*1 v. STATE OF MARYLAND E. HEPPLE RICHARD 714, Term, September 1975.] [No. OF MARYLAND JONES STATE EDWARD
JAMES Term, September 1975.] [No. 4, 1976. June
Decided *2 J., argued and before C. The causes were Morton, Orth, Lowe, Menchine, Gilbert, Melvin Powers, Moylan, Mason, JJ. Kaminkow, 714, with whom Appeal E.
In No. Michael brief, appellant. for on the Richard T. Rombro Sweeney, 730, Appeal Kenney Assistant In No. Geraldine Murrell, Public whom was H. Defender, with Alan Public brief, appellant. for Defender, on the Jr., Attor- Dugan, 714, Henry E. Assistant Appeal In No. Burch, At- B. General, Francis ney whom were with Attorney Swisher, General, A. State’s torney William for Monfried, Assistant State’s City, Baltimore and William brief, appellee. City, for Attorney Baltimore on the for Attorney Davis, 730, Appeal In Arrie W. Assistant No. Burch, General, Attorney whom were with Francis B. Swisher, Attorney General, A. State’s Baltimore William for Sauer, Attorney City, and Francis A. Assistant State’s for brief, appellee. on the City, Baltimore J., opinion delivered the of the Court. C. Menchine, Orth, part opinion in J., part in and dissents and filed an concurs dissenting page concurring part part infra. appeals September Term 1975 we decide this
The two State, 714, Hepple opinion, E. No. and James Richard 730, present a common issue for Edward Jones v. No. place The issue relates to the of rebuttal evidence decision. parties required are to offer their in the order which point Appeals before evidence. The Court of had (1875). explained Warfield, 42 Md. It first Bannon v. why subject it was essential to have fixed rules on the and to *3 them: observe subject upon the is
“The observance of fixed rules avoiding great only importance, means of as confusion, justice. but to the fair administration depends upon Much of the form of the issues course parties joined, upon The and whom the onus rests. they up allowed to break the evidence
must not be may any issue, particular and intend to offer on stages in of the introduce at different cause emergencies piece-meals, varying as the of the case may practice only require. seem to Such would not greatly prolong trials, frequently but would lead to surprise injustice.” and general
It set out the rule: “According practice, to the well established the plaintiff, having right begin, put the in to must the upon every point whole of his evidence or issue opens, puts which he and in the defendant then case; reply plaintiff evidence his entire in and the is points questions may limited to new such and as be by opened first the defendant’s evidence. I Greenl.
Ev. sec. 469a.” State, 142,
The rule stated in v. 132 Md. 148-149 Jones (1918) in in words of “Mr. the Poe his second on volume Practice, Pleading “The and section 287”: rule is the go fully plaintiff required will be to into his own case-in-chief these issues as which he holds affirmative, where, therefore, substantial and the burden of him; hence, by proof reply rests on and to the case made defendant, ordinarily he will be limited to what is strictly rebutting evidence.” The set out Court the rule thus (1965): Mayson “Ordinarily, 283, v. 238 Md. 288-289 orderly anticipates an conducted criminal trial the State adducing resting its all of evidence chief its case. tending producing its defense follows evidence non-culpability, establish the accused’s which includes or rebuttal contradiction of the offered opportunity produce State. Then the State is afforded an its rebuttal evidence.”
The rule for the order which evidence is to be adduced unyielding. Warfield, supra, clear but not Bannon recognized this: general may departures
“From this rule there be cases; particular requirements to meet the but question, proof, as to mere the entire order of and under what circumstances evidence should be rejected or proper admitted when out of the offered order, positive in the absence of rule some of court upon subject, must be allowed to rest in the directing trial, discretion court qualified justice judge tribunal best what the may require respects; case these hence *4 rulings questions appeal from the on no such will 463; 448, lie. Stimpson, R. Co. v. 14 Pet. Salmon R. 311, 314; Rance, McCullough, v. 3 S. & R. v. Duncan 182; 482; Gray, 4 S. 10 S. R. & R. Frederick & v. 4 Phill. Ev. 708.” century in
Almost a later the was of like mind. Court It said “However, State, experience Mayson supra, has v. at 289: justice require following shown does not of
529 adducing of as an course inflexible above evidence] [of Thus, procedure.” question as mere undeviable to proof, and under what circumstances order of rejected proper when be admitted or offered out of should order, clearly be has been held to within the sound discretion State, (19161. the trial court. 129 Md.
of Rickards v. 184, 191 appears regard There to be no distinction in this between trials and criminal trials. civil admissibility question
The of the of evidence ground proper usually of that it offered out order arises — — moving party cases, in criminal after the the State has reopen rested its case and desires to it to introduce evidence chief, properly stage in or admissible at the rebuttal when proper trial evidence is offered rebuttal which is not rebuttal evidence.
Evidence in Adducible Chief judges
Trial wide are vested with discretion conduct So, State, of trials. Hamm v. 233 Md. no 248, (1964), 249 permitted abuse of when discretion was found the trial court State, upon rested, reopen motion after made it had offering purpose case for the of another witness. And State, bury it (1958) Stans v. 218 Md. was held that 255, 262 there was no abuse of discretion the refusal of the trial reopen court allow the defendant to or continue his case. Special Appeals Court of a of has number cases reviewed the contention it was reversible error permit reopen purpose proving State its case for the important conviction, support or even essential facts to variety and has found no abuse discretion in a State, Spillers App. circumstances. See v. 10 Md. 643, 649 State, App. 356, 2 Jones v. Md. Boone v. (1971); (1967); 363 State, State, App. Tingler v. Md. App. (1967); 1 Md. 80, (1967). 389,
Rebuttal Evidence Appeals
The Court of has set out what constitutes rebuttal evidence. In 132 Md. Jones (1918), 148-149 language used the Poe in “Mr. his second volume on
530 Pleading Practice, and section 287” 1: evidence “[Rebuttal in regard evidence points to such new questions is] and opened by were first the defendant’s evidence.” In Lane v. State, 81, (1961), 226 “Any Md. 90 the Court observed: competent explains, reply to, which or is a direct or of, contradiction material evidence introduced may produced by prosecution accused be in rebuttal.” 289, Mayson State, supra, v. at combined the definitions of any and Jones Lane thus: includes “[Rebuttal evidence] competent explains, reply to, evidence which or is a direct or of, any brought a contradiction new matter that has been into the case the defense.”
