*1 OF STATE MARYLAND DORSEY September Term, [No. 1975.] January 9, 1976. Decided *2 J., C. argued Murphy, Singley, and The was before cause Eldridge O’Donnell, JJ. Levine, Digges, Smith, and Barry Renbaum, Defender, Assistant Public with whom Murrell, Alan H. Defender, George were Public and E. Jr., Burns, Defender, Assistant Public brief, the on for appellant.
Leroy Handwerger, Attorney General, Assistant with Burch, whom were Francis B. Attorney General, and Sharp, Clarence W. Attorney General, Assistant brief, on the appellee. J., opinion delivered the O’Donnell, of the Court. J., Levine, JJ., C. and specially Smith and Murphy, concur result, J., the and filed opinion specially C. an Murphy, concurring in result, the Levine, JJ., Smith page concur at 661infra.
Following jury in the trial Criminal Court Baltimore (Judge presiding), J. William Hinkel appellant the Donald Dorsey robbery deadly was weapon, convicted with a assault, gun and of the use of a hand in the commission of a crime of violence. His conviction was affirmed direct appeal Special the Appeals unreported Court of per opinion State, curiam in Dorsey (No. 282, September Term, 1974, 5, 1974). decided Upon appellant’s December petition granted we a writ of certiorari to that Court limited (1) allowing issues: Did trial err in court Detective Simmons, Richard on cross-examination question: answer you “And the cases investigated, you give any can us idea of percentage your which convictions resulted from arrest?” If the permitting court committed testimony, prejudicial. the error
At 27, 1972, about 11:30 P.M. on December Mrs. Doris Fuller, proprietress carry-out shop, “Red Bull” Avenue, Baltimore, was confronted
2301 East North men, gun, young of whom was with three one arm.ed patrons stickup.” were directed to “This is a Several was told floor; One ordered “not to lie on the she was move.” pockets and relieved her of a .22 her caliber robbers searched group, trial pistol; whom she identified at the another open register appellant, her to the cash and he ordered She testified that as the bandits left contents. removed its appellant one premises, had directed of his her, man, her.” however fire on She “Fire on confederates promptly police were called. further harmed. photographic robbery Shortly she made a after Dorsey Gary appellant’s as one of brother identification testimony, identified in which she her her trial assailants. she had known the appellant, Fuller stated that Mrs. *3 whom all of looked appellant several brothers and his — years and conceded a for a number alike somewhat acknowledged had She that she with their names. confusion robbers, Gary Dorsey as but mistakenly one identified 31, 1972, when her cousin William that on December Jones, appellant, accompanied by the came to the Alexander gun been taken shop.and returned the which had carry-out robbery,1 it was during then realized that she from her brother, Gary, Dorsey who had not his Donald reported hold-up. was information participated in the This police. to the Simmons, City
Detective Richard of the Baltimore Police days hold-up Department, three after the he testified that group photographs Fuller with of six presented Mrs. Gary Dorsey identified as one of the from them she assailants, arrest; was issued for that he that warrant his police when he to the and that surrendered himself police she Fuller at the station retracted confronted Mrs. further and he was released. It was her identification group photographs when was shown a second elicited January 5, appellant and 1973 she identified the also her on shop appellant gone testimony with that he had 1. It was part informing suggestion, him that he did take Jones, after at Jones’ shop. carry-out robbery of the t1'" line-up five held months after identified him robbery. Simmons, recalled in trial as a witness Detective — objection permitted by the defense, was over State self-serving exculpatory made statement
to relate an that, him, following he when interviewed his defendant arrest, any knowledge robbery he denied insisted of an that he home because illness.2 prosecutor then by way assistant developed cross-examination of the detective the issues which we here examine. That cross-examination was as follows:
“BY MR. CLARK:
“Q. Simmons, approximately Detective how many robbery you investigated armed cases have your experience with the City Baltimore Police Department? Robbery experience
“A. Squad my with the police department?
“Q. Your experience police with the de- partment? I
“A. very to take a guess; say broad I’d neighborhood somewhere of about a thousand.
“Q. approximate Of that one thousand cases can you give any us idea of person how often any arrested denied involvement the crime? *4 Percentage say
“A. wise I would about 80% of they the deny any time involvement. “Q. you And investigated, cases can
you give any us percentage idea in which your convictions resulted arrest? from Objected
“MR. HORNSTEIN: to.
