Wright v. State , 349 Md. 334 ( 1998 )

WILNER, Judge.

Rodney Wright was convicted by a jury in the Circuit Court for Charles County of second degree rape, second and third degree sexual offense, and child abuse, for which he was given varying terms of imprisonment. The judgments were affirmed by the Court of Special Appeals. We granted certiorari to consider two questions: (1) whether the trial court erred in allowing, as rebuttal evidence, an inculpatory statement that Wright made to Louis Hurt, a one-time cell-mate at the county detention center; and (2) whether, for purposes of the child abuse conviction, Wright qualified as a “household member,” within the meaning of Maryland Code, Article 27, § 35C (1957,1996 Repl.Vol.).¹ We shall answer both questions in the affirmative and therefore reverse the judgment of the Court of Special Appeals and remand the case for retrial.

UNDERLYING FACTS

In June, 1995, Wright was living in Bel Alton with Shirley Thompson and Shirley’s two children, Latara, age 4, and Rhonda, age 2. The victim in the case was Shirley’s younger sister, Queen Champion, who was then 12 years old. Queen lived with her mother (Juanita Thompson), her stepfather, and her two younger sisters about 15 miles away, in Indian Head. Following the end of the school term and with her mother’s consent, she went to stay with Shirley for part of the summer. There is some dispute as to when she actually arrived. Juanita Thompson said that Shirley came to get her around June 10 or June 13, which conforms with Queen’s recollection, and, for purposes of this appeal, we shall assume that to be the case. Initially, the stay was to be for two weeks, but it was extended to July 10. At some point near the end of June, a friend of Queen’s, Tomika Dorsey, came to stay for about a week. Queen and Tomika occasionally played outside but also helped care for Shirley’s children.

On June 28, Shirley left the home at about 8:30 a.m. to keep an appointment at the health department. In the home at the time were Wright, Queen, Tomika, Latara, and Rhonda. Queen testified that, while Rhonda was sleeping and Tomika and Latara were taking a bath, she was watching television. When the TV began “acting up,” Queen asked Wright, who was in his bedroom, if he could fix it. According to Queen, as she was leaving Wright’s room, he called her back, pushed her on to the bed, and locked the door. He held her down on the bed, removed her shorts and underwear, performed cunnilingus, and then had sexual intercourse with her. She said that she was squirming, kicking, screaming, and attempting to get away, to no avail. At some point, one of the other children began knocking on the door, asking to come in, but Wright continued. Not until he heard Shirley returning did he relent, jump up, and put on his clothes. Queen ran into the bathroom and noticed blood “and some slimy stuff’ coming from her vagina. Wright, she said, warned her not to tell anyone what happened, or he would “slam [her] head into the wall.”

Although Queen said that she called for Shirley to come into the bathroom, Shirley responded instead to Wright. Thereafter, Queen said nothing. Her mother came to get her on July 10, after somehow learning from one of her other daughters that Wright had “fooled with” Queen, but it was not until Queen was home that she informed her mother what had happened. Ms. Thompson took her daughter to the hospital, where she was examined. The doctor found one tear of the hymen which, the doctor later testified, indicated a single incident of intercourse.

DISCUSSION

The Statement To Louis Hurt

After his arrest, Wright was incarcerated in the county detention center. His cell-mate for part of that time was one Louis Hurt, who was facing carjacking and robbery charges. According to Hurt, although Wright was initially reluctant to discuss the charges against him, he eventually told Hurt a story that was largely consistent with Queen’s version of what had occurred. It was, in every respect, a full confession. Although Hurt was listed as a witness by the State, he did not testify, and was not even mentioned, in the State’s case-in-chief. The State’s case consisted of the testimony of Queen, her mother, and the doctor who examined Queen at the hospital. Queen’s account was thus corroborated principally by the testimony of the doctor that she was not a virgin and that the tear to her hymen indicated only one penetration. In cross-examination, the suggestion was planted that Queen may have had intercourse with a boyfriend which, if true, could also explain her vaginal condition.

That defense was pursued in Wright’s case, in large part through the testimony of one of Queen’s girlfriends, Crystal Hill, who said that, in June, 1995, Queen had told her that Queen and her boyfriend, Damian, had had intercourse on one occasion.² Queen also told her that she (Queen) and Wright had “had sex,” although Queen said nothing about being raped. Wright was the last defense witness. On direct examination, he denied having had sexual intercourse with Queen; he denied pushing her on the bed and removing her clothing; he denied having oral sex with her; and he denied removing his own clothes in Queen’s presence. He was not asked about Louis Hurt or whether he had made any statements to Hurt. He acknowledged having spoken with a police detective when he was arrested on July 10, identified the written statement given to the detective, and was questioned about some aspects of it, although the statement itself was never offered into evidence. On cross-examination, he was asked, for the first time, whether he knew Hurt, and he acknowledged that he did. He also acknowledged having talked to Hurt about this case, although not about what his testimony would be. When asked whether he trusted Hurt sufficiently to tell him “about what happened,” Wright objected, and, at the bench, the prosecutor made a proffer:

“First, he told him, I am in on these charges, they charged me with this. Then he talked to him later and the defendant said, it is her mother, the mother is behind this. He talked to him a month later and he said, I will tell you what happened, and he told him the entire thing that happened, him and Shirley were having problems, she was out of the house that day. He wanted to get a nut so he had sex with Queen.”

