Gonzales v. State
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In the Circu it Court for M ontgom ery County Case No. 99104 IN THE COURT OF APPEALS OF MARYLAND No. 103 September Term, 2004 ______________________________________ GREGORIO ISASI GONZALEZ v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: July 15, 2005 Petitioner, Gregorio Gonzalez, was convicted in the District Court of second degree assault, based largely on testimony that, while performing a massage treatment on a customer, Ms. Crane, he inserted his finger into her vagina. Gonzalez noted an appeal to the Circuit Court for Montgo mer y County where, in accordance with Maryland Code, § 12401(f) and (g) of the Cts. & Jud. Proc. Article (CJP), he received a de novo trial b efor e a ju ry. During the Circuit Court proceeding, Gonzalez wished to impeach the testimony of Ms. Crane by showing that, in one respe ct, she testified d ifferently in the D istrict Court. Because, as the result of an equipment malfunction, the proceedings in the District Court were not recorded, Gonzalez summoned two persons who were present during M s. Crane s testimony in the District Court the interpreter appointed to assist Gonzalez and the District Court bailiff to recount her testimony in the D istrict Co urt. After a voir dire examination of one of the two witnesses, the court refused to allow them to testify, whereupon Gonzalez moved for a mistrial. When that motion was denied, he attempted to withdraw the appea l, which the court refused to permit him to do. The jury convicted Gonzalez of the second degree assault, and the court imposed a sentence more severe than that imposed in the District Cou rt. Following an inappropriate appeal to the Cou rt of Specia l Appeals and a transfer of that appeal to this Court, we granted certiorari to consider two questions: (1) whether the Circuit Court erred in refusing to permit the interpreter an d the bailiff to testify as to Ms. Crane s testimony in the District Cou rt, and (2) w hether it also e rred in refus ing to perm it Gonzalez to withdraw his appeal and allow the District Court judgment to stand. We need address only the first issue, wh ich we sh all find dispo sitive, although we shall ask the Court s Standing Comm ittee on Ru les of Prac tice and Procedure to review Maryland Rule 7112(f)(1) with respect to the second. BACKGROUND Gonzalez was employed as a shampoo assistant at a h air salon in B ethesda. W hile living in Argen tina, he had b een trained and certified in massag e therapy, but he was not certified as a massage therapist in Maryland.1 Apparently as a result of his incorporating neck, shoulder, and arm massages as part of his shampooing, how ever, 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-la w, M r. Crane, as a birthday present. When Mr. Crane s wife, who was also a customer of the salon and had had her neck, shoulders, and arms massaged by Gonzalez during a shampoo, found out about the gift certificate, she scheduled an additional full-body massage for herself, both massages to take place at her home on September 13, 2003. Ms. Crane had her massage first. During the massage, which occurred in Ms. Crane s bedroom, Gonzalez allegedly inserted his finger into M s. Cran e s vag ina. She imm ediately 1 Maryland C ode, § 3-5A -05 of the H ealth Occ upations A rticle requires a person to be certified by the State Board of Chiropractic Examiners before practicing massage therapy in Maryland. That section req uires a person to be registered b y the Board before practicing non-therapeutic massage in the State. -2- jumped off the table and, wrapped only in the sheet that was covering her during the massage, ran downstairs and complained to her husband, who ordered Gonzalez to leave. As her husband ran u pstairs to confront Gonzalez, Ms. Crane, still clad only in the sheet, ran to a neig hbor s house and rep orted th e even t to the ne ighbor . At some p oint du ring the follow ing we ek, M s. Crane called a friend who was a sergeant at the Bethesda police department for some informal advice and, with that advice, then formally notified the police of the incident. She also informed the owner of the salon, although the sequen ce of the re ports to the p olice and th e owne r of the salon is in dispute and underlies the central issue now before us. As a result of her complaint to the owner of the salon, Gonza lez was d ischarged f rom his em ployment. As a result of her report to the police, Gonzalez was charged in the District C ourt with se cond deg ree assault (Maryla nd Co de, § 3-203 of the Criminal Law Article) and misrepresenting himself as a massage therapist (Maryland Code , § 3-5A-11(b) of th e Health