Butler v. State

CATHELL, Judge. Appellant, Maurice Thomas Butler, and three others were charged by criminal indictment with numerous drug-related offenses. Following a three-day trial, a jury in the Circuit Court for Prince George’s County found him guilty of the distribution of cocaine, possession of cocaine, and conspiracy to distribute cocaine. Appellant was sentenced to two concurrent twelve-year sentences for the distribution and conspiracy charges; the court merged the possession charge with the distribution charge.

This appeal follows, in which appellant presents these questions for our review: 1. Did the lower court err in sustaining the [Sjtate’s objections to proper cross-examination and in refusing to require the [Sjtate’s witness to give his notes and written report to defense counsel for purposes of cross-examination? 2. Did the lower court err in admitting hearsay testimony not coming within any recognized exception to the rule prohibiting hearsay? STATEMENT OF FACTS 1 In August and September of 1994, the Prince George’s County Police Department, in coordination with the Federal Bureau of Investigation, ran Operation Hornet.

The Operation focused on high priority drug areas within the County, as identified by citizens’ complaints. One such location was the 4400 Club, named, appropriately, because it is in the 4400 block of Rhode Island Avenue in the Hyattsville-Brentwood area. ³⁴⁹ According to his own testimony, FBI Special Agent Raymond Bloomer Jr. was in charge of the Operation at that location. He testified that, on September 1, 1994, he began his surveillance of the area at 6:00 p.m., and it continued for about one and a half hours. During that time, he observed what he believed to be, based upon his training and experience, drug-related activity.

Eventually, the Agent’s attention focused upon appellant and three others, all of whom he believed to be working in concert. In particular, the Agent observed Ward meeting with the three others, including appellant, at different times and places prior to the later purchase of narcotics by an undercover officer. To confirm his suspicions, Agent Bloomer called upon Prince George’s County Police Detective Paul Owens to attempt an undercover purchase of drugs. Detective Owens testified that he, accompanied by another detective, drove their car through the parking lot of the 4400 Club, but were not approached.

The detectives circled the block and, on their second pass, were approached by Ward, who asked Detective Owens what he wanted. Detective Owens knew this to mean that Ward was asking what kind of drugs he wanted to purchase and in what amount. The Detective responded that he wanted a “fifty,” which, according to the Detective, is the “street” terminology for fifty dollars worth of cocaine. Ward directed the detectives where to wait and indicated that he would return momentarily.

At that point, Ward walked up the street, turned a corner, and was out of the Detective’s sight. When he returned, two to three minutes later, he handed Detective Owens two sealed baggies containing two rock-like substances, which the Detective believed to be cocaine. Owens handed Ward two twenty-dollar bills and one ten-dollar bill, the serial numbers of which had previously been recorded by the FBI. Having completed the transaction, the detectives left the area and radioed awaiting officers Ward’s description.

Five minutes later, Detective Owens was called back to the scene to identify Ward as the individual who had sold him the suspected cocaine. ³⁵⁰ Detective Joseph Espinosa, also of the Prince George’s County Police Department, testified that he observed Ward approach appellant in the middle of the street and pass currency to him. The Detective then observed both men walking toward the 4400 Club. Detective Espinosa testified that, when he exited his vehicle to effectuate the arrest, and announced the police presence, Ward took flight. Appellant did not flee; instead, he walked into the club.

After chasing Ward and aiding in his arrest, Espinosa also went into the club. He thereupon searched appellant, but found no currency, beeper, baggies, or drugs in his possession. In his defense, appellant called Rose Delaney, his neighbor. She testified that, on the day in question, she saw appellant around six in the evening a short distance from the 4400 Club, called out to him, and asked him to find Anderson for her.

She then stated that she started to walk up the street, and, upon reaching the corner, observed appellant, having been arrested by police, lying on the ground. She asked him, “What you doing on the ground for?” He responded, “I don’t know. You just send me up the street. That’s all I know.” 1.

During the cross-examination of FBI Special Agent Bloomer by appellant’s trial counsel, the following exchange occurred: Q What was Mr. Butler wearing that day? A Mr. Butler was wearing, I believe it was black, I’m not positive. Q [Do] [y]ou have any notes with you today that you made during your observations? A Yes, I do.