The court overruled the objection, declaring that the State could ask “about any admissions he may have made.” Upon further questioning, Wright again admitted having talked to Hurt about the charges and even about Queen’s mother, but he denied telling him “that what happened was that you and Shirley were having some problems, and you just wanted to get a nut so Queen was there and you had sex with Queen.” On redirect examination, he said that he knew Hurt and did not trust him. He said that Hurt was aware of the charges against him—Wright had a copy of the charges with him in jail and Hurt had seen them—but that, when Hurt questioned him about the charges, he “just told him to mind his business.”

Immediately upon the conclusion of Wright’s testimony, which ended the defense case, the State called Hurt as a rebuttal witness. Over objection, Hurt was permitted to testify essentially as the prosecutor had proffered. Omitting intervening questions, he said:

“[Wright] told me that him and his girlfriend were having problems between each other. She left ... to go to the health department, took one of the children with her. He was left in the house with him and his other daughter and ... Shirley’s sister ... Shirley was gone. She left. He was in the living room playing with his daughter and Shirley’s sister asked him could he fix the antenna in the bedroom. He went to fix the antenna and he started to think to himself the girl looks pretty good. He went behind her and said he pushed her on the bed and started to have oral sex with her and she started screaming, saying stop. He said he just want to get a nut.”

Hurt continued that, in addition to having oral sex, Wright admitted having vaginal intercourse with Queen and stopped only when Shirley’s car pulled up. Wright also said that he threatened Queen if she said anything.

There are a number of nuances and distinctions that need to be considered in this case, but the ultimate question is whether it is permissible for the State to withhold from its case-in-chief an inculpatory statement by the defendant bearing directly and substantively on the defendant’s guilt, set the stage for using the statement in rebuttal by asking the defendant on cross-examination whether the defendant ever made such a statement, and then using the statement in rebuttal if the defendant denies having made it. The answer depends on the nature of the statement, what it is intended to rebut, whether it is being offered as substantive or impeachment evidence, and whether it really could have been used in the State’s casein-chief.

The general rule, of long standing in Maryland, is that “the plaintiff [which in a criminal case is the State] must put in the whole of his evidence upon every point or issue which he opens, before the defendant proceeds with the evidence on his part.” Maurice v. Worden, 54 Md. 283, 251 (1880). It may not “go into half of its case and reserve the remainder, but is obliged to develop the whole.” Cumb. & Penn. R.R. Co. v. Slack, 45 Md. 161, 176 (1876) (quoting from 1 Greenl. Ev. § 74). More recently, we noted, with particular reference to criminal cases, that “[o]rdinarily, an orderly conducted criminal trial anticipates the State adducing all of its evidence in chief and resting its case. The defense follows by producing its evidence tending to establish the accused’s non-culpability....” Mayson v. State, 238 Md. 283, 288, 208 A.2d 599, 602 (1965). A contrary practice, this Court has observed, “would not only greatly prolong trials, but would frequently lead to surprise and injustice.” Bannon v. Warfield, 42 Md. 22, 39 (1875); Cumb. & Penn. R.R. Co., supra, 45 Md. at 176; State v. Booze, 334 Md. 64, 67, 637 A.2d 1214, 1216 (1994). See also 6 J. Wigmore, Evidence in Trials At Common Law § 1873 (Chadbourn ed. 1976).

