*1 ELMER STATE Term, September
[No. 1964.] *2 7, 1965. Decided May before and Ham- Prescott, argued J.,C. cause was The Horney Sybert Carter, C. J., Chief
mond, Circuit, assigned. specially .the Second .Judicial Cole,Jr., for appellant. Donaldson C. General, whom Redden, Attorney Assistant D.
Roger Pinan, General, and Walter M. Attorney Thomas B. were brief, Baker, Cecil for County, ap- Attorney State’s pellee. Dissenting delivered the Court. J., opinion
Sybert,
J., at
page
Hammond,
infra.
after be-
the House of Correction
to five
years
Sentenced
in the Circuit
ing
battery by,
found
assault
guilty
appeals.
Court for Cecil
Davidson
County,
Elmer
John
trial tended to show that
evidence at the
Elmer
men in
the com-
beating
with several
joined
other young
witness,
fifties,
hours
morning
in his
plaining
early
man
18, 1964,
near
across the
from a tavern
January
street
Elk-
*3
ton,
in the
The same incident was before this Court
Maryland.
of Vandegrift
case
“[Defense Counsel] “The Court: Why? : Because he can’t lead the wit-
“[Defense Counsel] ness, and he has even one gone step further. This is Are taken by
“The Court: his witness. you surprise saying? at what man : No. “[Defense Counsel] I him Attor- “The am asking Court: [the . a minute. ney] Wait Honor, I taken Your am not Attorney]:
“[State’s but he is witness would a hostile and I surprise, like to have declared as such. I will him as Go ahead.
“The Court: declare such. supplied.) (Emphasis I Honor. object, your
“[Defense Counsel]: All right, your objection. “The Court: have you didn’t Attorney] : You hear Vande- Q. “[State’s grift him, he was he would A. say him? getting stop No, sir. All
“Q. Nothing that nature? A. I heard Richie better him.’ say, ‘Somebody this man. I help will help That is all I heard.
“Q. And are to stick to you going are you? heard, all I A. That is sir. yes, “ Attorney] : You can him.” Okay. have [State’s mistrial, for a or a a motion did not make Defense counsel the witness declaration that motion to out the judge’s strike it, and disregard and to instruct the was hostile one mo- make of these that the failure to either has been suggested the prejudicial review of the prevents question tions our that the There can be little doubt effect of the remarks. both, one, counsel motions by these defense making preserved have involved properly *4 occa- for so objection above review. We have stated several State, 585, See, 565, 207 115 Bryant sions. for v. Md. example, 502 A. 2d (1955).
But, to these meth- only in determine whether are the order circumstances, ods, of of al- under all preserving judge remarks of for con- appellate improper legedly sideration, must consider our and our previous we decisions Rules. Maryland present back than necessary go do deem to earlier the case
We not
5 Wilson, 624, which Atl. Md. 84 54 (1912), 117 Sandruck a trial judge This Court stated a civil proceeding. involved the jury presence to avoid expressing should be careful left fact should be an which any as to the existence opinion determination, judge that remarks the trial to their but held re- should thought plaintiff indicated that he plainly case, judge as the cover particular were not prejudicial to return a verdict jury could have instructed the properly the plaintiff. State, 58, 56,
In
163
Atl. 284 (1932),
Md.
Lee
in entire
that “the
has not been perfected
Court noted
appeal
court,” but
to this
compliance
governing appeals
the rules
reverse,
denied
went on
had been
to
that the
holding
to
of the laws.
right
equal
constitutional
protection
State,
Md.
in Marino v.
