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Hunter v. Maryland5/8/1990
On the evening of May 25, 1988, while driving south on Md. Route 213 toward Centreville, appellant slammed into the rear of a vehicle that had just turned on to Route 213, killing a passenger in the rear seat of that car. Principally on the basis of certain observations made by one of the investigating officers, Trooper Virginia Prince, and a blood test taken later at a hospital, appellant was charged with, and ultimately convicted in the Circuit Court for Queen Anne's County of, negligent homicide by motor vehicle while intoxicated, driving while intoxicated, and failure to control the speed of his vehicle to avoid a collision.
From the judgments entered on those convictions, appellant has brought this appeal complaining that the court erred (1) in admitting evidence concerning a call appellant made to his attorney after the accident and (2) in allowing the prosecutor to comment in closing argument on a fact not in evidence. We need address only the first complaint.
There was little dispute about the accident itself. The victim's car entered Route 213 from Route 19; after making the turn, it had traveled about 92 feet when it was hit in the rear by appellant's car. The night was clear, the road was dry, and there was good visibility. Appellant admitted to driving about 55 miles per hour, which was the posted limit. He claimed that the other car pulled out onto Route 213 and that he did not see the car until he was about 15 feet from it. Appellant said that he finished work in Chestertown about 7:00, that he had four beers (but nothing more), and that he was on his way home when the accident occurred. He maintained that he was not intoxicated at the time. The State offered evidence that there were 19 empty beer cans inside appellant's car and that a blood test, taken three hours after the accident, showed that appellant had a blood alcohol content of 0.15. The critical issues in the case, of
course, were whether appellant was negligent and whether he was intoxicated at the time of the accident.
Appellant's first complaint had its genesis in the testimony of Trooper Prince. On direct examination, she said that when she arrived she spent the first 20 minutes or so observing the accident scene and trying to find the drivers of the two vehicles. She located appellant standing on the shoulder of the road, made certain observations, questioned him briefly about the accident, and had him taken to a hospital for medical attention. In the course of this recitation, she said that the police had been notified about the accident at 10:19 p.m. and that she thought appellant had made the call. That aspect of her testimony was quite innocuous.
In opening his cross-examination, defense counsel asked the equally innocuous question, "when you said that you thought that Mr. Hunter is the one who called, did you say the State Police or the ambulance or what," to which the trooper replied: "I believe I said he had called for assistance. He advised me that he had gone to the house -- there is a house right across the street from where the accident occurred, and he advised me he also contacted his attorney -- which, at that time, was a different attorney." Counsel not only let that answer pass without objection but continued to question Trooper Prince about the matter:
"Q But you don't know if he called the State Police or an ambulance? He called an ambulance?
A In order to call for an ambulance, you have to call Queen Anne's County Fire Board.
Q Okay.
A I don't know when he went to the residence if he called just his attorney, and the residents called the police and Fire Board or --"
Counsel dro
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