Occu pations Article). Trial in the District Court occurred on November 13, 2003. Although Gonzalez speaks English, that is not his native tongue, and so, at his request, a Spanish interpreter, Ester Dav is, w as pr ovid ed fo r him . Unfortunately, a malfunction of the recording equipment in the court that day led to none of the trial being recorded. Ms. Davis later testified in the Circuit Court that five witnesses testified at the District Court proceeding Ms. Crane, Mr. Crane, Ms. Russell, Gonzalez, and Gonzalez s wife. The District Court acquitted Gonzalez of misrepresenting himself to be a massage therapist but convicted him of second degree -3- assault and sentenced him to 180 days incarceration, all of which was suspended, a $500 fine, half of which was suspended, and one year of supervised probation. Gonzalez noted an appeal to the Circuit Court for Montgomery County and elected a jury trial. The first witness was Ms. Crane, who testified to her version of what had occurred. On cross-examination, she was asked how lon g after the inc ident she w aited to report it to the police and whether her report to the police occurred before or after she complained to the owner of the salon. Ms. Crane responded that she called her friend, the sergeant, the day after the incident, that she made a formal report to the police the following day (two days after the incident), and that she did not complain to the salon owner until after Gonzalez was arrested. She was very precise on that point. She said that the police had advised her not to talk with anyone at the salon u ntil they obtained a warran t and that she did not go to the salon until seven days later. When asked whether she had testified in the District Court that she and Ms. Russell had gone to the salo n three days af ter the inciden t, she resp onded I 100 p ercent d id not tes tify to that b ecause that didn t happ en. After presenting testimony from Mr. Crane and from the neighbor, the State rested. Gonzalez, his wife, an d the ow ner of the s alon then te stified for th e defense. At the conclusion of th at tes timo ny, defense counsel called Ms. Davis, the person who had served as interpreter in the District Court, as a witness, to testify as to what Ms. Crane said at the District Court trial w ith respect to th e sequen ce of her re ports to the police and the owner of the salon. Counsel averred that Ms. Crane s testimony there differed from that in the Circuit -4- Court and that Ms. Davis would be an impeachment witness. Specifically, he proffered that she would testify that she remembered Ms. Crane s testimony and that Ms. Crane testified in District Cou rt that she w ent to the salon before she went to the police. Counsel also advised that he intended to call the District Court bailiff for the same purpose. The prosecutor, noting that neither witness had been disclosed, objected on the ground that it was improper to call a person who served as interpreter as a witness and that her recollection of what o ccurred would be irrele vant in a ny event . The court wanted to determine the extent o f their respective recollections before allowing the interpreter or the bailiff to testify and, during the jury s lunch break, subjected Ms. Davis to voir dire examination. The court never question ed the bailiff . Ms. Da vis confirmed that she had interpreted for Gonzalez in the District Court, that she was present when Ms. Crane testified, and that Ms. Crane had stated that a few d ays after the inc ident, 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 firs t.2 She confirmed on cross-examination that I do remember how she 2 Her statement in that regard was as follows: Q: But you re sure that she testified that she went to the employer first? A: Yes. Q: And then to the police? A: Ye s. -5- testified. I know the words she said when she described the incident and what happened after the incid ent. The court expressed skepticism as to how that was impeachment evidence and eventually disallowed testimony by either Ms. Davis or the bailiff on the ground that it was a red herring and fundamentally unfair. The court seemed concerne d that Ms . Davis did not have a verbatim recollection or any documentation of Ms. Crane s testimony and treated the matter as sim ply Ms. Davis and Ms. Cran e having different reco llections. It ruled: If you have a witness that will give definitive testimony, absolutely certain that is what was said, I will allow it. But not a witness who comes in here and says as best as I can remember this is what the witness said. That is fundamentally unfair. Faced with that rulin g and com plaining as w ell about the e arlier admis sion of a docume nt, counsel