There are two caveats to the general rule, both described in some detail in State v. Hepple, 279 Md. 265, 368 A.2d 445 (1977). The first arises from the discretion that a trial court has to permit a party to reopen its case-in-chief, even after the opposing party has concluded. In State v. Booze, supra, 334 Md. 64, 637 A.2d 1214, we synthesized holdings and pronouncements from earlier cases, including State v. Hepple and Dyson v. State, 328 Md. 490, 615 A.2d 1182 (1992), and, quoting from some of those Opinions, confirmed (1) that the trial court has discretion “to permit the moving party to reopen its case to introduce evidence adducible in chief,” but (2) that, in exercising that discretion, the judge must consider a number of factors, including “whether the State deliberately withheld the evidence proffered in order to have it presented at such time as to obtain an unfair advantage by its impact on the trier of facts,” and “[wjhether good cause is shown; whether the new evidence is significant; whether the jury would be likely to give undue emphasis, prejudicing the party against whom it is offered; whether the evidence is controversial in nature; and whether the reopening is at the request of the jury or a party.” 334 Md. at 69, 637 A.2d at 1217. The judge must consider “whether the proposed evidence is merely cumulative to, or corroborative of, that already offered in chief or whether it is important or essential to a conviction.” Id. at 69, 637 A.2d at 1216-17. The discretion, in other words, though broad, is not unbounded; it cannot be used to permit the plaintiff/State unfairly to prejudice the defendant. We made clear in both Hepple, 279 Md. at 270, 368 A.2d at 449, and Booze, 334 Md. at 69, 637 A.2d at 1216, that the court’s allowance of such a reopening will not constitute an abuse of discretion “so long as [it] does not impair the ability of the defendant to answer and otherwise receive a fair trial.”³

The second caveat deals with rebuttal evidence. In Mayson v. State, supra, 238 Md. at 289, 208 A.2d at 602, and State v. Hepple, supra, 279 Md. at 270, 368 A.2d at 449, we defined rebuttal evidence as any competent evidence which explains, or is a direct reply to, or a contradiction of “any new matter that has been brought into the case by the defense.” (Emphasis added.) See also Lane v. State, 226 Md. 81, 90, 172 A.2d 400, 404 (1961), where we defined it as competent evidence which explains, or is a direct reply to, or a contradiction of, “material evidence introduced by the accused____” (Emphasis added.) The articulation that we used in Lane was repeated in Booze, supra, 334 Md. at 70, 637 A.2d at 1217.

There is an important distinction between rebuttal evidence and evidence sought to be admitted pursuant to a reopening of the case-in-chief. In the latter situation, the evidence ordinarily would have been admissible during that party’s case-in-chief; its proponent merely seeks to have the evidence admitted out of order. A party bearing the burden of proof on an issue ordinarily has no right to have evidence admitted out of order after the party has closed its case. Varying the order of proof is, however, clearly within the court’s discretion, which is why a decision to permit a party to reopen its case-in-chief for that purpose also is discretionary. Because rebuttal evidence, in contrast, is designed solely to address new matters or facts introduced by the defendant during the defendant’s case, that evidence ordinarily would have been inadmissible, as irrelevant, in the plaintiff/State’s case-in-chief, for, at that stage, there would have been nothing to rebut. Thus, although there is discretion in the trial court to determine whether evidence offered in rebuttal actually qualifies, under the test we have established, as proper rebuttal evidence, Hepple, supra, 279 Md. at 270, 368 A.2d at 449, if the evidence does qualify as rebuttal, the party ordinarily has a right to have it admitted. Wigmore explains the distinction:

“For matters properly not evidential until the rebuttal, the proponent has a right to put them in at that time, and they are therefore not subject to the discretionary exclusion of the trial court. Matters that should have been put in at first may by that discretion be refused later, because this is but the denial of a second opportunity. But matters of true rebuttal could not have been put in before, and to exclude them now would be to deny them their sole opportunity for admission. Hence, while the trial court’s determination of what is properly rebutting evidence should be respected, yet, if its nature as such is clear, the proponent does not need the trial court’s express consent to admit it as involving a departure from the customary rule.

This will always be the case for evidence offered to impeach the opponent’s witnesses by way of moral character, bias, self-contradiction, or the like.”

6 Wigmoee, supra, § 1873 at 678-79 (footnotes omitted).

Hurt’s testimony was offered solely as rebuttal evidence. The State did not seek to reopen its case-in-chief in order to allow Hurt to testify, and the testimony was not allowed as part of the case-in-chief. The issue, then, is whether the court abused its discretion in determining that the testimony was proper rebuttal evidence.

As we have indicated, Hurt’s testimony constituted nothing more or less than a full confession of guilt by Wright—a classic party admission. On this record, there is no reason to suppose that Hurt’s testimony would not have been admissible, as substantive evidence, in the State’s case-in-chief. There is nothing to indicate that Wright’s alleged admissions were not voluntary; nor is there anything in the record to indicate that Hurt was, in any way, a State agent, thereby implicating the procedural protections of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Wright, indeed, makes no claim to the contrary.⁴

It is clear from the State’s proffer during its cross-examination of Wright that it intended to offer Hurt’s testimony of Wright’s confession as rebuttal evidence. But what was it intended to rebut? In its brief (State’s Brief at 6-7), the State tells us its theory:

“Hurt’s testimony can be classified as a contradiction of a new matter brought into the case by the defense. Although the denial of guilt does not constitute new matter presented by the defendant, see State v. Booze, 334 Md. at 75 n. 4, 637 A.2d 1214; State v. Hepple, 279 Md. at 273, 368 A.2d 445, Wright’s testimony here was not merely a denial of guilt; he was stating additionally that he never admitted his guilt to his cellmate. Thus, Wright’s testimony clearly injected a new matter into the case. And Hurt’s testimony was dearly a contradidion of Wright’s denial that he admitted to Hurt that he had sex with Queen.”