Although clearly the definition of rebuttal evidence is stated, simply may Mr. Poe was aware that what is defined readily observed, “Still, not be determined. He 287: it is not § always easy rebutting to draw the line between what properly evidence and what is evidence adducible chief.” Appeals State, The Court of shared Mr. Poe’s view. Jones v. (1919). 149; supra, State, 624, at Snowden v. 133 Md. Mr. properly Poe concluded that whether evidence was rebuttal judicial evidence was a matter for the exercise of discretion: subject “The is one which is addressed to the sound Court; appellate discretion of the and the will Court point, ruling reverse for an error on this unless the manifestly substantially wrong Court below was both and rule, Indeed, injurious. general appeal as a such cases no appeal will “no will lie.” The assertion that lie” does not may appeal. point not be considered on It mean that simply appeal there will not a reversal on means be manifestly point ruling unless the court’s was “both wrong substantially injurious.” Mr. view is the law and Poe’s 149, Maryland. Appeals quoted Jones, it in at The Court of 636, Snowden, iterated it in at and reiterated it Kaefer (1923) 151, applied deciding State, 143 Md. 159-160 discretionary power of the trial court those cases. rebuttal evidence has been more determine what constitutes Practice, Pleading Poe, language appears 1. The in 2 same J.P. § (5th 1925). ed. recently affirmed. In supra, Lane v. after defining evidence, rebuttal the Court “And said: what *6 prosecution constitutes rebuttal in a criminal is a resting matter in the sound of discretion the trial court.” repeated The supra, Court this in Mayson v. and added, appellate at “and the should court not reverse for point, error on showing this the of a absence that the- ruling manifestly wrong of the trial court was both and substantially injurious.” Thus, requisites there are two ruling reversal on error the trial court’s toas what ruling- constitutes rebuttal evidence. first is that the 2 “manifestly wrong.” means, believe, must be This we that when it challenged is not certain whether the evidence is or proper is evidence, not judge’s rebuttal the trial determination will be honored as sound of exercise his if, review, appellate discretion even court thinks the wrong. hand, clearly determination apparent On other if isit that the evidence offered as rebuttal evidence is properly evidence, judge rebuttal then trial would be “manifestly wrong” ruling words, it was. In that other there are reasonable which judge boundaries the trial may exercise his discretion to determine whether evidence meets the of test rebuttal evidence. Outside those- boundaries, the nature of plain the evidence would be obvious, ruling contrary and in to manifest nature of the evidence “manifestly wrong.” the court would be requisite
The second for reversal on error of the trial evidence, ruling court’s as to what constitutes rebuttal is ruling “substantially injurious.” that the We think light “substantially injurious” construed in the must be Dorsey State, 276 Md. non for Reversal vel (1976). error in the determination of what constitutes rebuttal (1969) Heritage English Language Dictionary 2. The of the American sight understanding; “clearly apparent defines obvious.” definition: mind.” as to the or “manifest” (1968) Dictionary gives Third New as a Webster’s International being easily recognized “capable once understood or (1969) Heritage English Language Dictionary 3. The American importance, value, degree, defines as “substantial” “considerable in amount or extent.” governed evidence is to be the harmless error rule as explicated in Dorsey. said, The Court at 659: appellant, an in a case,
“[W]hen criminal error, establishes reviewing court, unless a upon its independent own record, review of the is able to belief, beyond declare a doubt, a reasonable way the error in no verdict, influenced the such error cannot be deemed ‘harmless’ a reversal is mandated. reviewing Such court must thus be satisfied that there is possibility no reasonable — complained erroneously evidence of whether — may admitted or excluded have contributed to guilty rendition verdict.” Therefore, judge if trial he went outside the discretion enjoys challenged rebuttal, to admit and his *7 harmless, ruling erroneous thereon is not reversal is manifestly wrong ruling mandated because the was “both substantially injurious.” and supra, appeared State, aspect
Lane v. to introduce another into the matter of the order of the introduction of evidence. said, explanation: It without is “This Court has held that it within judge the sound discretion of the trial to allow evidence in been rebuttal should have offered in chief.” gave State, 226 Md. at supra, 90. It v. and v. Rickards Kaefer authority. State, supra, repeated The in statement was say Mayson State, supra, proceeded then the Court to what this mean: did not not mean
“This does that the court should not be deliberately preventing in alert the State from (such part testimony withholding a of its as that merely to, which is cumulative or corroborative chief) of, already offered in in order to have repeated favorable to its case at the end may upon the of the trial for effect that it have the Driver, trier of State v. A. 2d 673. cf. facts. Poe, 287; Pleading Practice, State, & Archer v. § 45 Md. 33.” explanation the Court did If
The elucidates what mean. “at stage of the trial” is substituted for “in the rebuttal rebuttal”, meaning of is the statement clarified. The merely rephrased previously Court established rule that permit it is within discretion of the trial court to in reopen its to introduce evidence adducible State case nothing The has to do with “rebuttal chief. statement evidence”; in it concerns evidence adducible chief. permission of prosecution need the the court does not right It offer evidence rebut. has the introduce such stage trial, evidence at rebuttal and unless evidence, objection made is to the admission of the it is goes received and before the trier fact. As the State has right rebuttal, only to introduce evidence for upon challenge discretion in the court is to determine whether it is fact rebuttal In both evidence. Lane Mayson the comment about the admission of “in evidence chief”, have rebuttal that should been offered was preceded by immediately a discussion the discretion which the court has to determine what constitutes rebuttal evidence. We think the merely pointed up statement that the court permit reopen has discretion to the State to its case distinguished chief as from the discretion to determine whether properly offered rebuttal rebuttal supported by evidence. This view is supra, Rickards v. given in authority Lane as for the statement. Rickards not concerned with rebuttal evidence as such. Counsel for open accused had expected during stated court he put the course of the trial to a certain witness on the stand. He failed to sodo and while the presenting State was its case *8 rebuttal, in granted it was leave to call the witness. On appeal the Court found no error because the evidence through adduced competent the witness proved to be part case, of the proof State’s and the order in which the should be offered was a matter of the sound discretion the trial “affirmatively court which was shown to have been fairly in exercised view of the situation had which developed.” 129Md. at 191. State, supra, v. the other Kaefer authority case cited in Lane as statement, for the does not in rebut was offered to
denigrate view. Evidence our Kaefer purpose. properly admissible for that found be it was to at 159. 143 Md. court, by the one to enjoyed the trial discretions