m oved for a mistrial. When that was denied, he indicated that he wanted to withdraw the appea l and asserted that, under Maryland Rule 7-112(f), Gonzalez had the right to withdraw his appeal at any time. The Rule, in its relevant part, actually provides that (1) An appeal shall be considered withdrawn if the appellant files a notice withdrawing the appeal or fails to appear as required for trial or any other proceeding on the appeal [and] (2) Upon a withdraw al of the ap peal, the circu it court shall dism iss the appe al, and the cle rk shall promptly return the file to the District Court. The Rule does not, at least facially, set a time deadline on wh en an a ppeal m ay be wit hdraw n, specifically whether it may be withdrawn after the case is ca lled in the Circ uit Court, or a jury is sworn, or evidence is presented, or the -6- State rests, or the case is submitted for decision to the judge or jury, or even after a verdict is rendered. 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 case was then presented to the jury which, as noted, found Gonzalez guilty of second degree assault. During closing arguments, the prosecutor stressed Ms. Crane s credibility. Upon the verdict, the court sentenced Gonzalez to five years incarceration, all of which was suspended, a fine of $2,500, and three years of supervised probation, and also ordered that he submit to examination and treatment by a s pecified the rapist. DISCUSSION The thrust of Gonzalez s argument with respect to the disallowance of testimony by Ms. Davis and the ba iliff is that (1) the credibility of Ms. Crane wa s central to the State s case, as Gonzalez denied ever inserting his finger into her vagina or engaging in any other sexual or assaultive conduct, (2) Ms. Davis and the bailiff would have impeached her credibility by showing that she gave testimony in the District Court, in the same case, that was markedly different from that which she gave in the Circuit Court, at least as to the sequence of her reports, and (3) the inability of those witnesses to recall precisely the verbatim testimony given by Ms. Crane went only to their credibility, not to their competence -7- as witnesses, and that credibility was for the jury, not the jud ge, to resolve . The State responds that the court s disallowance of their testimony was not based on its assessment of their credibility but rather its con clusion that th ere was a n insufficie nt found ation for the ir testim ony. In that regard, the State relies largely on the discretion accorded to trial judges in the overa ll conduct o f a trial. Whether we view the court s ruling as founded on lack of credibility or lack of foundation is unimportant. It seems clear, from what the court said, that it adopted the view that a person a proposed witness is not allowed to recount prior testimony by another person, given in the proposed witness s presence and however relevant that evidence may be, unless the proposed witness has either an essentially verbatim recollection of the prior testimony to be recounted or some documentation of it that the court finds adequate. That is not the law. It is, of course, undisputed that the credibility of a witness may be impeached by showing that the witness has made statements w hich contradict the witness s trial testimony as to material facts, provided a proper found ation ha s been e stablish ed. See Stew art v. State, 342 Md. 230, 236, 674 A.2d 944, 947 (1996). That includes statements made by the witness in the form o f testimony at a prior judicial proceeding. The issue here is one of method how and under what circumstances may such inconsistent statements made in the form of testimony given during an earlier judicial proceeding be proved? Th is Court and the Co urt of Special Appeals have dealt with that issue, sometimes in the context of proving former -8- testimony for impeachment purposes and som etimes to establish the testimony of a witness who died prior to the second proceeding. In Ecker v. McAllister, 54 Md. 362 (1880), a defendant attempted to impeach the testimony of two witnesses for the plaintiff by showing inconsistent testimony on their part at a prior trial in the case. He proposed to prove the inconsistent testimony by offering in to evidence his ow n bill of e xceptio ns from the first tr ial, which purported to recite the testimony given by those witnesses. Noting that the document was neither written nor signed by the witnesses whose testimony it purported to contain, that it was prepared by counsel, and for aught w e know , may have co ntained bu t a part of the te stimony given , this Court h eld the docume nt inadmiss ible and an nounced that [t]he on ly proper mo