jury court or in appraising witness and assessing probative value of the direct testi- mony.” Id. The credibility rule is firmly established in Maryland consistently followed. Characterized as "a fundamental in concept system our jurisprudence” by present Chief Judge of the Court of Appeals Maryland, provides:
2. The statute
pro-
"Where character evidence is otherwise relevant
person
ceeding, no
offered as a character witness who has an
opinion
forming
adequate
acter shall hereafter be excluded from
person’s
basis
as to another
char-
giving
evidence based on
character,
personal
tion,
by deposi-
opinion
prove
person
either in
or
criminal,
suit,
any
any
proceeding,
civil
action or
or
(Md. Code, 1974,
any judge,
court or before
of the State.”
Vol.)
Proceedings
Repl.
§
9-115 of the Courts and Judicial
Article.
DeLilly
speaking
App.
then
for this Court
*6
676, 681,
(1971), it declares:
"A witness be cross-examined on generally issues, any and the matter relevant to the witness’s Therefore, witness, credibility always is relevant. not, party may
whether a
to the action or
be
cross-examined on such matters and facts as are
likely
credibility,
memory
test his
or
affect his
knowledge,
parties
show his relation to the
or the
cause,
bias,
his
v.
273 Md.
or the like.”Smith
152, 157,
DeLilly explicated the rule: diminish, impeach,
"And
or
cross-examination
impair the credit of a witness is not confined to
examination;
brought
may
matters
out on direct
it
include collateral matters not embraced in the
direct
veracity,
examination to test
being
proper
any question
to allow
which reason-
ably
contradict,
explain,
any
tends to
or discredit
testimony
chief,
given by the witness in
or which
tends to
accuracy, memory, veracity,
test his
char-
acter,
credibility.”
In Mulligan
588,
v.
App.
(1896):
"[A] clear distinction is to be taken between those matters called for on cross-examination which merely witness, excite prejudice against the or tend to humiliate him or wound his feelings, and those matters, hand, calculated, on the other which are an important and material respect, to influence the credit given testimony. to be to his As to the latter class, the witness cannot be shielded from disclosing cross-examination, his own character on and for this purpose may interrogated he upon life; and if past transactions of acts and
specific
time,
clearly relate
too remote
they are not
witness,
important
in an
the credit of
them.”
to exclude
it would be error
respect,
material
character
witness
"the
patent
It
is
circumstantial
evi-
mendacity is material
truthfulness or
testimony of
particular
the truth of
dence on
McCormick,
§ 41. This character
trait
supra,
the witness.”
respect, to
calculated, in
and material
important
surely
testimony.
to the witness’s
given
the credit to be
influence
facts or acts with
authority
particular
And there is solid
from a witness on
matter
be elicited
respect to such
Moreover,
law in this
is well settled
"[i]t
cross-examination.3
*7
are
on cross-examination
exploratory questions
State
a witness’
to affect
they
designed
are
proper when
434, 440,
Holz,
Md.
290
265
credibility.
...” Kruszewski v.
(.1972).
course,
to cross-examine
right
the
"[o]f
A.2d 534
And
the testi-
right
place
includes the
to
effectively necessarily
fairly enable the
setting to
mony
proper
in its
of a witness
11 Md.
at 681.4
credibility.” DeLilly,
App.
judge
to
its
1970)
(Chadbourn
Evidence, §
declares that the
Wigmore,
rev.
3. 3A
981
underlying
prohibi-
surprise
the
of issues and of unfair
reasons of confusion
particular
in
with the rule
facts or acts
connection
tion of evidence of
operate
veracity
reputation
do not
to
concerning general
for truth and
the witness himself
of misconduct from
forbid extraction of relevant facts
upon cross-examination.
"(a)
stops
issues,
danger
because the matter
confusion of
There is no
of
(b)
answer;
danger of unfair
there is no
with
ready
obliged
surprise,
impeached witness is not
to be
because the
testimony
oppo-
of the
to answer the extrinsic
and
with other witnesses
nent for there is none
witness himself is
ready
answered,
because, so far as the
to be
concerned,
unfairly
expected
may
to be
he
be
to his own deeds.” Id.
and to answer as
to know
any application,
“Thus,”
and
out
Wigmore,
has
"neither of the reasons
concludes
liberty
bring
concerned,
hence,
they
opponent
to
the
is at
so far as
are
by
the witness
and answer of
the
facts
cross-examination
desired
impeached.” Id.
