Tyler v. State

MURPHY, Judge,

concurring.

I concur in the judgment and would not change one word in the majority’s analysis of every issue except the admissibility of Eiland’s testimony. I would, however, add the following reasons why (1) Eiland’s testimony at his trial was inconsistent with his refusal to answer any questions in this case, and (2) the introduction of Eiland’s prior testimony did not violate appellant’s right of confrontation.

An assertion may be express or implied. There is evidentiary significance in an implied assertion. In re Devon T., 85 Md.App. 674, 696-697, 584 A.2d 1287 (1991). In this case, we have Eiland’s express assertion, “I cannot answer.” When Eiland testified at his trial, he made the implied assertion, “I can answer.” Those conflicting assertions establish the inconsistency required to trigger the Nance exception to the rule against hearsay.1

The confrontation clause guarantees only an opportunity for effective cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S.Ct. 989, 999, 94 L.Ed.2d 40 (1987). The trial judge did not prohibit either side from questioning Eiland. We must assume that Eiland’s response to each question would have been “I can’t answer.” There is, however, no constitutional right to a truthful answer.

There may be cases in which the right of confrontation is violated because a witness—hearsay declarant contumaciously *566refuses to answer the defendant’s questions. Whether the confrontation clause was violated, however, depends on the importance of both the question and the answer. How a witness—declarant reacts to the question is always of consequence to the assessment of that person’s credibility. If what the witness—declarant would answer is of no consequence whatsoever, the confrontation clause is satisfied when the defendant has the opportunity to ask questions of the contumacious witness—declarant in the presence of the jury.

In this case, the right of confrontation was satisfied when appellant was permitted to question Eiland in the presence of the jury. The jurors were in position to observe Eiland’s demeanor as he reacted to the questions. Through able counsel, appellant had a full and fair opportunity to ask questions in support of his argument that Eiland’s prior testimony was as worthless as his “I can’t answer” responses. Such an opportunity is all that the confrontation clause guarantees.

. I do not agree with the proposition that any concessions made by the State during reargument prohibit our reliance on the theory of admissibility set forth in this opinion. We are not required to accept the State’s concession that an appellant is entitled to a new trial. Moten v. State, 100 Md.App. 115, 118, 640 A.2d 222 (1994), cert. granted, 336 Md. 405, 648 A.2d 991 (1994). We should not reverse a conviction merely because, during argument or reargument, the State appears to abandon a correct theory of admissibility in favor of an incorrect one. Trial judges—and intermediate appellate courts—can be right for the wrong reason. State v. Breeden, 333 Md. 212, 227 n. 5, 634 A.2d 464 (1993).