STATE of Maryland v. Larry D. STANLEY.
No. 2, Sept. Term, 1998.
Court of Appeals of Maryland.
Nov. 18, 1998.
720 A.2d 323
CHASANOW, J., did not participate in the consideration of this matter.
720 A.2d 323
STATE of Maryland
v.
Larry D. STANLEY.
No. 2, Sept. Term, 1998.
Court of Appeals of Maryland.
Nov. 18, 1998.
George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.
CATHELL, Judge.
This case requires us to examine a criminal defendant‘s constitutional right to compulsory process under the Sixth and Fourteenth Amendment and the former statute relating to the offense of assault with intent to maim, disfigure, or disable.1
Because the State‘s Attorney‘s comment to the prosecutorial witness about the consequences of perjury was not a threat to prosecute the witness if her testimony did not satisfy the prosecutor but merely a genеral warning, such comment did not deprive the defendant of his constitutional right to compulsory process.2 Furthermore, there was sufficient evidence to convict the defendant of assault with intent to maim, disfigure, or disable the victim because he stabbed her several times in the chest with a deadly weapon.
On November 16, 1995, Larry D. Stanley, respondent and cross-petitioner, hereinafter “respondent,” was arrested and subsequently charged with assault with intent to maim, assault, battery, and wearing and carrying a concealed weapon as a result of an attack on victim Tammy Jones. At trial, Trooper L. Edward White, Jr. testified that he responded to an emergency call on November 16 for an assault in progress in Salisbury, Maryland. Trooper White further testified that upon arriving at thе scene of the incident, he saw respondent and Ms. Jones walking together on a nearby street. Both respondent and Ms. Jones had blood on their clothes and Ms. Jones, who was upset and crying, had blood on her upper chest and face.
Trooper White and another trooper separated respondent and Ms. Jones, taking Ms. Jones to an ambulance. She continued crying while in the ambulance, but was able to relate to Trooper White what had occurred earlier. Ms. Jones told him that while she and respondent went out for a walk, their conversation escalated into an argument. During their argument, respondent hit Ms. Jones with his fists, stabbed her in the chest with a knife, and bit her ear. Ms. Jones was taken to the Peninsula Regional Medical Center. There, she was treаted for a laceration and several bruises to her head, three two-centimeter stab wounds to her chest, and a jagged five-centimeter laceration to her ear, which required multiple sutures.
Prior to respondent‘s trial, Ms. Jones allegedly informed the prosecuting attorney in a letter that respondent was not her assailant. During the trial, the prosecuting attorney approached Ms. Jones in a hallway outside of the courtroom and informed her that she would3 be prosecuted for perjury if she did not testify truthfully.
Respondent filed a motion for new trial on May 9, 1996. On August 9, 1996, after a hearing on the motion, Judge Simpson denied respondent‘s motion and sentenced him to incarceration for a period of fifteen years for the assault with intent to maim conviction and three years for the wearing and carrying a deadly weapon conviction, to be served consecutively. Judge Simpson then suspended the three-year sentence and placed respondent on supervised probation for thirty-six months upon his release. The assault and battery convictions merged into the assault with intent to maim cоnviction for sentencing purposes.
At the hearing on the motion for new trial, respondent argued, inter alia, that the prosecuting attorney committed misconduct during the trial by threatening to charge Ms. Jones with perjury if she did not testify truthfully. During the hearing, the following colloquy took place between the judge and the prosecuting attorney:
THE COURT: ... [D]id you chill [Ms. Jones‘s] testimony by threatening her? That is what [respondent is] alleging.
[STATE‘S ATTORNEY]: There is no evidence of that. I put her on the witness stand. I began to ask her questions, and she began to take the [F]ifth [Amendment] as to some very innocuous questions.... We got her here [to testify]. I think there is no indication of a threat at all.
THE COURT: Are you saying that you didn‘t threaten her to prosecute her for perjury?
[STATE‘S ATTORNEY]: No, sir.
[MS. JONES]: [W]ell, I was told that if I get up on the stand and perjure myself, I am going to be charged with perjury and sent to jail.
THE COURT: You were told if you perjured yourself, you could be charged with perjury?
[MS. JONES]: Yes.
After Ms. Jones stepped down from the witness stand, the following was said:
THE COURT: If we assume the truth of what she just testified to, what did the prosecutor do wrong?
[DEFENSE COUNSEL]: The prosecution threatened her with perjury.
THE COURT: If she perjured herself.
[DEFENSE COUNSEL]: Perjury, prosecution, Your Honor.
THE COURT: If you perjure yourself. She didn‘t say if you say this, if you say that, or anything of that nature. If you believe what that witness just testified to, every bit of which the prosecutor denies, all she told the witness was, if you lie, you could be prosecuted for perjury. She didn‘t say, if you say X, you will be prosecuted for pеrjury. If you say Y, you will be prosecuted for perjury. Just if you lie. When you get up, if you tell the truth, you won‘t. If you lie, you will. What is wrong with that?
[DEFENSE COUNSEL]: Well, as a prospective defense witness,4 Your Honor, and in receipt of the letter that that
THE COURT: Well, under the evidence presented, I do not believe that the prosecution committed prosecutorial misconduct based on the evidence that has been presented before the Court today. The prosecution was the one calling the witness, not the defense. The prosecution was the one who secured the presence of the witness in court, not the defense, and all the prosecution is alleged to have had done is said tell the truth. If you lie, you could be prosecuted for perjury. That‘s what the evidence before the Court is. I do not believe that is sufficient to warrant a new trial to the defendant. I believe there was a sufficient basis for the excited utterance, and I do not find anything in the record with respect to the witness‘s assertion of her fifth amendment right that would give rise to a right to a new trial. So, I am going to deny your Motion for New Trial.
Respondent appealed to the Court of Special Appeals. That court, as relative to this appeal, held there was sufficient evidence to convict respondent of assault with intent to maim. That court then held that the prosecutor‘s statements as to her admonition of the witness, should have been in the form of sworn testimony, and vacated the conviction for assault with intent to maim pending a remand to the circuit court and a rehearing on the motion for new trial to determine whether the State‘s Attorney‘s conduct was inappropriate in advising Ms. Jones she would be charged with perjury if she lied. See generally Stanley v. State, 118 Md.App. 45, 701 A.2d 1174 (1997). The State petitioned this Court for Writ of Certiorari and respondent cross-petitioned. In its brief, the State presents the following question for review:
Did the Court of Special Appeals erroneously hold that [respondent‘s] convictions should be vacated pending a rehearing of [respondent‘s] motion for a new trial because the record was insufficient for the trial сourt to determine whether the prosecutor‘s alleged remarks to the victim prior to trial regarding perjury charges for failing to testify truthfully deprived [respondent] of his constitutional right to compulsory process?
Respondent presents the following questions for our review:
1. Did the Court of Special Appeals err in holding that [respondent‘s] conviction for assault with intent to maim should be vacated pending a rehearing of [respondent‘s] motion for new trial because the trial court failed to obtain sworn testimony from the prosecutor?
2. Did the Court of Special Appeals err in concluding that [respondent] could be convicted of assault with intent to maim without sufficient proof of injury or intent?
With respect to petitioner‘s question and respondent‘s first question, we hold that the Court of Special Appeals erred in vacating respondent‘s convictions because, regardless of whether the prosecutor provided sworn testimony, her remarks to the victim did not deprive respondent of his constitutional right to compulsory process. As to respondent‘s second question, we hold that the Court of Special Appeals did not err in holding that there was sufficient evidence to convict him of assault with intent to maim. Accordingly, we shall reverse in part and affirm in part the intermediate appellate court and uphold the judgment of the trial court as to those two issues.5
A. The State‘s Attorney‘s Alleged Misconduct
This first issue encompasses both petitioner‘s question and respondent‘s first question. Namely, we must review the effect of the prosecuting attorney‘s warning to Ms. Jones regarding the consequences of perjury.