The two reopen case to introduce moving party to its permit the chief,4 other, and the to determine adducible evidence evidence, truly rebuttal to rebut is evidence offered whether both, course, the evidence to separate and distinct. As are respect to material.5 With competent, relevant and must be the judge consider whether case, must reopening the the proffered in order evidence deliberately withheld the State unfair obtain an time as to presented at such have it end the To this by impact on trier of facts. advantage the its merely proposed is the evidence whether judge must see already of, offered to, or corroborative cumulative a conviction. important essential to or whether it is or chief evidence, judge the must consider respect rebuttal With to, reply aor explains, is a direct or whether the brought into has been of, any matter that new contradiction involved Thus, considerations by the the accused. case the materially different. are discretions the two exercise of the reopen the State to to allow discretion The sound-exercise finding meets the that evidence provides no basis its case evidence, and vice versa. rebuttal definition of SUMMARY is the order which evidence In of reference of the frame — by in chief presented in a case case
to be criminal accused, by by rebuttal case in defense may reopen request after it has rested its case 4. The the State presented thereafter before the close its case or the defense has come before of all the stage example, evidence, the trial. No the rebuttal as for reopen rested, prosecution case when, desires to its matter after it has may chief, during do present its case could have adduced evidence it permission considered only The factors to be of the trial court. so with may vary request grant exercising when to discretion court in to its made, request according however. the time at which _ evidence, that the rule of note: “It is a well settled 5. We justify the improper introduction one side does immaterial evidence on _ or Warfield, . . . .” Bannon matter on the other of irrelevant supra, at 40. *9 — State there question are two basic in situations which a may arise. rested, The first is when the after it has goes fact, and before the case to the trier of asks the trial permit reopen court to it to its case to introduce evidence which should have been offered in in its case Of chief. course, prosecution may reopen purpose its case for this only upon permission of the trial court. The wide discretion enjoyed by the trial court in this matter has been consistently recognized appellate on review. The second situation prosecution concerns rebuttal evidence. The does permission not need the of the court to offer evidence right stage rebuttal. It has this trial, at the rebuttal of the provided that the evidence is otherwise If admissible. objection ground is made on the that the evidence offered is proper rebuttal, is, proper then whether it is within the discussed, limits above in the sound discretion of the trial If court. the trial evidence, court admits the its discretion soundly if, judicial review, exercised appellate challenged court finds that the proper evidence was rebuttal appellate If evidence. challenged court finds that proper rebuttal, evidence was not a manifest error admitting requires may reversal unless it be deemed But, harmless, harmless. appellate court, be deemed upon independent appraisal its record, must be able to belief, beyond declare a doubt, a reasonable way admission of the verdict, evidence no influenced the being satisfied possibility that there was no reasonable may the evidence have contributed to the rendition of the guilty verdict. —
What we admitting have said that a manifest error rebuttal, objection, evidence as requires reversal, over unless — so, evidence, harmless is even when the same offered chief, reopen, or after leave to would have been admissible. enough say It is not the trial court had the discretionary power grant reopen leave to and admit the If upon evidence. the trial court was not called to exercise its permit reopen case, discretion to the State to its there can be appellate no review for abuse of that discretion. seen,
As we have the discretion to determine what 6 materially different from rebuttal constitutes permit reopen the State to its case. An *10 to the discretion in one area be held to of discretion cannot erroneous exercise area, proper exercise, in of a discretion never another be a by holding a invoked, the court. Such as much less exercised abrogate rebuttal would challenged evidence offered as to presentation orderly of evidence. We requiring the the rule necessary preserve that rule. it is think Term, State, 714, September Hepple v. No. 1975 May Baltimore, in the Criminal Court of On 13 1975 receiving by jury guilty of Hepple found a Richard E. was goods Eary. more than stolen from Robert S. valued at $100 years imposed. Code, A was Art. 466. sentence of four § appealed. He purchased Eary on 15 he June 1973
Robert S.
testified
$406.64,
he
Silver-Top Camper
which
a
for the sum of
pickup
On
three-quarter
Ford
truck.
22
a
ton
attached to
in
camper
from front of his
July
were stolen
truck and
the
honoring the discretion of the
In
which we have examined
6.
the eases
offered in
admission vel non of evidence
trial court to determine the
rebuttal,
appeared
was
that the evidence
it
that there was substantial basis
truly
contemplation of
out in
within the
the rule set
Lane.
rebuttal evidence
example,
in
“had
of
evidence offered
rebuttal
some
the
For
Jones
by
[accused], and of which the
reference to new matters testified
true;
prosecutrix
it
knowledge, if
be
and some of
her evidence
had no
anticipate.”
special
132Md. at
the State could not
matters
defense which
testimony that
In
denied the accused’s
the rebuttal evidence
149. Snowden
police
evidence in chief
In
him.
at
and maltreated
133Md.
636.
“[t]he
officers abused
Kaefer
produced by
that the strikers
was to the effect
State
question
shots,
stones,
clubs,
and the evidence
used
and fired
threw
by
produced
by
the defendants
evidence
the State in rebuttal
offered
to show that there
part
at
on
of those assembled
were no
of violence
acts
mining
employees of the
fired
until after shots were
the mine
company....”
rebuttal contradicted
challenged
offered
In
Md. at 159. Lane
143
Rickards,
testimony
Md. at 90.
of the accused. 226
chief,
indicated,
not rebuttal
admissible
involved evidence
we have
general motion
Mayson
that “when a broad and
turned on the rule
evidence.
and,
least,
portion
testimony
a
thereof is
is made
to strike certain
granted
admissible,
The Court
....”
Woolford was years Hepple had known for three or four and Romm for eight years. He denied he or nine had “business concerning Hepple.” with Mr. Romm Mr. He discussions Hepple about after Romm was talked to Romm arrested but knowledge To his he could not remember if he “at before. anytime” gave Hepple’s telephone He Romm number. denied Hepple to call Romm. he ever asked On cross-examination Woolford denied that Romm had looking put camper indicated that he was for a on his pick-up camper. made no mention about a truck. Romm Although usually every Monday night, Hepple Woolford saw Hepple never “indicated to Mr. that Mr. Romm Woolford camper.” pick-up truck and was interested in a “I had a new no, anything camper, never about a sir.” Woolford was said again Hepple if needed a asked he did not tell Romm “No, up camper cap and answered: sir.” Woolford summed testimony: his camper thing only this I know about
“The my police, Mr. called house or Romm when the Hepple’s name. He Mr. last me for and asked said, Ricky’s Hepple. I He last name. me for asked said, he lives on Ricky I said, live? where does of, Casadel, I I it’s or think said I’m not sure but exactly In remember. something. I couldn’t Casa well, now, says, fact, what he’s then he I think but give Then he later phone him the number. number? *12 night me that he had been and told called me that camper cap. is the first time a This arrested for cap.” camper a I have ever knew about pursued: subject was re-direct examination On Hepple Now, you Mr. Richard ever seen “Q. have owning pick-up driving a truck? or either No, one time. him drive a van A. sir. seen Q. A van? Yes, sir.
A. knowledge, your a owned, has never Q. But he pick-up truck? No, sir.
A. possession of Hepple in the you Mr. ever see Q. Did camper cap? . . . a No, sir. . . .
The Witness: of Mr. possession you ever seen Q. Have cap? camper Hepple a No, sir.