One
the contentions raised
104,
judge
Chief
wrote the
Cohen v.
it is
it is
able this court set aside a because judgment improper rule, this Although stating general remark.” as a 879). (p. available, pass on Court was careful to “We do not say: meth- ods a court that any by might correcting amount interference of process to a denial 880). due law.” (p. (Emphasis sup- of this plied.) It will be noted that decision was rendered prior formal bills present of our rules court when adoption to be in order to obtain a review exceptions presented of lower rulings court Court. It will also be noted that correcting “available a denial of were methods” of due not included scope within the laid'down. ruling 1, was de- A. 2d 455 (1941),
Lubinski cided the the trial court following Again, remarks made year. were were “no challenged.' excep- Court stated that there remarks, tions to of these nor motion made any any was there them,” as a result of hence their was- not-properly propriety However, before the Court review. noted the Cohen, supra, named in exception to “available methods relative denial of correcting” any say: and went on to process, * *(cid:127)* “We find in- the on the nothing rulings evidence or court, the remarks the trial us in con- which would justify cluding law, there has been denial any any of due or process of on infringement the constitutional rights (Em- the appellant:” phasis supplied.) 9-10 (pp. Md.) to have been the last one (touching case seems
This decided before the On Novem- here) adoption involved 1, 1945, 17, ber of Court of Rule the forerunner of Appeals present Rule to criminal Maryland applies proceed- below, of Rule 725 f. ings by virtue At the time of the trial Rule 522 and b read as follows: Exceptions
“a Formal Unnecessary. A formal to a exception ruling order of court is unnecessary. Objection.
“b Action Desired or For of reconsideration the trial court purposes it is review sufficient at appeal, that a party time the or order of the court is made or sought,. makes known to the court the action which he desires to the action objection or his the court take *6 shall not court it court, the requested by and unless be state the therefor.” grounds to necessary cases rule, decided several have of we this adoption the Since consideration, none to seems under involving question the 522 relates how Rule matter as to have with the dealt explicitly thereto. no State, 126, (1953),
In 100 A. 2d Brown v. 203 Md. remarks (challenged court’s objection was made the action before not properly of the hence was question trial the judge); the Court of Appeals. 565, the State, 502), 2d supra
In 115 A. Bryant (207 of mo- one or more the making Court of repeated propriety the made made of remarks complaint tions mentioned above when of se- degree “The the that judge. opinion trial stated by the is left to attorney” of verity of a trial rebukes an prevent a do not they "as judge long discretion trial held The Court impartial trial.” (Emphasis supplied.) fair statements that the actions and the record failed show that of a “as the were such judge deprive [the defendant] Md.). fair and trial.” 585 of 207 impartial (p. 449, State, 2d 218 Md. 146 A.
The trial in judge Wolfe defendant, not who was (1958), assist the attempted counsel; however, represented were the that by we certain of the remarks the trial court in the made so, fact, were, in Horney, in doing jury, prejudicial. Court, for the out ef- pointed prejudicial the “Generally, fect remarks raised may be unless improper appeal an motion to preserved by appropriate objection” (a declare a but, mistrial or a motion to strike out remarks), the under the circumstances there we must prevailing, held “we of our * * * own motion take the cognizance plain of and correct error even such though error not have been may properly includible * * of errors 455 of 218 assignment (p. Md.). other words, we concluded that remarks made be- low denied of law. Court,
Judge Hammond, State, for the in Brown v. 220 Md. 29, 39, A. (1959), 2d 895 an stated: “There was objec-
tion to the questions [propounded by was court], overruled. Appellant represented did not [who counsel] ask that the be jury disregard instructed to questions answers, mistrial, nor did he move which are the we steps have said be should taken in such a situation. Never- [Citation.] theless, we feel constrained to say that questions asked were clearly improper.”
Again, 295, in Rowe 234 Md. A. 2d 785 (1964), we held: though “Even failure question court to advise respect to returning a verdict on the indictment event of insane finding now was not included in errors, assignment we think we must, case, under the unusual circumstances this take cog- nizance of plain error sua sponte.” (It will be noted the case did not involve remarks allegedly improper *7 of a judge.)
