Cooley v. State

MURPHY, C.J. In the Circuit Court for Baltimore City, a jury (Hon. Allen L. Schwait presiding) convicted appellant Derrick Gibson (Gibson) of first-degree murder, use of a handgun in the commission of a crime of violence, 1 and wearing, carrying or transporting a handgun. 2 The same jury convicted appellant Damon Cooley (Cooley) of second-degree murder and wearing, carrying, or transporting a handgun. We have reordered and slightly rephrased the four questions appellants present for our review. Those questions are: I. DID THE TRIAL COURT ERR IN ADMITTING A TAPE RECORDED STATEMENT MADE BY A WITNESS WHO REPUDIATED THAT STATEMENT AT TRIAL? ¹⁰⁶ II.

DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING COOLEY’S MOTION FOR MISTRIAL AFTER, IN THE PRESENCE OF THE JURY, SEVERAL SHERIFFS ESCORTED A STATE’S WITNESS FROM THE COURTROOM?

III

DID THE TRIAL COURT ERR IN ADMITTING INTO EVIDENCE DRUGS AND AMMUNITION SEIZED FROM THE HOME OF COOLEY’S GIRLFRIEND?

IV

WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN APPELLANTS’ CONVICTIONS? For the reasons that follow, we answer “no” to each question and shall therefore affirm the judgments of the circuit court. Background On May 5, 2001, in the 700 block of Baker Street in Baltimore City, Anthony Williams, Jr. (Williams) was murdered. As a result of information provided by Eddie Terrell (Terrell), a friend of the victim, appellants were ultimately charged with that murder.

On May 11, 2001, Terrell was arrested on an unrelated crime and questioned about the murder. At that point, he told detectives that he knew nothing about what happened to Williams. On May 21, however, he returned to the police station and gave a recorded statement that included the following assertions. About 4:00 p.m. on May 5, 2001, Terrell and Williams brought drugs to a location on Pennsylvania Avenue, where they had “junkies” sell the drugs for them.

When the junkies ran out of the drugs supplied by Terrell and Williams, Cooley and four other males started selling drugs at that location. Williams told one of the people who had been selling drugs for him not to buy anything from Cooley and his companions. Terrell and Williams then left the scene, cut across a playground, walked down Baker Street, and made a left onto Windsor Avenue. As they were walking down Windsor, a white Crown Victoria pulled around the corner.

Cooley was driving that vehicle. Gibson got out of the passenger side of ¹⁰⁷ the car and asked Williams if Williams had “a lot of big words.” At this point, Gibson started shooting. Terrell turned, ran down an alley, and hid in an old refrigerator until the shooting stopped. He then returned to the location of the shooting and saw Williams’ body on the ground.

At trial, Terrell denied having any knowledge of the shooting. He testified that he did not witness the crime, that his May 21st statement was a lie, that the information he gave the police on that day was based only on information he had received from people in the neighborhood, that he implicated appellants because he believed that he was going to be charged with the shooting, and that no one had warned him that the appellants would kill him if he told the truth about what happened to Williams. Because Terrell’s trial testimony was inconsistent with his May 21st statement, the State introduced that statement into evidence. The State also introduced evidence that drugs and ammunition of the same caliber as those recovered from the victim were found during a search of the home of Cooley’s girlfriend.

Discussion I Appellants interposed “confrontation” and “hearsay within hearsay” objections to the introduction of Terrell’s recorded inconsistent statement. In one portion of that statement, Terrell described what he had witnessed. That portion, which was admitted pursuant to the “catchall” exception to the rule against hearsay, was clearly admissible under Rule 5-802.1(a)(3). 3 In another portion of Terrell’s statement, he reported that he had received information that appellants said ¹⁰⁸ they would kill him if he cooperated with the officers investigating Williams’ murder. That portion of the statement was admissible to explain why Terrell had initially denied knowing what happened to Williams.