de of pro ving wh at a witness orally testified to on a former trial is to examine witnesses for that purpose who heard his evidence given. Id. at 371-72.3 That statement was quoted and confirmed a year later in Herrick v. Swomley, 56 Md. 439 (1881), where this Court held inadmissible a certified copy of notes of evidence made by a court stenographer in an earlier case tried in Penn sylvania. The Ecker/Herrick rule had been given some elasticity in Waters v. Waters, 35 Md. 3 Compare 5 W IGMORE ON E VIDENCE § 1668 (Cha dbourn ed. 1974 ). Wigmore notes a conflict on the matter but concludes that [t]he majority of courts, on one ground or anot her, rece ive the b ill [of ex ception s] to pro ve the te nor of the form er testim ony, citing Nineteenth and early Twentieth Century cases from 15 States. One of the bases for admission was the frequent local practice of requiring the trial judge to sign the bill of exceptions, thereby making the bill somewhat in the nature of a public record. -9- 531 (1872). The Court, though confirming that the testimony of a deceased person given at a former trial c ould not b e proved by the notes of such testim ony p repared by one of the attor neys present at the trial, concluded that it was permissible for the attorney, sworn as a witness, to refresh his memo ry by consulting h is notes an d then to state what recollection he had of the testimony given by the deceased witness after he had read the notes. Id. at 539 (internal quotations omitted). We can take judicial notice of the fact that there was no electronic audio or video recording of court proceedings when those cases w ere decided, and, althoug h court stenographers, employed to make ve rbatim reco rdings of c ourt procee dings, did exist in two of the civil courts in Baltimore City at the time, their emplo yment elsewhere cam e later.4 Absent the employment of a stenographer to make a verbatim record, the only written 4 Although the reporting of judicial proceedings has a long history the trial of Socrates being a prime example officially-appointed verbatim court reporters did not appear in the United States until the 1860s. In 1864, the General Assembly authorized the judge of the Superior Court of Baltimore City to employ a stenographer to take down testimony in trials before said court. See 1864 Md. Laws, ch. 280. In 1867, that authority was extended to the Court of Common Pleas in Baltimore. The duty of the stenographers in both courts was to take full stenographic notes of all oral testimony and judicial opinions orally delivered in every trial at the regular terms thereof. See 1867 Md. La ws, ch. 37 3. Over the next forty years, the L egislature au thorized oth er circuit courts in the State to emp loy stenog rapher s for the same p urpose . See, for example, 1888 Md. Laws, ch. 363 (Frederick County); 1896 Md. Laws, ch. 183 (Carroll County); 1896 Md. Law s, ch. 299 (five Eastern S hore counties); 1908 M d. Laws, ch. 437 (f our Eastern Shore counties). Until stenotype machines came on the scene in the first two decades of the Twentieth Century, proceedings were recorded in shorthand, a method that, with some court reporters, lasted into the 1960s. Three principal systems of court reporting are now used in Maryland: computer-assisted stenographic or stenotype machines operated by court reporters; audio recording; and, in at least one Circuit Court, video recording. -10- evidence likely to be available of what occurred was in the form of notes made by the judge or someone else present that summarized, in varying detail and for varying purposes, some or all of the testimony by the witnesses and other aspects of the proceeding. In that setting, the Court s view that prior testimony could be proved only by testimony from someone who was present and heard it was understandable and made sense. In later cases, this Court and the Court of Special Appeals broadened that view somewhat to take account of the availability of stenographic transcripts. In M. & C.C. of Balto. v. Biggs, 132 M d. 113, 103 A. 426 (1 918), the trial co urt allowed counsel, in a second trial in the case following a reversal of the initial judgment, to read a stenographic copy of the testimony of a deceased witness who testified at the first trial. Id. at 120, 103 A. at 428 (internal quotations omitted). Although, in light of appellant s admission that his exception was not important this Court indicated that it would not reverse the judgment on that ground, the Court largely reaffirmed what it had said in Ecker and Herrick: While the testimony of a deceased witness may be proved by the stenographer who took the testimony and who testif ied f rom his n otes, or by a witness