Blair v. State

HOLLANDER, Judge. This case arises out of the murder of Edward Fissell, who was shot and killed outside his home in Baltimore County on January 27, 1997. Timothy Blair, appellant, John Fleig, and James Fitzpatrick were all charged with the murder. Pursuant to a plea agreement, Fleig pleaded guilty on October 15, 1997, to the charge of accessory after the murder, and he agreed to testify against Blair and Fitzpatrick.

Beginning on September 28, 1998, appellant was tried before a jury in the Circuit Court for Baltimore County. 1 Blair was acquitted of first degree murder, but he was convicted of second degree murder, use of a handgun in the commission of a felony, and use of a handgun in the commission of a crime of violence. He was subsequently sentenced to thirty years of incarceration ,for the murder conviction and to a consecutive eight year term for the felony handgun offense. The other handgun offense merged for sentencing purposes. On appeal, all of the issues raised by appellant relate to Fleig and Fleig’s attorney.

Blair presents three questions for our consideration, which we have rephrased and reordered: I. Did the court err by permitting Fleig’s lawyer to testify that Fleig’s statements to him during client interviews were consistent with Fleig’s subsequent statements to the police and with his testimony at Fitzpatrick’s trial?

II

Did the court err by permitting the State to rehabilitate Fleig’s testimony by introducing the entire transcript of his interview with the State?

III

When Fleig’s attorney testified, did the court err in refusing to permit defense counsel to review, for ⁵⁷⁷ purposes of cross-examination, the notes that Fleig’s lawyer had taken during interviews of his client? For the reasons discussed below, we shall vacate the convictions and remand for further proceedings. FACTUAL BACKGROUND At the time of the killing, Fissell was living in a trailer located on land that abuts the Back River in Edgemere. A small home is also situated on the property (collectively, the “Shore Property”).

The Shore Property served as a summer retreat for members of an extended family that included Fissell, Blair, and Fitzpatrick. Blair’s father and Fitpatriek’s father are half brothers; both were Fissell’s stepbrothers. Blair and Fitzpatrick referred to Fissell as “Uncle Eddie.” Fissell lived at the Shore Property year-round, maintaining it and supporting himself through various odd jobs. Animosity existed between Fissell and several of the younger adult members of the family, including appellant, who was about 28 years old at the time of trial.

Indeed, Blair and Fissell argued on a number of occasions. Moreover, evidence was presented at trial that some of the young adult family members had harassed Fissell and vandalized the Shore Property. Consequently, the family’s older members instituted a rule that Blair, Fitzpatrick, and the other younger adult family members could not visit the Shore Property without the older adults. Despite this prohibition, Blair and Fitzpatrick went to the Shore Property on the morning of the murder.

Mahlon Thomas lived next door to Fissell. He testified that he was awakened at approximately 1:45 a.m. on January 27, 1997, by his dog’s barking. Although it was too dark for him to see what was happening, Thomas stated that he heard a commotion outside. He then heard Fissell shout the name “Timmey,” followed by two gunshots.

Thomas’s son, Forrest, discovered Fissell’s body later that morning. According to Dr. David Fowler, a deputy chief medical examiner, Fissell had been shot once in the head and once in the neck. The gunshot wound to the neck revealed stippling, indicating that ⁵⁷⁸ the gun had been fired at close range. Fissell had also suffered various blunt force contusions and abrasions shortly before his death.

Fleig’s testimony is central to the issues raised by appellant. According to Fleig, at approximately 4:30 p.m. on January 26, 1997, he picked Blair up at a house in Dundalk that Blah-shared with his cousin, Rose Perry. The two men then drove to Essex to attend a Super Bowl party in the basement den of Fitzpatrick’s home. Toward the end of the party, Blair began to argue with Edwin Schwinn, another guest.

The argument quickly escalated into a shouting match. Fitzpatrick subsequently “put them out in the yard,” where Blair and Schwinn continued to quarrel. Soon thereafter, Blair struck Schwinn in the face, knocking him to the ground, and delivered several more blows. After the fight, Fleig, Blair, and Fitzpatrick returned to the basement.