Q Perhaps we can ask the Agent to look at them. Perhaps I can look at them as well when he’s finished. A (The witness complied) This does not say what he was wearing. [APPELLANT’S COUNSEL]: Your Honor, may I approach the witness? Review the exhibit as well? ³⁵¹ [STATE’S ATTORNEY]: I object.

THE COURT: Sustained. [APPELLANT’S COUNSEL]: I think under Horne Leonard I’m allowed to look at his notes for cross-examination purposes, not on discovery, for cross-examination issues. THE COURT: On this one issue. [APPELLANT’S COUNSEL]: I think I’m allowed to look at his notes. That the notes might show something relevant for Mr. Butler. THE COURT: Sustained. [APPELLANT’S COUNSEL]: Thank you.

BY [APPELLANT’S COUNSEL]: Q You made note of important things you observed that evening, isn’t that correct? A Yes. Q Now did you have any—did you take any photographs of the important observations that you made? A No, I did not.

Q ... But you did have pen and paper with you? A Yes. Q And you wrote down important things?

A Yes. Q You didn’t write up any official document saying what you saw, isn’t that correct? A I did. Yes, I did.

Q What would that be? A An FD 302. ³⁵² [APPELLANT’S COUNSEL]: Your Honor, with the court’s permission, I’d ask to review the document [Agent Bloomer 2 ] wrote up. [STATE’S ATTORNEY]: I object. THE COURT: What is this thing? THE WITNESS: The FD 302 is the report form we write concerning activities that we are involved in.

THE COURT: It’s the FBI form? THE WITNESS: Yes, it is. BY [APPELLANT'S COUNSEL]: Q Did you sign that form yourself? [STATE’S ATTORNEY]: Your Honor, I’m going to object to this line. [Appellant’s counsel] is trying to get into the discovery of the FBI. She’s not entitled to that. [APPELLANT’S COUNSEL]: I think I’m trying to see what he wrote for cross-examination.

THE COURT: Sustained. It is important to note that this colloquy refers to two different writings—Agent Bloomer’s notes, made on the day of the arrest and to which he referred during his testimony in an effort to refresh his recollection, and his official FBI report, the FD 302, detailing his activities. We shall discuss each in turn. Agent Bloomer’s Notes As Judge Moylan pointed out in Baker v. State, 35 Md.App. 593 , 371 A.2d 699 (1977), it is important to keep clear the distinctions between the doctrine of present recollection refreshed, alternatively referred to as present recollection revived, and that of past recollection recorded.

In Baker , a ³⁵³ prosecution for murder, the State called the investigating officer to testify about statements made to him by the deceased victim. In its cross-examination, the defense sought to elicit testimony of events leading up to the defendant’s arrest. When the officer had difficulty recalling certain facts, the defense sought to utilize a police report, not authored by the witness but by another officer, to stimulate the witness’s recollection. Apparently having confused present recollection refreshed with past recollection recorded, the trial court forbade the use of a report authored by one officer to stimulate the memory of the testifying officer.

This, we said, was reversible error. 3 After delving into the subtleties of the two doctrines, Judge Moylan noted, with respect to present recollection refreshed, that once the witness has reviewed the memory-refreshing item, “[t]he opposing party, of course, has the right to inspect the memory aid, be it a writing or otherwise, and even to show it to the jury.” Id. at 600 , 371 A.2d 699 . See also United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233 , 60 S.Ct. 811, 849 , 84 L.Ed. 1129 (1940) (“Normally, of course, the material ... used [to refresh a witness’s recollection] must be shown to opposing counsel upon demand, if it is handed to the witness.”); 3 John H. Wigmore, Evidence § 762 (Chadbourn rev. ed. 1970) (advising that, once writing has been shown to a witness, “the writing must be shown to [the opposing party] on request ... [so that he] may expose all that detracts from the weight of the testimony”) (emphasis and footnote omitted). In Fitzwater v. State, 57 Md.App. 274 , 469 A.2d 909 (1984), at a trial for various motor vehicle offenses, the State called the arresting officer who, prior to, but not during, his testimony, referred to some notes he had previously taken. On appeal, Fitzwater argued that the trial court erred because it had not permitted his counsel to review the officer’s notes.

