Collins v. State

BLACKWELL, Judge. Pursuant to the automatic review provisions of Maryland Code (1957, 1987 Repl.Vol., 1988 Cum.Supp.), Article 27, § 414(a), appellant, Kenneth Lloyd Collins (Collins), directly appeals from his convictions of murder in the first degree, use of a handgun in the commission of a felony and robbery with a dangerous or deadly weapon. The jury imposed a sentence of death. We shall affirm both the conviction and the sentence.

Facts During the early evening hours on December 7, 1986, Wayne Leander Breeden (Breeden) was brutally and sav ²⁷³ agely shot to death at close range. His body was found on the sidewalk outside a townhouse at 8502 Arry Place in Parkville, Maryland. Breeden was bludgeoned with the butt of a gun during the course of a robbery and was shot after attempting to stagger away from the scene. His death was immediate.

The sole motivation for the murder was to take the $80.00 in cash that Breeden had on his person. Breeden had been in the process of completing several errands. He had first stopped to withdraw money from an automatic teller machine. From there he was to deliver a box of bathroom tiles to Mary and Kenneth Johnson, who rented a townhouse from Breeden at 8514 Arry Place.

Finally, he intended to pick up a pizza and return home. Baltimore County Officer Ronald Kuhns (Kuhns) had been dispatched that evening to Old Harford Road to investigate a call made by a police lieutenant, Richard Koller (Koller). Lieutenant Koller informed Kuhns that he had heard at least two gunshots fired from the direction of Tommy True Court and Arry Place. Officer Kuhns proceeded to the area and was immediately approached by a young man, Timmy Kaufman (Kaufman), who said that someone was hurt and in need of assistance.

Kaufman’s mother had noticed a man’s body lying in front of their residence at 8502 Arry Place. Koller informed Kuhns that he observed a shiny foreign automobile proceed around the rear of the house, “turn around quickly, came back out with its lights off ..., picked up someone and sped at a high rate of speed southbound on Old Harford Road with its lights off.” 1 Koller noticed the very distinct taillights, the vehicle ²⁷⁴ tag number was NEW-672, and the car was possibly a Toyota. At the murder scene, police identified the victim’s money clip and glasses, which were lying adjacent to the body, as well as a receipt for $80.00 from the automatic teller machine dated 12-7-86. His car was parked in front of 8514 Arry Place.

Ceramic tiles were found scattered throughout the grounds. Dirt was found on the front porch of 8510 Arry Place. The flower garden there appeared to be out of order. Human blood substances were found on both the porch railing at 8510 and the sewer cover in front of 8502.

A stipulation was entered into evidence that analysis of the substance found on the sewer cover confirmed its identification as human blood, but it could not be typed. There was not enough of the substance on the railing to conduct laboratory analysis. Dr. John Smialek, Chief Medical Examiner for the State of Maryland, reviewed the autopsy report of Breeden as written by Dr. Gregory Kaufman. * 2 The autopsy report revealed the cause of death was a gunshot wound that had entered the right lower back area. A “missile” was recovered from the left side of the front of his abdomen.

The pattern of the gunpowder residue on Breeden’s skin and jacket indicated that the weapon was held less than six inches from the body when fired. An extensive laceration consistent with “pistol whipping” was found on the right side of Breeden’s head. Dr. Smialek classified this head injury as a superficial injury to the outside of the bone of the skull underneath a rectangular laceration. The injury ²⁷⁵ “would have most likely stunned him.

But it would not necessarily have rendered him unconscious. He would have been in all likelihood able to continue after he recovered from the pain of the injury____” There were abrasions to both of the victim’s knees. The examiner testified that the body was rolled over while on the ground. Lieutenant Roller further attested to his investigation following the murder.

Roller had drawn a sketch of the unique taillights observed of the foreign vehicle speeding from the scene. On December 8, 1986, he took the diagram to several neighborhood car dealerships. At Nationwide Toyota, Roller spoke with a salesman concerning the diagram. He noticed a Toyota Célica on the lot which matched the shape and size of the car seen the previous evening.

After proceeding to the Parkville Police Station to get a camera, Roller returned to Nationwide and spotted a beige Célica with tag number NCS-623. He began photographing the car believing it was the same car observed at the murder scene. Roller gave the photographs to the police and the tags were traced to Tony Michie (Michie). Michie testified that he would occasionally “hang out” with Collins.