(Emphasis added.)

In laying out its position, the State acknowledges a number of things: (1) that Hurt’s testimony was inadmissible to rebut Wright’s testimony on direct examination that he did not engage in the alleged conduct;⁵ (2) that the sole function of Hurt’s testimony was, instead, to rebut Wright’s denial that he confessed to Hurt; (3) that, under our holding in Bruce v. State, 318 Md. 706, 569 A.2d 1254 (1990), Hurt’s rebuttal testimony was not admissible as substantive evidence but only to impeach Wright’s denial that he made the admission; and (4) that the denial sought to be impeached was elicited by the State on cross-examination and was not, therefore, injected affirmatively into the case by Wright.

When viewed in this manner, which is the manner presented to us by the State, the problem emerges: the State has a confession that is admissible in its case-in-chief as substantive evidence of the defendant’s guilt; instead of offering it at that stage, the State waits to see if the defendant testifies; if the defendant testifies and denies guilt, the State asks on cross-examination whether the defendant ever made the confession; if the defendant answers affirmatively, the State continues its cross-examination and brings out the entire confession as a prior inconsistent statement; if the defendant denies the confession, the State springs it, in full blossom, in rebuttal, supposedly for the limited purpose of contradicting the defendant’s denial that he or she ever made the confession. The State gambles that, upon request, the court may instruct the jury (or instruct itself, in a bench trial) that the confession may be used only to impeach the defendant’s statement that he never made the confession and not as substantive evidence of guilt, but with or without such an instruction, the trier of fact hears the substance of the confession at or near the end of the case—after the defense is concluded.

In State v. Kidd, 281 Md. 32, 375 A.2d 1105 (1977), and State v. Franklin, 281 Md. 51, 375 A.2d 1116 (1977), we addressed the circumstances under which the State could properly use, in rebuttal, a confession rendered inadmissible in its case-in-chief because of Miranda violations. Following a line of cases from other jurisdictions, we construed Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) and Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) “as requiring that the issues sought to be impeached by the challenged extrajudicial statement of the accused be initiated by the accused on direct examination” and held that “[t]he prosecution is not permitted to use tainted evidence to impeach an issue which it first solicited on cross-examination.” Kidd, supra, 281 Md. at 49, 375 A.2d at 1114. We did not directly address in Kidd or Franklin whether such a confession could be used to rebut a mere denial of guilt asserted by a defendant on direct examination, for that situation was not presented in those cases. There is language in Harris suggesting that a tainted confession might be usable for that purpose, although language in Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), relied upon in Harris, suggests the contrary.⁶ See also People v. Taylor, 8 Cal.Sd 174, 104 Cal.Rptr. 350, 501 P.2d 918 (1972) and United States v. Trejo, 501 F.2d 138 (9th Cir.1974), cited favorably by us in State v. Kidd, following the view suggested in Walder.

The Harris/Kidd line of cases is mentioned principally for the sake of contrast, for they present a quite different situation. The stark contrast, of course, is that, in those situations, the State has a confession that it cannot use in its case-in-chief. The concern expressed in Harris was that Miranda not “be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Harris v. New York, supra, 401 U.S. at 226, 91 S.Ct. at 645, 28 L.Ed.2d at 5. The Court reached a pragmatic balance between two competing public policies—the exclusionary rule precluding the use of confessions obtained in violation of Miranda, on the one hand, and not giving defendants a free ride to commit perjury, on the other—and concluded that the deterrent value of the exclusionary rule was sufficiently achieved by making the confession unusable in the prosecution’s case-in-chief.

The competing interests here are quite different and nowhere near as equivalent. Precisely because the confession was admissible in the State’s case-in-chief, there was no prospect of the defendant getting a free ride to commit perjury. Had Hurt testified in the State’s case-in-chief, Wright could have been confronted and vigorously cross-examined with respect to that testimony. The State would have had the advantage of Hurt’s testimony as both substantive evidence and a prior inconsistent statement by Wright, but Wright would have had the advantage, in presenting his own case, of contradicting and denying Hurt’s account. The advantage to the State., in withholding the admissible confession for rebuttal was purely a tactical one designed for maximum prejudicial effect: either (1) to discourage the defendant from testifying, even to deny the guilt that the State is obliged to prove beyond a reasonable doubt, or (2), if, as occurred here, the defendant chose to testify, to have the confession dramatically admitted afterward—just prior to jury deliberation.⁷