w ho heard the testimon y, it is not prope r to allow counsel to read to the jury a copy of the evidence reduced to writing from the stenographic notes. Id. In Holler v. Miller, 177 Md. 204, 9 A.2d 250 (1939) the plaintiff wanted to prove the testimony of a defendant given in another case involving the same incident. She called the court stenographer from that case, who stated that his notes had been destroyed and that he -11- had no person al recollection of the testim ony given, but the court allowed him to read the testimony from a transcript that he had made from his notes. The defendant objected on the grounds that the testimony recounted by the stenographer was not all of the testimony given by the witness and that the stenographer was not using the transcript to refresh h is recollection but wa s essen tially using it as an ex hibit. This Co urt found no error. Distinguishing both Herrick and Biggs, the Court held: When, as here, the stenographer himself , by his testimony in court, verifies the transcript as an authentic extension of his notes, the case is different. In addition to the assurance of authenticity afforded by his oath, there is official character in the transcript because the stenographer is appointed by the court, under the a utho rity of a statute f or the ver y purpose of preserving testimony . . . . It is settled that he may testify from his notes, without reference to independent recollection . . . . And his transcript is only a more convenient form of testimony from his notes . . . . Therefore the fact that the steno grapher in this instance ha d no indep endent rec ollection, and was in rea lity introducing the transcript in evidence , did not rend er it inadm issible as suppo sed. Holler, supra, 177 M d. at 208 , 9 A.2d at 251- 52 (citat ions om itted). Snyder v. Cearfoss, 190 Md. 151, 57 A.2d 786 (1948) also involved testimony by an official court stenographer who read from a transcript prepared from her notes. Citing Biggs and Holler, this Court confirme d that a stenographer may testify from his/her notes without reference to independent recollection. In Bryant v. S tate, 207 Md. 565, 587, 115 A.2d 502, 512 (1955), the C ourt repeate d that, if a party desires to call a witness to recount testimony given by an absent witness at an earlier proceeding, it is necessary that the person by whom -12- the testimon y of the absen t witness is sought to be reproduced will state under oath that he heard, rememb ers, and can relate the substance of all the testimony of such absent witness, or at least the substance of all such te stimon y on the p articular subjec t sough t to be pr oved. The latest Maryland cases addressing this issue are Harrod v. State, 39 Md. App. 230, 384 A.2d 7 53 (19 78), cert. denied, 283 Md. 733, and Hadid v. Alexander, 55 Md. App. 344, 462 A.2d 1216 (1983 ), cert. denied, 297 M d. 310. Harrod involved an attempt to impeach a trial witness by showing inconsistent testimony given at a District Court preliminary hearing. Counsel for the defendant offered a transcript made of that testimony, that he had in his possession. The trial court refused to admit the transcript, noting, with reference to the recording system used in the District Court at the time, that District Court transcripts tended to be unreliable and that you don t have anybody to vo uch for the reliability of this transcript. Harrod, supra, 39 Md. App. at 234, 384 A.2d at 756-57. The court said that it would permit counsel to call the public defender who was present at the preliminary hearing and question him whether he remembered what the witness said. As an introduction to its analysis of the issue, the Harrod court observed that McCormick offered four ways in which the testimony of a witness given at an earlier proceeding may be proved: (1) Any firsthand observer of the giving of the former testimony may testify to its purport from his unaided mem ory . ... (2) A firsthand observer may testify to the purport of the former testimony by using a memorandum, such as the judge s -13- counsel s, or the stenographer s no tes, or the stenographer s transcript, to refresh the present memory of the witness. (3) In most states the magistrate s report of the testimony at a preliminary hearing, and the official stenographer s transcribed notes of the testimony at the trial of a case, civil or criminal, are admitted, when properly authenticated, as evidence of the fact and purport of the former testimony either by statute or under the hearsay exception for official written sta tements. There is generally no rule of preference for these reports, however, and any observer, including the stenographer himself, may be called to prove