Blair then left the den for a short time to call Fissell. The following colloquy is relevant: [FLEIG:] ... Blair came downstairs highly agitated and slammed something down on the table that had the buffet food on it and just started ranting and raving about his uncle. [PROSECUTOR:] Well, what did he say? [FLEIG:] That he had gone too far this time and he was fed up with him and he was an MF’r and they began to go on and on about some of the things that they would repeatedly say about their uncle, that he was gay and that he was worthless and he was a drunk and he was crazy and didn’t deserve to live anymore. [PROSECUTOR:] What did he say that caused him to be so agitated? [FLEIG: Appellant] said something about that Uncle Eddie had said he couldn’t go to the shore anymore and that [appellant] caused too much trouble and that his uncle had spoken to [appellant’s] father and [appellant’s] father said ⁵⁷⁹ that if there was any more problems to just call the police because he washed his hands of the whole thing, he was just tired of the fighting between [appellant] and the uncle....[ 2 ] A discussion ensued between Blair and Fitzpatrick that eventually degenerated into a series of insults about Fissell. Blair was determined to go down to the Shore Property and “get even.” According to Fleig, Fitzpatrick and Blair devised a plan whereby Fitzpatrick would bang on the door to Fissell’s trailer to lure him outside.

Blair would then “hit [Fissell] from behind over the head with a shovel or whatever they could find,” driving Fissell to the ground, and Fitzpatrick would take the shovel and decapitate him. Fleig agreed to drive Blair and Fitzpatrick to the Shore Property. He testified that he did not think either Blair or Fitzpatrick “were all that serious,” and he hoped to “diffuse the situation.” Blair rode in the front passenger seat with Fitzpatrick immediately behind him. During the fifteen-minute ride to the Shore Property, Blair and Fitzpatrick discussed their plan.

In response to a question from the State as to what comments Fleig added to the discussion, Fleig said: [T]he conversation was just going on and on, going on, rehashing — it was just rude and it was tacky, it was disgusting, I was sick of hearing about it and I said, look, you know, what if he doesn’t die right away. You can’t be doing that to that old man. I said you all just getting too disgusting [sic]. You could at least have enough respect for him to shoot him....

Blair then asked Fleig whether he had his gun with him, and began to lean toward the driver’s seat. Fleig owned a .380 Davis Semi-Automatic handgun that he ordinarily kept under the driver’s seat. Fleig reached down and grabbed the gun and held it out to Blair, who took it and tossed it around. ⁵⁸⁰ Blair then gave it to Fitzpatrick, who attempted to fire it out of the rear window. When the attempt failed, Fitzpatrick tossed the gun into the front seat and Blair picked it up.

Fleig testified that he took the gun from Blair, engaged the clip, returned it to Blair, and Blair then handed the gun to Fitzpatrick, who fired it. The plan to kill Fissell then came to include Fleig’s gun. “About a city block” from the Shore Property, Fleig turned off the car’s headlights and backed into a small enclave. According to Fleig, after the three men sat in silence “for a minute,” Blair said “let’s do it.” Blair and Fitzpatrick left the car; Fitzpatrick was holding the gun. Fleig lost sight of the men in the darkness.

Several minutes later, Fleig heard gunshots. Blair and Fitzpatrick subsequently returned to the car; Fitzpatrick still had the gun. Fleig testified that Blair “was just really hyper and full of — lot of energy. He said, did you see me, did you see me, I can’t believe we did it, we did it.... ” Fleig then began to drive back to Fitzpatrick’s home.

During the return trip, “Blair was just repeating himself, ... then he turned to his cousin, he says did you see me, did you see me, I kicked him, I knocked him down, I hit him.” Fleig stated that Fitzpatrick remained quiet. After some coaxing from Blair, Fitzpatrick gave the gun back to Fleig. Fleig claimed that he hid the gun in several places and ultimately threw it off a highway overpass. At some point during the ride, Blair threw his sneakers out of the car for fear that they had “blood or mud or something on them.” Once back at Fitzpatrick’s home, Fitzpatrick instructed Blair and Fleig to wash their hands in white wine vinegar in order to remove any gunpowder residue.