A. you truck, pick-up you seen a So, have never Q. possession of camper cap in the never seen a have Hepple? Mr. No,
A. sir. you he Hepple ever mention
Q. Did Mr. camper cap? to sell a
wanted No,
A. sir.” you “Were was asked: examination Woolford On re-cross allegedly Plepple Hepple’s when Mr. present house over Mr. “I answered: top Woolford camper to Mr. Romm?” sold a camper top.” already I have never seen testified that have judgment acquittal. Court Hepple rested and moved for request State to consider upon to enable the recessed reconvened, rebutting court offer evidence. When whether to Washenfeldt, Eric prosecution called Daniel Paul offering expressly him as “a rebuttal witness.” “through Hepple knew testified that he Washenfeldt working in which he worked him in a sense.” The “sense” for He asked what Hepple for him.” was that he “stole hearing conference out of he meant and at a bench this was not belief that jury, defense counsel declared a transcript testimony.” reads: “proper rebuttal Why not? “THE COURT: Kandel, Esq., defense KANDEL
MR. [Nelson words, making he’s a out that In other counsel]: professional. *13 proffer? you want to Do
THE COURT: something proffer He has to MR. KANDEL: him. he stole he means when guess what I that’s
THE COURT: produced a Hepple Mr. has says him. he stole for he effect, who, that he never saw has said witness camper. pick-up a truck or possession of a him in Well, that— MR. KANDEL: particularly minute. More Wait a THE COURT: was, pick- camper or the is that this the inference gather, truck, camper cap, I up this witness or the you’re purpose, Mr. offering the witness for offering you’re him for? that what Monfried. Is Attorney]: State’s MONFRIED MR. [Assistant That’s correct. Yes, doing shotgun init a but he’s
MR. KANDEL: He for him. manner. stole asked him what he stole
THE He hasn’t COURT: get going yet. gather it. I he’s My question. next MR. MONFRIED: gather going get THE I he’s to that. COURT: Suppose he stole a million other MR. KANDEL: things? going say.
THE I don’t know what he’s COURT: grounds I it would be for a MR. KANDEL: think mistrial. be, Maybe will
THE but we haven’t COURT: point. reached that right.
MR. MONFRIED: That’s says If he that he stole a toothbrush THE COURT: talking camper, then and here we’re about — your maybe perhaps I’ll the inference entertain is, gather you’re proffering that what motion. show,
you’re particular going to that he stole this camper. Oh, yes,
MR. MONFRIED: Your Honor. shotgun right. no about All There’s THE COURT: might not be the one that a bullet. It that. That’s *14 anything see, I have to do you but don’t want to here, I I’m that, take it. the inference is with but testimony. only trying to understand is, okay. If that’s all it it’s KANDEL: MR. produced saying Mr. this man
THE He’s COURT: he was never indicate Woolford to camper, camper cap, no any no possession of particularly truck, specifically, one that is pick-up stolen. That’s proved to have been now inference. one, yes, but he He never saw KANDEL:
MR. specific questions tell, answer he couldn’t couldn’t when and where. right.” All
THE COURT: jury proceedings with the court’s resumed before objection, and “You had an to defense counsel: comment your direct examination of objection overruled.” The Hepple telephoned Washenfeldt Washenfeldt continued. Top camper. July a Silver and said he wanted about get you know, I down his just that, when it to come “He said morning... night early I and in the ... I looked all house. Brooklyn I had occasion to area. had found one ... street, were and we a friend down to a side drive with looking had a around, a brand new truck and noticed it, I read the name camper pulled up and on it. We close Top.” stole it tag side, Washenfeldt and it said Silver house, arriving 7:00 or 7:30 Hepple’s about and drove it Hepple and A.M., had called.” him I had what he and “told camper truck, placed off the it on Washenfeldt took the what it was.” tarp over it to hide sidewalk and “threw get rid of the truck. gave Hepple wanted to Hepple him $50. it “far out Hepple, drove Washenfeldt Followed said, Hepple leave Washington “Just to a motel. Boulevard” drove Washenfeldt park and then it. . . .” it over there days Washenfeldt Hepple’s A few later house. back to Hepple’s Hepple house and saw and another man returned installing camper Dodge pick-up on a truck. extensively. was cross-examined On re-direct
Washenfeldt campers it was elicited that he had stolen examination Eary’s times”, although camper Hepple “quite was the a few get Hepple. “I would a call from Mr. He would first one. you wanted, go determine, know, he I would out what camper looking Each time he stole a he “took it to Mr. for it.” house, and whatever he wanted done with Hepple, and to his do, it, there or take it somewhere else.” we would dismantle through evidence adduced It is clear testimony proper rebuttal. It did not of Washenfeldt was not to, directly reply brought explain, or contradict new matter only witness, through its into the case the defense nothing in There was Washenfeldt’s Woolford. with Mr. Woolford had “business discussions
show that *15 Hepple concerning Hepple”, or that he had asked Romm Mr. Romm, that Romm had indicated to Woolford to call or that Hepple camper, looking a or that Woolford told he was for camper, had looking for a or that Woolford that Romm was truck, owning pick-up driving a Hepple or knew of his seen truck, Hepple pick-up or had knowledge that owned a or had camper cap, Hepple Hepple possession a or that seen camper that he wanted to sell a had mentioned to Woolford Hepple’s when present at house cap Woolford was or that clearly apparent camper Romm. It was Hepple sold a to evidence, testimony properly rebuttal was not Washenfeldt’s “manifestly ruling therefore, of the trial court was and record, we independent are wrong.” Upon review of our doubt, beyond belief, a a reasonable unable to declare way in no Washenfeldt’s the admission harmless, Thus, was not the error the verdict. influenced requisites “substantially injurious.” two As the and was respect ruling to with in the trial court’s on error reversal judgment must be present, are the rebuttal reversed. testimony about Washenfeldt’s
Hepple
also contends
inadmis-
by Hepple was
“independent
committed
crimes”
improper
and as
offenses rule”
“other
under the
sible
Having found Washenfeldt’s testi-
examination.
re-direct
rebuttal,
improper
mony
been inadmissible
to have
As to the first
to reach these claims.