himself to be
is,
course,
"There
limitations.
of
not without
4. Cross-examination
all,
subject-matter
to
at
not even
the
has no relevance
be cases where
152, 157-158,
State,
credibility.”
impeach
collateral
testimony
a witness. There is no indication
with the trial
of
witness
of
the
exploratory
question
challenged. But
credibility
test his
was
cross-examination to
the
the extrinsic evidence was
holding
implicit
ques
the
impeachment
of
is that
purpose
admissible for the
setting
stage
impeachment
for
tion on cross-examination
appeal
273
and 162-163. On
proper.
was
Md. at 156
explicitly
it had
so held.
Special Appeals,
case to the Court of
(1974).
254,
State,
257,
76
315 A.2d
App.
v.
20 Md.
Smith
373,
State,
A.
172 Md.
191
575
point
More on
(1937).
Mahan v.
by
for
incurred
damages
It concerned an action
of a child struck
an automobile. On
death
cross-examination,
of the vehicle was asked if he
the driver
falsely
age
application
in his
for
driver’s
had
stated
discussion,
Court,
that it "seems
license. The
with little
said
Noting
enough”
permissible.
obvious
that the
was
chief, explained:
to his
it
age
that the witness had testified
it in
willing
fact that he
misstate
order to
"The
had been
credibility,
reflect
obtain a chauffeur’s license did
on his
Sappington
Id. at 380. In
was therefore admissible.”
(1919),
Fairfax,
186,
A. 575
a witness had
135 Md.
108
peace
grand
and the
justice
testified before
to a
point
was intended to
certain
giving evidence which
jewelry.
a watch and
On
person
having
stolen
"
you testified in
cross-examination he
asked:
'When
was
justice
peace
prosecutions,
those
both before
you knew at the time that she hadn’t
Jury,
before the Grand
to,
admitted,
it,
you?’
excepted
and he
taken
didn’t
That was
”
'Yes,
"If for
The Court of
said:
no
Appeals
sir.’
answered:
other
reason,
purpose
at least admissible for the
credibility.” Id. at
reflecting upon his
192.5
Appeals which refer to
A
the Court of
5.
number
decisions of
impeachment
inadmissibility
purpose
credibility
for
rule turn on
See,
example,
for
or irrelevant matter.
of extrinsic evidence on a collateral
299,
(1965);
A.2d 254
Howard v.
Md.
Harris v.
410,199
237 Md.
(1958);
Ash,
285,137
(1964);
215 Md.
A.2d 661
A.2d 611
Kantor v.
Webb,
Panitz v.
We are mindful of the
rule so often cited
questions
allowance or disallowance of
on cross-examination
the
normally
judge.
is
left to the sound discretion of
trial
State,
612, 618,
(1976),
Caldwell v.
276 Md.
Ill
erred, we
Having established that
the trial court
next
may be deemed harmless.
consider whether the error
times,
jurisdictions
in all
appellate
"In modern
review
affirmed,
subject
may
under
judgment
tenets
circumstances, despite
certain
errors committed in the con-
638, 647,
350 A.2d
Dorsey
duct ofthe trial.”
v.
"harmless,”
If
deemed to be
an error was
judgment
Chapman
aside. Prior to
v.
need not be set
(1967), the Court
California,
"when an criminal court, its error, reviewing upon own lishes unless a record, is to declare review of the able independent belief, beyond doubt, a reasonable that error way verdict, error cannot in no influenced such and a mandated.” be deemed 'harmless’ reversal is Id. at 659. commanded:
The Court must be satisfied court thus reviewing "Such that the evidence possibility no there is reasonable — erroneously admitted complained of whether — rendition have contributed may excluded Id. guilty- of the verdict.” (1976). 664, 674, State, Ross v. 276 Md. 350 A.2d
See our review of governs is the law as it now stands and Such the case before us. of the harmless error test
Applying
clear dictates
State, upon
independent
our own
review
established
this
belief, beyond
a reasonable
of the record we cannot declare
doubt,
way
that the
here in no
influenced
verdict.
error
beneficiary
ruling,
as the
did not
erroneous
demonstrating
burden
the innocuous nature of
meet its
145, 155,
transgression.
Hillard
satisfied,
unable to
in the circum-
A.2d 415
We are
stances,
reasonable
error
possibility
there is no
guilty
to the rendition of the
verdicts.
contributed
*12
676,
(1976),
State,
Brafman v.