“THE COURT:Overruled. witness, testimony 2. Before Detective Simmons’ as a defense appellant
had been submitted on behalf which tended to establish such an alibi. Honor, I Your am “MR. HORNSTEIN: profoundly impressed by Detective Simmons’ talent; think knowledge and I don’t guide yardstick should us is a outcome of cases trying evidence. Hornstein, trying he Mr. “THE is COURT: he I think broaden the denial defendant. do can answer the permitted to so. You should be question. except. respectfully I would
“MR. HORNSTEIN: regarding testimony be is that there could The fact of other denials, regarding the outcome but not cases, respect box outcome cases. With certainly yardstick scores, think that I say, weight evidence. the, I what shall question. can answer the “THE COURT: You percent; and approximately 75 or 80 say “A. I’d percentage. being my very broad with lam respectfully I continue “MR. HORNSTEIN: testimony regarding objection and move all stricken. outcome ” Overruled.’ “THE COURT: added). (Emphasis finding ruling by Special Appeals in that the
The Court of erroneous, pointed out that “there was court was the trial upon which to absolutely or statistical basis no factual opinion, opinion” that “the officer’s formulate such circumstances, completely unreliable and under the Evidence, Citing untrustworthy.” Criminal Wharton’s § the view 1972), was further of that “even (13th ed. the court wholly sound been based the estimate had objectionable question would have been itself foundation the which was sought inject the case evidence into for it the issue entirely incompetent, irrelevant and extraneous to with We concur appellant’s guilt or innocence.” testimony was inadmissible. conclusion that agree however with the further conclusion We cannot erroneous, “ample that, though there was its admission
643
evidence,
legally
support
finding
to
sufficient
appellant’s guilt
dissipated
. .
and .
such evidence was
testimony,”
erroneous admission of
officer’s
nor
agree
view,
authority
we
with
court’s
can
California,
(1967),
Chapman v.
Distinct relevancy from “competent,” its to be *6 established proffered come within the must
evidence Dinnis, introduction. See Haile v. or rules for its principles 363, (1944); 144, 152, A. see also Wharton’s 2d 184Md. 154; Criminal Evidence, Underhill’s Criminal § Evidence, 1956); (5th ed. 29 Am.Jur.2d ll at 12-15 Evidence § (1964). 2 816 307-08; at 31 C.J.S. Evidence supra, 257 at § § was whether he appellant’s in trial principal issue the robbery. the Detective perpetrators of of the one large attempting testimony, to establish that Simmons’ robbery by were arrested him percentage of those collaterally ultimately proven guilty, establish undertook to successes, probative no investigative but had the detective’s — the tending proposition the issue to establish value — and was appellant one of the robbers identity patently irrelevant. thus ruled jurisdictions “in the have which courts
Even in those admissibility [expert] or mathematical of statistical the on probability that the defendant show the evidence offered to alleged not, person the was, who the committed or was was, with the not, connected crime, or was or that he * * * held way the act in some [have] criminal court[s] expert permit an witness to reversible error to [so] it was (1971). See also . . Annot. 36 A.L.R.3d testify . .” See Collins, (1968); 2d State v. 2d 438 P. People 68 Cal. generally, (1966). P. Sneed, M. 2d 858 See 76 N. “Trial Fairley, A Comment on Finkelstein Mathematics,” 84 Harv.L.Rev. — though syllogistically to relate
Permitting the detective high probability jury, imperfectly before the portray appellant’s guilt, the officer as tended testimony, with a clothed his “super-investigator” and thus greater weight might given than that which have been to the Thus, testimony jury’s other witnesses. basic conflicting arriving weighing evidence function doubt,” guilt “beyond a conclusion of subjected counterbalancing effect the detective’s to the opinion. Indeed in the absence of irrelevant and extraneous investigation any showing similarity which between the investigations appellant’s led arrest those other rate, premise led conviction which to the detective’s posited jury appears been before the invalid. court, overruling appellant’s
When the trial prosecutor] objection, trying stated: to broaden [the “[h]e defendant,” ruling nothing allay, did denial of jury, weight the minds of the the additional obviously opinion. given would them to detective’s agree appellee’s contention,
We do not with the under the holdings Graff, 194Md. Williams 71 A. 2d self-serving (1950), that, exculpatory 452-53 since appellant were remarks elicited the detective’s examination, scope direct came within the permissible cross-examination.