the former testimony without producing the official report or tran script. (4) A witness who has made written notes or memoranda of the testimony at the time of the former trial, or while the facts were fresh in his recollection, and who will testify that he knows that they are correct may use the notes as memoranda of past recollection recorded. (Emphasis in original). Harrod, supra, 39 Md. App. at 237-38, 384 A.2d at 758-59, quoting M CC ORMICK ON E VIDENCE § 260 ( Cleary ed ., 2 nd ed., 1972). As noted above, at least the first, second, and fourth of those methods have been approved by this Court over the years. The Harrod court concluded, with respect to notes or transcripts, that only the notes or transcrip t prepare d by a person ac tually present and in a position to hear the testimony may be used, and then only when authenticated or verified by a live witness subject to crossexamination and that the Court of Appea ls has not ste pped beyon d this cautious approach . . . Harrod, supra, 39 Md. App. at 238, 384 A.2d at 759. On that premise and observing that (1) District Court transcripts were not prepared by the person w ho was presen t in court or who ever had any personal knowledge of what transpir ed, (2) it was not the regular -14- practice of the District Court to make such transcripts at the time of the event but rather, upon request, to send a disc to a contract stenographer to transcribe what was on the disc, and (3) there was no certificate by the stenographer that the transcript was a true copy of what was said but only that the stenographer had transcribed the disc recording and that it was an official transcript, the court held the transcript inadmissible. Hadid was a mere confirmation of Harrod. The trial court admitted into evidence uncertified, unauthenticated transcripts, of a District Court proceeding. The Court of Special Appeals, citing Harrod, reversed, holding that [u]nder Maryland law, it is well settled that a court may not adm it into evidence a transcript of proceedings when the transcript does not contain a certificate tha t it is a true copy. Hadid, supra, 55 Md. App. at 354, 462 A.2d at 1222. The current version of McCormick is nearly identical to that quoted from an earlier edition by the Harrod court. See 2 M CC ORMICK ON E VIDENCE § 307 ( Strong ed., 5 th ed., 1999). Wigmore, in a m ore dated analysis, treats the m atter in two se parate portio ns of his 1972 ten-volume work in the part on Provisional Testimonial Preferences, 4 W IGMORE ON E VIDENCE § 1330 (Chadbourn ed. 1972), and in the part dealing with Official Statements, 5 W IGMORE ON E VIDENCE §§ 1666 - 1669 (Chadbourn ed. 1972). The portion relevant here is in § 1330 , where W igmore no tes that, because it was never the practice at common law for any person to be required, or even authorized, by law to record the testimony of witnesses, there was no preferred witness in proving testimony given at a former trial, so that anyone -15- who heard it may testify from recollec tion, wi th or w ithout th e aid . . . of written notes. Wigmore acknowledges that the report of a stenograp her is more trustworthy in the ordinary case than the mere recollection of a witness, but eschews for practical reasons regarding such a report as preferred evidence. All of this brings us to the conclusion that, although with the adv ent of official court stenographers/reporters, the seemingly exclusive method of proving testimony given at an earlier trial enunciated in Ecker and Herrick, as earlier tweaked in Waters, has been expanded somew hat to allow such testimo ny to be proved from certified transcripts prepared by those stenographers or from authenticated notes or stenotype recordings made by them, the method approved in those early cases has not been abrogated and remains viable. Any competent witness who was present at the former trial, heard the testimony to be recounted, and has a sufficient recollection of that testimony may testify as to what was said.5 It is undisputed that the interpreter and the bailiff we re present in the District Court and heard Ms. Crane s testimony. The question is whether they had a sufficient recollection of what Ms. 5 We nee d not addr ess here w hether any fu rther expan sion, beyond that allowe d in the cited cases, is desirable. The District Court and several of the circuit courts now use an aud io system to recor d proce edings , and at le ast one circuit co urt uses video r ecordin g. Transcripts are prepared on request from the audio or videotapes rather than from any court ste nograp her s no tes. See Maryland Rules 16-404, 16-405, 16-406, 16-504, and 8415. Although those recording systems may not, and hopefully