We have set forth the and Rule holdings the in above cases a 522 and b in order we ques that consider our may present in tion the before the proper perspective. We think decisions of Rule 522 out thereto adoption point prior (when clearly formal bills in exceptions of were order to obtain required ap pellate the rule was the mode of review), general proper preserving challenged for remarks made a appellate review trial bywas a motion for a or motion to strike mistrial a them; and, the out remarks and to to disregard warn the jury motions, motion, denial such to take exceptions court’s rulings. general the To this rule there was an exception, namely, when the record showed that the accused had clearly trial, a fair and and denied due impartial thereby was noting law. this the process Although exception, specifically spell decisions to the of Rule did not (prior adoption 522) out the “available methods” be used to obtain review appellate However, when the trial resulted in a denial of process. held, State, supra, above, we as that this Court stated Wolfe sponte. Apple should raise sua also See 661, 667-668, Md. 2d A. 509 (1948). case of Kirschgessner (174 We mentioned above the State, having get failed to 195). respon- In that case the obtained, witness, sive answers from asked and charge of perjury. on a for him a bench warrant jury’s presence, into brought was the witness minute recess forty-five After a stand, over resumed custody and sheriff’s court in the dismissed, was warrant the bench objection, defendant’s objections, spite objection. the defendant’s again over to the defen- of prejudice that “the question Court ruled trial” had impartial to a fair and right dant’s constitutional for mis- review, no motion since preserved been for appellate deference With due Md.). been made (p. trial had holding square find impossible it to our we predecessors, therefore, law; of due concept with the present-day is that case conflicts therewith to the extent that this opinion hereby overruled. think, here presented
We under unusual circumstances remarks harmful effects of the the unquestionably be- in more detail we out point low, trial and impartial the accused not afforded fair law, which, was, therefore, under the he denied due process above, call for our review of the pro- authorities cited remarks, if no had been objection of the court’s even priety made thereto.
However, was an made noted in col- objection there formal forth Rule 522 states ex- loquy set above. explicitly is no ceptions ruling “to a court” nec- longer order essary, but for of “review on is sufficient appeal” purposes * * * that a makes known “at time party [of] action or his court the which he desires court to take objection to the action of The rule the court.” couched *8 terms, and and is simple easily meaning understood its clear: is no re- longer necessary, order to reserve appellate view, for a formal party rulings take of the exceptions trial, during court the course of a the makes provided party court,” known to objection the court “his to the action of the action which he desires the “the court to take.” One the of this Rule was to do- primary purposes simplify procedure formalities, ing with and outmoded away unnecessary thereby saving time in the trial of causes and avoiding ex- unnecessary pense. there be a
Although may to whether possible question the in the instant case was directed objection to the re- specifically marks of the when he said “I will declare as such. ahead,” Go the judge’s ruling the Attorney State’s would be to ask leading questions, allowed the objection followed doubt, the judge’s remarks and the if immediately any, rela- should, think, tive thereto we be resolved in the fa- appellant’s Therefore, vor. we conclude that the question of the propriety of the remarks made the court in the presence of the jury before us for properly review under Rule 522. declaration, The court’s jury, witness, Davis, hostility prejudiced State’s clearly appellant’s to a fair right and trial. As impartial the case de its veloped, outcome depended almost entirely the credi bility State, jury accord to the witnesses for the hand, on the one and the witnesses for the defense (all whom denied, effect, that the had in the at appellant participated tack upon the prosecuting on the other. witness), Of witnesses, one, Pinder, who was from a watching window of the tavern some 40 to 50 feet away, testified that appel lant was one of four men who tussled wit prosecuting ness, he although was unable to say which one or ones threw witness down and prosecuting on know, stomped him. prose
cuting witness himself testified he did not which of the men assaulted him. The other State’s witnesses were unable to say they any saw physical contact between the the prosecuting witness. Davis’ was to the same effect. testimony When the trial judge declared Davis a witness hostile State, after he had been called given tes defense, timony favorable to the in remark clearly dicated his disbelief of the witness and influ unquestionably enced the jury’s appraisal of the witness. It credibility was, course, alone, function of the the triers of the facts, to weigh and determine that factor. The rule in such cases was stated by this Court in . Rys. Corneal, United Co. v 232-233, at pp. 72 Atl. 771 (1909), quoted Marino supra (at 110 of 171 p. Md.), as follows: “* * * It is undoubtedly true that a trial Judge, because of his high and authoritative position, should *9 made himby remarks any in careful exceedingly be trial, in passing upon either of a progress during carefully and should upon prayers, evidence or ruling ex- giving from refrain, indirectly, directly either or not any existence to an opinion pression fact, of the finding should be left to [*] » sj? 86-88, State, 147 Md. in Newton v.