Although predecessors stated v. Williams Graff supra, go restricting that “our rule does not to the extent of specific ... to inquired cross-examination details examination, permits into on inquiry direct but full into the into,” subject matter entered and added that “[w]here general subject upon has been entered in the examination in chief, cross-examining may counsel any ask relevant 3 question general subject,” on general it is nonetheless a rule that a any fact, “witness cannot be cross-examined as to which, admitted, would wholly collateral, be issue, irrelevant to purpose matters for the contradicting evidence, him other and in this manner to testimony.” discredit his Edwards, 89, Sloan v. 61 Md. 105 (1883). recently State, More 152, Smith v. 273 Md. 328 A. (1974),Judge Levine, 2d 274 majority Court, of this wrote: subject
“Even may in the case of matter which validly pursued cross-examination, on the witness impeached by only can be extrinsic evidence with regard respect to material facts not with collateral, facts are irrelevant or immaterial to case, State, issues Howard v. (where 415 in murder case state’s witness denied Shupe State, 307, 311, 3. See also (1965) Md. 238 208 A. 2d 592 repeated. where this statement cross-examination,
trafficking in heroin on
im-
peaching
testify
not allowed to
witness
that first
heroin);
witness had trafficked in
Quimby v.
Greenhawk,
335, 345,
166 Md.
See also Wlodarek Tanner, (1940); 315, 320, Md. City Ry. Co. v. Pass. 188,189 (1900); Davis Special conclude, Appeals, We as did the Court of Simmons, evidence elicited from Detective collateral record, concerning was irrelevant and his arrest-conviction innocence, guilt appellant’s or extraneous to the issue of permitting it, ruling, court’s and that the trial manifestly erroneous. evidentiary whether inquire next
We must prejudicial appellant. was “harmless” or English original and under the orthodox Prior to (K. Ball,4 Eng. Rep. exemplified rule, Rex v. best rejection of evidence 1807), B. an erroneous admission setting ground for aside the verdict was not a sufficient appeared it ordering trial, unless all newa thereby been reached. judges the truth had *8 1807), Ball, Eng. Rep. (K. 721 B. which has Been v. 168 4. In Rex possibility” England, interpreted King’s Bench, establishing in the “reasonable as forgery, “[wjhether affirming a conviction for stated: in wrong ground that judges on the would hold a conviction on a case reserved received, improperly had been when evidence had been other some evidence conviction, support the the properly itself sufficient admitted was of depend Judges of the case and think must on nature seemed to by proper clearly weight evidence, made If the case were out evidence. way guilt prisoner in of the of the a to leave no doubt in such man, they thought any be a as there could not the mind of new trial other evidence the case without ought felony, some not to be set aside because in such a conviction ought if given received. But which not to have been had been clearly out, improper made and the were not evidence might supposed minds of improper have had an effect on the be jury, it be otherwise.” would ed.) (1940 Wigmore, Evidence 21 365-66. See also 1J. § Exchequer, Barnett, The Crease Court of v. & 1 C.M. R. spirit, announced a rule later
interpretation, signified ruling that an erroneous created for excepting party right and defeated an automatic to a concept accepted by trial. This new other courts for generation England more a than and remained law of form, until 1875. In reformed its most extreme that rule theory created the the rules of evidence an formed “end themselves,” than rather a means to end. It obtained recognition great jurisdictions a number of in the United States, although appear does it to have been embraced (1940ed.) Wigmore, See Evidence 21 1 J. Court. § history Exchequer of the criticism rule. imprint Exchequer rule earlier decisions many legal led litigants authorities to conclude that were hearing entitled to an errorless in the trial Gibbs, court. See Prejudicial Error: Admissions Exclusions Evidence in Courts, Federal (1957). 3 Vill.L.Rev. Today, however, firmly it is established that an accused “has a right necessarily constitutional to a ‘fair trial’ but not to that experienced rarity, perfect seldom Babb, trial.” State 547, 552, 258 Md. 267 A. 2d (1970). See also Lutwak States, (1953);Hopkins United 344 U. S. App. 53, 69-70, (1974). 2d times, appellate modern jurisdictions review in all subject judgment may affirmed, to tenets that a under circumstances, despite certain errors committed in the conduct of the application trial.5 Such rules in their represent appellate judgments justified that a retrial is not rights parties. error has not affected the These rubrics, constitucional, statutory judicial origin, employ variety determining of standards for whether a particular “harmless,” error is require but all “the resolution significantly whether affected the interests of complaining party.” McCormick, Evidence, supra, C. § 183at 429-30. Note, ReAppraisal, A See Harmless Constitutional Error: 5.
Harv.L.Rev. *9 right
In where a a those circumstances violation of protected by occurs, Supreme the Federal Constitution the interpreting Court, as the ultimate arbiter and implementing guarantees, has declared such constitutional “harmless,” where, upon be a review of evidence error to able to declare a belief that it was offered the [is] “[C]ourt Chapman reasonable doubt.” v. harmless a California, 386 S. U. Chapman, Supreme held comments
In
Court
that
instruction, concerning
prosecutor,
jury
as well as
petitioners
testify, found
be in
failure of the
to
to
violation
California,
holding
v.
