Bradley v. State

CHASANOW, Judge. In the instant case, Gerrid Kenneth Bradley (defendant) contends that a highly prejudicial, prior inconsistent statement was improperly admitted. We agree with his contention, and because the admission of the statement was not harmless error, we shall reverse his conviction. I. Bradley was charged in Prince George’s County with kidnapping, armed robbery, use of a handgun in the commission of a felony or crime of violence, and related offenses.

A jury trial was held on December 4 and 5, 1991. At trial, the State called several witnesses including the victim, Laura Sisk. Ms. Sisk testified that, on the evening of April 1, 1991, she was approached by a man as she exited her car at her parents’ home. The man then placed a gun against her stomach, ordered her back into the car, and forced her to drive several blocks.

She further testified that after she screamed the assailant ordered her out of the vehicle, grabbed her purse, and drove off in her car. In addition to Ms. Sisk’s testimony, the State offered police testimony that ten days after the robbery the defendant was apprehended in the District of Columbia after fleeing from the victim’s car. Ms. Sisk made an in-court identification of the defendant as the assailant. There was also evidence of a pre-trial photo identification of ⁵⁹⁷ the defendant by Ms. Sisk as well as a pre-trial photo misidentification.

In order to place the defendant in Ms. Sisk’s car shortly after the vehicle was taken, the State proffered Ms. Sisk’s phone bill, which indicated that calls were placed from her car phone to a particular phone number within one-half hour of the theft. As succinctly described by the Court of Special Appeals in its unreported opinion of the instant case, the following sequence of events then transpired at trial: “The State ... called Adrian Bradley, appellant’s cousin. He testified, on direct examination, that his home phone number [matched the number on the bill] and that he had received one or two telephone calls from appellant at that number at a time that would have been after Ms. Sisk’s car had been stolen. It was at this point, over appellant’s objection, that the State elicited from Adrian Bradley that he denied telling a detective that appellant had said to him in these telephone conversations that he (appellant) had stolen a car.

Adrian Bradley also denied telling appellant in the call that he was stupid for having stolen a car. The State called Detective Sizemore as a witness who recounted interviews with both appellant and Adrian Bradley. In relating his conversations with the cousin, the detective[, over objection,] said that the cousin told him that appellant had bragged about stealing a ... car. The court instructed the jury that the testimony regarding the phone calls on the date of the offense in which appellant bragged about what he had done were to be considered only in assessing the credibility of the cousin, Adrian Bradley.” (Emphasis added).

The State was not surprised by Adrian Bradley’s denial that he told the detective the defendant had bragged about stealing the car in the phone conversation. Prior to this line of questioning, the prosecutor had approached the bench and advised the trial judge as follows: “Your Honor, I am not claiming surprise because I have had contact with this witness in the past, but Detective ⁵⁹⁸ Sizemore told me that during the course of the investigation he, of course, talked to this witness and that this witness advised the detective that the Defendant had called him that evening and admitted to taking the car and that the witness’s response to Mr. Bradley was that he was stupid for doing it. I have since confronted the witness about this and he denies that that occurred.” (Emphasis added). Notwithstanding this information, the prosecutor was permitted to question Adrian Bradley about the telephone conversations in order to lay the foundation for impeaching Adrian Bradley with his prior inconsistent statement to the detective.

Gerrid Bradley called no witnesses on his behalf to respond to the prosecution’s case. Instead, Bradley relied on cross-examining the State’s witnesses. On cross-examination, Detective Sizemore revealed that, in his interviews with Gerrid Bradley, Bradley steadfastly maintained that he paid someone $70 for the stolen automobile and that he in no way participad ed in the robbery. The detective agreed with defense counsel’s assertion that Bradley “never at any time indicated anything other than that he had not done the abduction or robbery and that stuff, but he had come into possession of this stolen car----” This formed the basis for Bradley’s defense that he was merely the purchaser of stolen property. 1 The defense also emphasized Ms. Sisk’s initial misidentification of Bradley in its closing argument to the jury, in support of its contention that this was simply a case of mistaken identity.

