O'DONNELL, J., delivered the opinion of the Court. MURPHY, C.J., and SMITH and LEVINE, JJ., specially concur in the result, and MURPHY, C.J., filed an opinion specially concurring in the result, in which SMITH and LEVINE, JJ., concur at page 661 infra.
Following a jury trial in the Criminal Court of Baltimore (Judge J. William Hinkel presiding), the appellant Donald Dorsey was convicted of robbery with a deadly weapon, of assault, and of the use of a hand gun in the commission of a crime of violence. His conviction was affirmed upon direct appeal to the Court of Special Appeals in an unreported per curiam opinion in Dorsey v. State, (No. 282, September Term, 1974, decided December 5, 1974). Upon the appellant's petition we granted a writ of certiorari to that Court limited to the issues: (1) Did the trial court err in allowing Detective Richard Simmons, on cross-examination by the State, to answer the question: "And of the cases you have investigated, can you give us any idea of the percentage in which convictions resulted from your arrest?" and (2) If the court committed error in permitting such testimony, was the error prejudicial.
At about 11:30 P.M. on December 27, 1972, Mrs. Doris Fuller, the proprietress of the "Red Bull" carry-out shop, at
Shortly after the robbery she made a photographic identification of appellant's brother Gary Dorsey as one of her assailants. In her trial testimony, in which she identified the appellant, Mrs. Fuller stated that she had known the appellant and his several brothers — all of whom looked somewhat alike — for a number of years and conceded a confusion with their names. She acknowledged that she had mistakenly identified Gary Dorsey as one of the robbers, but that on December 31, 1972, when her cousin William Alexander Jones, accompanied by the appellant, came to the carry-out shop and returned the gun which had been taken from her during the robbery,
Detective Richard Simmons, of the Baltimore City Police Department, testified that three days after the hold-up he presented Mrs. Fuller with a group of six photographs and from them she identified Gary Dorsey as one of the assailants, that a warrant was issued for his arrest; that he surrendered himself to the police and that when he was confronted by Mrs. Fuller at the police station she retracted her identification and he was released. It was further elicited that when a second group of photographs was shown her on January 5, 1973 she identified the appellant and also
Detective Simmons, recalled in the trial as a witness for the defense, was permitted — over objection by the State — to relate an exculpatory self-serving statement made by the defendant that, when he interviewed him, following his arrest, he denied any knowledge of the robbery and insisted that he was home because of an illness.
The assistant prosecutor then by way of cross-examination of the detective developed the issues which we here examine. That cross-examination was as follows:
The Court of Special Appeals in finding that the ruling by the trial court was erroneous, pointed out that "there was absolutely no factual or statistical basis upon which to formulate such an opinion" and that "the officer's opinion, under the circumstances, was completely unreliable and untrustworthy." Citing Wharton's Criminal Evidence, § 151 (13th ed. 1972), the court was further of the view that "even if the estimate had been based upon a wholly sound foundation the question itself would have been objectionable for it sought to inject into the case evidence which was entirely incompetent, irrelevant and extraneous to the issue of the appellant's guilt or innocence." We concur with the conclusion that the testimony was inadmissible.
We cannot agree however with the further conclusion that, though its admission was erroneous, there was "ample
The real test of admissibility of evidence in a criminal case is "the connection of the fact proved with the offense charged, as evidence which has a natural tendency to establish the fact at issue." MacEwen v. State, 194 Md. 492, 501, 71 A.2d 464, 468 (1950); Pearson v. State, 182 Md. 1, 13 31 A.2d 624, 629 (1943). In Kennedy v. Crouch, 191 Md. 580, 585, 62 A.2d 582, 585 (1948), our predecessors stated it to be "an elementary rule that evidence, to be admissible, must be relevant to the issues and must tend either to establish or disprove them." Evidence which is thus not probative of the proposition at which it is directed is deemed "irrelevant." See C. McCormick, Evidence § 185 at 435 (2d ed. 1972). See also 1 J. Wigmore, Evidence § 28 at 409-10 (1940 ed.); Wharton's Criminal Evidence § 151, supra, at 275; 29 Am.Jur.2d Evidence § 251 (1967); 31A C.J.S. Evidence §§ 158, 159 (1964).