In 1967, the Unitеd States Supreme Court held that a criminal defendant has the right to have compulsory process for obtaining witnesses in his favor under the Sixth Amendment, as applied through the Fourteenth Amendment:
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant‘s version of the facts as well as the prosecution‘s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution‘s witnesses for the
from the brief and Gray [v. State, 317 Md. 250, 562 A.2d 1278 (1989)] is not cited in the brief. Under these circumstances, ... it would be appropriate for this Court to dismiss the petition as improvidently granted.” The State, in its reply brief, asserts that it argued in its petition that the Court of Special Appeals erred by vacating respondent‘s conviction because the prosecutor should not have been required to take the witness stand and provide sworn testimony since “the information that the trial court had before it at the motions hearing was adequate enough to enable it to make the necessary factual findings as to whether the prosecutor had, as [respondent] alleged, engaged in prosecutorial misconduct.” The same issue, the State argues, is encompassed by the question presented in its brief, but “explored in greater detail.” The arguments presented in the State‘s brief simply present different alternatives upon which we may base our decision. We disagree with respondent that the scope of the State‘s brief exceeds the question for which we granted certiorari. As we shall explain, the Court of Special Appeals did err as the prosecutor was not required to be a sworn witness at the hearing on the motion for new trial. This is because the prosecutor‘s comment, assuming the truth of Ms. Jones‘s version of the comment, was not a constitutional violation. Accordingly, it was irrelevant whether the trial court obtained sworn testimony from the prosecutor. This issue does not exceed the scope of the question granted review by this Court and, therefore, we shall address it.
Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).
In Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353-53, 34 L.Ed.2d 330 (1972), the Court revisited that issue and held that a trial court judge deprived a сriminal defendant of his right to compulsory process when the judge threatened a defense witness with prosecution for perjury, which effectively prevented the witness from testifying. At the trial, the defense called only one witness. On his own initiative, the trial judge said to the witness:
“Now you have been called down as a witness in this case by the Defendant. It is the Court‘s duty to admonish you that you don‘t have to testify, that anything you say can and will be used against you. If you take the witness stand and lie under oath, the Court will personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood [sic] is that you would get convicted of perjury and that it would be stacked onto what you have already got, so that is the matter you have got to make up your mind on. If you get on the witness stand and lie, it is probably going to mean several years and at least more time that you are going to have to serve. It will also be held against you in the penitentiary when you‘re up for parole and the Court wants you to thoroughly understand the chances you‘re taking by getting on that witness stand under oath. You may tell the truth and if you do, that is all right, but if you lie you can get into real trouble. The court wants you to know that. You don‘t owe anybody anything to testify and it must be done freely and voluntarily and with the thorough understanding that you know the hazard you are taking.”
Id. at 95-96, 93 S.Ct. at 352, 34 L.Ed.2d 330. The witness thereafter refused to testify and was excused.
This Court applied Webb in Marshall v. State, 291 Md. 205, 434 A.2d 555 (1981). We held that the trial court abused its discretion by improperly admonishing the defendant about perjury while the defendant was testifying. Id. at 214, 434 A.2d at 560. In that case, the trial judge said to the defendant after he was attempting to testify differently than he had in an earlier stage of his trial:
“Now, Mr. Marshall, you are under oath. If you fail to tell the truth, you can be charged with perjury. You took the witness stand in front of me the 13th of November.
....
Now, you are trying now to testify differently from what you said on November the 13th, and I‘ll issue a bench warrant charging you with perjury if you persist.”
Id. at 209, 434 A.2d at 558. Ultimately, the defendant testified as he had originally on November 13.