The rule was applied objection, held (upon Court Atl. where this (1924), made by that remarks motion) unaccompanied by any reflected upon which directly of the jury court the presence error. witness constituted prejudicial of defense credibility trial. a new granted must be We think that the the trial deciding judge we are not It should be noted that hostile, rather witness was concluding was wrong correct, that, the prejudicial even his conclusion was though of the wit- making declaration error was committed by out felt necessary) ness’ such declaration was hostility (if any jury. re- and case reversed Judgment trial; new costs manded paid by County. be Cecil J., Hammond, dissenting following opinion. filed the me out of the minuscule I because it is plain dissent a trial molehill a routine and harmless has made course a criminal trial this Court ordinary error, amounting dep- momentous to a mountain reversible of due rivation law. is reviewable says appeal Court that what occurred reasons—one,
for two it unconstitutionally deprived because two, accused of a fair trial and his counsel preserved because objecting it for review to it under Rule 522. Tak- Maryland first, ing ground latter it seems to me from the inescapable record that rule to ob- assuming be applicable, jection made thought ever counsel appellant’s of leading questions allowing by the Attorney *10 asked a lead- witness Davis. When the first Attorney State’s “* * * this”; counsel I to ing object defense said: question, “Why and when the court said ?” answered: “Because he can’t **
lead the Then when the said Attorney witness State’s “* * * is and I would like witness: he a hostile witness such,” to him as and said: “I will de- have declared the court clare him as Go ahead” to continue to ask lead- such. (clearly defense counsel said “I questions), again: object,” ing (equally it seems clearly, me), agreeing to not to the characterization Attorney’s States’ of the witness as hostile one, to the No permitting leading questions. including the that the was majority, questions witness hostile or the propriety allowing leading questions him. of due Deprivation process is found because majority Rollins, such,” that “I will declare him as response to the Attorney’s State’s statement that Davis was witness, hostile destroyed the credi- damaged prejudicially bility witness. To me this if it does not em- approaches, brace, the fanciful. Of the witnesses gave State’s one sup- to port the State sufficient to make a case jury others, pass one, on. The of whom Davis was but all were ob- viously sympathetic effort to and said convict could, from the stand as little as they and that But reluctantly. because a witness is reluctant to or hurt the ac- help words, cused—in other is “hostile” to the State—does nec- mean essarily that what testimony can be extracted from him is not to so, be If believed. this were the rule permitting the asking leading questions witness, such a the reason for and the aim of truth, which is to elicit the would be meaning- less. It is not meaningless, any more than is the right to ask leading on questions cross-examination aof witness who has been produced He, the other too, side. often is a “hostile” witness but this does not make his testimony cross-examina- tion incredible.