do not, present the same reliability problems noted in Harrod, it remains the case that transcripts prepared from the tapes are usually prepared by persons who were not in court and have no personal knowle dge of w hat occurre d in court. T hey can only cer tify the accurac y of their transcription from the tapes and not the accuracy of the tapes themselves. We reserve for now whether the result reached in Harrod will need to be revisited. -16- Crane said in orde r to be reliably able to recount it. That issue, too, has been considered by this Court on a number of occasions. In the late Eigh teenth and early Nineteenth Centuries, two different rules developed regarding the nature of the testimony required to prove the forme r testimony of another. In The Kin g v. Joliffe, 4 T.R. 285, 290, 100 Eng . Rep. 1022, 1024 (K.B. 1791), Lo rd Kenyon noted, in passing, that in an earlier case involving Lord Palmerston, an attempt to recount not the actual words use by Palmerston but merely to swear to the effect of them was rejected. From that developed the rule that strict precisio n was req uired that th e actual testim ony in the earlier case, the very words used by the witness, must be proved. Wigmore observes that such precision was not required in England prior to Joliffe, that such a requirement did not survive very long even after Joliffe, but that the case engendered debate in the United States. See W IGMORE ON E VIDENCE § 2098 (1972). He points out that the better view not requiring a verbatim recitation finally prevailed everywhere; the general principle that verbal precision was not necessary, and that the substance or effect would su ffice, cam e to be accepted a s the sound one; and th e contrary rule n ow surv ives only in one or tw o jurisdictions bound by early decisions decisions which are gradually being whittled away so as to leave at least an endurable and not wholly impractical rule. Id. This Court never subscribed to the restrictive view so casually noted by Lord Kenyon. It was implicitly rejected in Bowie v. O Nea le, 5 H.& J. 2 26, 231 (1 821) and was exp ressly rejected in Garrott v. Johnson, 11 G.& J. 173, 18 3 (1840). The Garrott Court no ted that, in -17- England, the very wo rds of the d eceased w itness must b e proved , or the testimony is not admiss ible, but that, in some of the American States, that was not the case. The Co urt concluded that the rule as established in England is too rigid, and exclusive for the purposes of justice; and would in most cases, considering the frailty of the human memory, lead to a total rejection of a ll such testimo ny, but that to ad mit merely the substance of the testimony would open too wide a door for a safe and due administration of justice. Id. at 183 (italics deleted). We adopted, instead, a middle ground: [W]here it is necessary to prove what a d eceased witness sw ore upon a former trial between the same parties, where the issue or matter in controversy was the same, and the one then pending, it is sufficie nt for th e living w itness w ho is ca lled to tes tify, to prove facts, that is to say, that the witness who is dead, in giving in his te stimony, deposed to certain facts. Such a rule would be sufficiently restrictive, to exclude the opinion and construction of the witness on the one hand, and not so rigid, as to deprive a party in many instan ces of the b enefit of such testimony on the other. Id. Applying that standard, the Garrott Court concluded, as had the Bowie Court nineteen years earlier, that, although the witness who was present at the earlier proceeding could not undertake to state the words, or the precise language of the deceased witness in giving his testimo ny, it was permissible for the trial witness to recount the facts testified to by the decea sed w itness. Id. at 183-84. Although the precise w ords need not be reco unted, this Court has required that the trial witness be able to recollect the entire testimony given, at least on the issue to which the -18- evidence is relevant. In Black v. Woodrow, 39 Md. 194 (1874), a witness at an earlier trial had testified as to the quality and condition of certain lumber at a particular place and as to the different qualities of pine grown in North Carolina and Georgia, both of which were relevant to the issue in the case. At a subsequent trial, after the witness had died, the defendant proposed to testify that he was present at the former trial, heard the testimony of the deceased witness, and could state substan tially what that w itness had sa id as to the qua lity of the lumbe r at the particula r place but c ould not state substantially wh at the witness had said ab out the lu mber g rown in