The none “harmless Court observed that of the states, rules in in the similar to that error” statutes or effect 2111, facially “distinguishes between set forth 28 U.S.C. § errors errors of state law or federal constitutional very rules,” all federal statutes and “serve a useful but they setting purpose insofar as block aside convictions for little, if any, likelihood of small errors or defects that have having changed 22.7 the result of the 386 U. trial.” S. Carolina, (1968) 543 Bumper
See also v. North 391 U. S. Supreme similarly held where the Court that a violation of error,” upon the Fourth Amendment was not “harmless finding through violation, that the evidence obtained turning point identifying been had the defendant. 391 S. at 550. U. Harrington California, (1969),
In U. S. Schneble Florida, Wainwright, (1972), Milton v. 405 U. S. 407 U. States, S. and Brown v. U. United S. 223 (1973), Supreme Chapman Court invoked the test in finding In cases, “harmless error.” of these Court, each that independent record, review of the found the properly admitted overwhelming,” evidence to have been “so prejudicial effect erroneously admitted insignificant by evidence so comparison, or to have been cumulative, conclude, beyond that it was able to — doubt, erroneously that the admitted evidence though even import of constitutional constituted “harmless error.” provided hearing any appeal 7. 28 U.S.C. 2111 that of or § any case, “[o]n writ give judgment certiorari the court shall after an examination regard record without to errors or defects which do not affect the rights parties.” substantially substantial former is section similar to the provision Maryland (1957, Repl. Vol.) Code Art. § repealed, by (1st Sess.), Sp. which was ch. of the Acts effective §
January 1, 1974, principle in the since set statute believed forth well embraced in the case law of this state. Supreme These decisions Court to errors significance were heralded constitutional that Court’s States, U. v. United S. 750 decision Kotteakos determining where formulated a criterion for whether it instruction, error, resulting from an erroneous trial court reviewing under “harmless the case “harmless.” 391,8 Court, then error” statute codified 28 U.S.C. § recognizing appellate it not an court’s function innocence, guilt pointed out: this does determine “[b]ut appellate escape altogether court can mean weigh taking effect account the outcome. To error’s setting relationship against the entire record without *11 judgment almost work in to the verdict or would be to postulated vacuum.” 328 U. S. The that “the at 763-64. Court question is, they jury] right judgment, in not were their [the regardless error, upon the or its the verdict. It is effect reasonably may rather what effect the error had be taken or had, upon jury’s Mr. to have the decision.” 328 U. at 764. S. Rutledge, writing articulating in majority, for the Justice impact rule the the resolution errors proceedings, verdiet, in criminal stated: done, “If, and the conviction is when all is said jury, or the did not influence the that [such] very slight effect, the verdict and the had but say, . . . if one judgment should stand. But cannot assurance, pondering after that all fair with stripping the erroneous action happened without judgment whole, that from the error, impossible substantially swayed by the it is rights were not substantial to conclude merely inquiry cannot be whether affected. result, support apart from enough there was rather, so, phase by the It is even affected error. 2111, Chapman in U.S.C. the forerunner 28 U.S.C. cited § 8. 28 § provided hearing any California, U. S. that: “On the trial, any case, appeal, certiorari, new in civil or writ or motion of give judgment criminal, of the entire shall after examination [C]ourt defects, [Cjourt, regard errors, or record without to technical before exceptions rights parties.” which do the substantial See not affect 7, supra. also n. had substantial the error whether influence. itself grave doubt, so, in the conviction If one is left added; (emphasis at 764-65. cannot stand.” 328 U. S. omitted).
footnote
substantially
embraced
A
similar to that later
by Judge
Supreme
Kotteakos,
was set forth
Court
Adkins, Digges
opinion
by Judges
Offutt, in an
concurred
Walsh,
(1925).9
148 Md.
“[W]hen case, a fair as to lead with the interwoven judicial experienced mind, impartial trained whole investigation, upon an examination therein, rulings involved and all the case probability there is a conclusion de may have such errors affected they prejudicial and are case, termination 48-49, at Md. at reversible.” 148 added).10 (emphasis Babb, supra, 267 A. 2d at
As we observed
State
of the test set forth
to the enunciation
antecedent
California, supra,
progeny,
the decisions
Chapman v.
its
holding
“replete
that ‘harmless
are
with cases
of this Court
error,’
affect
final outcome of the
error which does not
case,
grounds
not be
for reversal.”
*12
should
Court, upon
State,
34,
(1925),
a
Md.