is no need
there
(1921);
however,
State,
Jones early (Jimmy) employed in 1969 Jones was Edward James Jr., Stanley Knock, an minister” Reverend as a “street Reverend the Methodist Church. minister of ordained Knock, duties included the ministers whose one of four staff Jones, Christian supervision worked the Southwest organization” composed of about half a Parish, an “umbrella part of a Episcopal Jones was and churches. dozen Methodist Episcopal was to work out program Diocese. “He Building 1849 West Episcopal All Church Saints way help, if there was Street to see Baltimore . . . youth young streets that particularly adults on the largely help. are These had not been able the Church church, people people outside of traditional who are problems of one degree of therefore, with a considerable youth Specifically to work with . kind or another. . . [he was] personal trying their young were to solve adults who patterns; trying life re-establish problems, were who runaways, who were include those these could include get into trying them back drinking problems, having *16 they in the appropriate were was whenever this school having were those who age range. Frequently to work with and, drugs trying get off of drug problems, them with the street general, trying to maintain communications $3,000 salary “was culture.” Until 1973 Jones’s years ago out of the we ran three-quarters worked. Two time salary receiving any since that funding for it and he was not stay in house and time. ... He was asked to continue 544 operational expenses [gas, of the house would cover the
[we] water, remaining program electricity, out of the sewer] “house”, belonged Episcopal money.” The which to the Diocese, next to the was at 1845 West Baltimore Street stayed part people Other also there. “This was of Church. expected people in the program, we that there would be 9 years through were all the involved.” We knew there house. December was arrested. On 10 In 1974 Jones October Court of filed the Criminal informations were criminal alleged was Baltimore, informing about crimes he the court September 1974.10 Information on 13 have committed earnings money from the charged that he received 27402558 Carrington who was named Denise of a certain woman (1st count), compelled he Denise engaged prostitution (2nd count), engaged he prostitution and that a of to live life count). (3rd assignation” prostitution, lewdness and “in with charged he assaulted Denise Information 27402560 (1st count), he burned disfigure her to mark and intent (2nd count), and body to maim her her with intent face and count). (3rd Trial on the and beat her that he assaulted jury in before a the Criminal informations commenced on 24 April 1975 and concluded of Baltimore on Court of each April. under the 3rd count Jones' was convicted years May to 10 on the On 15 he was sentenced information. year of 1 and to a concurrent sentence assault conviction appealed.12 prostitution He conviction. with work Carrington, Jones’s According Denise Knock as Reverend people was young troubled runaway she who said year old a 14 Denise envisioned. employment concerning of Jones out we have set 9. What the defense Knock on behalf compendium at of Reverend Baltimore, discussed Court trial the-Criminal Jones’s infra. filing Court in the District arrest was followed 10. Jones’s by Maryland required District Rule charges against him as statements of Court (c) charged which the District felonies over were 3. The crimes § (a). jurisdiction. 4-302 Courts Art. § did not have See of Information three counts went to trial on all 11. The State only 27402560. of Information and on the 3rd count May An 1975. on 15 heard and denied new trial was 12. A motion for a July the On 30 1975. application filed on 17 June of sentence was for review unchanged. remain that the sentence Review Panel ordered
545 approached Trailways been Bus Station a had special who introduced her to solicited officer Jones. Jones engage prostitution pimp. put him her her to with He up Street, gave her at 1845 West Baltimore her “a black girls sparkling suit”, her and sent out with his other double-crossing “prostitute”. thought Because Jones she was him, stripped, by Jones, she was beaten and burned certain girls of his and a friend of his known as Fish.13Jones told her, time, you you will “Next learn to do what tell to do.” girls Matthews, Evelyn The involved were Wanda Newby, They girl Richardson and Elvira Jones’s friend. all stayed at 1845 West Baltimore at the invitation of Street Evelyn, years old, Jones. Wanda and each 16 corroborated story beating burning. Denise’s about the Wanda said Evelyn “prostituted” Evelyn she and for Jones.14 said Jones expected go told her he her “to out in the street and work”. “prostitute” he meant She assumed that that she was to him. She did so but claimed that she “never made no money”. through testimony
The defense adduced defendant, Jones; eyewitness, Elvira five witnesses: the an Newby; witness, Jones; and two character an alibi Thelma Fonte, witnesses, parole Knock and Frank Jones’s Reverend officer. employment
Jones’s version of his the Southwest accord with that of Christian Parish was substantial Reverend Knock. At one time he had used the house as his permanent September he residence but 1974 resided with Shirley Avenue, spending wife about 2 or his Thelma at 2510 nights 1845 Street. He a month at West Baltimore 13. Denise recounted the torture of her in lurid and sordid detail. Although, tions, times, apparently ques- she was reluctant to answer some eventually majority she answered the of them. At the conclusion testimony, of her the court denied a motion to strike the ground unbelievable,” “on the responsive and because she “was not questions.” her at examination of trial com- prises pages transcript. runaway. 14. was a went to school in the Wanda testified that she She night. charged morning or engaged prostitution for Jones at She fifteen twenty gave three-quarters earnings dollars and of her to Jones. She had assaulting pleaded guilty in Denise but the Criminal Court Baltimore yet had time of trial. been sentenced at the Jones’s
admitted he met Denise at the bus through special station stayed officer and that she at the house. He claimed that he *18 had little contact with her because his wife was incapacitated and he was needed at home. Elvira informed by telephone him injured that Denise had been and he went days to the house two or three later. “When I went to the house, sitting Denise was in the den with her hands over her spoke stay face. I to her. I could not because I had business go no, elsewhere. She said, asked me could she with me. I not moment, you do, at the you stay but what could could here Newby] and Vie will see to it [Elvira that there is [if] anything you return, you.” I give need until will she it to The dimly lit, any room was and he did not notice marks on Denise at the time. He again did not see Denise until the any participation trial. He denied in the assault. He was asked about the pandering. accusations that he was The transcript reads: [George
“BY Evering, MR. Esq., EVERING C. defense counsel]: — Q. allegation you sitting has been have been — you money
here have received from these young purpose prostitution, ladies for the is that correct? allegations.
A. Those are the correct Q. you? But did No,
A. I did not. Q. you any money Did ever receive from Wanda for prostitution? No,
A. sir. you Q. any money Did ever receive from Elvira for prostitution? No,
A. sir. Q. you Did know she had been convicted of prostitution? Yes,
A. once. — Q. you any money And did receive from Wanda Evelyn? Evelyn. money Yes, I from
A. received Evelyn money from Q. you receive And what did for? Evelyn apartment and she had her own
A. wanted get arrangements to one would I make asked me any guarantees, I give said that I didn’t her try.” would “assuming” that
On he said he was cross-examination him, lying worked for Wanda when she said she although any why lie not would he did know of reason she person helped repeated He his him, who her.” about “the any paid she him denial Elvira for him or that worked money. when Newby present claimed that Jones was
Elvira by Evelyn, Fish. Wanda and Denise was beaten and burned Baltimore had lived at 1845 West *19 She admitted she — relationship” “boy girl friend friend Street with Jones a years prostitute. She was a for three and that she about Jones, denied, however, worked for asserted that she Jones, never that she had Wanda did not work for and said money. give any Evelyn seen Jones case, of the the State indicated