Unlike the Hams/Kidd situation, that constitutes an offensive, not a defensive use of the confession, but it is an offensive use that is fundamentally unfair and rests, for its purported validity, on a transparent fiction. It simply defies logic to suggest that, when it really has a choice, the State would prefer to use a confession to impeach a defendant’s credibility on what is essentially a collateral point—whether he or she, in fact, made such a statement—than to use it as substantive evidence of guilt. The State’s true goal in this case was not to suggest to the jury that Wright was not telling the truth when he denied making the confession to Hurt, but rather to sandwich its case around that of the defense and put its most damaging piece of evidence after the defense has concluded its presentation.

That kind of offensive use is wholly inconsistent with the long-standing rule in Maryland that the State put on its case first. It is also inconsistent with our long-standing definition of rebuttal evidence. It is unnecessary, and it is unfair. Although some courts, without much analysis, have allowed the practice, many have not, for the very reasons we find persuasive. In People v. Bennett, 393 Mich. 445, 224 N.W.2d 840 (1975), the defendant was charged with murder. His defense was alibi, and he took the stand and denied the shooting. On cross-examination, he was asked whether he had ever told a fellow inmate at the detention center that when he got out, “there was going to be some more murders,” and he denied having made such a statement. After the defense rested, the prosecutor called the other inmate who, over objection, testified that the defendant had made the statement. Reversing, the Supreme Court of Michigan held that the State’s ploy “misconceives the office of rebuttal,” that “[rjebuttal is limited to the refutation of relevant and material evidence—hence evidence bearing on an issue properly raised in a case,” that “where the prosecutor did not offer this evidence in his case in chief, which he would have had to do if this were to be regarded as an admission or part of a scheme, it did not bear on an issue raised by the People,” and that a[t]he device of eliciting a denial of some statement not properly in the case at the time of denial will not serve to inject an issue.” (Emphasis added.) Id. 224 N.W.2d at 842. See also People v. McGee, 68 Mich.App. 519, 243 N.W.2d 663 (1976); People v. Bean, 89 MichApp. 626, 280 N.W.2d 614 (1979).

The Arkansas Supreme Court took the same position in Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986). The defendant was charged with robbery, and the State’s case consisted essentially of eye-witness identifications by the two victims. The defendant testified in his defense and, on cross-examination, was asked whether he had discussed the robbery with his girlfriend and had shown her some jewelry taken in the robbery. He denied having done so. Over objection, the State then produced the girlfriend in rebuttal to testify that the defendant had discussed the robbery with her and had shown her some of the jewelry. The issue on appeal was whether the girlfriend was a proper rebuttal witness, as her name had not been disclosed in discovery. Reversing, the Arkansas court held, at 626-27:

“It is evident [that the girlfriend] was not a true rebuttal witness. Her testimony was not merely in response to evidence presented by the defense---- Rather, this appears to be an instance of a witness who could have been presented in the state’s case in chief being withheld until rebuttal. Her testimony impeached responses drawn from the appellant during his cross-examination. The questions asked of appellant during cross seem clearly designed to manufacture a rebuttal situation for a presentation of the state’s evidence that belonged in its case in chief—evidence that was not genuinely in response to anything presented by appellant in his defense. Under these circumstances, the witness should not have been granted rebuttal status.”

A similar result was reached in Lucas v. Commonwealth, 302 Ky. 512, 195 S.W.2d 90 (1946). The defendant, charged with murder, denied having robbed and killed the victim. On cross-examination, he was asked whether he had made certain inculpatory statements, amounting to a confession, to two people while confined in the county jail, and he denied making those statements. The State then called the two people in rebuttal to testify as to the statements. Reversing, the court held that the introduction of the confession in rebuttal was “prejudicially erroneous.” Id. 195 S.W.2d at 92. The confession, it held, “was not introduced for the purpose of [ajffecting appellant’s credibility as a witness, but was substantive evidence and should have been introduced in chief.” Id. Noting the discretion generally allowed a trial court to permit rebuttal evidence, the court nonetheless concluded that “the Commonwealth should not be permitted to take undue advantage of the defendant and withhold important evidence until near the close of trial, and then introduce it in the guise of rebuttal evidence.” Id. (emphasis added). The Lucas court further noted:

“In the case before us, it is obvious that the Commonwealth deliberately held the witness back in order to get an advantage. The evidence introduced in rebuttal was purely substantive in nature, and should have been introduced in chief. It was the most damaging evidence offered by the Commonwealth, and its introduction during the final stages of the trial was, under the circumstances, prejudicial to appellant’s rights.”

Id. at 93 (emphasis added). See also Robinson v. Commonwealth, 459 S.W.2d 147 (Ky.1970).