In October, 1986, the two had a discussion concerning ways to obtain money illegally. Michie needed money to support a drug habit which included “free base cocaine.” Michie had use of a vehicle which could be used for getaway purposes. He was also in default on car payments and was being threatened with repossession. Thus, Michie approached Collins for the purpose of discussing a robbery scheme.

Their plans were carried out on December 7, 1986. Collins retrieved a .38 caliber revolver and a sawed-off rifle. They placed the rifle in a bag and appellant put the handgun in his waistband. According to Michie, the two then proceeded to find a “promising” location for the rob ²⁷⁶ bery. 3 After deciding that a restaurant and a hardware store were inappropriate, they decided to follow a car and to rob the occupants.

They stopped briefly at a “7-Eleven” store near 33rd Street and Hillen Road. Collins noticed several individuals, withdrawing money from a nearby automatic teller machine. Breeden was followed from the time he used the bank machine until he reached the townhouses on Arry Place. Collins attacked Breeden.

They “clenched” and began wrestling. Collins hit Breeden on the top of the head using a “chopping motion.” The gun went off shortly thereafter. After Collins frantically returned to the car, he stated, “I only shot him in the butt, so he ain’t dead.” Michie testified that Collins insisted “he bucked and I had to bust him.” This same response was relayed to Collins’ sister who observed the wallet and questioned whether she could use the credit cards. During the course of the homicide investigation, Michie made three statements to the police.

On December 10, 1986, he told the detectives that he would speak to them again after consulting with his attorney. Six months later, Michie informed the police that Collins was the triggerman and gave them appellant’s name and address. A more detailed written statement implicating Collins was given on November 18,1987. Michie later agreed to plead guilty to a second degree murder charge and use of a handgun in a crime of violence. 4 Michie gave his third written statement on March 2, 1988 in which he admitted that he had not been completely truthful in his November 18, 1987 statement. ²⁷⁷ He again, however, implicated Collins as being the trigger-man.

Rodney Bennett, Michie’s cousin and roommate, testified concerning a conversation with Michie on December 8, 1986 at approximately 11:00 p.m. Michie told Bennett of the robbery and murder and that homicide detectives were looking for him. Among other offenses, Collins was charged with first degree murder, use of a handgun in the commission of a felony and robbery with a dangerous or deadly weapon. The State notified appellant of its intention to seek the death penalty on September 21, 1987.

Maryland Code (1957, 1987 Repl.Vol., 1988 Cum.Supp.), Article 27, § 412(b). The case was removed from Baltimore County to the Circuit Court for Somerset County on October 27, 1987. See Maryland Rule 4-254(b)(l). Collins was convicted of the three charges listed above after a jury trial was held on March 14-24, 1988. 5 The separate sentencing procedure was conducted on May 2, 1988.

See Art. 27, § 413. The jury sentenced Collins to death. 6 Appellant immediately filed a motion for new sentence on May 4, 1988. The circuit court later held a hearing on May 27, 1988. The judge denied the motion stating: The death penalty verdict in this case was not the consequence of an ‘aberrant jury,’ the danger against which the Supreme Court sought to protect in the case Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976).

In Tichnell [v. State], 297 Md. [432] 460, 468 A.2d 1 (1983) our Court said ‘It is thus clear that the essential principle underlying the varieties of proportional review— is, in short, the guarantee that death sentences will be imposed in a reasonably consistent manner.’ Here the ²⁷⁸ jury reached the conclusion directed by the legislature in Article 27, Section 414, when it found no mitigating circumstances existed to the felony murder of Wayne Breeden. Thus, the Court finds that the jury’s verdict was authorized by the statute and was not disproportionate given the facts of the case. No murder could have been more heinous, more premeditated and deliberate than Breeden’s. This appeal is brought pursuant to the automatic review provisions of Art. 27, § 414(a).

See Md.Code (1974, 1984 Repl.Vol., 1989 Cum.Supp.), Courts and Judicial Proceedings Article, § 12-307(4). I. Prosecutor’s Closing Argument Collins maintains that the prosecutor’s comments in closing argument concerning the legal corroboration of the accomplice’s testimony constitute reversible error. The disputed rebuttal argument stated: Mrs. Williams: ... The judge also instructed you that the corroboration, the legal corroboration required, needs only be slight.

And that corroboration, ... comes in the form of Jeff Gardner. Mr. Tayback (defense counsel): Objection. The Court: What is the objection? Mr. Tayback: That is a misleading statement as to the corroboration that is necessary to find Mr. Collins guilty in this case.

The following colloquy occurred after counsel approached the bench: The Court: ... who is Jeff Gardner? Mrs. Williams: The guy in the van that sees two black males leaving the scene of the crime. The Court: He corroborated what the man said about Tony [the accomplice] almost hittiiig the' vehicle. Mrs. Williams: He also provides legal corroboration. ²⁷⁹ The Court: Yes.

Mr. Tayback: I disagree. When you look at the law on corroboration, it says it must identify the accused with the crime. Mrs. Williams: It certainly would. The Court: I am going to overrule the objection.

In Wilhelm v. State, 272 Md. 404 , 326 A.2d 707 (1974), we noted the general rule that “counsel has the right to make any comment or argument that is warranted by the evidence proved or inferences therefrom.... ” Id. at 412 , 326 A.2d at 714 . This rule has been applied in the context of death penalty appeals. 7 See Jones v. State, 310 Md. 569, 580 , 530 A.2d 743, 748 (1987); vacated, 486 U.S. 1050 , 108 S.Ct. 2815 , 100 L.Ed.2d 916 , remanded 314 Md. 111 , 549 A.2d 17 (1988) (“Wilhelm also recognizes that it is ‘fundamental to a fair trial that the prosecutor should make no remarks calculated to unfairly prejudice the jury against the defendant.’ ” Quoting Reidy v. State, 8 Md.App. 169, 172 , 259 A.2d 66, 67-8 (1969)). The appellate court should not interfere with the trial court’s ruling as to the permissible scope of closing argument unless there has been an abuse of discretion of a character likely to have injured the complaining party. Id. [272 Md.] at 413, 326 A.2d at 714-15 ; see also Esterline v. State, 105 Md. 629, 637 , 66 A. 269, 272 (1907).

The Wilhelm court set forth tests to be applied in determining whether particular closing argument comments constitute reversible error: [I]t is unquestionably wrong for the prosecutor in his argument to the jury to refer to any matter not testified to by the witness or disclosed by the evidence in the case. Citing Toomer v. State, 112 Md. 285 , 76 A. 118 (1910).... ²⁸⁰ The Maryland Rule is that unless it appears that the jury were actually misled or were likely to have been misled or influenced to the prejudice of the accused by the remarks of the state’s attorney, reversal of the conviction on this ground would not be justified. Quoting Wood v. State, 192 Md. 643 , 65 A.2d 316 (1949); Holbrook v. State, 6 Md.App. 265 , 250 A.2d 904 (1969). Id., 272 Md. at 415-16 , 326 A.2d at 716 .

Wilhelm also identified three specific factors to be considered. These factors are: 1) the closeness of the case, 2) the centrality of the issue affected by the error, and 3) the steps taken to mitigate the effects of the error. Id. (other citations omitted).

The rule in Maryland that a person accused of a crime may not be convicted based on the uncorroborated testimony of an accomplice is well established. State v. Faulkner, 314 Md. 630, 642 , 552 A.2d 896, 902 (1989); Turner v. State, 294 Md. 640, 642 , 452 A.2d 416, 417 (1982). See, e.g., Brown v. State, 281 Md. 241 , 378 A.2d 1104 (1977); State v. Foster, 263 Md. 388 , 283 A.2d 411 (1971), cert. denied, 406 U.S. 908 , 92 S.Ct. 1616 , 31 L.Ed.2d 818 (1972). This rule has essentially remained unchanged.

In Brown, supra, Chief Judge Murphy reasoned for the Court: Not much in the way of evidence corroborative of the accomplice’s testimony has been required by our cases. We have, however, consistently held the view that while the corroborative evidence need not be sufficient in itself to convict, it must relate to material facts tending either (1) to identify the accused with the perpetrators of the crime or (2) to show the participation of the accused in the crime itself 281 Md. at 244 , 378 A.2d at 1107 (emphasis added); see also Wright v. State, 219 Md. 643 , 150 A.2d 733 , cert. denied, 361 U.S. 851 , 80 S.Ct. 112 , 4 L.Ed.2d 90 (1959). Brown held that the accomplice’s testimony was adequately corroborated under the circumstances. “There was testimony from the appellant’s mother and daughter, and from the appellant herself, of material facts independent of the accom ²⁸¹ plice’s testimony that tended to show that the appellant was either identified with the perpetrators of the crime or participated in the commission of the crime itself.” Id. [281 Md.] at 246, 378 A.2d at 1108 . In this case the trial judge’s instruction as to the degree of corroboration required of an accomplice’s testimony was correct.

The judge stated: In order to constitute sufficient evidence upon which a finding of guilt could be based, the testimony of an accomplice must be corroborated. By that I mean it must be supported in some way by some other independent evidence. However, such corroboration need only be slight. If there is evidence independent of the testimony of the accomplice which tends to identify the accused with the perpetrators of the crime or with the commission of the crime itself, then the testimony of the accomplice may be said to have been sufficiently corroborated.

After our review of the record, we conclude there is no question that the State presented adequate corroborative evidence for the jury’s consideration. While Gardner’s testimony in and of itself was not sufficient to substantiate Collins’ participation in the robbery and subsequent murder, it does provide further corroborative evidence tending to connect Collins and Michie to the crime. Collins was not prejudiced by the prosecutor’s references to the evidence which tended to establish legal corroboration of Michie’s testimony. The prosecutor’s argument, while not wholly accurate, does not constitute reversible error.

II

Evidence of the Accomplice’s Drug Charges Collins alleges the trial court erred when it declined to allow detailed and continued interrogation regarding drug charges brought against Michie. The police had found substantial quantities of drugs in Michie’s home two days after the homicide. The judge limited evidence regarding the charges brought against Michie for two reasons: 1) ²⁸² Michie had not been convicted of possessing the drugs and 2) two other people were also in the house at the time the drugs were found. Collins argues that this evidence was admissible to demonstrate that “Michie’s motive for participating in the crime was other than the one [given on the witness stand].” If Michie had substantial quantities of drugs in his possession, it was a logical inference that he was in the business of selling narcotics.

This evidence would arguably be contrary to Michie’s testimony that he was broke and in need of money. Collins also contends the evidence was relevant to show his motive for testifying as a state’s witness. We conclude the trial judge did not commit reversible error in his ruling limiting the evidence concerning Michie’s pending drug charges. As the prosecutor revealed to the court at trial, the disposition of those charges was not part of Michie’s agreement to testify against Collins.

On appeal, Collins does not take exception to the prosecutor’s proffer. Evidence establishing Michie’s possible bias or motive for testifying was effectively before the jury from Michie, and from other sources. There was ample evidence of Michie’s drug involvement to allow the jury to assess his credibility. In addition, Michie thoroughly outlined his plea agreement with the State during his direct examination.

Under these circumstances, the decision of the trial judge to disallow further evidence of Michie’s pending narcotics charges was harmless error. See Johnson v. State, 303 Md. 487, 528 , 495 A.2d 1, 22 (1985), cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986) (“It is a fundamental rule of appellate procedure that a reviewing court will not reverse upon rulings on evidence where the ruling did not result in prejudice to the complaining party.”); see also Tully v. Dasher, 250 Md. 424, 436 , 244 A.2d 207, 214 (1968).

III

Beyond a Reasonable Doubt Jury Instruction Collins next argues the trial court’s jury instruction on the beyond a reasonable doubt standard was erroneous. ²⁸³ As part of the explanation of reasonable doubt, the trial judge added: All that is necessary is that the State prove guilt beyond a reasonable doubt, beyond a doubt based on reason. In other words, you must be reasonably certain of the guilt of the accused in order to convict. You can have some doubt and still have the finding of guilt. The proof necessary is that which you would act upon in important matters involving important affairs in your own personal lives or businesses.