At the close defense’s prosecutor called it had evidence to offer. When the rebuttal rebuttal, requested a Reynolds in counsel Sharon defense what it the State bench At the bench he asked conference. prosecutor expected prove through The the witness. to replied: was, through witness, prove she proffer
“I to this May picked 1974, run-away. fact, a She was Jimmy Jimmy Jones, put up by on the street Street. She Jones, West Baltimore lived fact, and, Jimmy she was pimped Jones Denise brutally in the same manner beaten by Jimmy Carrington was Jones.” position that the objected. It was the State’s The defense identity to establish the proffered admissible evidence was — vehemently the stand and he of the “he took accused being denied involved at 1845 West Baltimore Street.” The State believed it was admissible to identity establish Jones’s as to the assault also vehemently “[h]e denied ever assaulting Carrington.” Denise judge The ruled: going
“Here is what I permit you am to do: to ask questions her relating being runaway, to her her being prostitution solicited for at that address. I am going permit you any to questions to ask about the assault.” ruling
This unhappy; made both sides exception. both took judge The going permit iterated: “I am it on that limited only.” basis After aspect discussion about another of the proposed testimony, witness’s germane, not here defense objection: counsel made further go “I have to further than that. I think that this inflamatory. is allowing think this witness at this stage game of the prejudice would rights defendant and I think purpose that the offering prove this witness is not to a material fact this case, merely jury. to inflame the And I think that this enough present case is bad Now, at the time. my point view, from unnecessary it is bring this witness in.” judge doing observed: “What he rebutting is
testimony. nothing He had pandering do with operations address, at this evidence, course, and this is admissible to show a course of Referring conduct.” Wethington App. (1968), 3 Md. exceptions concerned with to the rule “proof which shows or tends to show that the accused is *20 guilty of the commission of other crimes and offenses at times, other though they even are of the same nature as the charged, one incompetent and inadmissible purpose showing particular commission of the crime charged. .”, . . judge “In words, continued: other it shows [exception], as to the fourth plan a common scheme or embracing the commission of two or more crimes so related to each proof other that.. . one tends to establish the [of] App. judge other.” See 3 Md. at 240. The noted: “It doesn’t prove operating that he they was allege. the 13th as I am permitting not it for the assault.” Defense counsel was not placated: Honor, point you “Your I out to that whether or you permitting are pandering it to the assault or to the scheme, goes it both them that these facts are so impossible interrelated separate that it is one of them jury.” judge minds of the The indicated that he believed taking “chance”, the State was but concluded: “I will permit if the State permit wants me to. I will this question.” prosecutor willing “I adamant: am take Reynolds that risk.” Sharon jury testified before the over exception” again “vehement offered defense counsel. years Reynolds,
Sharon old, away ran from home in August 1974.15She meeting recounted her with Jones:
“Well, walking street, I was down the it was on driving up Monroe Street. . . . And a car was beeped up street and he I his horn and walked the car and he rolled the window down and asked said, yes. me if I needed a lift. I I him told to take up my girlfriend’s me on Belair Road to house. So riding taking right we was and he wasn’t me the way. right way. him told it wasn’t the He took me over to a house on Baltimore Street.” The house was 1845 West Evelyn Baltimore Street. Richardson, Newby Wanda Matthews and Elvira were spent there. night. She morning The next Jones’s They 2304 Utah brother, Willy, awakened her and took her rode around all Place, [16] told the owner of the house day and about 8:00 p.m. out he took her to they his car. were gave married Willy him dope” rent. “shot some and then up “lit pot.” a bowl stay “So then he told me to here until placed year promptly 15. Sharon first but it was determined year that the correct was 1974. spelled transcript. 16. So There is a “Eutaw Place” Baltimore City. *21 550' stayed days got
he and. so-1 there. It was- about two- I back waited-, nigh nothing. And- there. No food: or it was at time. I turned, ready go got bed, I in. getting- was- to bed. I the- watching story. asleep. I fell- Then T'.V. on and. was this, big bang in. on the door and I wouldn’t let them heard banging banging. They kept banging and So then around, open they escape. I went to the fire- left the window night, they in the ... It was. that crawled window. all, Fish, Elvira, Jimmy, Willy, Wanda.” that Sharon- “Jimmy” judicial made- a. identification of Jones as the she- transcript reads: referred to.
“Q-. they in, you When came did have an occasion Jimmy?.
to-have a conversation with A. Not a conversation.
Q-. that, you subsequent Then did have a con- Jimmy?' versation- with Yes, Willy Jimmy
A. called over. Q-. What was. this conversation about?' A.. Prostitution. you-
Q-. What was the- conversation- had with Jimmy? know, go was, asking you me- on the out
A. It — out, night go and I didn’t so him that street for Sauer, Esq.., BY A. Assistant MR'. SAUER [Francis Attorney]-: State’s Jimmy you Okay. say
Q. You this was asked this, do is that correct? to- Yes,
A. sir. you any go Q. ever out on the street Did time Jimmy? No, sir.
A. you Q. came a time that left And then there house? correct, yes,
A. That is sir. Jimmy you Q. since then? Had seen A. No.” *22 bench, mistrial. The moved for a defense counsel
At the prosecutor The said: motion denied. was also, proffer expediency, “I would to defense for they having witness, when this counsel talked to Jimmy and fact had a talk with mentioned the she prostitute. Then I to she she did not want indicated leave, was subsequently and it at asked her did she way that Denise that time she was beaten the same advising Carrington counsel of was. am defense this.” light proffer was in the
It is obvious that this made concerning ruling testify to that Sharon was not the court’s by judge explained The to defense assault of her Jones. is, you telling you, if he is for the record ask counsel: “What yourself.” you question, have it but the no one to blame for Reynolds On cross-examination Sharon denied that she prostituted or Baltimore Street for Jones 1845West that prostituted anywhere him.17 she ever charging jury, In court a caution about the 17. the the included testimony Reynolds: of Sharon '“Furthermore, regards you to the I want to caution with case, Reynolds. testimony You will of one witness in this Sharon by permitted her recall called rebuttal the State and I she was testify August of 1974. events she said occurred in to certain which prior general prior is that of offenses or crimes The rule evidence generally allegedly by admitted in a are not committed when he is on trial for the commission defendant alleged of an evidence jury subsequent is, rule the must The reason for the that crime. presented in this whether the the determine from the evidence case any beyond guilty of or all a reasonable doubt of defendant is three crimes of which crime which he be used any charged. of he And evidence has been may have at an time should not committed earlier exceptions against purpose. There to this him for are that issue, rule, however, identity the is at where accused upon may prior which bear that received of offenses evidence be identity. Also, prior show is offenses admissible evidence embracing plan two or more the commission of common scheme or crimes that the exceptions It is under these are related to each other. which you you testimony, permitted that but I caution this Court any testimony Reynolds for other are not purpose of Sharon to consider testimony you specifically her are not to consider testimony Reynolds
It manifest that Sharon was by prosecution by offered to rebut evidence adduced by parties. defense and was so considered the court and the State The had rested its case in chief. Jones had closed his produce The defense. State indicated that desired to proffered testimony evidence When rebuttal. Reynolds challenged, prosecutor expressly Sharon was testimony that her stated was to rebut denial of Jones’s being involved at 1845 West Baltimore Street his claim participate he did the assault. When further objection interposed, was the court observed State rebutting testimony nothing “the had to do [Jones] pandering” with at 1845 West Baltimore Street. reopen prosecutor request made no the State’s case in order introduce adducible chief. The Reynolds of Sharon was offered the State and accepted and the as in court defense rebuttal. *23 appeal persists in
On Jones the contention that court the admitting testimony Reynolds in below erred the of Sharon by agree. as offered State rebuttal. We was State pressing in challenged ill-advised its effort to have the testimony admitted, assuming clearly and in the risk so pointed by out to it court. It is clear that the evidence through testimony Reynolds adduced of Sharon was not proper reply directly to, explain, rebuttal. did not It or brought by new contradict matter into case the defense. Keeping testimony in mind that the court ruled that her was rebutting to be as not considered Jones’s denial that he Denise, State, rebutting, according assaulted as but to the being Jones’s “vehement denial” “involved at 1845 West 18 and, Street,” rebutting, according Baltimore to the may showing that have crimes because defendant committed earlier, charged that he with in committed crimes which he is September 13,1974.” case this on or about transcript objection part in We do charge. find of the trial an this proffer. 18. The evidence adduced was not in accord with the Sharon’s testimony picked up by runaway, tended to establish that she was and that she was put and by Jones, Jones. It not show did that she was on the street Street, “pimped” that she “lived” at 1845 West Baltimore that she for Jones. judge, testimony nothing Jones had to do with pandering operations Street, at 1845 West Baltimore we see no evidence adduced the defense which was as indicated chief, in State and the court. The in its case had tending Carrington, adduced evidence to show that Denise Matthews, Evelyn Newby Wanda Richardson and Elvira stayed at 1845 West Baltimore Street at the invitation of deny Jones. Jones did not this. The State’s evidence was also Denise, Evelyn that Jones had solicited Wanda and engage prostitution pimp. him with as their There was no gave money any evidence that Denise Jones which she prostitute; fact, earned as a engaged she denied that she prostitution. Evelyn claimed, although she “prostituted” Jones, any money for she had not made money therefrom. Jones denied that he “received had from young purposes prostitution.” these ladies for the He specifically money denied that he received from Wanda and Newby19 prostitution. Elvira for He admitted that he money Evelyn panderer; received from but not as a money given apartment himto to obtain for her an Reynolds’s her own. Sharon testimony August picked up, stayed night Jones her that she one at 1845West Street, put up Baltimore that Jones’s brother her at another days Jones, address where she remained for two until his brother, Fish, appeared, Wanda and Elvira and that Jones going prostitute talked to her about out on the street as a him, explain Denise, does not Jones’s denial that Wanda and Evelyn gave money they by engaging him earned prostitution, reply directly denial, nor does it to that nor is it suggests a contradiction of that denial. The State that in introducing Reynolds, the rebuttal of Sharon “the *24 prosecution attempting impression to counter the by only created defense that his in concern was the [Jones’s] juveniles stayed welfare of the who at his home. . . . [I]t involving Reynolds matters not that the incident Sharon testimony occurred at a different house.” It is true that the out, supra, Newby 19. As set Elvira testified for the defense. She prostitute, admitted she was a but denied she worked for Jones. 554 Reynolds would tend to show Jones as a “bad
of Sharon theory” we condemned the “bad man in man”. But Dobson v. State, supra; State, supra, we Setzer v. declared that may injected guise not be into a trial the of rebuttal testimony. “clearly testimony being apparent” of Sharon
It evidence, ruling Reynolds properly was not rebuttal “manifestly wrong.” Upon it was our the trial eourt to admit record, independent we are unable to declare review of the doubt, belief, beyond that the admission of the a reasonable way the verdict. challenged evidence in no influenced “substantially injurious.” Therefore, As the error was ruling on error in the trial court’s requisites for reversal two judgment present, respect rebuttal evidence are with reversed. must be denying “in trial court erred contends that the also
Jones house suppress evidence seized from his motion [his] 20 during at trial The issue was raised without warrant.” evidentiary 729, An Md. Rule c. case chief. State’s § presence jury a motion hearing was had out of the by tangible suppress evidence seized defense to made The court denied Baltimore Street. police at 1845 West propriety of the denial determine the motion. We may retried on remand. be because Jones admissibility firmly It is established that the of evidence search an unreasonable have been obtained claimed to exclusively the trial court. is a matter and seizure (1969), denied, App. 257 State, Md. 204 cert. 8 Cleveland v. (1969), State, App. 7 cert. (1970); Md. Price v. Md. 732 (1970); App. State, 6 Md. Winebrenner v. denied, 256 Md. compliance (1969). were in with proceedings here at 444: Winebrenner our direction reflect conducted so as to trial should be “The evidence was and other clearly what items, “implements evidentiary used 20. The articles seized were — boxing gloves, Carrington” coat creating hangers, two the wounds on Denise App. spear. 14 Md. Palmer v. an African ceremonial See (1972). Exhibit as State’s n. 10 The articles were admitted at 164-165 No. 2.
555 admissibility received on the issue of the of the challenged ruling judge evidence and of the trial as to ... the reasonableness of the search and admissibility challenged seizure and the of the evidence should be stated him.” explained
The of court its denial the motion: following “The Court finds the facts from the premises, evidence before it. That the 1845 West Street, September, Baltimore were on the 14th 1975, lawfully Newby, although occupied Ms. possessor
her exact status as a lawful
has not been
established. I further find that there is no evidence
ownership
property
of the
of the
and no evidence
really
property.
of Mr.
Jones’ interest
entry
further
find that
the time of the
on
14, 1974,
September
when State’s Exhibit Number
therefrom,
2 was removed
that Mr. Jones was not
premises
consequently
on the
under
(1973)
doctrine,
App.
[Lopata
State, 18 Md.
451
v.
(1973)] although
denied,
cert. prior occasions, premises been on the he has not proof standing met his burden of to establish his infringement raise a Fourth Amendment of his 21 rights.” understanding law correct. We said court’s (1975), App. 302, State, 27 Duncan and v. Md. 304 Smith reasons, judgment for other 276 Md. vacated on certiorari (1976): 715 only is, course,
“It
law that
black letter
‘person aggrieved by
unlawful search and
an
validity
may challenge
seizure’
the constitutional
gave
denying
21. The court
as an alternative
reason for
the motion that
Newby,
premises,
Elvira
as a lawful resident of the
consented to the search
and to the seizure of
no need to determine
the articles. We have
Matlock,
propriety
holding.
v.
415
this alternative
But see United States
(1969);
(1974);
Cupp,
v.
States
U. S. 164
v.
S. 731
United
Frazier
394 U.
Green,
968,
(9th
1975);
Novello,
v.
519 F. 2d
523 F. 2d
971
Cir.
United States
(9th
(5th
1078,
Bussey,
1975);
1080
that search 257, 261, 697, S. 80 S. Ct. L.Ed.2d U. (1960). right enough It is to be someone’s *26 free of unreasonable search and seizure has been abrogated; necessary right abridged that the be is Alderman v. personally. the defendant that of 165, 173, 961, States, 394 U. S. 89 22 United S. Ct. (1969). 176, One must that it L.Ed.2d 186 establish enjoyment of own direct or derivative his is privacy expectation of that has property or been may challenge before he the invasion. invaded 189; 583, State, 8 Md. App. A. v. 261 2d Walters 159, 572; State, 14 App. 286 A. 2d Palmer v. Md. 721; 451, Lopata State, 18 Md. App. A. v. 307 2d States, 223, S. 93 Brown v. United 411 U. S. Ct. (1973).” 1565, 208 36 L.Ed.2d words, person seeking suppress a to evidence In other and must first an unlawful search seizure obtained asserting standing object. The burden of and establish his seeking suppress, establishing standing upon one the 310-317, App. Smith, Md. 27 and he must Duncan and affirmatively by preponderance standing establish his (1972). Lego Twomey, 404 U. S. evidence, 477 v. the supra, Lopata State, v. standing were set out elements of at 453: place object of a must be
“Standing to to the search relationships to the situs upon based either two of the search:
(1) present possessory interest the A searched;
property
or
22
(2)
premises.”
presence on
Legitimate
standing
object
question
we
appellate
On
review of the
only
was
to the trial
“evidence that
submitted
consider
hearing,
presence separate
judge out
property
suppress
as evidence or
jury,
on the motion
State,
standing
557 admissibility. That some of the same objection to its jury evidence, more, presented the trial and to the mean that we consider more guilt, does not issue of judge on the which was before the trial than that App. admissibility.” State, 14 Md. v. question of Glover Waugh denied, Md. 737 Cf. cert. (1972). (1972), 275 Md. (1975). Gary Dresser of the judice, Officer In case sub only City Department was the witness at Police Baltimore hearing. offered no evidence at suppression The defense was not that Jones from Dresser’s all. It is clear went there when the officer Street at 1845 West Baltimore receiving information from after and obtained the articles burning. beating hospital her His about at the Denise Newby. He Elvira was answered knock on the door implements him why She told explained he was there. permission from her to he received were the cellar *27 building the know who owned The officer did not take them. — “I it was rented and, time, know whether did not at the sign was a was on the door it from the would assume objected to his rectory door.” No one church next to the May in before being had been there once there. Dresser Newby on the Elvira were Jones and at which time purpose of police called for the premises. The had been brother was evicting said that his brother. Jones Jones’s only house. The brother out of the wanted the drunk. Jones respect of the to residents had with information Dresser only to Denise who referred from house he had received “took girls. not know that Jones He did and three Elvira wayward girls.” He drug and did and alcoholics addicts with the the house was connected even know that not neighborhood.” On “in activities the certain church Elvira asked what interest he was recross-examination Evelyn had Richardson Newby, and Matthews Wanda Newby told replied: “Elvira He Street. 1845 West Baltimore after juveniles, girlfriend. Two Jimmy Jones’ me she was Jones, they Mr. for them, worked interviewing me that told return, In Mr. Jones. Jones, prostituted for tricked for Mr. rent, and board.” paid room location, no they stayed at that suppression at the on evidence adduced find that the We clearly in his hearing, not erroneous court below was the ownership the evidence of judgments that there no interest property no evidence Jones’s and premises when the was not on the property, and that Jones applied properly below was seized. court found, correctly that Jones concluded facts and law the any affirmatively right direct or derivative establish did independent premises. It our in the searched standing object had no appraisal that Jones constitutional challenged We hold that the of the evidence. seizure denying suppress. did err the motion to court below not the trial erred in last contention is that court Jones’s Carrington refusing of Denise to strike by self-contradiction, grounds “was marked answer, lying, persistent refusals to admissions reversing memory judgments, failure.” Because we are determine it. a there is no need to For discussion State, application Kucharczyk doctrine of v. 235 Md. however, 83, (1964), App. Bailey see Md. 334 93-97(1972). 711, Hepple, As E. No. to Richard Term, September 1975: reversed; Judgment case re- trial; new manded costs Mayor paid by be City Baltimore. Council of Jones, As to Edward No. James Term, September 1975: reversed; Judgments case re- *28 anew manded trial.23 Menchine, J., Concurring Dissenting: and State, 714,
I in concur the result in No. Hepple v. 1975, September Term, I because believe that the evidence by represented 23. Defender. Jones was the Public reversible error in rebuttal would have constituted admitted during in if had been admitted the trial chief. even it State, respectfully I in dissent from the decision Jones v. 1975, ground 730, September Term, upon the that the No. evidence, testimony Reynolds proper of rebuttal Sharon (a) credibility in of the witness that: it tended to restore (b) appellant, it tended to Matthews vis-a-vis the Wanda destroy validity appellant’s that he had not premises engaged pandering 1845 W. or used the prostitution. Baltimore Street aid however, strongly oppose, for decision of the the basis
majority as to both cases. (1961), 81, State,
In 2d 400 it had 226 Md. A. Lane v. clearly succinctly stated at 90 been [405]:
“This Court has held that it is within the sound judge discretion of the trial to allow re- buttal that should have been offered chief.” (1965), 283, State, A. 2d 599 Mayson In 238 Md. language in course of a Appeals repeated that
Court of appellate review more of the nature of extensive discussion admissible, but cases wherein the trial court had allowed evidence, stage trial. It was at the rebuttal non-rebuttal said 288-89[602-03]:
“Ordinarily, orderly an conducted criminal trial adducing anticipates the all of its evidence in State resting by chief and its case. The defense follows tending producing its evidence to establish the ac- non-culpability, which includes the contra- cused’s diction or rebuttal of the evidence offered opportunity an State. Then the State is afforded produce in- This latter its rebuttal evidence. any competent explains, cludes evidence which to, of, any reply or is a direct or a contradiction brought new matter that has been into the case the defense. 226 Md. 90. Lane v. justice However, experience has shown that follo'wing require the above does not *29 560 procedure. an
course as and undeniable inflexible has what This Court held that constitutes testimony prosecution rebuttal in a criminal is a resting matter in the sound discretion trial of the court, State, supra, and appellate Lane v. court point, should not reverse error on this in the showing ruling a that the trial absence of of wrong manifestly and substantially court was both State, Md. 151, 160. injurious. haveWe Kaefer v. it held that is within sound discretion also court allow evidence the trial in rebuttal of have been Lane v. should offered chief. State, supra. the court not be does not mean that should “This deliberately from preventing the State alert (such withholding part as that of its of, merely to, or corrobative is cumulative which chief) in testi- already order to have offered repeated mony at the end of to its case favorable may upon the it have the trial for the effect added.) (Emphasis trier of facts.” Appeals two said supra, As the Court Mayson, I read things: judge to deter- has a sound discretion The trial
1. rebuttal, not is or is whether evidence mine judge to deter- has a sound discretion The trial 2. concededly evidence, whether admissible mine in evidence permitted rebuttal, be should not of a case. rebuttal state during the 291, 221 A. Tennant, Md. In use Snowhite through Appeals, speaking (1966), Court of 2d 342 saying holding Mayson, Barnes, J., the second reiterated at 306 [350]: discretion normally within the
“... which, in testimony on rebuttal allow trial court fact, not rebut.” does effectively majority opinion reduces the discretion question whether the evidence is or is
the trial court to the — range Wholly truly indeed. rebuttal a narrow judge *30 eliminated is the discretion of the trial to allow phase of of non-rebuttal evidence the rebuttal introduction — reopen accompanied by case. trial unless a motion question me that both the whether It seems clear to question and the whether non-rebuttal evidence is rebuttal during stage the rebuttal of a should admitted evidence be within of the trial trial are matters the sound discretion Appellate involving question review in the latter court. cases take the form of an examination of the record should — error whole to determine not whether there was harmless — evidence, by but rather whether the admitted reason of imposed admission, additional time its a substantial dimension harm.
Application of the harmless error rule to admissible objectionable timing only that is because introduction, majority opinion its is unsound. The exalts form over substance. Hepple; would reverse as to affirm as to Jones.