For other expositions of this approach, see Hosford v. State, 525 So.2d 789, 791 (Miss.1988) (“Manifestly, no party should be permitted as a deliberate trial tactic to decide in advance of trial to withhold a part of his case in chief, but instead attempt to suggest such evidence in cross-examination of the witnesses for the opposing side, and then offer the evidence in rebuttal”); State v. Manus, 93 N.M. 95, 597 P.2d 280, 288 (1979) (declaring that “[t]his type of gamesmanship in the conduct of a criminal trial is not to be commended”); State v. Turner, 337 So.2d 455 (La.1976); State v. Smith, 120 La. 530, 45 So. 415 (1908). In People v. Rodriguez, 58 Cal.App.2d 415, 136 P.2d 626 (1943), the court, though reversing a judgment on other grounds, commented as to this issue, at 628-29:

“The People have no right to withhold a material part of their evidence which could as well be used in their case in chief, for the sole purpose of using it in rebuttal____ The alleged confession was offered to establish facts constituting guilt; the impeachment feature was incidental and comparatively unimportant. It was no more proper for the District Attorney to offer the evidence as rebuttal after defendant’s denial of the alleged statements, under the pretense that it was offered to impeach the defendant, than it would have been to offer it in rebuttal if the defendant had not been questioned about it at all. It makes no difference here that the testimony as to the confession, aside from being evidence of the fact of guilt, also tended to impeach the defendant.”

Compare Wallace v. State, 84 Nev. 603, 447 P.2d 30 (1968); Walker v. State, 89 Nev. 281, 510 P.2d 1365 (1973); Cowart v. State, 579 So.2d 1 (Ala.Crim.App.1990); and Mitchem v. State, 503 N.E.2d 889 (Ind.1987).

The State contends that we reached a different conclusion in Bruce v. State, supra, 318 Md. 706, 569 A.2d 1254. The defendant there was charged with five counts of murder, arising from a massacre that occurred at an apartment in Landover. The State produced evidence that Bruce did, indeed, participate in the shootings, that, after the shootings, Bruce, two other men who also allegedly participated, and Bruce’s girlfriend, Michelle Nelson, drove to Virginia together, that a week later they went to Florida where they split up, and that Bruce eventually went to New York, where he was arrested. Bruce testified in his own defense. He acknowledged being in the apartment but stated that he was not involved in the shootings and left the apartment as soon as the shooting began. He admitted that he and Ms. Nelson drove to Virginia and then flew to Florida but claimed that the trip to Florida had been pre-planned. He said that, after spending four days in Florida, he went to New York.

On cross-examination, Bruce admitted knowing one Kenneth Clee from New York, but he denied telling Clee that he was “on the run from the F.B.I.” because of some killings in Maryland. After the defense rested, the State was allowed to call Clee as a rebuttal witness to testify that Bruce had, indeed, made the statement denied by Bruce. In addressing that issue, this Court stated:

“Appellant’s admissions to Clee that he was fleeing from the F.B.I. and had killed a couple of people in Maryland could have been introduced as substantive evidence in the State’s case in chief. They constitute admissions of flight and admissions of criminal agency. Instead of offering these statements as part of its case, the State waited, and when Appellant took the witness stand and denied participation in any killings and testified that the trip to Florida was preplanned, the State attempted to impeach this testimony through the prior inconsistent statements made to Clee. When Appellant denied making the statements to Clee, the State quite properly, in rebuttal, offered the prior inconsistent statement through Clee. We note that Appellant’s statement when offered in rebuttal was not admissible at that stage as an admission, but was admissible at that stage as a prior inconsistent statement.”

The situation before us in Bruce was much more focused than what is before us here. Bruce testified on direct examination that his trip to Florida was pre-planned, thereby implying that it did not constitute a consciousness of guilt through flight. He was asked on cross-examination whether he had made a statement inconsistent with that assertion and, when he denied doing so, rebuttal evidence on that limited point was legitimately allowed, to establish the prior inconsistent statement and to suggest to the jury that he was not telling the truth when he asserted that the trip was preplanned. Admission of Glee’s testimony as rebuttal in that setting did not raise the same kinds of issues that are presented when, as here, the State deliberately holds back a full and detailed confession to rebut not the defendant’s substantive testimony on direct examination but a statement elicited by the State on cross-examination. To stretch the holding in Bruce beyond what was before us there is unnecessary and inappropriate. Had we intended a broader scope, we would at least have cited some authority and discussed the concerns that are addressed here.