In Pearson v. State, supra, our predecessors, in reversing a criminal conviction because of prejudice resulting from evidence which was found to be clearly irrelevant to the main issue, stated: "Evidence of collateral facts, or of [facts] which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, should be excluded, for the reason that such evidence tends to divert the minds of the jury from the real point in issue, and may arouse their prejudices." In finding that its admission was prejudicial to the appellant, the court pointed out that the evidence "tended to substantiate the witness on an immaterial point in the minds of the jury, and to correspondingly discredit the defendant as to his credibility on the main issue." 182 Md. at 14, 31 A.2d at 629. See also Hitzelberger v. State, 174 Md. 152, 161, 197 A. 605, 609 (1938).
Distinct from its relevancy to be "competent," the
The principal issue in the appellant's trial was whether he was one of the perpetrators of the robbery. Detective Simmons' testimony, attempting to establish that a large percentage of those arrested by him for robbery were ultimately proven guilty, undertook to collaterally establish the detective's investigative successes, but had no probative value in tending to establish the proposition in issue — the identity of the appellant as one of the robbers — and was thus patently irrelevant.
Even in those jurisdictions "in which the courts have ruled on the admissibility of [expert] statistical or mathematical evidence offered to show the probability that the defendant was, or was not, the person who committed the alleged crime, or that he was, or was not, connected with the criminal act in some way * * * the court[s] [have] held that it was reversible error to permit an expert witness to [so] testify...." See Annot. 36 A.L.R.3d 1194 (1971). See also People v. Collins, 68 Cal.2d 319, 438 P.2d 33 (1968); State v. Sneed, 76 N.M. 349, 414 P.2d 858 (1966). See generally, Finkelstein and Fairley, A Comment on "Trial by Mathematics," 84 Harv.L.Rev. 1801 (1971).
Permitting the detective to relate syllogistically — though imperfectly — before the jury, the high probability of the appellant's guilt, tended to portray the officer as a "super-investigator" and thus clothed his testimony, with a greater weight than that which might have been given to the testimony of the other witnesses. Thus, the jury's basic function of weighing the conflicting evidence in arriving at a conclusion of guilt "beyond a reasonable doubt," was subjected to the counterbalancing effect of the detective's irrelevant and extraneous opinion. Indeed in the absence of any showing of similarity between the investigation which led to the appellant's arrest and those other investigations
When the trial court, in overruling the appellant's objection, stated: "[h]e [the prosecutor] is trying to broaden the denial of the defendant," the ruling did nothing to allay, in the minds of the jury, the additional weight which obviously would be given by them to the detective's opinion.
We do not agree with the appellee's contention, under the holdings in Williams v. Graff, 194 Md. 516, 522, 71 A.2d 450, 452-53 (1950), that, since the self-serving exculpatory remarks of the appellant were elicited upon the detective's direct examination, such evidence came within the scope of permissible cross-examination.
Although our predecessors stated in Williams v. Graff, supra, that "our rule does not go to the extent of restricting the cross-examination ... to the specific details inquired into on direct examination, but permits full inquiry into the subject matter entered into," and added that "[w]here a general subject has been entered upon in the examination in chief, the cross-examining counsel may ask any relevant question on the general subject,"
See also Wlodarek v. Thrift, 178 Md. 453, 470, 13 A.2d 774, 782 (1940); City Pass. Ry. Co. v. Tanner, 90 Md. 315, 320, 45 A. 188, 189 (1900); Davis v. State, 38 Md. 15 (1873).
We conclude, as did the Court of Special Appeals, that the collateral evidence elicited from Detective Simmons, concerning his arrest-conviction record, was irrelevant and extraneous to the issue of the appellant's guilt or innocence, and that the trial court's ruling, permitting it, was manifestly erroneous.
