Collins v. State

HARRELL, Judge. After a four-day trial in the Circuit Court for Baltimore City, Julius Collins, Petitioner, was convicted by a jury of first degree murder and related handgun offenses. On 11 May 2001, the trial judge imposed a sentence of life imprisonment for the murder conviction and twenty years, to be served consecutively, for the handgun offenses. The convictions were affirmed by the Court of Special Appeals in an unreported opinion.

Collins petitioned this Court for a writ of certiorari, which we granted. Collins v. State, 369 Md. 659 , 802 A.2d 438 (2002). I. On 13 April 2000, Dion Gibson was selling audiotapes on the street in an area known as the “Midway” in the 2900 block of Garrison Boulevard in Baltimore. He became embroiled in a dispute with a passenger in a Toyota Corolla, which resulted in his death from two gunshot wounds fired by the passenger.

Baltimore City Police Officer Arnold Pittman, who was a block away at the time, heard an estimated five shots and drove to the scene. He observed the victim lying on the ground. People interviewed by the police at the scene denied seeing what occurred. ¹³³ Approximately one month later, the police located the driver of the Toyota, Vivian Ann Dismol-Jordan. She gave the following account of the events of 13 April 2000.

At approximately 8:00 p.m., accompanied by her five-year-old grandson, she was “hacking” 1 in Baltimore and picked up a fare, later identified as the Petitioner, and drove him to the area where the shooting occurred. She waited while Petitioner used a pay telephone, went into a store, and then argued with one member of a group outside the store as he was returning to her vehicle. Petitioner entered the Toyota and told one of the group that he should tell the others “who I am.” The rest of the group came over to the car, where one of them punched Petitioner in the face. According to Dismel-Jordan, Petitioner started shooting and she “peeled off.” She did not see any other guns, and after returning Petitioner to his original location, she saw him give his gun to another person.

During her interrogation by police, she identified Collins from a photographic array. Another of the State’s witnesses, Tavon Smith, also was present during the shooting. He testified that the victim and Petitioner argued, the victim became angry at Collins’ comments, and that, as the victim approached the car, Collins shot him. When first questioned, however, Smith told the police that he could not identify anyone involved in the shooting.

Our decision in this case turns on the circumstances surrounding the State’s third and final eyewitness, Thomas Preston. On the night of the shooting, Preston told Detective Lynette Nevins that he saw nothing because he was too far away. Detective Nevins included this information in her report. Eleven days after the crime, on 24 April 2000, Preston was shown a photographic array in which he positively identified Collins as the perpetrator.

He also gave police a ¹³⁴ contemporaneous audiotaped statement supporting the identification. The State, in its “original discovery package,” disclosed Preston’s photo array identification, but neither the earlier non-identification statement nor the identification statement given at the time of the photo array was supplied. Later, the State provided to the defense, on the eve of an earlier trial date that ultimately was continued, the audiotape identification statement, but still did not disclose the initial non-identification statement given by Preston. On the first day of trial, the State informed the court that a warrant had been issued the previous day for Preston, but service had not been effected yet. 2 At the beginning of the second day of trial, the State advised the court that a detective had visited the address Preston had supplied earlier.

The address given was that of his grandmother. The State advised the court that Preston’s grandmother refused to allow the police to enter her home. The court issued a summons the same day for the grandmother to appear. The detectives who served the summons returned to court and reported that the grandmother had refused an offer of a ride to the courthouse.

On the morning of the third day, she appeared and testified that she had not seen Preston for a week and that he had told her he was “going to his woman’s house,” but she did not know the woman or where she lived. Later that day, the State concluded its case, reserving the .right to introduce certain bullet fragments if they could be located in the evidence control unit. The defense did not object, and, once found, the fragments were introduced. The defense then presented three alibi witnesses.

Thereafter, the State produced two rebuttal witnesses, concluding the evidentiary phase of the trial. Court was adjourned for the day. ¹³⁵ On the fourth and final day of trial, the State requested that it be allowed to reopen its case to allow Preston to testify. He had been located by the police late on the previous day and released after being summoned to appear the next morning. He appeared as ordered.

Defense counsel opposed the motion to reopen, claiming that reopening at that point in the proceeding would be an abuse of the court’s discretion because the “necessity” for reopening was due to the State’s deficient trial preparation in failing to summons the witness prior to trial. Defense counsel, now made aware of Preston’s statement made on the night of the crime, also noted that the statement had not been disclosed previously to the defense. The prosecutor proffered that non-disclosure was inadvertent. He represented to the Court and the defense that he had overlooked the document in his file because it had slipped inside of a stapled document.

The court ruled on the motion as follows: Okay, I will direct [the State] to turn the information report [regarding the prior inconsistent statement] over to you [defense counsel]. I will direct you not to disclose the contents of the information sheet to the defendant or to any non-lawyer who is affiliated with you. I will permit the State to reopen its case to call Mr. Preston. I will have the direct examination done.

I will call a recess at the conclusion of the direct examination. At that point you can inform me whether you feel you need sufficient time to prepare for cross-examination of the witness. If you want to voir dire him out of the presence of the jury before you cross-examine him in front of the jury, I will permit that. Petitioner then made a motion to suppress the photo identification made by Preston.

Preston testified as a part of the hearing held on the suppression motion, and defense counsel also was permitted to voir dire Preston regarding what he told police in his earlier statement. At the conclusion of the suppression hearing, the court, after denying the suppression motion, reiterated its ruling that the State would be permitted to reopen its case: ¹³⁶ I do believe that it would be appropriate to permit the State to reopen its case to present this witnesses] testimony in light of the difficulties that we have seen this week of the State having in getting this witness and finally getting him here. I am convinced that the State has acted diligently in an effort, to produce the witness and that diligence did, in fact, result in his availability this morning. Accordingly, I will permit them to reopen.

After addressing several other motions, the following exchange took place between the Court and counsel: [Defense Counsel]: Your Honor, I am going to want to talk to this witness, find out who the detective is, and I’d rather do that — rather then put him on and then start again— [The Court]: Well. I’m going to permit the State to put him on now and I will permit you to take some cross now and do a further — but [the State] I think is correct in one sense that your entitlement to the statement that he gave would have vested, for want of a better word, at the point after which he had testified. Since you’ve had his statement prior to his testimony, you are in no worse position than had he been put on the stand earlier during the trial ... You would have been entitled only to have the statement of his after he had testified.

So basically there is not reason even to permit you the additional time for cross examination of this witness. [Defense Counsel]: Judge, I’m not sure if that’s absolutely correct because they gave me a statement saying — incriminating my client but the truth of the matter is the State always had exculpatory evidence in the fact that it— [The Court]: Well, now we’ve had discussions of exculpatory, [counselor]. [Defense Counsel]: Well I mean— [The Court]: And we’ve made it clear that this is not exculpatory in the traditional Brady 3 sense of it tends to establish his innocence. It is exculpatory in the extended ¹³⁷ sense in that it tends to provide impeachment of the witness. So let’s perhaps refer to it as impeachment rather than exculpatory because I think it is properly impeaching of Mr. Preston, not necessarily exculpatory of your client. [Defense Counsel]: Your Honor, this is the normal witness statement because they did have impeaching testimony. They didn’t give me the names of the officers or the witnesses so I could investigate. [The Court] I’m not so sure you would have been entitled to that before the witness testified. [Defense Counsel]: Who he gave the other statement to? [The Court]: Not before he testified, no. [Defense Counsel]: I object, Your Honor. [The Court]: Under Jencks 4 as adopted into this state by Carr, 5 basically the procedure here is the same as in the federal courts which is there is an entitlement to the statement after the witness has testified.

It is deemed sufficient merely that there be some form of continuance, even perhaps only a brief one, to permit you to review the statement and then cross-examine the witness. You have, in fact, had an opportunity to review the statement. You’ve had, in fact, more than you’re entitled to because you’ve had an opportunity to voir dire the witness on that statement. There is no prejudice to you. [Defense Counsel]: All I really want is to have the officer or officers that were present in court for my— [The Court]: That’s more than you would be entitled to under any circumstances. [Prosecution]: Could I be heard on that, Your Honor? [The Court]: Yes. ¹³⁸ [Prosecution]: I would object to him having the weekend for this reason. [The Court]: Your objection is sustained.

Go ahead and complete your record, but I’ve had some independent thoughts myself which I will add after you do, but go ahead and complete your— [Prosecution]: Thank you, Your Honor. [The Court]: — basis for the objection. [Prosecution]: Thank you, Your Honor. I can tell counsel and the Court that it was Detective Nevins who took that statement the night of the homicide. I use the word statement loosely because it wasn’t recorded or signed. However, she took notes which counsel now has and I do apologize for the lateness of him receiving them.

He should have — I would have given them to him at least at the same time I gave him the other statement if I had been aware that it was, in fact, in my file. However, the witness as testified under oath [during the suppression hearing] and admitted that, in fact, he told — it’s his expression, I told them nothing and then he admitted that— [The Court]: Well, he testified he lied, basically. [Prosecution]: Yea, and he also testified I told them I was a block away and I didn’t see it. [The Court]: Right, that’s the extent of the impeachment he’d be entitled to. [Prosecution]: Yea, he’s adopted the impeaching statement. [The Court]: Uh-huh, you’re right. He’s entitled to no more, no continuance. I will give him— [Defense Counsel]: Judge, I’m not allowed to have that witness brought up here from the Homicide Unit, the lady detective whoever it is? [The Court]: That’s correct, you’re not. [Defense Counsel] Your are prohibiting that, Your Honor? [The Court]: I am prohibiting that and I will give you some — if you want I will give you some brief period of time ¹³⁹ after the direct to cross but we will get this to the jury today.