Reversing the Court of Special Appeals and the trial court, we held that the judge had committed a Webb-type violation because the admonition caused the defendant to testify in a certain way for fear of suffering some severe consequence. We stated: “[W]hile we agree with the court below that a judge presiding over a jury trial has the right to interrogate witnesses in an effort to clarify the issues, we stress that he
Several other courts addressing the issue of the effect of a court‘s admonition of the penalties of perjury have found no such violation. For instance, in United States v. Blackwell, 694 F.2d 1325 (D.C.Cir.1982), the triаl judge and the prosecutor both warned the testifying witness of the penalties of perjury, but did so only once. The judge questioned the witness under oath as follows:
[T]here are always actions of perjury meaning that if you lie under oath that you can be sent away on a new charge. Do you understand that?
THE WITNESS: Yes.
THE COURT: So it is important for everybody to tell the truth. I just want you to understand what the situation is. All right?
THE WITNESS: Thank you.
THE COURT: Do you still wish to take the stand and testify?
THE WITNESS: Yes.
Holding that the judge‘s admonishments and the prosecutor‘s similar comments did not amount to a constitutional violation, the Court of Appeals for the District of Columbia stated that “[i]t is not improper per se for a trial court judge or prosecuting attorney to advise prospective witnesses of the penalties for testifying falsely. But warnings concerning the dangers of perjury cannot be emphasized to thе point where they threaten and intimidate the witness into refusing to testify.” Id. (citations omitted). The trial judge and the prosecutor, the court reasoned, maintained acceptable limits in their warnings to the witness, and fulfilled their duties to warn a potential perjurer about the ramifications of perjury. Accordingly, their comments caused no constitutional violation. Id. at 1336. See also United States v. Smith, 997 F.2d 674, 680 (10th Cir.) (concluding the judge‘s comments to witness
Likewise, comments by prosecutors as to the implications of perjury may, or may not, be a violation of the principles set forth in Webb. See People v. Hill, 17 Cal.4th 800, 72 Cal.Rptr.2d 656, 675, 952 P.2d 673, 692 (1998) (noting that under the circumstances of that case, prosecutor‘s threat of perjury conviction to defense witness constituted prosecutorial misconduct); Davis v. State, 831 S.W.2d 426, 437 (Tex.App. 1992, pet.ref‘d) (“Under certain circumstances, a judge‘s or prosecutor‘s threats or intimidation that dissuade a witness from testifying or persuade a witness to change their testimony may infringe a defendant‘s due process rights.“). Threatening comments must rise to the level of “‘a threat over and above what the record indicate[s] was timely, necessary, and appropriate.‘” United States v. Jackson, 935 F.2d 832, 847 (7th Cir.1991) (alteration in original) (quoting United States v. Simmons, 670 F.2d 365, 369 (D.C.Cir.1982), cert. denied, 464 U.S. 835, 104 S.Ct. 121, 78 L.Ed.2d 119 (1983)). A constitutional violation arises not when the prosecutor merely informs or advises the witness about the possibility of perjury, but instead when he or she “by deliberate and badgering threats design[s] to quash significant testimony.” United States v. Davis, 974 F.2d 182, 187 (D.C.Cir.1992), cert. denied, 507 U.S. 979, 113 S.Ct. 1434, 122 L.Ed.2d 801 (1993); see also State v. Melvin, 326 N.C. 173, 187, 388 S.E.2d 72, 79 (1990) (“[T]he constitutionality of a prosecutor‘s conduct is determined by the attendant circumstances, and not all prosecutorial threats of pеrjury proceedings constitute due process violations.“). In many circumstances, a testifying witness, particularly an unrepresented witness, possibly should be warned about the possibility of a perjury charge. Davis, 974 F.2d at 187; see also Smith, 997 F.2d at 680; State v. Baca, 124 N.M. 55, 62, 946 P.2d 1066, 1073 (N.M.1997). Unless the prosecutor specifically threatens, intimidates, or coerces the witness, no constitutional violation ordinarily will be found. See, e.g., People v.
It is apparent that prosecutors can and sometimes should warn witnesses of the consequences of perjury. These warnings, however, should be general in nature and must not directly intimidate or coerce a witness into silence. No intimidation or coercion occurred in the case before us; the admonition was general in nature. The witness testified that the State‘s Attorney told her she would be prosecuted for perjury if she did not tell the truth. Some confusion exists because the witness then agreed with the trial judge when he characterized the prosecutor‘s statement as “could be prosecuted for perjury.” That characterization, however, makes little difference. Generally, a party may warn its witness of the ramifications of perjury. Ultimately, whether the State‘s Attorney in this case used the word “could” or “would,” the statement made to Ms. Jones prior to trial was nothing more than a general warning and not a coercive attempt to prevent her from testifying. Such warning, therefore, was not a Webb-type admonition and did not violate respondent‘s right to compulsory process.7
As we have indicated, respondent argues vigorously about the State‘s Attorney not being a sworn witness when the trial judge asked her if she had threatened the witness with perjury charges. Citing to
on cross-examination were sufficient to overcome the sworn testimony of appellant‘s witnesses.” Id. at 96, 376 A.2d at 870. Although the prosecutor‘s remarks in the case sub judice were not made under oath, as we shall explain, that makes little difference to the outcome of this case.
B. Sufficiency of the Evidence for the Assault with Intent to Maim Conviction
The standard for our review of the sufficiency of the evidence is “whether after viewing the evidence in the light
affirmation administered either in the form specified by
Respondent was charged with assault with intent to maim.
If any person shall unlawfully shoot at any person, or shall in any manner unlаwfully and maliciously attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut or wound any person, or shall assault or beat any person, with intent to maim, disfigure or disable such person ..., such offender shall be guilty of a felony and, upon conviction are subject to imprisonment for not more than 15 years.
Maiming was not defined within section 386. Rather, the definition appeared in section 385 of Article 27:
Every person, his aiders, abettors and counsellors, who shall be convicted of the crime of cutting out or disabling the tongue, putting out an eye, slitting the nose, cutting or biting off the nose, ear or lip, or cutting or biting off or
Assault with intent to maim is a specific intent crime. In that regard, a conviction cannot lie unless the perpetrator had the specific intent “to inflict one or more of the injuries described in [section] 385.” Booth v. State, 306 Md. 172, 212, 507 A.2d 1098, 1118 (1986), vacated on other grounds, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987); see also Richmond v. State, 330 Md. 223, 230, 623 A.2d 630, 633 (1993). Additionally, the injury must be permanent in nature. Ford v. State, 330 Md. 682, 702, 625 A.2d 984, 993 (1993); Hammond v. State, 322 Md. 451, 457-59, 588 A.2d 345, 347-48 (1991).
Respondent‘s second question in his cross-petition argues that the prosecution was required to prove that respondent had the specific intent to “bit[e] off the ... ear” of Ms. Jones. Our analysis, however, does not begin or end with the biting issue. Count One of the Criminal Information filed in the circuit court alleged that respondent “did unlawfully and maliciously cut ... Tammy Tirrell Jones, with intent to maim, disfigure or disable....” (Emphasis added.) The trial judge stated when addressing respondent‘s motion for acquittal at the close of the State‘s case:
Well, there was evidence that the victim ... stated that the defendant bit her and had a knife, and she had wounds that are evidenced by the hospital records, stab wounds to the chest, an ear edema. [The evidence] indicates that she was ... knifed.
I certainly think there is legally sufficient evidence....
The defense presented no case at trial. It then renewed its argument that the evidence on the assault with intent to maim charge was not sufficient. The trial judge responded: “I don‘t have any doubt that there was a knife involved. The Court believes beyond a reasonable doubt that [a knife] was used and that was an intent to maim.”