In those criminal cases Court, mandating found, reversal been without had this any precise applied formulating criteria to posited in process, and without of the test decisional citation State, traditionally applied v. has the same Dobbs 11 rulings upon as civil cases and has based its prejudicial determination e.g. Warden, 432, Ferrell v. 434, 241 See appellant. Md. 216 561, (1966); Ramsey State, 740, 566, 212 v. 2d 239 Md. A. 742 State, 319, 251, 262, Pearlman v. 232 (1965); Md. A. 2d 322 943, 767, (1963) (1964); cert. denied A. 2d 773-74 376 U. S. 192 State, 225 Md. 293, 296, 199, (1961); A. 201 Coby v. 170 2d State, 421, 426, 120, v. (1936); 185 122 Pickman 170 Md. A. State, v. 573,581 (1885). Turnp. Co. 63 Md. Balto. York & State, 491, 486, 906, Md. A. 2d In Duncan v. 190 58 908 State, supra, in Pearson v. found the (1948) the Court as likely erroneously evidence be such to be admitted “as jury prejudice against them and mislead the confuse State, v. 87, 96, 2d Bruce appellant.” 218 Md. A. [the] prejudicial, (1958), error was 428, it was held that “might testimony, believed, otherwise since guilty.” a verdict of not meant — prejudice requirement same determination were applied when the errors of constitutional been
has Midgett State, 216 Md. 26, 36-37, 2d v. 139 A. dimension. See v. Johnson 209, (1958) (communication jury); with the 504, State, 136, 156-57, (1949) (illegally 66 A. 2d 193 Md. State, 397, 390, A. Jackson evidence); 209 Md. seized Capparella v. confession); (1956) 242, (coerced 2d 245-46 204, 208-09, A. 2d 364-65 235 Md. evidence). (illegally seized has erroneously been admitted
Where cumulative, has been held to be “harmless such admission State, 528, 534-35,109 error.” See Jones Md. 2d Deposit Company, Rippon 213 Md. See v. Mercantile-Safe 11. that, cases, pointed (1957), civil “it it was out as to where 131 A. 2d policy and the burden to reverse for harmless this Court not is the is on the also See prejudice well as error. appellant to show in all cases 466, 343 Locke, A. 2d therein Kapiloff and cases cited. *13 653 State, 246, (1954); 212, 224, A. 2d 736 v. 96 Linkins 202 Md. (1953); State, 81, 83, 252 and Kiterakis 144 401, v. Md. 124 A. (1923). 402 analysis holdings
An the of in such criminal cases making appraisal demonstrates that of of the effect error, factor, applied by the determinative Court, this has been whether or the ruling, not erroneous the relation to totality evidence, significant played the role influencing verdict, the rendition prejudice appellant. respect the In approach this our been in has applied by Supreme accord with the test the Court. significant
The most between the review difference used pre-Chapman principles criminal cases laid case, persuasion down that relates burden of at the reviewing traditionally level. required Our cases have that appellant, aggrieved party, only as the establish not error, but well demonstrate as some resultant substantial prejudice. State, 283, 286, harm and See 242 Bristow v. Md. 33, A. (1966); State, 2d supra, 262, 219 34-35 v. Pearlman at 773-74; State, A. 2d 426, 192 at Pickman v. at 122; State, Avery 229, 232, 148, v. 121 Md. (1913). 88 A. State, App. 132, 140, See also Edmonds v. 5 Md. 2dA. (1969); cert. denied 252 Md. Halstead State, 241 A. 2d App. 4 Md. (1968); Borman 276, 279, App. A. 2d 441-42 Court, Chapman, Supreme citing Wigmore, 1J. Evidence (3d 1940) premise original ed. that “the common § put law harmless rule beneficiary error the burden on the prove either injury, there no or to erroneously suffer a judgment,” reversal his obtained placed prosecution burden to demonstrate “beyond a reasonable doubt” that demonstrated did not pointed contribute conviction. But that Court little, any, out that difference between our “[t]here Fahy statement Connecticut about ‘whether there is a possibility complained might requiring contributed to the conviction’ beneficiary prove of a constitutional error to complained reasonable doubt did the error *14 verdict obtained.” 386 S. at 24. See contribute the U. Florida, supra, at 432. Schneble v. Court, post-Chapman Veney
In the first to visit case this State, (1968), Md. 246 A. 608 denied v. 2d cert. that, arguendo, “[a]ssuming, it was held U. S. by Attorney were tantamount that the remarks the State’s stand,” appellant that the failed to take the to comment California, given by supra, in v. instruction Griffin alleged improper that, remarks” trial court “cure[d] holdings Chapman California, supra, if there under the in error, error in fact “such
were [was] [constitutional] 180-81, beyond a reasonable doubt.” 251 Md. at harmless A. 2d at 621. Babb, on certiorari to the Court
In State v.