Applying the doctrine of present recollection refreshed, we ³⁵⁴ held that no error had been committed. This was true, we said, because at most the evidence shows that [the officer] opened his folder prior to the time he was on the witness stand. There is no rule prohibiting a witness from refreshing his recollection prior to taking the oath and testifying.... ... Since the court determined that [the officer] was not using the document to refresh his recollection [while on the witness stand], there was no reason for Fitzwater’s counsel to view it.

Id. at 285 , 469 A.2d 909 . Whether a party may use a writing or other object to refresh the failing memory of a witness lies within the sound discretion of the trial court. Askins v. State, 13 Md. App. 702, 711 , 284 A.2d 626 (1971), cert. denied, 264 Md. 745 (1972). Precisely how much of the document may be examined by defense counsel depends largely on the circumstances of the case, Contee v. State, 223 Md. 575, 581-82 , 165 A.2d 889 (1960), and is also committed to the sound discretion of the trial court.

This is to be guided, at least in part, by the relationship between the subject matter of the witness’s testimony and the document. In Contee , coincidentally, the arresting officer consulted his notebook in response to a question as to what the defendant was wearing when he was arrested. Id. at 581 , 165 A.2d 889 . Although that decision left open the scope of defense counsel’s right to cross-examine from the notebook, the Court of Appeals made clear that the adverse party’s opportunity to examine the document was as of right.

Id. The doctrine of present recollection refreshed, as developed by our common law, is now embodied in Maryland Rule 5-612. It regulates the use of a writing or other item by a witness to refresh his or her memory while testifying. That Rule reads: If, while testifying, a -witness uses a writing or other item to refresh memory, any party is entitled to inspect it, to examine the witness about it, and to introduce in evidence ³⁵⁵ those portions which relate to the testimony of the witness for the limited purpose of impeaching the witness as to whether the item in fact refreshes the witness’s recollection.

Rule 5-612 is based upon Federal Rule of Evidence (FRE) 612. One major distinction between the two, however, is that, under FRE 612, the adverse party may be entitled to examine the memory-r ^freshing document if it is used by the witness either while or before testifying. 4 Prior to codification of the evidentiary provisions of the Maryland Rules, we rejected the proposition that an adverse party was entitled to examine a document if a witness used it before, but not while, testifying. See Fitzwater, supra, 57 Md.App. 274 , 469 A.2d 909 . Rule 5-612, as subsequently adopted, is wholly consistent with our prior decisions, and, therefore, those decisions are instructive in its application.

Accordingly, we hold that, while it is within the sound discretion of the trial judge either to allow or restrict the use of an item to refresh the present recollection of a witness, once the use of an item for that purpose is allowed, defense counsel must be awarded the opportunity “to inspect it, to examine the witness about it, and to introduce in evidence those portions which relate to the testimony of the ³⁵⁶ witness for the limited purpose of impeaching the witness as to whether the item in fact refreshes the witness’s recollection.” Rule 5-612. In the case sub judice, once the trial court allowed the witness’s memory to be refreshed, it was error not to allow inspection of the memorandum by defense counsel. That Agent Bloomer’s notes did not, in fact, refresh his recollection as to what appellant was wearing on the day in question is of little significance. Assuming arguendo that the notes indicated that appellant was wearing a white shirt and blue jeans, if such a notation had not refreshed the Agent’s present recollection, he would have been obliged to so state.

In such a case, defense counsel would have been entitled to inspect the notes, find such a description, use it to impeach Agent Bloomer’s present recollection of the happenings, and even offer that portion of the notes containing the description into evidence for purposes of impeachment. Without the opportunity to inspect the notes for the presence of such a description, the impeachment of an important adverse witness might not be possible, thus thwarting the purpose of the Rule. The FD 302 In Carr v. State, 284 Md. 455 , 397 A.2d 606 (1979), the Court of Appeals “first held that at trial, upon request, defense