In conformance with the long-standing Maryland practice of requiring the plaintiff/State to put on its case first, and for the reasons enunciated in the out-of-State cases cited above, we conclude that the trial court abused its discretion in allowing Hurt’s testimony as rebuttal evidence. It was predominantly substantive evidence of guilt that should have been presented by the State during its case-in-chief, and its admission as rebuttal, purportedly to impeach Wright’s statement, elicited on cross-examination, that he never made the statement was manifestly wrong and substantially injurious.⁸

Household Member

Count 3 of the indictment charged Wright with having violated Maryland Code, Article 27, § 35C which, in relevant part, makes it a felony for “[a] parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child or a household or family member” to cause abuse to the child. A “household member” is defined as “a person who lives with or is a regular presence in a home of a child at the time of the alleged abuse.”

As worded, the statute subjects to liability for child abuse (1) the child’s parent, (2) an “other person” who has permanent or temporary care or custody of the child, (3) an “other person” who has responsibility for the supervision of the child, (4) a household member, and (5) a family member. The State’s position was that, under the circumstances, Wright was either a person having responsibility for Queen’s care, custody, or supervision, or that he was a household member. At the conclusion of the State’s case, the court, responding to a motion for judgment, found insufficient evidence of the former but, viewing the evidence in a light most favorable to the State, concluded that it sufficed to permit the jury to determine that Wright was a household member in Queen’s temporary home. Wright acknowledges that he was a household member of Shirley’s home but presses the point that Shirley’s home was not Queen’s home—that Queen lived with her mother in Indian Head and was only a temporary occupant in Shirley’s abode. The statute, he urges, requires that the defendant be a household member in the child’s home.

The issue is one of statutory construction, and we are thus required to ascertain and effectuate the legislative intent. As noted, the relevant statutory provision—§ 350(a)(5)—de-fines “household member” as a person who lives with or is a regular presence in “a home of a child at the time of the alleged abuse.” (Emphasis added.) Use of the indefinite article “a,” as opposed to the definite article “the,” itself indicates a legislative recognition that, for purposes of the child abuse statute, a child may have more than one home. Given the context, that is not an unreasonable recognition.

Words like “home,” “resident,” and “household” are not capable of singular, absolute, generic definition in the law, because they are used in so many different ways and for so many different purposes. They may mean one thing to the census taker, another to an automobile insurer, one thing for voting purposes or for establishing venue in litigation, another for determining where to mail a letter. When the law uses such a word as a substitute for domicile, it may encompass only one, permanent, fixed abode, without regard to where the individual may be actually residing at a given moment. In other contexts, it may instead mean where the person is staying at the moment. The flexibility in these terms is especially important with respect to children, who are more frequently part of several homes and households. If their parents are separated or divorced, they likely will spend time and have clothes and belongings in the homes of both parents; they may visit grandparents or other relatives for varying periods of time; they may be off to camp during the summer. Where their “home” is at any given time may well depend on what is at stake in ascertaining where their home is.

The term “household member,” and with it the term “home,” was added to § 35C in 1991. The clear purpose of the addition was to extend the reach of the statute for the greater protection of children, to declare as criminal violations acts of abuse committed against children by a class of persons not then subject to the law. The Legislature obviously recognized that there were people other than parents, custodians, and persons directly charged with the care and supervision of a child who were in a position to commit abuse within the child’s home setting, where, because of the status of both the abuser and the child in that setting, the child might be helpless against the predation. We cannot subscribe to Wright’s view that the Legislature intended to restrict that protection to only one residential setting, and thus to ignore the reality actually faced by children.

Queen’s “permanent” home—her domicile—was with her mother. Through consensual arrangements among Queen, Shirley, and their mother, however, Queen was living with Shirley when the criminal activity occurred. Given that Queen, according to her testimony and that of her mother, had been at Shirley’s house for about two weeks and was intending to stay another two weeks, it is a fair inference that at least some part of her clothes and other personal belongings were also at Shirley’s house; that is where she slept, bathed, and ate; that is where her friend, Tomika, was staying with her. That was the place where, at the time, she formed part of Shirley’s household, a household of which Wright was a member.

JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE JUDGMENT OF CIRCUIT COURT FOR CHARLES COUNTY AND REMAND FOR NEW TRIAL; COSTS IN THIS COURT AND COURT OF SPECIAL APPEALS TO BE PAID BY CHARLES COUNTY.

Concurring and Dissenting opinion by CHASANOW, J., in which RODOWSKY and KARWACKI, JJ., join.

1 . In a conditional cross-petition, the State asked us to consider whether, by failing to make a proper objection, Wright failed to preserve his challenge to the rebuttal evidence. We denied the conditional cross-petition, so that issue is not before us. Implicit in our ruling on the cross-petition, of course, is our belief that there was a sufficient objection.

2 . Both Queen and the boyfriend, Damien, denied that they had engaged in sexual intercourse.