Defense counsel excepted to this definition of reasonable doubt. The court then reinstructed the jury as follows: “Also in the burden of proof that the State must meet ... is proof beyond a reasonable doubt and to a moral certainty. You must be satisfied to that extent as to each element of the various charges.” Counsel maintains that the wording “reasonably certain” was misleading and significantly lowered the burden of proof. The use of the phrase “reasonably certain” allegedly conveyed “a confusing message as to a vital component of every criminal trial.” In Poole v. State, 295 Md. 167 , 453 A.2d 1218 (1983), we discussed the adequacy of a reasonable doubt instruction in a death penalty case and stated: “It is well settled that ‘when objection is raised to a court’s instruction, attention should not be focused on a particular portion lifted out of context, but rather its adequacy is determined by viewing it as a whole.’ ” Id. at 186 , 453 A.2d at 1228 ; quoting State v. Foster, 263 Md. 388, 397 , 283 A.2d 411, 415 (1971), cert. denied, 406 U.S. 908 , 92 S.Ct. 1616 , 31 L.Ed.2d 818 (1972).

In an earlier case, Lambert v. State, 193 Md. 551, 559 , 69 A.2d 461, 464 (1949), we noted that it is proper for a judge to comment or explain the meaning of reasonable doubt. “A definition is not reversible error unless, by reason of peculiar circumstances or phraseology, such an instruction misleads or confuses the jury.” Id.; see also Lansdowne v. State, 287 Md. 232, 241 , 412 A.2d 88, 92 (1980); see also Montgomery v. State, 292 Md. 155 , 438 A.2d 490 (1981). Lambert found it was not erroneous to instruct the jury ²⁸⁴ that evidence is sufficient to remove a reasonable doubt “when it convinces the judgment of an ordinarily prudent man of the truth of a proposition with such force that he would act upon that conviction without hesitation in his own most important affairs.” Lansdowne held a trial judge must give an instruction correctly explaining reasonable doubt if requested by the accused. Id. [287 Md.] at 243, 412 A.2d at 93 . The current version of the Maryland Pattern Jury Instructions replaces the “without hesitation” phrase with an amended term “without reservation” so that the jury will not confuse the degree of certainty needed with an immediacy of acting upon the certainty.

MPJI-Cr 2:02 (1987). In reviewing the instructions given as a whole in the instant case, including the reinstruction, we find that the trial judge repeatedly and properly focused on the term “reasonable doubt” as the appropriate standard of proof required. The court’s reinstruction emphasized that the State must prove each and every element of the case beyond a reasonable doubt. Counsel’s failure to except to the reinstruction is indicative of an acceptance and approval of the amended form used.

Under these circumstances, defense counsel has failed to preserve the challenge to the court’s instructions on reasonable doubt. Maryland Rule 4-325(e) provides that “no party may assign as error the giving or failing to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.” We have previously applied this rule in the context of a death penalty appeal. Mills v. State, 310 Md. 33, 68-69 , 527 A.2d 3, 20 (1987), vacated on other grounds, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988); Booth v. State, 306 Md. 172, 193 , 507 A.2d 1098, 1108-09 (1986), vacated on other grounds, 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987). See generally Young v. State, 14 Md.App. 538, 565-66 , 288 A.2d 198, 213-14 (1972) (Where there was no objection in the trial ²⁸⁵ court to a judge’s supplementary instructions to the jury, the appellant could not assign error as of right.).

IV

Prior Consistent Statements Collins avers the trial court erred when it admitted evidence of “prior consistent statements” made by the accomplice, Michie, to other witnesses. As part of its theory of the case, the State presented evidence that Michie and Rodney Bennett (Bennett) conspired to fabricate a story concerning Michie’s involvement in the homicide shortly after Michie learned that he was wanted for questioning. Bennett was permitted to testify over counsel’s objection as to alleged hearsay statements Michie made to him regarding the murder. Under Maryland law, evidence of a witness’ prior statement, consistent with the witness’ testimony as to a noncollateral matter, sometimes may be introduced if the credibility of the witness has been attacked.

