Belton v. State

KENNEY, Judge. A jury sitting in the Circuit Court for Baltimore City convicted Tylance Belton, appellant, of various offenses arising out of a shooting and robbery with a dangerous weapon. Appellant noted a timely appeal and presents three questions for our review, which we have slightly re-worded: I. Did the trial court err in admitting into evidence an audiotape statement, given by Thomas to police, as a prior inconsistent statement or as an extrajudicial identification?

II

Did the trial court err in finding that appellant’s counsel properly informed appellant of his right against self-incrimination?

III

Was the evidence legally sufficient to establish appellant’s criminal agency? For the reasons stated below, we answer “no” to the first two questions and “yes” to the third question. FACTUAL AND PROCEDURAL BACKGROUND On March 3, 2002, at about 11:30 p.m., Howard Thomas drove with his girlfriend to the 700 block of Carey Street to buy marijuana from appellant. After purchasing the marijuana and while returning to his car, Thomas was robbed at gunpoint and shot in the chest.

Thomas returned to his car and drove to the University of Maryland Hospital, where he was transferred to the Shock Trauma Unit. The hospital reported the incident to the police, who arrived in the early morning of March 4, 2002, to investigate. Thomas, who was being treated for his injuries, could not be interviewed at that time, but the police interviewed his girl ⁶²⁷ friend and learned the location of the crime. Officers were dispatched to Carey Street, but no evidence was recovered and no witnesses were found.

The next morning, Detective Donald Bauer recovered one nine millimeter shell casing on the corner of Lanvale and Carey Streets. No other evidence was found at the site. On March 5, 2002, the police interviewed Thomas at the hospital. Detective Bauer asked Thomas if he knew who shot him.

Thomas replied that the shooter was a “person he used to hang out with on the block,” nicknamed “Ty or Tray.” Thomas explained that “he had known [Tray] for approximately two years” and that his cousin had gone to school with “Tray.” Thomas could not remember “Tray’s” full name but promised to get in contact with his cousin and inform the detective. On March 7, 2003, when Detective Bauer again visited the hospital, Thomas told him that Tylance Belton was the name of the man who shot him. Soon thereafter, the officers compiled a photo array of “six black males similar to the suspect,” and presented it to Thomas. Thomas immediately identified appellant from the photo array as the person who had shot him.

Thomas signed the photo array above appellant’s picture, indicating he was his assailant, and wrote on the back: “I know Tre by a family member and on 3/3/02 at 11:30 p.m. he shot me in my chest and took 300 dollars from me.” Appellant was arrested on March 27, 2002. A search and seizure warrant was executed for appellant’s home, but no weapon or other evidence was recovered. On April 2, 2002, Thomas was asked to provide a taped statement of his identification. In the statement, Thomas identified appellant as his shooter, and when presented with a copy of the original photo array he again identified appellant.

On April 18, 2002, a grand jury indicted appellant for attempted first and second degree murder; first and second degree assault; reckless endangerment; robbery with a dangerous weapon; robbery; two counts of use of a handgun in the commission of a felony or crime of violence; wearing, ⁶²⁸ carrying, and transporting a handgun; and possession of a handgun after a predicate felony. On October 7, 2002, a jury trial was held. At trial, Thomas testified that, on March 3, 2002, he was shot while buying marijuana in the 700 block of Carey Street. He recanted, however, his original identification of appellant, stating that now he believed Mark Bates was the shooter.

Thomas explained that he had originally identified appellant “[b]ecause, at that time, I’m thinking it was Tylance that shot me.... ” Thomas stated that he had known Bates for “two years, at the most,” and that he was “another guy that was around in our neighborhood.” Thomas testified why he had changed his mind as to the identity of his shooter: Because by then, by listening to everybody on the streets that was, you know—like I said, this had went farther, before I had got shot. We were shooting dice at one point in time. Me and Tylance had a few words where, you know, everybody thought that we was beefing. You see what I’m saying?

So when I got shot, like I told you, when I got the weed from Tylance, he went around on Harlem. You see what I’m saying? When I was going away—I mean, away from him, he was going about his business, I’m going about mine. I’m going back to my car.

Like I said, the guy tapped me on my shoulder and then he had a hood on his head. The first thing I’m thinking is that it’s him. He was about Tylance’s height and everything. But the guy Mark came to me [while in the Baltimore City Detention Center] and told me that he was the one that really did it....

Thomas continued to explain that he originally had thought the shooter was appellant and did not change his mind until Bates confessed. Yeah, honestly, deep in my heart, yeah, I thought [Ty-lance was the shooter], ‘cause that was the only person that I really had some type of—you know what I mean, like, actually, words against. That’s why I said that it had to have been [him]. ⁶²⁹ Thomas testified that the only person he told about Bates’s confession was his mother. She told him to “pray about it and do the right thing.” Thomas never called the state’s attorney or told anyone at the Baltimore City Detention Center that he had changed his mind and no longer thought appellant shot him.

The State then called Detective Bauer to the stand. Detective Bauer testified that, in a taped statement, Thomas had indeed identified appellant as his shooter. When the State attempted to offer the tape into evidence, appellant’s counsel objected because “the witness didn’t deny that he made the [earlier] statement” identifying appellant as the shooter. The court overruled the objection based on Maryland Rule 5-802.1, which provides for the inclusion of inconsistent statements as substantive evidence, and the tape was played for the jury.