Chapman
in
Special Appeals,12
criterion stated
evidentiary
In
applied
finding
error to be “harmless.”
“manslaughter
appellee,
case,
convicted
trial,
automobile,”
upon direct
non-jury
in a
testifed
operating
he
never
examination that
had
been convicted
Upon
of alcohol.
while under
the influence
vehicle
objection,
required
cross-examination,
he was
over
public drunkenness.
had
convicted of
disclose that he
been
totality
effect of the
Concluding that
and cumulative
competent
presence of
evidence discounted the
other
case,
Court,
non-jury
this
on
prejudice
ruling,
from such
admitting
the error in
authority
Chapman,
held “that
drunkenness,
prior
the evidence of the
conviction
arguendo,
harmless
assuming,
that it was
‘was
”
2d
193.
Upon review of the statement, proved little and evidence besides Younie’s by men, three a murder had been committed more than that incriminating testimony against appellant principal friend, credibility whose given a woman had been that impugned upon significantly cross-examination. had been in order to find the error Expressing the conclusion that standing good alone must be harmless, “the convict, we must be convinced sufficient [that] way jury was in no reasonable doubt bad,” we were not convinced we held that influenced way no the tainted confession “that [had] influenced 247-48, A. 2d at 219. 272 Md. at jury’s verdict.” added). (emphasis *16 State, 152, A. 2d 274
Later, v. 273 Md. 328 in Smith proffered (1974),14 it held the exclusion of where was error, Court, prejudicial this testimony constituted Special Appeals, reversing took notice that the Court had, dicta, expressed the view had there lower Court beyond a have been harmless been it “would California,” Chapman and under v. reasonable doubt only expressed Chapman applied to “that the view: rights, and issue constitutional that the violations of federal Chapman Hence not rise to that level. doctrine here does therefore, inapplicable. Maryland the test is appear would of evidence results in whether the erroneous exclusion State, Special Appeals v. to Court of in Smith 14. On certiorari App. 254, Md. A. 2d 76 Md. n. party. . .” 273 at complaining . prejudice to at n. 2. A. 2d App. 131, State, Md. A. recently Johnson Most Special Appeals found the error (1974),the 2d 38 Court testimony, only evidence admitting hearsay “the than his much appellant with the crime other connected [implicating to disputed prior himself]” statements concluding error prejudicial. In been Court, citing doubt,” that “harmless a by jury, a “Where trial all stated: Younie erroneously effect of admitted as to the reasonable doubts guilt be upon jury’s must determination objecting party.” App. 23 Md. in favor of the resolved added). Upon (emphasis 138-39, 42-43. 2d at Maryland determination, pursuant 811 b that “no Rule adopted opinion appears decision,” in the we error of law per Appeals affirmed a Special of the Court Johnson, A. 2d opinion in State curiam embraced, discussion, (1975). We thus without “beyond Chapman, a reasonable doubt” as enunciated involving Younie, applied to a case nonconstitutional evidentiary error. it, drawing
As we see is no sound reason for there errors between the treatment of those which are distinction evidentiary, or constitutional dimension and those other may during procedural, errors which have been committed Although the United trial. the Amendments to States commonly are considered a source fair Constitution evidentiary judicial procedure, other nonconstitutional procedural rules, signifying policy respect state with fairness, judicial primary often a defendant’s source of are evidentiary procedural protection. An a trial is bound, fashion, delicately balanced, in some to affect the process. abnegation particular decisional The of a rule rely may which the defense intended to often inflict more damage apparent; initially than line of meritorious defense may result; important may be abandoned as a witness called; strategies not be are often forsaken. future inevitably changed course of trial must *17 rulings impact made. It is the accommodate ruling upon effect erroneous defendant’s trial and the it process upon primary concern, which is of has the decisional labelled as or not whether constitutional Invariably, a number constitutional nonconstitutional. of origin, rights, they inexorably federal be of or state are procedure. with state rules of evidence and intertwined generic Regardless nature of the we believe that appellate review, applied a uniform test should be may to determine the effect the error all criminal cases Saltzburg, S. “The had on the verdict. See Harm Harmless of Error,” 989-90, supra, at No such 1021-22. distinction was Babb, applied supra, Johnson, or in either State State v. evidentiary rulings. supra, both which involved of Indeed, beneficiary requiring of such error to doubt, demonstrate, beyond a the error did reasonable that — truly to the verdict and is thus “harmless” contribute required with the criminal cases for is consistent a Court, guilt. Supreme Winship, re resolution of that, satisfy held U. S. order to process, requirements due constitutional a criminal beyond upon proof based conviction must be a reasonable incompatible, Winship It under doubt. would standard, designed prevent to criminal convictions there is jurors, permit in the a doubt minds of to reasonable a