See, e.g., City of Baltimore v. Zell, 279 Md. 23, 27 , 367 A.2d 14, 17 (1977); Cross v. State, 118 Md. 660, 670 , 86 A. 223, 227 (1912); Runge v. State, 78 Md.App. 23, 41 , 552 A.2d 560, 569-70 , rev’d on other grounds, 317 Md. 613 , 566 A.2d 88 (1989); Finke v. State, 56 Md.App. 450, 494 , 468 A.2d 353, 376 (1983), cert. denied, 299 Md. 425 , 474 A.2d 218 , cert. denied, 469 U.S. 1043 , 105 S.Ct. 529 , 83 L.Ed.2d 416 (1984); Thomas v. Owens, 28 Md.App. 442, 449 , 346 A.2d 662, 666 (1975); see also 6 L. McLain, Maryland Practice: Maryland Evidence § 613.2, at 168. The prior statement is admissible not as substantive evidence but in order to rehabilitate the witness’ credibility. See, e.g., Borza v. State, 25 Md.App. 391, 410 , 335 A.2d 142, 153 , cert. denied, 275 Md. 746 (1975); 4 Wigmore § 1132 (rev. 1972). We find Bennett’s testimony was properly admitted as prior consistent statements for the purpose of rehabilitating the earlier testimony of Michie concerning his initial statement to the police.

Defense counsel had impeached ²⁸⁶ Michie on the fact that his initial statement to the police did not identify Collins as his accomplice. Bennett’s testimony tended to corroborate the fact that Michie participated with Collins in the events leading to the homicide. V. Officer’s Observations in Executing Search Warrant Collins claims the trial court committed reversible error in allowing Officer Naylor to testify regarding his observations when he executed a search warrant of appellant’s home. 8 Collins had contended the warrant was invalid and that Naylor’s observations would need to have been suppressed as the fruit of an illegal search. Arizona v. Hicks, 480 U.S. 321 , 107 S.Ct. 1149 , 94 L.Ed.2d 347 (1987).

Naylor had identified a basement room as Collins’ bedroom. The trial court recognized the problem with Naylor’s testimony, but permitted him to respond under the stipulation that he not identify the room in which appellant lived. Defense counsel immediately sought a mistrial which was summarily denied. The court cautioned the jury, however, through the following instruction: [T]he comment made a moment ago by the witness, by the detective, as to where Mr. Collins may or may not have lived in that particular house, you are to ignore that.

Wipe it from your minds if it is possible to do so. Don’t consider it anymore during the trial of this case. 9 The prosecutor’s position at trial was that her only agreement prior to trial involved her not introducing any of the ²⁸⁷ objects that may have been seized pursuant to the search warrant. Contrary to Collins’ arguments, the trial court did not find that the prosecutor had violated any stipulation or agreement with the defense. In good faith, the trial court resolved the problem by striking the single reference to Collins’ bedroom.

Under these circumstances, we find the trial judge’s curative instruction was sufficient and no prejudice resulted to the defendant. As evidenced by the circumstances of the trial, defense counsel did not argue that Collins did not know Michie. Thorpe also later testified concerning the interior of Collins’ house including describing the location of appellant’s bedroom. Thorpe was present in Collins’ house the day he admitted killing Breeden, and testified he had been there previously.

Since other evidence on the same issue was admitted without objection, no prejudice resulted to the accused. Jones v. State, supra [310 Md.] at 589, 530 A.2d at 753 .

VI

Use of Detective’s Notes for Cross-Examination Collins next argues the trial court erred when it ruled defense counsel was not entitled, prior to cross-examination, to obtain a copy of a statement made by Thorpe. Counsel requested a copy of that part of a written report by detective Naylor that contained references to a statement given by Thorpe to the police. The State’s position at trial was that they were only required to provide copies of “any written statements or grand jury testimony only after the witness has testified” concerning the matters in question. The detective’s report here contained a paraphrased summary of notes taken during a June 3, 1987 conversation with Thorpe.

The trial judge denied the motion to produce the notes of this conversation. In Carr v. State, 284 Md. 455 , 397 A.2d 606 (1979), we thoroughly reviewed state and federal cases discussing the prosecutor’s duty to disclose relevant and material informa ²⁸⁸ tion favorable to the defense. Specifically, the Court evaluated the extent of the duty to disclose statements of witnesses in relation to violations of the defendant’s right to a fair trial under the Due Process Clause. We held the circumstances in Carr amounted to a violation of due process and required the mandate of a new trial.

The Court reasoned as follows: We have here no ‘fishing expedition’ in advance of trial. We have testimony on matters involving identity which may be inconsistent with the prior signed statement by this witness. It was then that trial counsel made his request for this signed statement. Every skilled advocate knows