We must next inquire as to whether such evidentiary error was "harmless" or prejudicial to the appellant.
Prior to 1835, under the original and orthodox English rule, best exemplified in Rex v. Ball,
The imprint of the Exchequer rule upon earlier decisions led many legal authorities to conclude that litigants were entitled to an errorless hearing in the trial court. See Gibbs, Prejudicial Error: Admissions and Exclusions of Evidence in the Federal Courts, 3 Vill.L.Rev. 48, 49 (1957). Today, however, it is firmly established that an accused "has a constitutional right to a `fair trial' but not necessarily to that seldom experienced rarity, a perfect trial." State v. Babb, 258 Md. 547, 552, 267 A.2d 190, 193 (1970). See also Lutwak v. United States, 344 U.S. 604, 619 (1953); Hopkins v. State, 24 Md.App. 53, 69-70, 329 A.2d 738, 748 (1974).
In modern times, appellate review in all jurisdictions is subject to tenets that a judgment may be affirmed, under certain circumstances, despite errors committed in the conduct of the trial.
In Chapman, the Supreme Court held that comments by the prosecutor, as well as a jury instruction, concerning the failure of the petitioners to testify, found to be in violation of the holding in Griffin v. California, 380 U.S. 609 (1965), were not harmless errors. In rejecting the contention that "all [F]ederal [C]onstitutional errors, regardless of the facts and circumstances, must always be deemed harmful" so as to require an automatic reversal, the Court stated that "there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction." (386 U.S. at 21-22). Drawing upon language in Fahy v. Connecticut, 375 U.S. 85 (1963) that "[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction" (375 U.S. at 86-87), the Court pointed out that "[a]lthough our prior cases have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error,
The Chapman Court observed that none of the "harmless error" statutes or rules in effect in the states, similar to that set forth in 28 U.S.C. § 2111, facially "distinguishes between federal constitutional errors and errors of state law or federal statutes and rules," but all "serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial." 386 U.S. at 22.
See also Bumper v. North Carolina, 391 U.S. 543 (1968) where the Supreme Court similarly held that a violation of the Fourth Amendment was not "harmless error," upon finding that the evidence obtained through such violation, had been the turning point in identifying the defendant. 391 U.S. at 550.
In Harrington v. California, 395 U.S. 250 (1969), Schneble v. Florida, 405 U.S. 427 (1972), Milton v. Wainwright, 407 U.S. 371 (1972) and Brown v. United States, 411 U.S. 223 (1973), the Supreme Court invoked the Chapman test in finding "harmless error." In each of these cases, that Court, upon an independent review of the record, found the properly admitted evidence to have been "so overwhelming," and the prejudicial effect of the erroneously admitted evidence so insignificant by comparison, or to have been cumulative, that it was able to conclude, beyond a reasonable doubt, that the erroneously admitted evidence — even though of constitutional import — constituted "harmless error."
A test substantially similar to that later embraced by the Supreme Court in Kotteakos, supra, was set forth by Judge Offutt, in an opinion concurred in by Judges Adkins, Digges and Walsh, in Dobbs v. State, 148 Md. 34, 129 A. 275 (1925).
As we observed in State v. Babb, supra, at 551, 267 A.2d at 192, antecedent to the enunciation of the test set forth in Chapman v. California, supra, and its progeny, the decisions of this Court are "replete with cases holding that `harmless error,' error which does not affect the final outcome of the case, should not be grounds for reversal."
In Duncan v. State, 190 Md. 486, 491, 58 A.2d 906, 908 (1948) as in Pearson v. State, supra, the Court found the erroneously admitted evidence to be such "as to be likely to confuse and mislead the jury and prejudice them against [the] appellant." In Bruce v. State, 218 Md. 87, 96, 145 A.2d 428, 432 (1958), it was held that the error was prejudicial, since otherwise the testimony, if believed, "might have meant a verdict of not guilty."