276 Md.
285 harmless, judgments of the and a reversal is mandated.6 reversed, County are and the Court for Baltimore Circuit trial. is remanded for a new case judgments,
In of view of reversal the other con- not addressed. tentions of Cox are
Judgments reversed: case remanded trial; pursuant
for a new
Maryland Rule 1082f costs shall
not be reallocated.
6. The strictures of the harmless error rule are reflected in the decisions
Appeals.
example,
of the Court of
not harmless in
(improper testimony
For
found
the error
Court
(1976)
State,
664, 674,
Md.
Ross v.
276
reputation the Court duce the desired result.” Id. at 158-159. "peaceful” unchanged. "Thus,” as a man would have remained concluded, prior pro- "the State’s use of the convictions failed 196, 388 In Johnson v. A.2d 926 the Court held that sequestration a violation of the "in no of witnesses rule was harmless because way contributed to the conviction. For the error to have contributed conviction, necessary to the have been [a witness] it would have been certain 'taught prompted’ by testimony which he heard. There *13 286
Lowe, J., dissenting: law tradition of "cross-examination English common acts of inquire particular into counsel permitted
to credit” misconduct, had it not been the basis though a witness’s In the courts trusted England, crime. conviction a In coun- to avoid abuses. this of the bar disciplined discretion decisions, ironically, and variety of try confusing is a there Maryland that confusion exists. even country acts miscon- Many permit of the courts this whether convictions ensued impeach used to duct be altogether prohibit of courts A number not. substantial impeachment misconduct for as to acts of cross-examination dangers prejudice otherwise because of the purposes party), if is a of distraction the witness (especially confusion, ques- of unfounded by asking abuse and of tions. most "arguably the Although the latter view is fairest ed.) (2nd McCormick, at C. Evidence practice”,
expedient category in a which 82-83, Maryland to fall third appears mis- concerning acts of that cross-examination recognizes trial discretionary to a control subject conduct is newly with its identified preoccupied judge. Perhaps have "credibility rule”, majority appears to overlooked abused, which, when discretion traditional but limited this Before right confrontation. affronts the constitutional majority, differences with addressing my specific recognized basic therefore, generally a point out should — — judi- majority did not point since the beginning upon right defendant’s infringement cial credibility is addressed to witness’s cross-examination error of magnitude, expressly constitutional so since exists, Alaska, Davis v. 415 U.S. If such error way testimony prior helpful no [that which that could been testimony.” witness] in his Id. 203. at cert, 1221, denied, In Robeson v. A.2d 444 U.S. testimony concerning pre-arrest admission of silence was held gave testimony, objection, harmless where the later without witness testimony objection to the same effect as earlier to which an erroneously overruled. Id. 504-507. *14 depends upon harmless, it exists hardly but whether can it. The discre- limiting in judicial discretion the exercise in a criminal inquiry an right to interfere in such tionary and relevance. degree, purpose toas only permitted case is become interrogation has decide when judges Trial must that, 316; scope the beyond id. at repetitive harassing, if is irrelevant. only limited it may be of cross-examination ramifications the constitutional Having disregarded result), majority’s in its the unnecessary light of (perhaps as judge discretionary responsibility the the brushing aside by quoting effected proffer of the to decide the relevance State, 273 Md. platitude from Smith v. a Pickwickian credibility always relevant.” is "witness’s a declaring an sophism by Smith It underscored the then — unaffecting piety equally into a matter relevant inquiry "The sought defense to truthfulness.” scope of the is the test banality
If to be will have credibility, majority cross-examination to test that there implication, I as its what have discerned effected judge exclusionary no left a trial is discretion rule”, newly "credibility sphere of The cross-examination. offered for the majority, poor substitute identified is and that we once English reposed faith in its bar bench, i.e., those to discern in context reposed our trial to us when so remote questions fact-bound of relevance newly named but page. majority’s printed viewed old to return to the "credibility appears rule” unexplained — system had evolved English from which our tradition scope of his only lawyer can restrict where exercised, Yet, if is to be of a witness. discretion examination rather than a biased judge with the trial should remain advocate, necessary, the ques- since where such discretion is obviously requiring will be close ones tions of relevance case, however, balance. After this delicate way in some long inquiry interfere as as the relates veracity regard without to whether past witness’s acts relate litigated controversy acts to the issue and in through that witness. law,
I cannot accept interpretation either that or our right change that which precedent has established here as the law. In past, we have frequently said that unless the proferred relevant, probe unquestionably we cannot call it an "abuse” simply substitute our own judgment. Were we that, permitted to do concede that here part the wiser discretion, and- practice, a better would have been to have demanded a proffer, camera, err, more detailed and then *15 all, if at prudence. here, the side of But proffer the to appellant limited, which point is did not to an act of miscon- any pertaining witness, duct motive of or bias the nor was it relevant issue within the range litigated controversy.
Bearing in that mind the accused the corpus conceded crime, delicti of the litigated the sole controversy issue or in agency, i.e., was his criminal the victim’s identification of him as the perpetrator. That not what sought is the proffer impeach. true, proffer, if disclosed that the witness had admitted an alleged upon that assault her was not an at assault all.
"MR. ... I KAHN: think I should in proffer this fashion, I have information that the witness made charge against a criminal this Vrhovac assault on her. And then subsequent, during the course of truth, the trial admitted that she did not tell the was, that it was not assault on her. And that he statement, a recanting as result of her found not guilty.” proffer may
This collateral have attacked her regarding what the elements of an assault constituted delicti), controversy, (corpus upon but not the which issue (criminal agency). was the identification of the perpetrator certainly Judge We can assume that sensed Brizendine lack some ofrelevance between the attestation the witness her, inquisition and the directed at he did not although judged who Unlike the Puritans explanation. detail his rather indicated judge’s expression the Prynne, Hester by for life one marked he did not adhere to belief instances, pre- implied multiple He single indiscretion. irrelevant, may indicate if sumably even collateral untruthfulness, single irrelevant but that a propensity distracting time-consuming to such incident lead issue corpus delicti that even uncontested explanations identification. controversy is only may be obscured when danger weighed probative against value short, In he and said: misdirection ifAnd it were independent matter. 'T think it’s an instance, I one, don’t but one isolated more than this, objec- I will it’s relevant to so sustain think tion.” Court discretionary that the exercise precisely
That is judge Caldwell permitted trial Appeals did not majority Md. cited but which try double-rape In that explicate, explain distinguish. case, counsel could had ruled that defense trial regard their prosecuting with witnesses men, alleged to have against two other rape accusations with the attacks at issue contemporaneously occurred *16 that points up limited discussion there case. Court’s appeal the sole issue on is not whether we believe irrelevant, or but whether inquiry to have been relevant If question regarding there relevance. cognizable was not any question, judge’s there the trial discretion was was not abused, Appeals he ruled. The Court of was however persuaded that trial had his discretion abused Caldwell, just I am in this case. supra at as Court, two from They rely instead on criminal cases our State, (1974), Mulligan v. DeLilly App. v. 11 Md. 676 and (1973), in the App. 588 and two civil cases 373 and Appeals, Court of Mahan v. Md. Fairfax, DeLilly In both Sappington Md. weighty Mulligan, there was a clear unequivocal impeachment relevance between the issue asked for controversy through witness’s and the issue purposes inquisition. i.e., the attestation and testimony, between was, it is by the witness DeLilly, the issue attested In accused; the under here, issue the identification an misidentification of clearly prior relevant inquiry was a the issue Mulligan, In in the same occurrence. accused the truthfulness of police officer-witness attested appellant’s a recitation of report which contained statement; was the officer’s inquiry the issue under disputed Each case has an obvious past reporting. truthfulness inquisition, and the the attestation relevance between credibility issues were held that such relevant properly we improperly proscribed. by major- relied on that the civil cases significant
It is had relevant issues that ity questionably dealt with both cursorily In credibility. regarding admitted witness’s been cases, simply said Appeals the Court of affirming those testimony of unrelated not error to have admitted it was that to have mendacity. precluded That does not mean error. To the con- would have been questions and answers exercise of discretion as trary, judge’s it the trial supported would it have been I in the case before us. Nor would us, in the case before inquiry to have admitted the improper permit surprise this although may imprudent have been jury, of issues before the herring red diversion and confusion heavily in the discre- weigh appear considerations which Smith, 162. tionary supra at balancing. See firmly believe hobble I so Because interferes with improperly cross-examination confrontation, hardly address need right constitutional I do not believe that majority’s apologia. harmless error right to test a witness’s an interference with improper It for that reason perhaps could be harmless. traditionally as a discre- that this issue has been treated evidentiary right rule of tionary exercise rather than abused, it neces- If in this case is wrong. judge’s discretion *17 demarcation of his sarily that he has crossed the means authority the error is of constitutional discretionary and line of discre- if he has not crossed dimension. But interfere. tionary we cannot responsibility, disclo- the collateral value of weighing probative In i.e., within sure, perspective, review it must elicited. controversy the evidence litigated range of the boyfriend charged had fact that a witness once Does the clarify her identification crime or with a confuse indisputably which of a crime appellant perpetrator as the discretionary To upon her? review had been committed exercise, we, too, try perspective similar gain some must To that we should our record. do setting of the trial from cold at trial vis-a-vis picture transpired have a far better what byus afforded than has been appellant, the identification detail as least much factual We will need at majority. error. reviewing if we were harmless there has been "The of whether determination necessarily con- requires abuse of discretion bearing circumstances particular sideration of the Clearly, absolute upon each individual case. to a wit- pertaining of cross-examination