We pay lip service to trial by jury as a bulwark of the pro- tection of individual rights, but judicial treatment of whether particular has been influenced towards unfair deter- mination of those rights often seems to proceed on the assump- tion, contrary theory on which the jury system based jury- that women on the men that to operate, and supposed sense, judg- experience intelligence, common lacked average to think us in the case before no seem reason ment. There announcing Rollins was that Judge led to believe jury was not to man and not a truthful was he the witness thought that that he to them apparent must have been be believed. It then one else in court room every merely recognizing, as he little have, say the witness wanted must therefore, in an to overcome effort could him ques- be able to ask should testifying, his towards hostility information. require give tions which would made the of the trial passing remark claim “the unconstitutional under being trial unfair to the point obviously of law” (quite *11 present-day concept held the Court concept the now meaning largely Supreme rest and would seem to on a foundation courts) lower federal of sand. me, the to
Maryland has adhered to much—and generally rule that an justly—criticized judge only the trial should be criticism, Wigmore For an of that see 3 umpire. example (3rd 1940), jurisdictions, 784. courts of other in- Sec. Many Ed. cluding those the federal the judicial system, have taken broader and may have held that nisi approach prius judge case, express his views on the merits of the the including guilt accused cases exceptional guilt is and (where clear), as to bearing weight and testimony, its including cred- ibility, he makes provided it unequivocally plain to the and for they independently themselves must make the ultimate determination. This is the in Great practice Britian and Can- ada. Chitty (Brickwood’s on Packett Instruction to Juries), 126, et p. seq., says:
“It is the at nisi practice judge prius not only to state to the jury all the evidence that has been given, to comment on its and bearing and weight, to rules legal state the upon subject and their ap- case, plication particular to the and to advise them as regards the verdict they should give.” rule,
New has Jersey adopted English Hummer, State v. 14 California, Busby v. Ct. 249, People App. (Dis. has
65 A. 193, 531; 56 P. 2d People Ottey (Calif.), v. 2d 104 P. Calif.), Connecticut, Michigan Pennsylvania, also and apparently 597; People 2d v. A. (Pa.), v. Romano 141 Commonwealth 201; Journey v. (Conn.), 222 N. W. (Mich.), Lintz 515. A. 389, Murdock, 394, 290 U.
In
S.
Ed.
United
L.
States
rule
for the Court said
381,
Roberts
(holding
Mr. Justice
:
facts)
on the
applicable
an
express
opin
judge
“Although
power
exists, it should
ion
of the defendant
guilt
cases.
cautiously
exceptional
be exercised
was held not war
an expression
Such
ad
undisputed
rant
where
a reversal
conduct amounted
voluntary
defendant’s
facts the
mitted
defined
the statute.
commission of the crime
135,
Columbia,
District
254 U.
Horning v.
S.
185, 41 Ct. 53.”
S.
L. Ed.
Cir.),
This Court As, has of a Newton v. Md. 71. witness. credibility *12 noted, Rollins not do Judge been is clear to me that did this, therefore, if it assumed that he did and but be error, reserved for it was not— appellate if review—as properly law, to reversible error under Maryland would amount mean that the error the accused of due deprived does not pro- reversal on the of the re- requires cess of law which initiative viewing Court. appellate Rollins’ that he Davis as a ruling recognized hostile what was only obviously
witness reflected true. undeniably Rollins charge, Judge his instructed the that anything jury, as to advisory he said the evidence was and not binding If assumed that by therm it be the form of the trial judge’s thought that he impression conveyed he belief, this not have con be unworthy the witness to error, a denial of much less come close to stituted reversible in the federal courts or those of law a trial due process 23 of the Declaration of Rights in Art. phrase states. many Constitution, man be ought “That no taken the Maryland * * * life, his deprived liberty prop or imprisoned * * * law of land” has been be held to erty, “due of law” as synonymous process with the words used States, Constitution of United State, Slansky is not Md. and the Court at set Appeals liberty to up Maryland due decisions concept process against controlling of the Supreme Court. Raymond ex Szydlouski, rel. 602. The majority case have treated a present brief occurrence in a trial as constituting deprivation under Maryland law when it would not have been so treated under federal law.
I would affirm.
BRANSON OF WARDEN THE MARYLAND OF HOUSE CORRECTION [App. 46, September No. Term, 1964.]