They also agreed, if questioned, to maintain that they had been together all night and had never left Fitzpatrick’s house. At 2:40 a.m., Fleig dropped Blair off at his house in Dundalk and returned home. Information surrounding the murder quickly surfaced, and the police brought Fleig in for questioning on the day of the shooting. The State elicited the following testimony from Fleig: ⁵⁸¹ [PROSECUTOR:] Did [the police] ask you if you drove Mr. Blair that night? [FLEIG:] They asked me a lot of questions about whether he had left the house and if he did, did I take him, did I know about it and things like that at that point. [PROSECUTOR:] What did you tell the police? [FLEIG:] No, no, no. [PROSECUTOR:] Were you being truthful with the police? [FLEIG:] No. [PROSECUTOR:] Did they ask you if you had an idea of who might have committed this crime? [FLEIG:] Yes. [PROSECUTOR:] What did you tell them? [FLEIG:] I didn’t tell them anything.

I told them no, I didn’t know. Fleig maintained that he was scared to tell the police the truth because Fitzpatrick had threatened his life. Blair and Fleig were later arrested and scheduled to be tried together on murder charges. After the circuit court denied a defense motion to sever the trials, Fleig agreed to cooperate with the State in the prosecution of Blair, in exchange for a plea to accessory after the murder and the State’s nol prosse of all other charges.

On September 4,1997, Fleig and his attorney, Timothy Gunning, executed a written plea agreement to this effect, which was supplemented with an “Addendum” on October 15, 1997. As part of the plea agreement, Fleig agreed to submit to a tape-recorded interview conducted by the prosecutor and detectives from the Homicide Unit of the Baltimore County Police Department concerning the events surrounding the murder (the “September interview”). He also agreed, inter alia, to wear a body wire to record conversations with Fitzpatrick, and agreed to direct police to his gun and Blair’s discarded sneakers. Neither the sneakers nor the gun was recovered, however.

Sometime after Fleig negotiated the plea agreement with the State, Fleig visited Blair, on his own initiative, at the ⁵⁸² Baltimore County Detention Center. Fleig testified that he suggested to Blair that he “cut a deal.” Appellant responded that “blood was thicker than water,” and that he was sticking to the agreed-upon alibi. On cross-examination, appellant’s counsel established that Fleig pleaded guilty on October 15, 1997, to a reduced charge and was testifying pursuant to a plea agreement with the State. Under the terms of the plea agreement, as amended, the State agreed to drop the murder and handgun charges against Fleig, and Fleig’s sentencing was postponed until after the completion of Blair’s trial.

Further, pursuant to the terms of the Addendum, the court agreed to impose a sentence of five years of incarceration, with all but eighteen months suspended, provided Fleig complied with his obligations under the plea agreement. At the request of appellant’s counsel, Fleig read the following paragraph from the agreement: If after the [September] interview the State is satisfied that the Defendant’s testimony will assist them in the prosecution of Timothy Blair and/or any heretofore unnamed eo-defendant(s) and that the contents of the taped statement are truthful, then the State will be bound by the Plea Agreement at all times thereafter unless the Defendant subsequently refuses to continue to cooperate or changes his statement or otherwise becomes untruthful. That excerpt from the agreement prompted the following line of questioning: [APPELLANT’S COUNSEL:] ... And you knew that the agreement said that the State had to be satisfied that your testimony would assist them before your murder charges are dropped, right? [FLEIG:] I would guess so, yes. [APPELLANT’S COUNSEL:] The only way to get your murder charges dropped was to assist them in the prosecution of Timothy Blair? [FLEIG:] Definitely seemed that way. [APPELLANT’S COUNSEL:] Right? ⁵⁸³ [FLEIG:] At the time I signed it, yes.