Included on the tape was Thomas’s identification of appellant from the photo array and the following statement, in pertinent part: On March the 3rd around 11 o’clock, I had went up on Lanvale and Carey to go cop some weed, and as I got out the van that I had, I approached two other friends that I knew. One was Tylance.... And I had got some weed from them and everything, and as I was leaving, Tylance had pulled out the gun and asked me for the weed and my money. I thought he was playing, as he was waving it around in my face, and I was trying to walk off, but by the time I walked off, he shot me in my chest.

I fell to the ground, and he came over the top of me, went in my pockets, took my money, took his weed back, and just left me lying there. Detective Bauer testified that it was not until the morning of October 5, 2002, just two days before trial, that Thomas called and told him that “Tylance was not the person that shot [me].” Thomas told him the “real” shooter and appellant had similar descriptions, but Thomas did not provide Detective Bauer with Mark Bates’s name. Finally, the detective explained that, upon conferring with the prosecutor, it was decided that no investigation would be made into Thomas’s ⁶³⁰ accusation that it was someone else, and not appellant, who shot him. The State then rested. ' During a bench conference, appellant’s attorney advised appellant, on the record, concerning his right to testify.

Appellant’s attorney then requested a brief recess in order to discuss the matter with appellant. After a short recess, appellant elected not to testify and presented no evidence. The jury convicted appellant of attempted second degree murder; first and second degree assault; reckless endangerment; wearing, carrying, and transporting a handgun; possession of a handgun after a predicate felony; robbery with a dangerous weapon; robbery; and two counts of use of a handgun in a crime of violence. The court merged the following convictions: first and second degree assault and reckless endangerment with attempted second degree murder; wearing, carrying and transporting a handgun with possession of a handgun after a predicate felony; and, one count of use of a handgun in a crime of violence with robbery with a dangerous weapon.

Appellant received the following sentence: thirty years for attempted second degree murder; twenty years for the use of a handgun in the commission of a crime of violence, to run concurrently with the sentence for attempted second degree murder; five years for possession of a handgun after a predicate felony, to run concurrently with the sentences for attempted second degree murder and use of a handgun in the commission of a crime of violence; and a term of imprisonment of twenty years for robbery with a dangerous weapon, to run consecutively to the other sentences. On October 17, 2002, appellant timely noted this appeal. Discussion I. The parties agree that Thomas’s audiotape statement is hearsay. 1 Appellant argues that the trial court erred in ⁶³¹ admitting the statement into evidence because it did not qualify under any exception to the hearsay rule. First, appellant contends that the recorded statement does not constitute a prior inconsistent statement because it was not inconsistent with Thomas’s trial testimony.

Second, appellant claims the statement does not qualify as an extrajudicial identification because it consisted of “far more than a mere identification of appellant.” Prior Inconsistent Statement Md. Rule 5-802.1 provides, in pertinent part: The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (a) A statement that is inconsistent with the declarant’s testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement; The rule reflects a modified modern approach developed by the Court of Appeals in Nance v. State, 331 Md. 549 , 629 A.2d 633 (1993). The Nance Court explained: As the earlier statement is always nearer—and often much nearer—to the event in question, the memory is fresher, and the statement is likely to be more complete and more accurate. Second, the modern rule eliminates the need for a limiting instruction which asks jurors to carry out the difficult task of separating substantive proof from impeachment evidence bearing solely on a witness’s credibility. Id. at 566 , 629 A.2d 633 (citing 2 McCokmick on Evidence, § 251 at 119-20 (4th ed.1992)).

Maryland courts have recognized that witnesses can be victim to memory loss and outside pressures, which may later affect their testimony. See Corbett v. State, 130 Md.App. 408 , ⁶³² 421, 746 A.2d 954 (2000) (suggesting that victims may change their prospective testimony because of loss of memory, selective amnesia, or untruthfulness). In such instances, and under the circumstances set forth in Md. Rule 5-802.1, statements made prior to trial can have probative value. Here, the requirements of Rule 5-802.1 are satisfied.

Thomas testified at trial and was available for cross-examination. He made a statement to the police prior to trial that was tape recorded “in a substantially verbatim fashion.” Furthermore, and contrary to appellant’s contention, his recorded statement to the police was inconsistent with his trial testimony. In the earlier statement, Thomas told Detective Bauer that Tylance Belton was the shooter and identified appellant’s picture in a photo array. At trial, Thomas testified that, although he originally thought Belton was the shooter, he was mistaken; based upon the alleged confession of Mark Bates, Thomas now believed that Bates was his shooter.

Black’s Law Dictionary defines a prior inconsistent statement as “[a] witness’s earlier statement that conflicts with the witness’s testimony at trial.” Black’s Law Dictionary 1212 (7th ed.1999). A witness’s motive or reason for changing his testimony is not relevant to whether a statement is inconsistent. See Nance, 331 Md. at 569 , 629 A.2d 633 (suggesting that the gravamen of admitting a prior inconsistent statement is tri-fold: that the declarant testify about personal knowledge of the facts, that the statement be reduced to writing, and that the declarant be subject to cross-examination). Thomas’s earlier identification of appellant as the shooter was inconsistent with his trial testimony that Bates shot him.

Recognition or acknowledgment by the witness of the inconsistency in the prior statement, and explanation of it, does not render the prior statement consistent with the present testimony. Prior Extrajudicial Identification Thomas’s recorded statement was also admissible under the extrajudicial identification exception to the hearsay rule. Rule 5-802.1 states, in pertinent part: ⁶³³ The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement