Carr v. State

Smith, J., delivered the opinion of the Court. We granted the pro se. petition of Larry Tyrone Carr (Carr) for the writ of certiorari in order that we might determine whether under the facts and circumstances of his criminal trial he had a right to obtain and use the written statements of a State’s witness for purposes of cross-examination or impeachment. We conclude that he did. The decision of the Court of Special Appeals in Carr v. State, 39 Md. App. 478 , 387 A. 2d 302 (1978), was to the contrary.

Carr was convicted by a Baltimore City jury of assault with intent to murder, robbery with a deadly weapon, and use of a handgun in the commission of a crime of violence. Pursuant to Maryland Rule 828 g the parties have agreed to a statement of facts. The facts related here basically are gleaned from that statement. The victim, Kirk McCall (McCall), testified that he went home to obtain the necessary funds when he and two companions, Raymond Oliver and Larry Lewis, decided to purchase some narcotics.

When he rejoined Oliver and Lewis, Carr was also present. McCall related subsequent events, including the production of a gun by Carr, a demand by Carr for money, the striking of Carr in the face by McCall with a cane, the shooting of McCall, and the extraction by Carr of money from McCall’s pocket. Carr claimed that he was not with McCall on the night in question, although he could not remember his exact whereabouts. He produced two witnesses in support of this testimony, Norman Johnson and Marion Harris.

Johnson asserted he was in the vicinity when the shooting of McCall took place. He saw McCall lying on the ground immediately after the shooting. He observed a man who “stood over top” ⁴⁵⁷ of McCall immediately thereafter. Johnson stated he saw no one else near the victim.

He was “positive” that he did not see Carr that night. Harris claimed to have been with Johnson and to have seen McCall some two or three minutes before the shooting when McCall and another man walked past them. He said he had known Carr prior to the night in question but Carr was not McCall’s companion. He did not see Carr anywhere in the neighborhood on that night.

The State called Oliver in rebuttal. Although his testimony is said to have differed from McCall’s in several details, his version of the events was largely corroborative of McCall’s, including a specific identification of Carr as McCall’s assailant. Oliver testified on cross-examination that on the morning after the shooting he gave a signed statement to the police in which he specifically referred to Carr. When Oliver was asked if he “personally observe[d] Mr. Carr, the assailant standing over the victim,” he equivocated in his answer by saying that he “wanted to get out of the way [; he] went across the street and laid beside the car.” Oliver then went on to say: I heard Mr. McCall hollering, “Somebody help me.” When I tried to stand up beside the car, that’s when I ain’t seen nobody.

I didn’t see nobody at all. Then I just picked my crutches — grabbed one of my crutches and stood up and went across the street and tried to assist him as best I could. To a question as to whether he saw Lewis, Oliver replied that “Lewis had left too.” The record then reflects: Q. You didn’t see the assailant, he was no longer around? A.

(No verbal reply; the witness indicated in the negative.) Q. So it is your testimony then that after Mr. McCall gave the money back to the assailant, Mr. McCall then struck the assailant with his cane? A. Yes, he did. ⁴⁵⁸ Q. And as he struck the assailant with his cane he was shot, is that correct? A. Yes. Q. All right.

Do you know personally that Mr. McCall was shot in the back? A. Yeah, I know he was shot in the back. Q. Do you recall in your statement to the police on May 27th, 1975 a statement that the assailant was standing over the victim? THE COURT: Pardon me?

MR. FLEISCHMANN: Objection, Your Honor. That statement is not in evidence. THE COURT: Sustained, If you want to use the statement you’ve got to quote from it, sir.

You can’t paraphrase it. If you’re asking him whether he said something, you have to tell him what he said first, if you’re going to use that statement. Yes? A conference out of the hearing of the jury then took place.

As the Court of Special Appeals put it: Defense counsel responded by stating that although he had information as to the statement’s contents, he did not have a copy. When he asked the court to require production of the statement the court refused ruling appellant was entitled to the statement only if it were exculpatory; and he was not entitled to the statement if it were only inconsistent. The court did note that the prosecutor could voluntarily furnish counsel with a copy but the prosecutor refused commenting, “It's too late for that crap.” [ 39 Md. App. at 480 .] The agreed statement of facts states: On three occasions after the trial judge’s ruling, petitioner’s trial counsel asked, and Oliver answered, questions as to whether Oliver’s statement to the police included specified language. Petitioner’s trial ⁴⁵⁹ counsel did not ask the trial judge to examine the statement in camera, nor did he request that the statement be made part of the record.