Fleig also testified about the addendum to the plea agreement, which stated: If ... the Defendant continues in full cooperation under the provisions of the [agreement], to the State’s full satisfaction, as he has to date, the State will consider recommending that any incarceration imposed upon the Defendant to be served in the Home Detention Program of the Baltimore County Detention Center.[ 3 ] He explained that he understood this language to mean that “as long as I’m not caught in a lie during my interviews with the prosecution, that they would not be so hard on me when I went to my own sentencing and I would be eligible for home detention.” Appellant’s counsel also endeavored to question Fleig about several other matters, including whether Fleig (1) knew that he was violating the law by transporting a gun in his car; (2) told police about the fight at Fitzpatrick’s home; (3) was honest when he told police on the day of the murder that he did not know who killed Fissell; (4) purposefully misled police about the location of his gun; (5) was being forthright with police about where he, Blair, and Fitzpatrick were at the time of the murder; (6) lied to the court at his bail review hearing as to whether he was at the Shore Property; and (7) would “say anything to get out of jail.” Additionally, defense counsel questioned Fleig about the September 1997 interview. The following colloquy is relevant: [APPELLANT’S COUNSEL:] Okay. My question to you is do you remember what you told [the prosecutor] when he asked you [during the September interview] the question, did you ever — did you ever suggest [Blair and Fitzpatrick] not do this? [FLEIG:] I don’t recall off hand. ⁵⁸⁴ [APPELLANT’S COUNSEL:] Let me play for you what you told [the prosecutor]. (Tape played). [APPELLANT’S COUNSEL:] Is that you on that tape, Mr. Fleig? [FLEIG:] Yes, it is. [APPELLANT’S COUNSEL:] When he asked you directly did you ever suggest that they not do this, you didn’t give him a straight answer, right? [FLEIG:] Yes. [APPELLANT’S COUNSEL:] Is that because you didn’t or because you didn’t want to give him a straight answer? [FLEIG:] No, just didn’t remember.

It was — I just — it was too close to the situation still and I was still pretty much upset over everything. At the time that tape was made, I just didn’t remember.... # * * [APPELLANT’S COUNSEL:] ... [The prosecutor] asked you why you didn’t tell the police everything that you knew when they asked you, right? [FLEIG:] I would assume so. It’s a logical question to ask someone in that position. [APPELLANT’S COUNSEL:] You have testified here today that the reason you didn’t tell the police everything you knew is your fear of James Fitzpatrick? [FLEIG:] Uh-huh. [APPELLANT’S COUNSEL:] That’s not what you told [the prosecutor] when he asked you that question on September 4th, isn’t that correct? [FLEIG:] I don’t know. Frankly, I was still suffering from shock at that point.

I had been arrested, I had been accused, I had been splattered all over the newspapers, I had lost my motion as to severed trials, now I was cutting a deal, I was still in shock. I don’t recall every single comment that was made. Luckily it was taped. ⁵⁸⁵ [APPELLANT’S COUNSEL:] Let me play you your response to that question.... (Tape played) [APPELLANT’S COUNSEL:] Conversation happens before you get into an automobile to go to Mr. Fissell’s home. [FLEIG:] Uh-huh. [APPELLANT’S COUNSEL:] So when he asked you what you were afraid of, you didn’t say it was Fitzpatrick, right? [FLEIG:] Not specifically because I knew that it was understood. [APPELLANT’S COUNSEL:] You knew it was understood? [FLEIG:] Yes, I had already told them prior to that statement that he had threatened to kill me. [APPELLANT’S COUNSEL:] Well, when he asked you specifically what you were — when he sought clarification, when he asked you what you were afraid of, you didn’t tell him Mr. Fitzpatrick, you told him that you didn’t know exactly how, what kind of trouble you were — I was in, how deep I was into it, how I was going to get out of it? [FLEIG:] Uh-huh. [APPELLANT’S COUNSEL:] So that was your fear, isn’t that true. [FLEIG:] Certainly. [APPELLANT’S COUNSEL:] Your fear was how to get out of the trouble that you were in? [FLEIG:] That was certainly part of it. [APPELLANT’S COUNSEL:] The State gave you a way out? [FLEIG:] Yes, they did.

Appellant’s counsel then proceeded to question Fleig about the “Statement of Facts” that summarized the evening prior to and the morning of the shooting, as well as Fleig’s involvement in the incident and subsequent investigation (the “Statement”). The Statement was prepared and submitted to the ⁵⁸⁶ circuit court in connection with the hearing on October 15, 1997, at which Fleig tendered his guilty plea. Fleig testified that he reviewed the Statement “briefly” and that he and his attorney, Timothy Gunning, signed it. Fleig also acknowledged that he “was present” while Gunning “went over” the Statement. 4 When appellant’s counsel confronted Fleig with the Statement, the following transpired: [APPELLANT’S COUNSEL:] Now, page 2 of your [Statement] you wrote that Fitzpatrick suggested beating Edward Fissell to death with a shovel, correct? [FLEIG:] Yes, he had made those comments. [APPELLANT’S COUNSEL:] Yeah.

