Review of Maryland Law- State Courts: July 30, 2005

Daily Record, The (Baltimore), Jul 30, 2005 by Daily Record Staff

Court of Appeals

Evidence

Admissibility of Hearsay

BOTTOM LINE: Witnesses to unrecorded testimony in the district court could testify from memory to impeach a witness in a subsequent trial in the circuit court.

CASE: Gregorio Isasi Gonzalez v. State of Maryland, No. 103, September Term, 2004 (filed Jul. 15, 2005) (Judges Bell Raker, WILNER, Cathell, Harrell, Battaglia & Greene).

FACTS: Gregorio Gonzalez was employed as a shampoo assistant at a hair salon in Bethesda. In Argentina, he was certified in massage therapy, but he was not certified as a massage therapist in Maryland. As a result of his incorporating massages as part of his shampooing, one of the salon's patrons, Ms. Russell, purchased a gift certificate from him for a one-hour massage. Ms. Russell gave the certificate to her brother-in-law, Mr. Crane, as a birthday present.

Mr. Crane's wife, a customer of the salon, then scheduled an additional full-body massage for herself, both massages to take place at her home. Ms. Crane had her massage first. During the massage, Gonzalez allegedly inserted his finger into Ms. Crane's vagina. She immediately jumped off the table and, wrapped only in a sheet, ran downstairs and complained to her husband, who ordered Gonzalez to leave. As her husband confronted Gonzalez, Ms. Crane, still wrapped in the sheet, ran to a neighbor's house.

At some point during the following week, Ms. Crane called a friend in the Bethesda police department for advice and then formally notified the police of the incident. She also informed the owner of the salon, although the sequence of the reports to the police and the owner of the salon were in dispute. Gonzalez was fired from the salon and charged with second degree assault.

At trial in the district court, a Spanish interpreter, Ester Davis, was provided for Gonzales. The recording equipment in the court malfunctioned that day and the trial was not recorded. The district court convicted Gonzales of second degree assault. Gonzalez appealed to the circuit court and elected a jury trial.

The first witness was Ms. Crane. On cross-examination, she was asked how long after the incident she waited to report it to the police and whether her report to the police occurred before or after she complained to the salon owner. Ms. Crane responded that she called her friend the day after the incident, that she made a formal report to the police the following day, and that she did not complain to the salon owner until after Gonzalez was arrested.

When asked whether she had testified in the district court that she and Ms. Russell had gone to the salon three days after the incident, she responded, I 100 percent did not testify to that because that didn't happen.

After the State rested, Defense counsel called Ms. Davis as an impeachment witness. Counsel proffered that Ms. Davis would testify that she remembered Ms. Crane's testimony and that Ms. Crane testified that she went to the salon before she went to the police. Counsel intended to call the district court bailiff for the same purpose.

The court subjected Ms. Davis to voir dire examination. Ms. Davis confirmed that Ms. Crane had stated that a few days after the incident, she and her sister went to the salon and complained to the owner and that she went to the police sometime later. Ms. Davis was not certain whether Ms. Crane claimed that she went to the police the same day as she went to the salon but was certain that she testified that she went to the salon first.

The court disallowed testimony by either Ms. Davis or the bailiff. Defense counsel moved for a mistrial. When that was denied, he indicated that he wanted to withdraw the appeal under Rule 7- 112(f).

The court responded that the Rule did not permit a withdrawal of the appeal after the issues had been joined, a jury selected, and evidence taken. It considered counsel's request as a motion to dismiss the appeal and denied the motion. The jury found Gonzalez guilty of second degree assault and the court gave Gonzalez a more severe sentence than he had received in district court. The Court of Appeals reversed and remanded for a new trial.

LAW: The credibility of a witness may be impeached by showing that the witness has made statements which contradict the witness's trial testimony as to material facts, provided a proper foundation has been established. See Stewart v. State, 342 Md. 230, 236, 674 A.2d 944, 947 (1996). That includes statements made by the witness in the form of testimony at a prior judicial proceeding.

In Ecker v. McAllister, 54 Md. 362 (1880), the Court held that [t]he only proper mode of proving what a witness orally testified to on a former trial is to examine witnesses for that purpose who heard his evidence given. Id. at 371-72. That statement was quoted and confirmed a year later in Herrick v. Swomley, 56 Md. 439 (1881).

The latest Maryland cases addressing this issue are Harrod v. State, 39 Md. App. 230, 384 A.2d 753 (1978), cert. denied, 283 Md. 733, and Hadid v. Alexander, 55 Md. App. 344, 462 A.2d 1216 (1983), cert. denied, 297 Md. 310. Harrod involved an attempt to impeach a trial witness by showing inconsistent testimony given at a District Court preliminary hearing.