3 . This seems to be the general rule, although some States have taken a different, more flexible approach and have allowed the prosecution to withhold important evidence, including a confession, and use it to rebut even denials of guilt. See, for example, Walker v. State, 89 Nev. 281, 510 P.2d 1365 (1973); Wallace v. State, 84 Nev. 603, 447 P.2d 30 (1968); Crawford v. State, 688 P.2d 357 (Okla.Crim.App.1984); Commonwealth v. Adams, 174 Pa.Super. 504, 102 A.2d 202 (1954). Those cases rest on the view that a trial court has virtually unbounded discretion in allowing the State to present its evidence as it pleases and, to some extent, seem to confuse the court's discretion to allow the State to reopen its case-in-chief, which they find broader in scope than we do, with the discretion to determine what constitutes proper rebuttal evidence.

4 . While Wright and Hurt were together in the detention center, they were initially being represented by the same attorney from the Public Defender’s Office. At some point, Hurt informed the attorney of his intention to testify against Wright, whereupon the attorney withdrew from Hurt’s case and another lawyer was assigned to represent him. In response to Wright's request for discovery, seeking a copy of "all statements made by the Defendant to a State agent” and "the substance of each oral statement and a copy of all reports of each oral statement,” the State advised: "The Defendant has ... furnished a statement. A copy of any written statement or summary of any oral statement is attached hereto. The attached report discloses the circumstances under which the statement was obtained.”

The only attachment actually indicated in the response was a 5-page police report that was given directly to defense counsel. No attachment appears in the court file, and we therefore cannot tell what was included in that police report. The record reveals that Wright had made both an oral and a written statement to a police detective, who clearly would have been a State agent. Without objection, the written statement made to the detective was marked for identification and discussed in the testimony, but it was never offered into evidence. In an omnibus motion, Wright moved to suppress any unlawfully obtained confessions, statements, or admissions, but no particular confession, statement, or admission was ever identified. A pretrial hearing was held on one aspect of the omnibus motion, dealing with a medical report, but counsel never raised the issue of any statement Wright made to Hurt and at the end of that hearing expressly abandoned her motion. Although a general objection was made when Hurt was asked about his conversation with Wright, there was no suggestion, much less a claim, that Hurt’s testimony would be inadmissible because of any violation of Miranda.

5 . The State’s concession on that point is entirely justified. In State v. Hepple, supra, 279 Md. at 273, 368 A.2d at 450, we made clear that "it [is] essential that the State, in chief, make a prima facie case against the defendant” and that "[t]he mere denial by a defendant of the State’s accusation together with an assertion that he was engaged in different activities than those sought to be proved by the prosecution does not necessarily constitute ‘new matter’ entitling the State to present additional evidence on the same subject it originally sought to prove.” See also State v. Booze, supra, 334 Md. 64, at 75 n. 4, 637 A.2d at 1219: "The denial of guilt is not, in any event, new matter presented by the defendant. But even if it were, testimony that more properly is adducible in the State’s case-in-chief does not explain, reply to, or contradict it.” Judge Chasanow overlooks that principle in his dissent, notwithstanding its proper concession by the State.

6 . In Harris, the Court noted:

“Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.”

Harris, supra, 401 U.S. at 225-26, 91 S.Ct. at 645-46, 28 L.Ed.2d at 4-5. In Walder, the Court held:

“Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief.”

Walder, supra, 347 U.S. at 65, 74 S.Ct. at 356, 98 L.Ed. at 507.

7 . Judge Chasanow states in his dissent that "[i]t was only after Wright’s attorney brought out on redirect examination of Wright that Wright did not and would not have made any incriminating statements to Hurt, that the prosecutor had to call Hurt in rebuttal.” (Emphasis added.) That is simply not so. The prosecutor made clear what he intended to do during his cross-examination of Wright. The decision to hold back Hurt—who was listed as a State’s witness—until the end was a deliberate one made prior to the close of the State’s case-in-chief.

8 . Judge Chasanow’takes us to task for "totally ignor[ing]” Maryland Rule 5-613, which he regards as "directly on point.” We have not ignored the Rule; it simply has no bearing on this case. With some modifications, the Rule essentially codifies the common law principle allowing a witness to be examined about and impeached with a prior statement made by the witness that is inconsistent with the witness’s trial testimony and, if the conditions of the Rule are satisfied and the statement concerns a non-collateral matter, to offer evidence of the prior inconsistent statement. Rule 5-613 is a rule of evidence, not a rule of trial procedure. It is not a license for a plaintiff or the State to withhold critical substantive evidence that should be offered in its casein-chief and present it, improperly, as rebuttal evidence, to rebut a matter that it has introduced into the case. Neither the Rule as codified nor its common law antecedent precluded the other courts whose opinions we have cited from reaching the same conclusion we reach here.