Well, today you have testified that Mr. Blair was the one who suggested beating him with a shovel? [FLEIG:] He did make those comments. [APPELLANT’S COUNSEL:] Okay. ■ In [the Statement] is there any statement as to whether or not Mr. Blair suggested beating Mr. Fissell with a shovel? [FLEIG:] They both said it. . [APPELLANT’S COUNSEL:] And in [the- Statement] you say this suggestion occurred on the way down to the shore property? [FLEIG:] Huh-uh. [APPELLANT’S COUNSEL:] Prior sentence that you signed says, on the way Blair and Fitzpatrick began to talk about killing Uncle Eddie, Fitzpatrick suggested beating ⁵⁸⁷ Edward Fissell to death with a shovel. What did you mean on the way? [FLEIG:] They did talk about it on the way. Almost the same conversation at the house was reiterated in the car. [APPELLANT’S COUNSEL:] In the [Statement] you never say — mention any discussion of a shovel back at the house, isn’t that true? [FLEIG:] According to [the Statement], the first mention is — well, the statement, there’s one statement that says simply, Fleig agreed to drive them down to the shore property. Two statements later it brings up the fact that Fitzpatrick suggested beating Edward Fissell to death with a shovel.

This line of questioning led to a bench conference, at which the following ensued: THE COURT: You know, fair is fair here. He did adopt that [Statement but he didn’t prepare it. [PROSECUTOR]: Judge, I can tell you since you brought it up, we intend now based on cross examination and your comment fair is fair to introduce [the tape of the September interview] and let the jury listen to it, because he is clearly testifying he’s doing all this in response to the advice of counsel---- Now counsel is trying to suggest that this summary ... is somehow [a] flagrant lie when I think that fairly the jury should have the opportunity to listen to the taped statement.... [APPELLANT’S COUNSEL]: If there is a portion in the [recording of the September interview that is consistent with Fleig’s present testimony], they can introduce it to ⁵⁸⁸ rehabilitate him as a prior consistent statement. I don’t think the whole tape comes in but that portion. THE COURT: ... [T]he summary was for purposes of the plea, wasn’t it? [PROSECUTOR]: Exactly.

THE COURT: And so the object of that summary was to satisfy his role as an accessory after the fact. That was the point [the prosecution was] trying to make. [PROSECUTOR]: And legal— THE COURT: They had to put in the fact of this murder and his role in it. That was the only point. [APPELLANT’S COUNSEL]: Well, I think— THE COURT: I may have made mistakes already letting you go as far as you have. [PROSECUTOR]: We are going to get that out of Gunning when we call him because we are going to call him. THE COURT: See the whole point here is you are trying to impeach him with something that is inconsistent. [APPELLANT’S COUNSEL]: Right.

THE COURT: And because it’s not in there doesn’t make it inconsistent. This is what the problem is here. [APPELLANT’S COUNSEL]: I think, I think it’s also been established that omissions are, you know, when omitted is, you know, that is prime subject matter. I mean, this is— THE COURT: It can be. [APPELLANT’S COUNSEL]: — this is key to the— THE COURT: It can be. But, you know, insofar as his plea was concerned, it wasn’t necessary. ⁵⁸⁹ THE COURT: ...

Now, when it comes to omissions, my ruling is this, if it is omitted from the [Statement], it doesn’t necessarily constitute an impeachable event. If it is missing from the [September interview], it would. When appellant’s counsel resumed his cross-examination of Fleig, he confronted Fleig with the failure of the Statement to mention that Fleig: (1) pulled the gun out from under the driver’s seat; (2) made the gun operable; or (3) suggested shooting Fissell. Appellant’s counsel then attempted to impeach Fleig with excerpts from his earlier testimony at Fitzpatrick’s trial.