preclusion abuse of be an testifying ness’s motive for would discretion, must to such beyond but that we look permitted, how interrogation scope factors as the motive, particular inquiry is bias relevant the prejudiced defendant has been and whether the App. ruling.” Fletcher v. court’s 349, 357 record
A from the trial clearer of the scenario depiction only clear evidence was revealed that identification — — doubt but was convincing beyond a reasonable corroboration, as supported by physical circumstantial applied reliability well that we as numerous tests revealed to the other The in the record as cases. evidence court and was as follows: evening 1980 a mother was September
On the of 30 awaiting 18-year-old daughter. home the arrival uneasy had said she would daughter mother was because the *18 be home about 9:00 o’clock and that passed. time had The anxiety proved mother’s to be well-founded. About 10:30 she waist, saw her daughter, bent over at the walking with diffi- culty battered, toward the daughter bloody house. The was and bruised. She called out to her mother and kept beaten, "I I exclaiming, have been have been raped.” putAs by officer, the police who talked to her upon responding to crime, the call reporting the she "indicated” that her assailant had forced her "vaginally, anally, orally copulate physical [him].” Her appearance, injuries and emotional state graphically bore out her allegations. Her daughter’s mother described her appearance: head "[H]er big was about as as a basketball ... it was so swelled out. eye, closed, And her eye one was and the other was half open.” police The officer depicted injuries: her "Mass contusions and bruises on her throat and neck area. Face battered, was badly left extremely side of the face was eye swollen. The left was swollen shut. And all the blood vessels were broken in the right eye. couldn’t observe the eye left because it was by swollen shut.” An examination medical doctor disclosed that "she had ... a bit of swelling eye of her left region. and left orbital swelling She had some of her neck and face multiple with bruises. . . . She had a bloody discharge from her coming ears ... she had bruises on her left arm.” There was an abrasion type puncture wound on one of fingers. There was of the tenderness vulva area (the (vaginal) and of peritoneum area lateral to and beyond vagina). injuries Her were so severe that gynecologist who examined her general referred her to the surgeon at the hospital eye, and to an ear and specialist. nose daughter
When the had arrived home after her travail she "sobbing was hard.” crying Even at the time the officer talked to her she "breathing "sobbing was hard” and crying.” way On the to the hospital, pointed she out where place. assault had taken At police the scene the recov- ered the underpants which had stripped been from her during the rape, numerous coins and a book of matches. ground appeared to "disarranged.”
The assailant was identified the victim as Thomas him” having from "known him Wayne recognized Cox. She name to her gave his promptly and she neighborhood, in the it was inconceivable at a time when police mother and to He assailant. her known that she would fabricate where property in a house on apprehended forthwith custody, his into had occurred. When he was taken attack officer, "very arresting were clothes, in the words dirt, dungaree jacket very dusty, had a lot of loose dirty, *19 just got down and rolled [I]t’s .... like he jeans and his blue grass had some stains also on ground. [H]e on the . . . around pants.” There the knees of his jacket of his and his elbows on his arm. or scratches "newly made” abrasions were four Maryland Correctional Insti- from the He had been released place. took day in the attack Hagerstown tution the details of her ordeal. the victim recounted At the trial to walk p.m. house about 9:05 girlfriend’s had left her She remarked: "I home. saw Cox and the three blocks to her She He that he jail.” replied to be in thought you supposed were for a day. He asked her just had been released earlier hug, and she refused. ground started pushed
"And then he me to the and beating me in the face. And he strangling me and hard just kept beating gave me. And he me a blow my I Then I awoke passed to left ear and out. when I And I was moved further to the side of the house. my my
noticed that and underwear were pants gone, pants having and his were down. And he was vaginal beating intercourse and still me the face. just kept beating gave
And he me. And then he me passed a hard blow left ear and I again to same I he out. And then the second time when awoke was my eye actually . to trying pull right trying to out..