The State’s attorney said in his opening argument to the jury: Mr. Oliver was called by the State as a rebuttal witness to rebut the fact that the defendant said, “I couldn’t remember. I wasn’t there, never saw Kirk McCall.” If ever there were two witnesses in diametric opposition, it is the defendant’s testimony and that of Mr. Oliver. Mr. Oliver told you point blank that he was no lily white pillar of the community. He’s a man who’s committed one or two crimes in his time.

But that doesn’t mean he is going to come in here and directly perjure himself. He told you what happened just the way it did happen. He commented in the closing argument: The evidence I submit clearly and unequivocably puts that burden on you to return a conviction on both of the charges for which he is charged on that evidence. Mr. Oliver knows him and knows him well.

I submit to you that on the evidence and the identifications in court, Mr. Oliver knowing, in fact, the defendant for some period of years, off and on, seeing him around in the street, various clothing, when he first knew him he didn’t have a beard and a goatee, afterwards he did, that on that evidence alone, if none other, the defendant is clearly guilty beyond any reasonable doubt and to a moral certainty, and I submit to you, in the words of Edmund Burke, an English philosopher about the time of the Revolutionary War, which gave us this great country we have, I would like to leave you with one of his quotes, and it is this, “That all that is ⁴⁶⁰ necessary for the triumph of evil is for good men and women to sit and do nothing.” I thank you very much for your time and attention. Jencks v. United States, 353 U. S. 657 , 77 S. Ct. 1007 , 1 L.Ed.2d 1103 (1957), is a landmark case insofar as discovery in criminal matters is concerned. Jencks had filed an affidavit with the National Labor Relations Board stating that he was not a Communist. In a subsequent trial the issue was whether he had been a member of the Communist Party and thus had filed a false affidavit.

After two government informants had testified against him, Jencks moved for an order directing the Federal Bureau of Investigation to make its reports available to him. The government opposed the motion on the ground that Jencks had failed to make “a preliminary foundation ... of inconsistency between the contents of the reports and the testimony [of the witnesses].” Id. at 666 . The trial judge refused to grant the motion, an action that was affirmed on direct appeal. The Supreme Court saw two parts to the problem, whether Jencks had a right to see the statements at all, and, if so, how he should go about obtaining them.

The Court noted that the issue was not whether the statements were admissible, but whether they were subject to a disclosure order, stating, “ ‘For production purposes, it need only appear that the evidence is relevant, competent, and outside of any exclusionary rule____’ [Gordon v. United States,] 344 U. S. [414] at 420 [, 73 S. Ct. 369 , 97 L.Ed. 447 (1953)].” Id. at 667. It then went on to say: The crucial nature of the testimony of Ford and Matusow to the Government’s case is conspicuously apparent. The impeachment of that testimony was singularly important to the petitioner. The value of the reports for impeachment purposes was highlighted by the admissions of both witnesses that they could not remember what reports were oral and what written, and by Matusow’s admission: “I don’t recall what I put in my reports two or three years ago, written or oral, I don’t know what they were.” Every experienced trial judge and trial lawyer ⁴⁶¹ knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory.

Flat contradiction between the witness’ testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’ trial testimony. [Id. at 667.] The Court rejected a requirement that prior to obtaining such statements the accused must show conflict between the reports and the testimony actually given, saying that such would “deny the accused evidence relevant and material to his defense.” Id. at 667. It added that such a requirement “would be clearly incompatible with [its] standards for the administration of criminal justice in the federal courts and must therefore be rejected.” Id. at 668. Mr. Justice Brennan said for the Court: We now hold that the petitioner was entitled to an order directing the Government to produce for inspection all reports of Matusow and Ford in its possession, written and, when orally made, as recorded by the F. B. I., touching the events and activities as to which they testified at the trial.

We hold, further, that the petitioner is entitled to inspect the reports to decide whether to use them in his defense. [Id. at 668.] The Court specifically disapproved a “practice of producing government documents to the trial judge for his determination of relevancy ... without hearing the accused ....” Id. at 669. The decision in Jencks was not constitutionally based but involved the supervisory jurisdiction of the Supreme Court over the federal courts. Palermo v. United States, 360 U. S. 343, 350 , 79 S. Ct. 1217 , 3 L.Ed.2d 1287 (1959). 18 U.S.C. § 3500 now sets forth the standard to be followed in such matters in the federal courts. ⁴⁶² A related, but not analogous, issue was before this Court in Brady v. State, 226 Md. 422 , 174 A. 2d 167 (1961). Two people were involved in a killing.

Brady was tried first. This Court affirmed his conviction. Brady v. State, 220 Md. 454 , 154 A. 2d 434 (1959). The matter again reached here on an appeal from a denial of post conviction relief.