On redirect, the State elicited further testimony from Fleig concerning the Statement: [PROSECUTOR:] This is ... the [Statement]. [FLEIG:] Yes. [PROSECUTOR:] Did you write that? [FLEIG:] No. [PROSECUTOR:] Is that a detailed synopsis of every thing [sic] that you have ever told police or the State in this case? [FLEIG:] No. [PROSECUTOR:] Do you know who wrote that? [FLEIG:] No. [PROSECUTOR:] You signed that document? [FLEIG:] Yes. [PROSECUTOR:] Was that document for purposes of your guilty plea? [FLEIG:] I believe so. [PROSECUTOR:] And on whose advice did you sign it? [FLEIG:] My attorney’s. [PROSECUTOR:] Did you trust your attorney’s advice? [FLEIG:] Oh, yes. We will include additional facts in our discussion. ⁵⁹⁰ DISCUSSION I. Appellant’s first contention centers on the testimony of Gunning, Fleig’s attorney. On the final day of the State’s case, Fleig waived his attorney-client privilege in order to enable his attorney to testify for the State. Without objection, the prosecution called Gunning to the stand.

At that point, the court instructed the jury: As you will shortly hear, Mr. Gunning is Mr. Fleig’s lawyer. His testimony this morning is for the purpose of rehabilitating Mr. Fleig’s testimony the other day. State will ask him certain questions about — well, I’ll just let them ask the questions. You will hear them.

It’s really not being offered for the truth of it but to rehabilitate Mr. Fleig. If you think you need to rehabilitate him, I’m not suggesting that he does one way or the other. That’s for you to decide, not me. On direct examination, Gunning testified that Fleig retained him around February 1997 and that they discussed the incident on several occasions.

Subsequently, the State communicated a tentative plea agreement. Gunning advised Fleig not to pursue an agreement until after the circuit court ruled on the severance motion. Following the denial of that motion on July 7, 1997, Gunning initiated plea negotiations with the State. According to Gunning, he and Fleig reached an agreement with the State on September 4, 1997, and Gunning was present when the State conducted the September interview.

In questioning Gunning, the State sought to show that Fleig’s comments at the September interview were consistent with Fleig’s comments to Gunning during counsel’s interviews, and with Fleig’s testimony at the earlier trial of Blair’s co-defendant, Fitzpatrick. Apparently, the State wanted to establish inferentially that Fleig’s pre-trial statements to Gunning and at Fitzpatrick’s trial were consistent with Fleig’s testimony at Blair’s trial. The following testimony is at the heart of appellant’s first complaint: ⁵⁹¹ [PROSECUTOR:] During [the September 4th] interview, Mr. Gunning, is what your client told the State concerning facts of that night consistent with the initial conversations that you had with him when he retained you, whenever that was in February of 1997? [GUNNING:] Yes. [DEFENSE COUNSEL]: Objection, Your Honor. He’s asked— THE COURT: No, overruled. [DEFENSE COUNSEL]: He’s asking him to draw a conclusion.

THE COURT: No. Overruled. [DEFENSE COUNSEL]: Okay. [GUNNING:] Yes, it’s consistent. The State also sought to bolster Fleig’s credibility with the following: [PROSECUTOR:] Mr. Gunning, were you present when your client testified at the James Fitzpatrick trial? [GUNNING:] Yes, I was. [PROSECUTOR:] In substance what he said concerning the facts of that night, were they consistent with what he told you when he first — were those facts about what happened on the night of the murder consistent with what he told you when he first retained you concerning the facts of the night of the murder? [DEFENSE COUNSEL]: Objection. THE COURT: Overruled. [GUNNING:] Yes. Appellant argues that the court erred in allowing the State to adduce such “consistency” testimony from Gunning.

At oral argument, appellant indicated that he does not dispute the State’s right to call Gunning as a witness once Fleig waived his attorney-client privilege. Rather, as articulated in appellant’s brief and at argument, appellant’s objection is to the conclusory content of Gunning’s testimony. He complains that Gunning never articulated what Fleig actually said in his ⁵⁹² discussions with Gunning, and he maintains that the State invaded the province of the jury with Gunning’s general description of Fleig’s pre-trial statements as consistent. The State claims that it was proper to call Gunning to testify, because appellant previously sought to impeach Fleig with the Statement, which had been offered in connection with Fleig’s guilty plea.