The same requirement — a determination of prejudice — has been applied when the errors were of constitutional dimension. See Midgett v. State, 216 Md. 26, 36-37, 139 A.2d 209, 214 (1958) (communication with the jury); Johnson v. State, 193 Md. 136, 156-57, 66 A.2d 504, 512 (1949) (illegally seized evidence); Jackson v. State, 209 Md. 390, 397, 121 A.2d 242, 245-46 (1956) (coerced confession); and Capparella v. State, 235 Md. 204, 208-09, 201 A.2d 362, 364-65 (1964) (illegally seized evidence).
Where erroneously admitted evidence has been cumulative, such admission has been held to be "harmless error." See Jones v. State, 205 Md. 528, 534-35, 109 A.2d 732,
An analysis of the holdings in such criminal cases demonstrates that in making an appraisal of the effect of error, the determinative factor, as applied by this Court, has been whether or not the erroneous ruling, in relation to the totality of the evidence, played a significant role in influencing the rendition of the verdict, to the prejudice of the appellant. In this respect our approach has been in accord with the test applied by the Supreme Court.
The most significant difference between the review used in our pre-Chapman criminal cases and the principles laid down in that case, relates to the burden of persuasion at the reviewing level. Our cases traditionally have required that the appellant, as the aggrieved party, establish not only error, but demonstrate as well some resultant substantial harm and prejudice. See Bristow v. State, 242 Md. 283, 286, 219 A.2d 33, 34-35 (1966); Pearlman v. State, supra, at 262, 192 A.2d at 773-74; Pickman v. State, supra, at 426, 185 A. at 122; Avery v. State, 121 Md. 229, 232, 88 A. 148, 149 (1913). See also Edmonds v. State, 5 Md.App. 132, 140, 245 A.2d 618, 622 (1968), cert. denied 252 Md. 730 (1969); Halstead v. State, 4 Md.App. 121, 123, 241 A.2d 439, 440 (1968); Borman v. State, 1 Md.App. 276, 279, 229 A.2d 440, 441-42 (1967). In Chapman, the Supreme Court, citing 1 J. Wigmore, Evidence § 21 (3d ed. 1940) for the premise that "the original common law harmless error rule put the burden on the beneficiary of the error, either to prove that there was no injury, or to suffer a reversal of his erroneously obtained judgment," placed the burden upon the prosecution to demonstrate "beyond a reasonable doubt" that the demonstrated error did not contribute to the conviction. But that Court pointed out that "[t]here is little, if any, difference between our statement in Fahy v. Connecticut about `whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction' and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not
In the first post-Chapman case to visit this Court, Veney v. State, 251 Md. 159, 246 A.2d 608 (1968), cert. denied 394 U.S. 948 (1969), it was held that, "[a]ssuming, arguendo, that the remarks by the State's Attorney were tantamount to a comment that the appellant failed to take the stand," as in Griffin v. California, supra, the instruction given by the trial court "cure[d] the alleged improper remarks" and that, under the holdings in Chapman v. California, supra, if there were in fact [constitutional] error, "such error [was] harmless beyond a reasonable doubt." 251 Md. at 180-81, 246 A.2d at 621.
In State v. Babb, supra, on certiorari to the Court of Special Appeals,
In Younie v. State, 272 Md. 233, 322 A.2d 211 (1974),
Concerning the criteria to be applied in cases of constitutional error, Judge Digges stated:
Upon our review of the record, we there observed that besides Younie's statement, and evidence which proved little more than that a murder had been committed by three men, the principal incriminating testimony against the appellant had been that given by a woman friend, whose credibility had been significantly impugned upon cross-examination. Expressing the conclusion that in order to find the error harmless, "the good evidence standing alone must be sufficient to convict, and [that] we must be convinced beyond a reasonable doubt that the jury was in no way influenced by the bad," we held that we were not convinced "that the tainted confession [had] in no way influenced the jury's verdict." 272 Md. at 247-48, 322 A.2d at 219. (emphasis added).