As we have stated, the prosecution was required to prove that respondent assaulted Ms. Jones with the specific intent to maim, disfigure, or disable her. This Court and the Court of Special Appeals have said on many occasions that this intent may be infеrred from the surrounding circumstances. Ford, 330 Md. at 702-03, 625 A.2d at 994.11 More specific to this case, “the intent necessary for a conviction under [section]
Returning to the case at hand, when the defense moved for judgment of acquittal, the judge stated in discussing this issue:
I don‘t have any doubt that there was a knife involved. The Court believes beyond a reasonable doubt that one was used and that was an intent to maim, and that the defendant is guilty of all the charges based on the statement at the time of the victim and the evidence submitted by the hospital records as to the statements as to the cause of the injuries and the injuries that were actually found, and the Court will enter verdicts of guilt.
The judgе found that respondent, in assaulting Ms. Jones with a knife, was guilty of the charges against him, i.e., that he intended to maim, disfigure, or disable her permanently. The
III. Conclusion
The State‘s Attorney, in her comment to the State‘s witness about the penalties of perjury, did not deprive respondent of his right to compulsory process under the Sixth and Fourteenth Amendments. The comment was a general admonition, not a threat, and did not improperly coerce or badger the witness. Moreover, the trial court presumed as truthful what Ms. Jones testified to at the hearing on the new trial. Even under Ms. Jones‘s version, the State‘s Attorney‘s comment was not improper. Finally, there was sufficient evidence to convict respondent, as the trial court did, of the charge of assault with intent to maim, disfigure, or disable for stabbing the victim with a knife in her chest. Accordingly, we shall rеverse the Court of Special Appeals as to the motion for new trial and vacate that court‘s vacation of the trial court‘s denial of respondent‘s motion for a new trial. We affirm the Court of Special Appeals as to respondent‘s conviction for assault with intent to maim.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND VACATED IN PART; THAT PART OF THE COURT OF SPECIAL APPEALS’ JUDGMENT RELATING TO THE CONVICTION FOR ASSAULT WITH INTENT TO MAIM IS VACATED; CASE REMANDED TO THE COURT OF SPECIAL APPEALS
Dissenting opinion by RAKER, J., in which ELDRIDGE, J., joins.
RAKER, Judge, dissenting:
I would affirm the judgment of the Court of Special Appeals. Stanley v. State, 118 Md.App. 45, 701 A.2d 1174 (1997). I believe that under the circumstances of this case, the prosecutor should have been required to testify at the evidentiary hearing, thereby affording Respondent the opportunity to cross-examine the prosecutor.
The majority holds that the Court of Special Appeals erred in vacating Respondent‘s convictions because, regardless of whether the prosеcutor provided sworn testimony, her remarks to the victim did not deprive Respondent of his constitutional right to compulsory process. Maj. op. at 741. The majority explains that this is because the prosecutor‘s comment, assuming the truth of Ms. Jones‘s version of the comment, was not a constitutional violation, and thus, it was irrelevant whether the trial court obtained sworn testimony from the prosecutor. Maj. op. at 741 n. 5.
The intermediate appellate court noted correctly that
[t]he circuit court has not developed a record that properly allows us to evaluate the constitutionality of the prosecutor‘s actions. The only evidence introduced regarding this subject is the testimony of the victim. We are unable to make any conclusions based on her testimony, however, due to the lack of clarity concerning the language the Assistant State‘s Attorney used. The Prosecutor did not take the witness stand and provide sworn testimony. The utter lack of factual determinations in the record necessitates that we remand this case to the circuit court in order that appellant‘s motion can be properly considered.
The Court of Special Appeals reached the right result in this case in ruling that the case should be remanded and
[i]f, on remand, the court determines that the alleged conversation between the victim and Assistant State‘s Attorney did not occur or, if it did, it did not prejudicе appellant, the court may reinstate the conviction and sentence for assault with intent to maim. If the court, however, concludes appellant was prejudiced by the State‘s conduct, a new trial may be ordered.
Id., 118 Md.App. at 63, 701 A.2d at 1183. For the reasons stated above and by the Court of Special Appeals, Respondent was denied his right of confrontation. Accordingly, I respectfully dissent.
Judge ELDRIDGE has authorized me to state that he joins in the views expressed herein.