Therefore, the State wanted to introduce the September interview through Gunning, in an “attempt to point out omissions from the [Statement] that may have been otherwise covered in the transcript of the [September interview].” The State posits that Gunning’s testimony properly rehabilitated Fleig by detracting from the attack on Fleig’s credibility. Both parties rely on Md. Rule 5 — 616(c)(2) to validate their respective positions. That rule provides: (c) Rehabilitation. A witness whose credibility has been attacked may be rehabilitated by: (2) Except as provided by statute[ 5 ] evidence of the witness’s prior statements that are consistent with the witness’s present testimony, when their having been made detracts from the impeachment[.] At the outset, we note that it is ordinarily within the sound discretion of the trial court to determine the admissibility of evidence.

See Conyers v. State, 354 Md. 132, 176 , 729 A.2d 910 , cert. denied, — U.S. -, 120 S.Ct. 258 , 145 L.Ed.2d 216 (1999); Hopkins v. State, 352 Md. 146, 158 , 721 A.2d 231 (1998); Sowell v. State, 122 Md.App. 222, 228, 712 A.2d 96 (1998), aff'd, 353 Md. 713 , 728 A.2d 712 (1999); see also Md. Rule 5-104(a) (stating that “[preliminary questions concern ⁵⁹³ ing ... the admissibility of evidence shall be determined by the court”); Corbett v. State, 130 Md.App. 408, 446-27 , 746 A.2d 954 (2000). Thus, we will not disturb a trial court’s evidentiary ruling absent error or a clear abuse of discretion. Conyers, 354 Md. at 176 , 729 A.2d 910 ; Hopkins, 352 Md. at 158 , 721 A.2d 231 ; Robinson v. State, 348 Md. 104, 121 , 702 A.2d 741 (1997). The Maryland Rules of Evidence, codified as Title 5 of the Maryland Rules, took effect July 1, 1994.

Chapter 600 of that title governs witnesses and, with one exception, is modeled after Article VI of the Federal Rules. See Alan D. Hornstein, The New Maryland Rules of Evidence: Survey, Analysis and Critique, 54 Md. L.Rev. 1032, 1037 (1995). “The exception, Maryland Rule 5-616, is an omnibus impeachment rule for which there is no federal counterpart.” Id.; see Lynn McLain, Maryland Rules of Evidence, in 7 Maryland Practice § 2.616.4(a), at 183-84 (1994 ed.). Section (c) of Rule 5-616 lists, but does not proscribe, methods of rehabilitation. See Md. Rule 5-616 Committee Note; McLain, supra, § 2.616.1(d), at 182.

The seminal opinion explaining the meaning and application of subsection (c)(2) is Holmes v. State, 350 Md. 412 , 712 A.2d 554 (1998). In that case, Ellouise Thompson was asked to identify the individual who shot and killed her roommate. On the day of the shooting, Thompson gave the police a written statement in which she claimed that she did not see the assailant. Two days later, however, Thompson gave a second statement, in which she identified Darían Holmes as the killer.

At Holmes’s murder trial, Thompson testified consistent with her second statement. On direct examination, she explained that, because of fear for her safety, she had initially decided not to provide the police with the killer’s identity. On cross-examination, the defense impeached Thompson with her first statement. Thereafter, on redirect, the State successfully moved Thompson’s second statement into evidence, over the defendant’s objection.

On appeal, the defendant asked the “Court to determine whether a witness’s prior consistent statement is admissible under Maryland Rule 5-802.1(b) to rebut a charge ⁵⁹⁴ of fabrication where the statement was made after a motive to fabricate arose.” Holmes, 350 Md. at 415 , 712 A.2d 554 . Maryland Rule 5-802.1(b) provides: 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: * * * (b) A statement that is consistent with the declarant’s testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive[.] In addressing appellant’s contention, the Court looked to Rule 5-802.1(b)’s federal analogue, Fed.R.Evid. 801(d)(1)(B), 6 and the Supreme Court’s interpretation of that rule in Tome v. United States, 513 U.S. 150 , 115 S.Ct. 696 , 130 L.Ed.2d 574 (1995). Holmes, 350 Md. at 418-22 , 712 A.2d 554 . The Court of Appeals explained that Tome interpreted the federal rule to require that “a prior consistent statement, introduced ‘to rebut a charge of recent fabrication or improper influence or motive’ ... [must be] made before the alleged fabrication or improper influence or motive came into existence.” Id. at 418, 712 A.2d 554 (citing Tome, 513 U.S. at 167 , 115 S.Ct. 696 ).