Ultimately, the jury convicted Bradley on all counts. After the counts were merged, the judge sentenced Bradley to 15 years for kidnapping, 10 additional years for robbery with a deadly weapon, and 20 years for use of a handgun to be served concurrent to the kidnapping sentence. Bradley appealed his ⁵⁹⁹ convictions to the Court of Special Appeals, which affirmed in an unreported opinion. Thereafter, we granted Bradley’s petition for certiorari to consider whether the State improperly used his cousin’s prior inconsistent statement for impeachment.

II

Our analysis begins with this Court’s decision in Spence v. State, 321 Md. 526 , 583 A.2d 715 (1991). The defendant in Spence was charged with burglary and armed robbery and was tried by a jury. During trial, the State asked the judge to call a court’s witness even though the State acknowledged that the witness’s testimony would exculpate, rather than implicate, the defendant. The State admitted its purpose- in calling the witness “was to get before the jury prior out-of-court statements [the witness] had made to police officers that, in fact, [the defendant] was one of the perpetrators of the burglary and robbery....” Spence, 321 Md. at 528 , 583 A.2d at 716 .

Notwithstanding defense counsel’s objection, the court called the witness. As expected, the witness denied that he told the police the defendant was one of the perpetrators. Over objection, the State was then permitted to call a police detective who testified that the witness had told him that the defendant participated in the crime. On appeal, the State argued that the extrajudicial statements, though not admissible as substantive evidence, were admissible to impeach the witness.

We did not agree, and observed the following: “It is obvious that the prosecutor’s sole reason for prevailing on the court to call [the] court’s witness was to get before the jury [the witness’s] extrajudicial hearsay statements implicating [the defendant]. The prosecutor knew that [the witness’s] testimony would be exculpatory as to [the defendant]. The inescapable conclusion is that the State, over objection, prevailed on the court to call a witness who would contribute nothing to the State’s case, for the ⁶⁰⁰ sole purpose of ‘impeaching’ the witness with otherwise inadmissible hearsay.” Spence, 321 Md. at 530 , 583 A.2d at 717 . We concluded that “[t]his blatant attempt to circumvent the hearsay rule and parade inadmissible evidence before the jury [was] not permissible.” Id. 2 We recognized the factual similarities of Spence to the decision of the United States Court of Appeals for the Fourth Circuit in United States v. Morlang, 531 F.2d 183 (4th Cir.1975).

See Spence, 321 Md. at 531 , 583 A.2d at 717 (referring to Morlang as the “leading case” on this issue). In Morlang , “the government [called] its first witness despite the fact that it was fully aware that his testimony would tend to exonerate [the defendant]____ The real purpose for calling [the witness] was apparently to elicit from him a denial that he had ever had any conversation with a fellow prisoner in which he implicated [the defendant].” Morlang, 531 F.2d at 188 . The Morlang court, like the Court in Spence , refused to “permit the use of the [impeachment] rule as a subterfuge to get to the jury evidence otherwise inadmissible.” 531 F.2d at 190 . See also Wright v. State, 89 Md.App. 604, 610 , 598 A.2d 1214, 1217 (1991) (applying Spence and explaining that “the State was setting [the witness] up as a proverbial straw man, so that on examination the State could knock [him] down with hearsay statements previously made by him”), cert. denied, 325 Md. 620 , 602 A.2d 711 (1992). ⁶⁰¹ The State argues that Spence and Morlang are inapposite to the instant case because “Adrian Bradley’s value as a witness ... was not as a vehicle to admit the prior inconsistent statement.

His substantive testimony served as important evidence showing that [the defendant] was in the stolen car within one half hour after it was stolen and that [the defendant] called Adrian from the car.” Because Adrian Bradley’s testimony substantively aided the prosecution’s case, the State maintains that the questions regarding the contents of his conversation with the defendant in no way violate Spence . The crux of the State’s argument is that, if you call a witness for a proper purpose, you may inquire into any additional relevant area for the sole purpose of opening the door for impeachment by a prior inconsistent statement. 3 We disagree. Although Spence dealt with the “calling” of a witness for the “sole purpose” of introducing, via impeachment, an otherwise inadmissible prior inconsistent statement, its rationale equally applies to the instant case. This case involves what we shall call an “independent area of inquiry.” The State called Adrian Bradley to establish that he was the defendant’s cousin, that his phone number corresponded with the number on the victim’s car phone bill (which indicated that a call was made shortly after the car was taken), and that the defendant did indeed speak with him from the car phone.