Anything else, counsel? [Defense Counsel]: I just have a continuing objection. [The Court]: You have your objection. Subsequent to this exchange, Preston testified in open court and was cross-examined by defense counsel. Preston identified Collins as the shooter. He stated that the shooting was preceded by an argument over the victim’s attempt to sell Collins an audiotape.

Counsel for the defense then repeated his request that he be allowed to reopen the defense and have Detective Nevins, the officer who took Preston’s statement the night of the shooting and who was present in court, testify. The court granted this request.

II

Petitioner poses three questions for our consideration: 1) Does lack of diligence on the part of the State in effectuating service of a summons on a witness amount to “good cause” for the reopening of the State’s case on the day following the conclusion of the State’s rebuttal evidence? 2) Was it an abuse of discretion to allow the State to reopen its case, for the second time, to present damaging eyewitness testimony where the State’s witness had not been served, the State had failed to begin looking for the witness until after trial had commenced, the State had failed to disclose the witness’s exculpatory pretrial statement, and the court denied the defense a reasonable weekend continuance to investigate and respond to this evidence? 3) Did the trial court err in denying a motion for mistrial where a detective, in testifying about a photographic array, made a gratuitous reference to the presence of Mr. Collins’s photograph in a database that tracks all people arrested in Baltimore City? Because we find no merit in Petitioner’s first question, but some in his second question, it is unnecessary for this court to reach the third question presented by the Petitioner. ¹⁴⁰ III. Petitioner first argues that the trial court abused its discretion in allowing the prosecution to reopen its case, asserting primarily that the prosecution’s failure to know the whereabouts of its witness made it impossible for the prosecution to show that it had “good cause” for making the request. Petitioner relies on language in State v. Booze, 384 Md. 64 , 637 A.2d 1214 (1994), where we stated: [T]he normal rule “is that the plaintiff will be required to go fully into his own case-in-chief on [those] issues as to which he holds the substantial affirmative, and where, therefore, the burden of proof rests on him; and hence, in reply to the case made by the defendant, he will ordinarily be limited to what is strictly rebutting evidence,” but that there are exceptions necessitated by the requirements of particular cases.

Those exceptions should truly be extraordinary; the trial court should be reluctant to grant reopenings. This is so because “of the desirability of maintaining an orderly trial” and “the very strong probability” that the trier of fact will give undue emphasis or prominence to evidence offered on reopening at the rebuttal stage of trial. Id. at 70-71, 637 A.2d at 1217 (internal citations omitted). According to Petitioner, the fact that the prosecution failed to be certain of the whereabouts of Preston, and did not attempt to secure his presence until the day before the trial began, constituted a lack of diligence.

The failure to locate Preston until after the prosecution rested, therefore, was not an “extraordinary circumstance” constituting “good cause.” We set forth the standard in Wright v. State, 349 Md. 334 , 708 A.2d 316 (1998), for what a trial judge should consider in exercising his or her discretion to allow evidence out of order. In explaining the standard and its exceptions, we stated: The general rule, of long standing in Maryland, is that “the plaintiff [which in a criminal case is the State] must put in the whole of his evidence upon every point or issue which he opens, before the defendant proceeds with the evidence on his part.” It may not “go into half of its case and reserve ¹⁴¹ the remainder, but is obliged to develop the whole.” More recently, we noted, with particular reference to criminal cases, that “ordinarily, an orderly conducted criminal trial anticipates the State adducing all of its evidence in chief and resting its case. The defense follows by producing its evidence tending to establish the accused’s non-culpability. ...” A contrary practice, this Court has observed, “would not only greatly prolong trials, but would frequently lead to surprise and injustice.” There are two caveats to the general rule, both described in some detail in State v. Hepple, 279 Md. 265 , 368 A.2d 445 (1977). The first arises from the discretion that a trial court has to permit a party to reopen its case-in-chief, even after the opposing party has concluded.

In State v. Booze, supra, 334 Md. 64 , 637 A.2d 1214 , we synthesized holdings and pronouncements from earlier cases, including State v. Hepple and Dyson v. State, 328 Md. 490 , 615 A.2d 1182 (1992), and, quoting from some of those Opinions, confirmed (1) that the trial court has discretion “to permit the moving party to reopen its case to introduce evidence adducible in chief,” but (2) that, in exercising that discretion, the judge must consider a number of factors, including “whether the State deliberately withheld the