Nor th Caro lina and Georg ia. This Court aff irmed the d isallowanc e of that testimony, on two grounds. First, the Court said, to be competent to testify as to the deceased witness s testimony, the witness, though not required to recount that testimony verbatim, must be able to testify as to all of the facts stated by the deceased witness, on direct and cross-examination, not just what the witness suppose s to be its effect or construction. Id. at 220. The witness cannot recite just the part favorable to him/her. The Court noted that this general rule requiring all of the testimony to be stated may have exceptions in cases where there were several and distinct issues, involving d istinct subject-m atters, in referen ce to whic h the deceased witness testified , but that was not the case in Black. Id. at 221. Second, the C ourt confirmed that simply testifying as to the substance of the testimony did not suffice; the recounting must -19- be of the facts to which the witness testified.6 Perhaps because of the prevalence throughout most of the Twentieth Century of transcripts prepared and certified as accurate by official court repor ters, there has b een little or no occas ion to resort to calling witn esses to reco unt testimon y given in earlier proceedings and thus we have not b een called u pon to revisit this old line of cases, some of which are 100 to 150 years old . When, as here, the cou rt reporting system f ails and the p arties are left to the ancient device of proving earlier testimony through witnesses who heard it, we are back to where we w ere in those earlier times. The principles tha t we enun ciated and a pplied in those old cases still are valid. If the witness was present at the earlier proceeding, heard what was said, and can remember the facts testified to all of the facts relevant to the point at issue the witne ss may recou nt those fac ts, even if he /she does n ot have a v erbatim recollection of the testimony. McCormick continues to support that view. The first method 6 This view , at least in articulatio n, is narrow er than the o ne that we have take n in regard to the recounting of oral utterances generally. In Edwar ds v. State, 198 Md. 132, 146, 81 A.2d 631, 637 (1951), involving testimony by a prison guard as to a conversation he overheard between two prisoners, we held: It is a universally accepted rule that in proving oral utterances verbal precision is not required, but the substance or effect is sufficient. The reason for the rule is that the importanc e of single w ords in oral d iscourse is co mparative ly much less than in wr itings, and m emory does not retain precise words exc ept of simple utterances an d for a short time. (Citations omitted). We are not asked in this case to expand or re-articulate the principles we have applied to former testimony to match those articulated in Edwards. -20- of proof that he finds acceptable, in relevant part, is as follows: Any firsthand observer of the giving of the former testimony may testify to what was said from unaided memory. This and the next meth od were frequently used b efore court stenographers became commonplace. The reporting witness need not profes s to be able to give the exact words of the former witness but must satisfy the court that he or she is able to give substance of all that the former witness has said, both on direct and cross-examination, about the subject matter relevant to the presen t suit. M CC ORMICK ON E VIDENCE § 307 (1999). That test was cer tainly met in this ca se. Ms. D avis made clear that she recalled, with certa inty, Ms. Crane testifying that she went to the salon before going to the police. That was the point of the conflict. Any imprecision as to how many days may have elapsed between the two reports, assuming that Ms. Crane ever testified to that in the District Court, went at best to the credib ility of her testimony, not her competence to testify. The responses Ms. Davis gave to the voir dire questioning provided an ample basis for allow ing h er tes timo ny. No voir dire was und ertaken w ith respect to the bailiff, b ut it seemed to be accep ted that his recollection was about the same as that of Ms. Davis s. The court erred in refusing to let them testify. It was not within the court s discretion to den y Gonzalez the oppor tunity to present relevant, non-cumulative evidence in support of his defense, including evidence that might impeach the credibility of the chief witness against him. -21- JUDGMENT OF CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED; CASE REMANDED TO THAT COURT FOR A NEW TRIAL; COSTS TO BE PAID BY MONTGOMERY COUNTY. -22-
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