The Court of Appeals adopted that construction with respect to the Maryland counterpart to the federal rule. Id. at 422, 712 A.2d 554 . Accordingly, the Court of Appeals held “that, in order to be admissible under Md. Rule 5-802.1(b), a prior consistent statement must have been made before the alleged ⁵⁹⁵ fabrication or improper influence or motive arose.” Id. at 424 , 712 A.2d 554 . Applying this reasoning to Holmes’s appeal, the Court concluded that Thompson’s prior consistent statement was not admissible under Rule 5-802.1(b), because it was offered to rebut her prior inconsistent statement, not to rebut a motive to fabricate.

Id. at 424-25 , 712 A.2d 554 . Nevertheless, the prior consistent second statement was found to be admissible through application of Rule 5-616(c)(2). Id. at 427-428 , 712 A.2d 554 . The Court explained: Under Md. Rule 5-616(c)(2), a prior consistent statement is admissible to rehabilitate a witness as long as the fact that the witness has made a consistent statement detracts from the impeachment.

Prior consistent statements used for rehabilitation of a witness whose credibility is attacked are relevant not for their truth since they are repetitions of the witness’s trial testimony. They are relevant because the circumstances under which they are made rebut an attack on the witness’s credibility. Thus, such statements by definition are not offered as hearsay and logically do not have to meet the same requirements as hearsay statements falling within an exception to the hearsay rule, e.g., Md. Rule 5-802.1(b). We therefore conclude that a relevant consistent statement admitted solely for the purpose of rehabilitation is not required to meet the stringent premo-tive requirement of Md. Rule 5-802.1(b).

Turning to the circumstances of this case, the fact that Thompson made a consistent statement must be relevant to diminish the impeachment of Thompson in order for her consistent statement to be admissible under Md. Rule 5-616(c)(2). At trial, Thompson explained on direct examination that she initially was reluctant to give any statement to police because Petitioner knew that she had witnessed the murder and she was frightened for her safety. Although Thompson told one of her sons what Petitioner had done, Thompson’s first statement to the police indicated that she did not see who committed the murder. Thompson also testified that Petitioner visited her the day after the murder ⁵⁹⁶ and that the next day she told the police that Petitioner murdered the victim.

On cross-examination, defense counsel impeached Thompson with her prior inconsistent statement that she did not see who shot Harris, and during closing arguments, he further questioned the credibility of Thompson’s statement implicating Petitioner. ... Thompson’s consistent statement detracted from the impeachment by rebutting her initial inconsistent statement to police that she did not see who shot Harris. It also put in perspective that her inconsistent statement was made because she was frightened of what Petitioner would do to her. Thompson’s consistent statement therefore detracted from the impeachment by Thompson’s inconsistent statement that was elicited by defense counsel and was admissible for rehabilitative purposes under Md. Rule 5 — 616(c)(2).

Id. (emphasis added). As Holmes makes clear, Md. Rule 5-616(c)(2) does not relieve a party seeking to admit a statement under that rule of the obligation to show the statement’s relevance. As a general rule, in order for evidence to be admissible, it must be relevant.

See Conyers, 354 Md. at 176 , 729 A.2d 910 ; Williams v. State, 342 Md. 724, 736 , 679 A.2d 1106 (1996); State v. Joynes, 314 Md. 113, 119 , 549 A.2d 380 (1988); Dorsey v. State, 276 Md. 638, 643 , 350 A.2d 665 (1976). Under Md. Rule 5-401, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” In the context of Rule 5-616(c)(2), a -witness’s rehabilitative prior consistent statement is