pull By eyeball it out. ... itself. . .. grabbing my I face to put up And then hands towards his — to, know, try you him And give get stop. to that’s my my finger. when he bit me in and He bit wrist really down hard. And I still don’t have too much me he feeling finger... in that . Then after he beat he anal up. And started sex.... beating kept anally, fingers up put then his he four put First stop. him I said kept telling I anally. And penis said, kept, And then he he doesn’t. it hurt. And me, know, my eye starting to you beating and was stayed got up top he and on of me up. And then close my mouth.” put penis and his He time. then intercourse with her second vaginal He had began to the end of the his walk toward up pants pulled her, "Sorry I by telling had He excused his actions yard. The victim had a woman in six months.” do this but ain’t up by the fence.” She pull so had "to herself was weak she put her slacks and underpants, to find her but was unable her "very legs ribs were bruised” purse. located Her beating she had like "rubberbands.” Because were position. She very slowly and a bent over went walk happened. her mother what had directly home and told shortly and she arrived thereafter ambulance police hospital. taken overwhelming testimo- dispute At trial did not Cox establishing corpus delicti of *20 evidence physical nial and did, however, to attempt cast reasonable crimes. He the that he was proof presented by the State to show doubt on the to produced parade He witnesses agent. the criminal locality They him in the placed an establish alibi. before, the during and after thé time the crime scene of committed, they but alleged to have been crimes were during the critical activities attempted account his he been the as that could not have so to indicate period by evidence offered Cox There was no perpetrator. explain the fresh on his arm or concerning the scratches clothing. of his condition see, physical From we can in addition that review — clothes, appellant’s the dirt and dust all over
evidence stained, unexplained the scratches grass elbows and knees practically apprehension the fact of his on his arms and — placed own "alibi” witnesses crime that his the situs the opportunity time and him at the situs of the crime with both may have appellant it. That the committed to have available alibi, but is, an all as already sexually satisfied been in with an engaged Cox was One of the activities incredible. Cox, the street from lived across homosexual who admitted to his in Cox came day who that on the testified act a homosexual performed he p.m., 8:00 and house about porch and sat on p.m. left about 9:00 on Cox. Cox house in which was same the street. This house across later. Cox arrested a short time in v. Moore reliability indicated is the further
There (1975),1 in young girl of a App. 26 Md. 562-567 an immediately following attack excruciating pain situation, relating engulfed emotionally still while The chance of her of her attacker. mother the name she knew minimized because misidentification was dis- his corroborated appellant neighborhood from the is itself admis- prison her ofhis incarceration prior closure to State, Md. identity. See Mollar proof sible as further App. (1975). overwhelming pos- reliable corroboration of the
With such victim, by the it is inconceivable itive in-court identification born, once and subse- that because victim recanted, quently improper charge against boyfriend, lying she would be or mistaken now the identification It is equally any assailant. inconceivable reason- able person would have been affected disclosure she once had that an was not an assault admitted assault (which true) I here raised will assume have been of appellant’s agency therefrom a doubt criminal reasonable so, err, If trial if judge this case. that is did even we beyond question, find that the was relevant thus inquiry Dorsey v. depriving discretionary of his exercise. 276 Md. address regret majority does not what *21 reliability App. 1. that In Moore v. Md. 556 we held hearsay impediment youngster an in when excited utterance overcame the a pain "Daddy injury, did his doctor caused the it”. That same told who badly raped reliability young girl concededly to a beaten and adheres immediately to her mother. ravished who identifies attacker with cross-examination as an recognizes as an interference they that magnitude. regret further issue of constitutional they assume from a little faith in a trial have so judgment on his improve on a fact-bound issue to cold record own, when the limitation on by substituting their clearly no substantial harm to has done cross-examination defense, been an issue of error rather than even if it had an exercise of discretion. error; proper a exercise of discretion
But it was not by jurors. confusion Whére is to avoid distraction and majority holding cited or citable single there a case may single suggestio be scoured for a past that a victim’s irrelevant, falsi, may then be used to becloud however which for the the factfinder? There was no case the issue before such collateral excursions into permitting to cite majority past. victim’s
There is now.