evidentiary that standard and the circumvention review, application, upon appellate test, a allowing lesser stand, where a trial court has been found conviction procedural evidentiary have violated rules might jury have influenced the in connection themselves degree Logic requisite proof. supports with view an appellate court should not arrive at a conclusion impact upon jury verdict, any about the of an error with degree certainty less than demanded in the trial process. Saltzburg, Error,” See “The Harm Harmless S. 992. Embracing requirement Chapman, down in laid demonstrate, beneficiary required of error be doubt, did that such error not contribute *18 principles precept the conviction, engrafting that and antecedently traditionally and mechanics which rights a resolving in of defendant applied whether been by error, adopt we prejudiced were in case a criminal Supreme Chapman applied by the in enunciated criteria by in Youniev. progeny, in well this Court Court its as as determining in criminal appropriate for State, supra, as significance or error, it of constitutional be whether cases Johnson, supra. To See v. otherwise, was “harmless.” State State, supra, extent, noted Smith this the observation 821, n. 2,n. A. 2d at must discarded. case, appellant, in when an a criminal We conclude that court, upon own reviewing a its unless establishes belief, record, is to declare a review of the able independent doubt, way error no beyond a reasonable verdict, be deemed cannot influenced the reviewing mandated. Such and a reversal is “harmless” court must thus be satisfied that there is no reasonable — complained possibility that whether erroneously may admitted or excluded have contributed guilty to the rendition of the verdict.15 case, upon own in this Applying this to the facts record, we not are independent review of entire Detective doubt persuaded a reasonable concerning testimony, his arrest-conviction Simmons’ probability posited jury record, before by extraneous to guilt, evidence irrelevant and appellant’s innocence, appellant’ guilt did not the issue of the against Dorsey. It guilty returned verdict contribute error. thus not “harmless” testimony certainly through the detective offered California, supra; Harrington v. See not “cumulative.” supra; States, supra; Jones v. Brown v. United cases, applied By adoption we criminal do of such criteria to be 15. error,” suggest well-engrafted which has test as “harmless cases, applied appellate disturbed. review of civil should be We been proof proceedings, point plaintiff, in criminal a to the burden of out that contrast proof “by case, required sustain the burden in a civil 10, supra. See n. preponderance of evidence.” State, supra; State, supra. Linkins v. Kiterakis Unlike in Babb, supra, appellant State v. jury was tried laymen, judge, and not as under the facts there “capable evaluating materiality evidence,” sifting-out that which should not have been admitted at tending Dorsey’s guilt, trial. The evidence to establish indubitably “overwhelming,” cannot be termed Harrington California, supra, Florida, Schneble v. States, supra Wainwright, Brown v. United and Milton v. supra.
Independent testimony, appellant’s of the detective’s exclusively upon conviction rested the in-court identification Fuller, prior Mrs. which identification in view of her designation appellant’s erroneous brother as one of — would, circumstances, her assailants under the have to be just “equivocal” Bumper termed as that found in v. North Carolina, supra, persons where two different had been identified at appellant’s two different times. view of the exculpatory statement, undisguised returning his conduct carry-out shop, days robbery, three after the company prosecutrix’ cousin, with the when Mrs. Fuller’s pistol returned,16 coupled stolen with the alibi evidence tending appellant’s confining to confirm the illness at the robbery, time we conclude that there is a possibility testimony that the detective’s of collateral facts “tend[ing] jury point to divert minds of the from the real may prejudices,” (see issue and arouse their [which] State, supra, Hitzelberger Pearson v. 629; A. 2d at 152, 161, play (1938)), 174Md. 2d did contributing role in the guilty rendition of the verdict. As it, we notwithstanding sense appellant’s exculpatory statement tending and the other him, to exonerate prosecution patently resorted to testimony inadmissible attempt in probability establish mathematical of his guilt, and such inadmissible evidence thus became the turning-point influencing jury’s verdict. testimony cousin, 16. There was that Mrs. Fuller’s William Alexander
Jones, pistol had obtained Mrs. Fuller’s stolen from an unidentified stranger. repeat We think it worthwhile to here the caveat set forth State, supra, in Younie v. that the harmless error rule “has carefully been and should be circumscribed for reasons People given Jablonski, App. 33, 38-39, Mich.
N.W.2d where it is said that: expansion ‘Continued of the harmless error rule merely encourage prosecutors will attempt get testimony in, they such that, they since if know case, strong testimony have a will not be error, yet they considered to be reversible have a case, they weak testimony will use such to buttress gain the case to hope a conviction and then that the ” issue is appeal.’ not raised on 272 Md. at A. 2d at 219.