After Adrian Bradley verified all of this information on the witness stand, it was improper for the State to inquire about the contents of the telephone conversation for the sole purpose of impeaching Adrian regarding the entirely separate matter of whether or not the defendant bragged about the crime in the telephone call. The State knew that Adrian Bradley would deny that the defendant confessed to the crime, yet still questioned him concerning the alleged confession. Thus, we are led to the “inescapable conclusion ... that the State, over objection, ⁶⁰² [questioned a witness concerning an independent area of inquiry knowing it] would contribute nothing to the State’s case, for the sole purpose of ‘impeaching’ the witness with otherwise inadmissible hearsay.” Spence, 321 Md. at 530 , 583 A.2d at 717 . In accordance with the Spence rationale, we hold that it is impermissible for a party in a criminal case, over objection, to venture into an independent area of inquiry solely for purposes of “circumventing] the hearsay rule and parading] inadmissible evidence before the jury.” Spence, 321 Md. at 530 , 583 A.2d at 717 . 4 At oral argument, the State emphasized that it could find no case law drawing the independent-area-of-inquiry distinction.

We recognize that this distinction apparently has not arisen in other cases. Generally, courts look to whether the witness was called to elicit substantive evidence or whether the “primary purpose” in calling the witness was to place otherwise inadmissible hearsay before the jury through impeachment. See, e.g., United States v. Gomez-Gallardo, 915 F.2d 553, 556 (9th Cir.1990) (“[W]e are compelled to conclude that the government called Gutierrez for the primary purpose of impeaching Gutierrez’s credibility to prove the substance of the charges against Gallardo.” (emphasis added)); United States v. Hogan, 763 F.2d 697, 702 (“The prosecution ... may not call a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment testimony, for ⁶⁰³ such a scheme merely serves as a subterfuge to avoid the hearsay rule.” (emphasis in original)), corrected in part, 771 F.2d 82 (5th Cir.1985); Morlang, 531 F.2d at 190 (“The overwhelming weight of authority is ... that impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.” (emphasis added)). As noted in McCormick on Evidence: “[T]he ‘mere subterfuge’ or ‘primary purpose’ caveat focuses upon the content of the witnesses] testimony as a whole.

Thus if the witnesses] testimony is important in establishing any fact of consequence significant in the context of the litigation, the witness may be impeached as to any other matter testified to by means of a prior inconsistent statement.” (Emphasis in original). 1 McCormick on Evidence § 38, at 129 (John W. Strong ed., 4th ed. 1992). Despite the failure of other jurisdictions to recognize the distinction that we draw today, we believe it quite sound and necessary to protect a defendant’s right to a fair trial. See Jefferson-El v. State, 330 Md. 99, 105 , 622 A.2d 737, 740 (1993) (“A defendant in a criminal case has a right to a fair trial.”); Rainville v. State, 328 Md. 398, 411 , 614 A.2d 949, 955 (1992) (explaining that inadmissible evidence may have such a devastating and pervasive effect that, despite a curative instruction, it is impossible to salvage a fair trial for the defendant). Among the policies underlying the “primary purpose” and “mere subterfuge” cases is the concern that the government should not be permitted, “in the name of impeachment, to present testimony to the jury by indirection which would not otherwise be admissible.” Morlang, 531 F.2d at 189 .

In Spence , we made clear that “blatant attempts] to circumvent the hearsay rule and parade inadmissible hearsay before the jury” should not be sanctioned. 321 Md. at 530 , 583 A.2d at 717 . See also State v. Gage, 302 N.W.2d 793, 799 (S.D.1981) (“ ‘[Bjackdooring’ of hearsay is not indicative of fair trial tactics____”); Hogan, 763 F.2d at 702 (“[Sjuch a scheme merely serves as a subterfuge to avoid the hearsay rule.”); ⁶⁰⁴ Gomez-Gallardo, 915 F.2d at 556 (“The adversarial system breaks down when the defendant is prevented from defining and presenting his own case and the prosecution proves guilt by creating and then destroying its own creation.”). If, however, we permitted the State to question a witness regarding an independent area of inquiry for the sole purpose of admitting a highly prejudicial, prior inconsistent statement, when the State knows that such inquiry will contribute nothing substantive to its case, the hearsay rule and the defendant’s right to a fair trial would certainly be circumvented. Cf.