Wilner, J., concurring: that the troubling one. There is no doubt
This case is beaten, and 18-year brutally raped and old victim was presented the evidence more than sufficed show aware, I am appellant guilty party. Cox was the well Orth, today of the Court’s decision is Judge that the effect again that the come into court and endure require victim reliving retelling the trauma and humiliation of upon committed her. This is unconscionable horrors earnestly that all of us are sensitive to and wish something could be avoided. us, however,
The issue before is not whether Cox should convicted, convicted. properly have been but whether he was probability the crime nor the Neither heinous nature of primal detract from our that Cox committed it us precepts fundamental responsibility assuring here, process due of law were in this case. At issue observed line permit inquiry the context of the court’s refusal to (State cross-examination, right is the Constitutional Federal) witnesses persons of all accused to confront the (1974); Alaska, against them. See Davis U.S. *22 297 right that It is a Md.App. Gregory case; pro- must be it particular nature of a transcends the every case. tected out, notwithstanding the abun- pointed Orth has Judge
As evi- circumstantial and corroborating physical dance credibility, one of down to dence, at trial came the basic issue was her that Cox accusation the victim’s whether to believe jury If were to that he was not. assertion assailant or his witness, it would truthful victim to be a credible find the said, and thus what she to believe naturally tend quite That of Cox. disbelieve, contrary assertions doubt, or to hand, the if, the other But happened. obviously is what — credibility of the victim to doubt had some reason jury a truthful one of Cox was her accusation whether — defense credibility of Cox’s counterbalance weakened, may then and the been would have event, may In that favorably. that defense more regarded guilt, as to Cox’s doubt entertained a reasonable well have nature of the from the him. Aside bestial acquitted and thus this, point the one here, is perhaps, assaults committed trial court erred if the among panel; agreement by defense sought cross-examination refusing to allow the beyond a reasonable counsel, harmless error was not doubt. being one of error or
Judge Orth views the issue as dissent, Lowe, the allowance of Judge non-error. sees matter, "yes-no” credibility as to not as a cross-examination wrong, or but rather as a judge being right the trial either discretion, urges that his permits matter that of some unless ought exercise of that discretion not to be overturned it amounts to an abuse. It me is this. The cases cited seems to that the law — — that, in make clear
Judge DeLilly and the others Orth general, designed to test or attack a wit- cross-examination must allowed. It always ness’s is relevant and off judge simply A cannot shut not a matter of discretion. successful, which, if inquiry through cross-examination witness”; DeLilly, of a impair would tend "to the credit so, in a 681; purported if he whether Md.App. at does by misunderstanding simply exercise of discretion harmless, will, law, the error is resulting conviction unless be reversed. are, however, in which trial two areas
There deciding The first is in whether may have some discretion. *23 really to be is relevant to sought elicited information whether, words, impair to in other it would tend credibility, witness; in. deciding and the second is the credit of is a one. question posed proper We particular whether the these. are with the first of concerned here has agree judge I that the trial some discretion Although inquiry determining particular line of is whether is, cases, limited credibility, to under the a rather relevant Thus, here, if, permit to discretion. as refuses that, ground on the certain line of cross-examination judgment, wrong, it is not relevant to and he is direct error as an abuse regard whether we the mistake as or only legal to theorists and importance of discretion is effect, remedy, required commentators. The same. convinced, Orth, by Judge cited am from the authorities sought by
that counsel was inquiry the line defense here, dealing Judge credibility. relevant We are not amounting "bad not con- suggests, past Lowe with acts” victions, certainly dealing and we are with issues chastity, reputation, victim’s moral character. that would
Assuming, purposes appeal, of this counsel proffer through able confirm his been victim, is this: simple question cross-examination of the fact, deciding the trier whether would it be relevant for Cox, to know she believe the victim’s accusation criminally had another man to be once before caused assault, charged repeated that she had that accusation with trial, under and that on cross-examination oath at man’s (1) recanted, tacitly she admitting she had thus at least (2) man, had she had lied under oath? falsely accused the way can be answered There is no reasonable why in the the conviction must be reversed. negative. That is