Brady contended that he was deprived of a fair trial by reason of the fact that the State did not disclose at or before his trial that it then had in its possession a statement of his accomplice admitting that the accomplice had actually strangled the victim. At the trial of the accomplice the State had offered the unsigned statement, which was rejected by the trial court because it was unsigned. In prior statements the accomplice had stated that Brady did the killing and he so testified at Brady’s trial. Although these prior statements were made available to Brady’s counsel before trial, the one in which the accomplice said that he had done the actual killing was neither made available prior to trial nor was it produced or offered at trial.

Chief Judge Bruñe reviewed for the Court the various theories under which this undisclosed statement might have been used. The Court “conclude[d] that the withholding of this particular confession of [the accomplice] was prejudicial to the defendant Brady,” further observing, however, that if the “withheld confession had been before the jury, nothing in it could have reduced the appellant Brady’s offense below murder in the first degree.” For that reason it did not grant a new trial on guilt but held Brady was “entitled to have a jury impaneled to determine whether the finding already made of guilty of murder in the first degree should or should not be modified by the addition of the words ‘without capital punishment’ ....” Brady was not satisfied with what amounted to a new trial on the issue of punishment only. Accordingly, he sought and obtained further review by the Supreme Court. Brady v. Maryland, 373 U. S. 83, 86 , 83 S. Ct. 1194 , 10 L.Ed.2d 215 (1963).

That opinion states: Prior to the trial petitioner’s counsel had requested the prosecution to allow him to examine Boblit’s extrajudicial statements. Several of those ⁴⁶³ statements were shown to him; but one dated July 9,1958, in which Boblit admitted the actual homicide, was withheld by the prosecution and did not come to petitioner’s notice until after he had been tried, convicted, and sentenced, and after his conviction had been affirmed. [Id. at 84.] The fact of the request by counsel for examination of these statements cannot be gleaned from the opinion of this Court. The Supreme Court said it agreed with this Court that “suppression of this confession was a violation of the Due Process Clause of the Fourteenth Amendment.” It went on to “hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87 . Giglio v. United States, 405 U. S. 150 , 92 S. Ct. 763 , 31 L.Ed.2d 104 (1972), involved a forged check scheme.

An accomplice testified against Giglio at Giglio’s trial. He denied on cross-examination that he had been promised immunity if he implicated someone else. It was later learned that such a promise had been made. In holding that Giglio had been denied due process, Chief Justice Burger said for a unanimous Court: Here the Government’s case depended almost entirely on Taliento’s testimony; without it there could have been no indictment and no evidence to carry the case to the jury.

Taliento’s credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it. [Id. at 154-55.] While Brady v. Maryland and Giglio , among other cases, established that the prosecution was under a duty to disclose to the defense information favorable to it, questions remained as to the extent of the duty to disclose. A particularly perplexing issue was that of “materiality,” i.e. how to ⁴⁶⁴ determine when the non-disclosure by the prosecution so damaged the defendant’s case that his right to a fair trial was violated and a new trial warranted. Compare Giles v. Maryland, 386 U. S. 66 , 87 S. Ct. 793 , 17 L.Ed.2d 737 (1967), with State v. Giles, 239 Md. 458 , 212 A. 2d 101 (1965) (information concerning mental stability and sexual habits of prosecutrix in rape case: this Court (with dissent) found it not material; Supreme Court (with dissent) found a slightly more ample record to indicate non-disclosure was material). This issue was addressed in detail by the Supreme Court in United States v. Agurs, 427 U. S. 97 , 96 S. Ct. 2392 , 49 L.Ed.2d 342 (1976).

At issue in that case was the contention of the defendant in a murder case that the prosecution should have volunteered to her the prior criminal record of the victim. She claimed it evidenced his violent character which might have given credence to her claim that she acted in self-defense. The Court held “that the prosecutor’s failure to tender [the victim’s] record to the defense did not deprive respondent of a fair trial as guaranteed by the Due Process Clause of the Fifth Amendment.” Mr. Justice Stevens said for the Court in Agurs that the rule of Brady “arguably applies in three quite different situations,” each of which “involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.” Mooney v. Holohan, 294 U. S. 103 , 55 S. Ct. 340 , 79 L. Ed. 791 (1935), and Giglio were said to typify the first situation, that where “the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury.” He said for the Court, “In those cases the Court has applied a strict standard of materiality, not just because they involve prosecutorial misconduct, but more importantly because they involve a corruption of the truth-seeking function of the trial process.” The second type of case was regarded as illustrated by Brady and “is characterized by a pretrial request for specific evidence.” The same test of strict materiality developed in the Giglio type cases applies. The Court said, “A fair analysis of the holding in Brady indicates that implicit in