Judgment Special the Court
Appeals reversed; case re- manded to that court with instructions to remand the case to the Criminal Court of trial; Baltimore a new costs paid by Mayor to be City Council Baltimore. *20 Murphy, J., specially G. concurring: agree
I majority with the testimony question that the in improperly evidence, admitted into that the error was plainly prejudicial, and that a new trial is I mandated. cannot, however, majority’s subscribe to the view that on appellate convictions, review of justice criminal somehow dictates that there must be one testing uniform standard for whether an error committed at harmless, the trial was regard without to whether the error was of constitutional not, dimension or and that that test is as set forth Supreme Chapman in California, Court 18, 386 U. S. 87 S. Ct. L.Ed.2d 705 involving a case an error of magnitude. There, constitutional Supreme Court held appellate that unless the court could declare a belief a reasonable doubt that there possibility was no might conviction, it
that have to the the error contributed could not deemed harmless. Chapman,, Supreme pointed Court out that none
the numerous state or federal harmless-error
statutes
reversing judgments
prohibiting appellate
from
rules
courts
rights of
for1
not affect the substantial
errors which did
parties distinguished
between errors
constitutional and
statutes,
These rules and
nonconstitutional dimension.
Chapman,,
very
Supreme
in
“a
useful
Court said
serve
they
setting
purpose
as
aside convictions for
insofar
block
any,
little,
that have
likelihood
small errors or defects
at 22. In-
having changed the result of
trial'.”' 386 U. S.
concluding
required a more
the federal constitution
involving
federal constitutional
stringent test
cases
Chapman
purport
its
did not
to override
own
Court
applicable
authority
the test
to errors of
governing
magnitude, as
in Kotteakos
contained
nonconstitutional
States,
328 U. S.
S. Ct.
90 L. Ed.
United
notes,
case,
majority properly
enunciates
That
less, stringent
than those outlined
the .test
terms far
Chapman, viz.,
appellate
is
conclude
if an
court
unable to
judgment was not
fair
“the
“with
assurance”
swayed by
substantially
and “that substantial
the error”
affected,” it
find the error
rights
. . .
could not
were
harmless.
Our
closely
Kotteakos. We have
always
the rationale of
followed
involving
error that
in effect said in cases
nonconstitutional
ruling,
whether
erroneous
the determinative factor is
evidence,
significant
totality
played a
relation
influencing
of the verdict
role in
the rendition
exacting
far less
prejudice
defendant. That this
is
Chapman
standard contained
than the constitutional
majority
when, in
in 1974
me,
it was to the
clear to
as indeed
involving
2d
a case
Smith
328 A.
dimension, the
observed
Court
error not of constitutional
only
federal
“Chapman applies
violations of
*21
rights,
here does not rise
. . . that the issue
constitutional
determining harmless
level . . .
[and that]
[for
error in nonconstitutional
is whether the erroneous
cases]
exclusion of
prejudice
evidence results in
complaining
party.”
Johnson,
267 A. 2d give explicit recognition we did not the fact that a distinction exists between constitutional and applying testing nonconstitutional error in our rules for error; existence of cases, harmless in neither of those however, was the they represent issue raised and at most apply indiscriminate proper verbiage failure to recognized in Smith supra. majority
The
grave
makes
my judgment
mistake
recognize
when it fails to
the difference between the federal
constitutional
by Chapman
harmless-error
rule mandated
progeny
and its
exacting
and the less
harmless-error rule so
long applicable to
magnitude.
errors not of constitutional
distinction,
it,
the reasons for
escaped
have not
jurisdictions.
courts in
Indeed,
other
Appeals
the Court of
York, People Crimmins,
New
326 N.E.2d
36 N.Y.2d
(1975),recently
expressed views similar to those which I
just
outlined. Other
complete
courts are in
accord. See
United
Arias-Diaz,
States v.
(5th
497 F. 2d
1974);
Cir.
Harbolt,
United States v.
(5th
491 F.
1974);
2d 78
Cir.
Chase
Crisp,
(10th
523 F. 2d
1975);
Lee,
Cir.
United States v.
(D.C.
F. 1974); 2d 346 Jackson, Cir. United States v. 482 F. 2d (10th 1973); Cir. United v. Daughtry, States 502 F. 2d (5th 1974); Bettenhausen, Cir. United States v. 499 F. (10th 1974); 2d 1223 Steinkoenig, Cir. United States v. 487 F. (5th 1973). 2d 225 Cir.
I am Judges authorized to state that Smith and Levine concur in expressed. the views here