Rainville, 328 Md. at 411 , 614 A.2d at 955 . Thus, we see no reason to distinguish between the State requesting that a court’s witness be called as a way to get inadmissible hearsay before the trier of fact (i.e., Spence), and the State questioning its own witness, in an independent area of inquiry, in order to get inadmissible hearsay before the trier of fact (ie., the instant case). In both situations, the rationale of Spence dictates that a subterfuge to introduce the statements should not be permitted.

III

Today’s holding is a limited one. It simply recognizes that, in a criminal case, a defendant is denied a fair trial if the State, with full knowledge that its questions will contribute nothing to its case, questions a witness concerning an independent area of inquiry in order to open the door for impeachment and introduce a prior inconsistent statement. Of course, if the area of inquiry is not clearly independent, then the State may impeach those portions of a witness’s testimony that do not comport with the prosecution’s theory of the case. Thus, in instances where a witness’s testimony is not reasonably divisible into clearly separate areas of inquiry, the State may properly impeach any portion of the -witness’s testimony that disfavors the government’s case.

Cf. United States v. Eisen, 974 F.2d 246, 263 (2d Cir.1992) (“Here, the testimony of the hostile witnesses provided affirmative proof that was necessary to construct the Government’s case, and thus the Government was entitled to question these witnesses ⁶⁰⁵ and to invite the jury to disbelieve that portion of their accounts that contradicted the prosecution’s theory of the case.”), cert. denied, — U.S.-,-, 113 S.Ct. 1619 , 1841, 123 L.Ed.2d 178 , 467 (1993); United States v. DeLillo, 620 F.2d 939, 946 (2d Cir.) (“Monahan’s corroborating testimony was essential in many areas of the government’s case. Once there, the government had the right to question him, and to attempt to impeach him, about those aspects of his testimony which conflicted with Gorman’s account of the same events.”), cert. denied, 449 U.S. 835 , 101 S.Ct. 107 , 108, 66 L.Ed.2d 41 (1980). We are in general agreement with the United States Court of Appeals for the Seventh Circuit’s comment that, “[wjhen a government witness provides evidence both helpful and harmful to the prosecution, the government should not be forced to choose between the Scylla of foregoing impeachment and the Charybdis of not calling the witness at all.” United States v. Kane, 944 F.2d 1406, 1412 (7th Cir.1991).

When dealing with an independent area of inquiry, however, the State is not faced with these two extremes. The government can call the witness and inquire about any pertinent substantive testimony, and simply forego asking questions for the sole purpose of impeaching the witness in the clearly separate area. When it is completely unnecessary for the State to elicit neutral or unfavorable testimony, we ought not permit it to do so for the sole purpose of opening the door to the admission of otherwise inadmissible evidence under the guise of impeachment. Impeachment may be thought of as a shield; it protects a party from unfavorable testimony by neutralizing that testimony.

See 1 McCormick on Evidence § 34, at 114 (explaining that impeachment by prior inconsistent statement is based on the notion that “talking one way on the stand and another way previously is blowing hot and cold, and raises a doubt as to the truthfulness of both statements”); 6 Lynn McLain, Maryland Evidence § 607.1(b), at 37 (1987) (“Evidence which is admitted to impeach a witness comes in only to detract from the ⁶⁰⁶ witnesses] credibility and not as substantive proof of the facts being litigated.”). Impeachment should not be used as a sword to place otherwise inadmissible evidence before the jury when there is no reason whatsoever for eliciting the unfavorable testimony upon which the need for impeachment is predicated. Cf . State v. Kidd, 281 Md. 32, 47 , 375 A.2d 1105, 1114 (stating, in the somewhat analogous situation concerning the admissibility of evidence obtained in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), that “[t]he prosecution is not permitted ... to impeach an issue which it first solicited on cross-examination”), cert. denied, 434 U.S. 1002 , 98 S.Ct. 646 , 54 L.Ed.2d 498 (1977).

We wish to emphasize that our holding is not applicable where there is no clearly independent