Later, in Smith v. State, 273 Md. 152, 328 A.2d 274 (1974),
Most recently in Johnson v. State, 23 Md.App. 131, 326 A.2d 38 (1974), the Court of Special Appeals found the error in admitting hearsay testimony, "the only evidence which connected the appellant with the crime other than his much disputed prior statements [implicating himself]" to have been prejudicial. In concluding that the error was not "harmless beyond a reasonable doubt," that Court, citing Younie v. State, supra, stated: "Where trial is by a jury, all reasonable doubts as to the effect of erroneously admitted evidence upon the jury's determination of guilt must be resolved in favor of the objecting party." 23 Md. App. at 138-39, 326 A.2d at 42-43. (emphasis added). Upon our determination, pursuant to Maryland Rule 811 b 3, that "no error of law appears in the decision," we adopted the opinion of the Court of Special Appeals and affirmed by a per curiam opinion in State v. Johnson, 275 Md. 291, 339 A.2d 289 (1975). We thus embraced, without discussion, the "beyond a reasonable doubt" test as enunciated in Chapman, and applied in Younie, to a case involving nonconstitutional evidentiary error.
As we see it, there is no sound reason for drawing a distinction between the treatment of those errors which are of constitutional dimension and those other evidentiary, or procedural, errors which may have been committed during a trial. Although the Amendments to the United States Constitution are commonly considered a source of fair judicial procedure, other nonconstitutional evidentiary and procedural rules, signifying state policy with respect to judicial fairness, are often a defendant's primary source of protection. An evidentiary or procedural error in a trial is bound, in some fashion, to affect the delicately balanced, decisional process. The abnegation of a particular rule upon which the defense intended to rely may often inflict more damage than initially apparent; a meritorious line of defense may be abandoned as a result; an important witness may not be called; strategies are often forsaken. The future course of the trial inevitably must be changed to
Indeed, requiring the beneficiary of such error to demonstrate, beyond a reasonable doubt, that the error did not contribute to the verdict — and is thus truly "harmless" — is consistent with the test required in criminal cases for a resolution of guilt. The Supreme Court, in In re Winship, 397 U.S. 358 (1970) held that, in order to satisfy the constitutional requirements of due process, a criminal conviction must be based upon proof beyond a reasonable doubt. It would be incompatible, under the Winship standard, designed to prevent criminal convictions if there is a reasonable doubt in the minds of the jurors, to permit a circumvention of that evidentiary standard and the application, upon appellate review, of a lesser test, allowing a conviction to stand, where a trial court has been found to have violated evidentiary or procedural rules which themselves might have influenced the jury in connection with such requisite degree of proof. Logic supports the view that an appellate court should not arrive at a conclusion about the impact of an error upon a jury verdict, with any less degree of certainty than that demanded in the trial process. See S. Saltzburg, "The Harm of Harmless Error," supra, at 989, 992.
Embracing the requirement laid down in Chapman, that the beneficiary of error be required to demonstrate, beyond a reasonable doubt, that such error did not contribute to the
We conclude that when an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed "harmless" and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.
Applying this test to the facts in this case, upon our own independent review of the entire record, we are not persuaded beyond a reasonable doubt that Detective Simmons' testimony, concerning his arrest-conviction record, which posited before the jury the probability of the appellant's guilt, by evidence irrelevant and extraneous to the issue of the appellant' guilt or innocence, did not contribute to the guilty verdict returned against Dorsey. It was thus not "harmless" error.
The testimony offered through the detective was certainly not "cumulative." See Harrington v. California, supra; Brown v. United States, supra; Jones v. State, supra;
Independent of the detective's testimony, the appellant's conviction rested exclusively upon the in-court identification by Mrs. Fuller, which identification — in view of her prior erroneous designation of the appellant's brother as one of her assailants — would, under the circumstances, have to be termed just as "equivocal" as that found in Bumper v. North Carolina, supra, where two different persons had been identified at two different times. In view of the appellant's exculpatory statement, his undisguised conduct in returning to the carry-out shop, three days after the robbery, in company with the prosecutrix' cousin, when Mrs. Fuller's stolen pistol was returned,
Judgment of the Court of Special Appeals reversed; case remanded to that court with instructions to remand the case to the Criminal Court of Baltimore for a new trial; costs to be paid by the Mayor and City Council of Baltimore.
Murphy, C.J., specially concurring:
I agree with the majority that the testimony in question was improperly admitted into evidence, that the error was plainly prejudicial, and that a new trial is mandated. I cannot, however, subscribe to the majority's view that on appellate review of criminal convictions, justice somehow dictates that there must be one uniform standard for testing whether an error committed at the trial was harmless, without regard to whether the error was of constitutional dimension or not, and that that test is as set forth by the Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), a case involving an error of constitutional magnitude. There, the Supreme Court held that unless the appellate court could declare a belief beyond a reasonable doubt that there was no reasonable possibility
In Chapman, the Supreme Court pointed out that none of the numerous state or federal harmless-error statutes or rules prohibiting appellate courts from reversing judgments for errors which did not affect the substantial rights of the parties distinguished between errors of constitutional and nonconstitutional dimension. These rules and statutes, the Supreme Court said in Chapman, serve "a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial." 386 U.S. at 22. In concluding that the federal constitution required a more stringent test in cases involving federal constitutional error, the Court in Chapman did not purport to override its own authority governing the test applicable to errors of nonconstitutional magnitude as contained in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). That case, as the majority properly notes, enunciates the test in terms far less stringent than those outlined in Chapman, viz., if an appellate court is unable to conclude "with fair assurance" that "the judgment was not substantially swayed by the error" and "that substantial rights were ... affected," it could not find the error harmless. 328 U.S. at 764-65.
Our own cases, set out in the opinion of the majority, have always closely followed the rationale of Kotteakos. We have in effect said in cases involving nonconstitutional error that the determinative factor is whether the erroneous ruling, in relation to the totality of the evidence, played a significant role in influencing the rendition of the verdict to the prejudice of the defendant. That this test is far less exacting than the constitutional standard contained in Chapman is clear to me, as indeed it was to the majority in 1974 when, in Smith v. State, 273 Md. 152, 328 A.2d 274, a case involving error not of constitutional dimension, the Court observed that "Chapman applies only to violations of federal constitutional rights, ... that the issue here does not rise to that level ... [and that] the test [for determining harmless
The majority makes a grave mistake in my judgment when it fails to recognize the difference between the federal constitutional harmless-error rule mandated by Chapman and its progeny and the less exacting harmless-error rule so long applicable to errors not of constitutional magnitude. The distinction, and the reasons for it, have not escaped courts in other jurisdictions. Indeed, the Court of Appeals of New York, in People v. Crimmins, 326 N.E.2d 787, 36 N.Y.2d 230 (1975), recently expressed views similar to those which I have just outlined. Other courts are in complete accord. See United States v. Arias-Diaz, 497 F.2d 165 (5th Cir.1974); United States v. Harbolt, 491 F.2d 78 (5th Cir.1974); Chase v. Crisp, 523 F.2d 595 (10th Cir.1975); United States v. Lee, 489 F.2d 1242 (D.C. Cir.1973); United States v. Harpel, 493 F.2d 346 (10th Cir.1974); United States v. Jackson, 482 F.2d 1167 (10th Cir.1973); United States v. Daughtry, 502 F.2d 1019 (5th Cir.1974); United States v. Bettenhausen, 499 F.2d 1223 (10th Cir.1974); United States v. Steinkoenig, 487 F.2d 225 (5th Cir.1973).
I am authorized to state that Judges Smith and Levine concur in the views here expressed.
See also 1 J. Wigmore, Evidence § 21 (1940 ed.) at 365-66.
See also Burgett v. Texas, 389 U.S. 109, 115 (1967) in which the Court described the admission into evidence of a prior conviction obtained pursuant to the denial of the Gideon right to representation as "inherently prejudicial." See as well Loper v. Beto, 405 U.S. 473, 483 (1972) where "the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach [the] defendant's credibility deprive[d] him of due process of law," and in the circumstances of the case there was "little room for a finding of harmless error...."