The “confrontation” objection presents the question of whether any of Terrell’s prior recorded statement was admissible. We hold that, when a witness testifies at trial that the defendant did not commit the crime, the Confrontation Clause does not prohibit the jury from convicting the defendant on the basis of the witness’ prior written and/or recorded statement in which the witness stated that the defendant did commit the crime. This holding is consistent with Nance v. State, 331 Md. 549 , 629 A.2d 633 (1993), and with Md. Rule 5-802.1(a)(3), which codified the holding in Nance . We also hold that the recent decision of Crawford v. Washington, 541 U.S. -, 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004) has no effect upon the admissibility of Terrell’s out-of-court statement, because Crawford did not overrule the unbroken line of cases holding that the Confrontation Clause does not operate to exclude pretrial statements made by a witness who actually testifies at trial. 4 ¹⁰⁹ In California v. Green, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970), the United States Supreme Court held that “the Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories.” Id. at 164 , 90 S.Ct. 1930 .

That is precisely what occurred in the case at bar. The Green Court was not presented with the issue of whether the Confrontation Clause would operate to exclude the prior statements “of a witness who disclaims all present knowledge of the ultimate event.” Id. at 169 , 90 S.Ct. 1930 . That precise issue was decided in United States v. Owens, 484 U.S. 554 , 108 S.Ct. 838 , 98 L.Ed.2d 951 (1988), in which a majority of the Supreme Court held “that neither the Confrontation Clause nor Federal Rule of Evidence 802 is violated by admission of an identification statement of a witness who is unable, because of a memory loss, to testify concerning the basis for the identification.” Id. at 564 , 108 S.Ct. 838 . Writing for the majority in Owens, Justice Scalia expressly relied upon Delaware v. Fensterer, 474 U.S. 15, 21 , 106 S.Ct. 292 , 88 L.Ed.2d 15 (1985), a per curiam opinion in which a majority of the Court held that the Confrontation Clause does not require exclusion of expert opinion testimony that the hair of a murder victim had been “forcibly” removed, even though the expert also testified that (1) there are three methods of determining whether a hair has been removed by force, and (2) he could not remember which method he used in that case.

Owens, 484 U.S. at 558-60 , 108 S.Ct. 838 (citing Fensterer, 474 U.S. at 19-22 , 106 S.Ct. 292 ). The Fensterer Court stated: The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving ¹¹⁰ testimony that is marred by forgetfulness, confusion, or evasion. The Court has recognized that “the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but [also] ... allowed to impeach, i.e., discredit, the witness.” Davis, 415 U.S., at 316, 94 S.Ct., at 1110. But it does not follow that the right to cross-examine is denied by the State whenever the witness’ lapse of memory impedes one method of discrediting him.

Quite obviously, an expert witness who cannot recall the basis for his opinion invites the jury to find that his opinion is as unreliable as his memory. This conclusion is confirmed by the fact that the assurances of reliability our cases have found in the right of cross-examination are fully satisfied in cases such as this one, notwithstanding the witness’ inability to recall the basis for his opinion: the factfinder can observe the witness’ demean- or under cross-examination, and the witness is testifying under oath and in the presence of the accused. This Court held that “the Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories.” To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfin ¹¹¹ der the reasons for giving scant weight to the witness’ testimony. 474 U.S. at 19-23 , 106 S.Ct. at 294-96 (some citations omitted). Crawford v. Washington, supra, which involved the testimonial hearsay statement made by a declarant who was unavailable to testify at trial, is in no way inconsistent with Owens, Fensterer, Green, Nance, Md. Rule 5-802.1, or Md. Rule 5-616(e).

We therefore hold that the Confrontation Clause does not require the exclusion of any out-of-court statement made by a person who actually testifies at trial and is therefore subject to cross-examination concerning the statement. Appellants’ objections also present the question of whether Judge Schwait erred by admitting that portion of Terrell’s statement in which he said that his cousin told him that someone in the community had said that Gibson and Cooley were going to kill Terrell if he told the police what happened. It is clear that this portion of the statement was not admissible to prove the fact that Gibson and Cooley had actually threatened Terrell. It is also clear, however, that appellants (1) were not entitled to the precise relief that they requested, and (2) did not request the precise relief to which they were entitled.

The portion of Terrell’s statement in which he referred to the threats that had come to his attention was admissible because “evidence of threats to a witness or fear on the part of a witness, in order to explain an inconsistency, is admissible in criminal cases for credibility rehabilitation purposes.... ” Washington v. State, 293 Md. 465, 470 , 445 A.2d 684 (1982) (citations omitted); see also Brown v. State, 80 Md.App. 187, 194-95 , 560 A.2d 605 (1989). Appellants were entitled to a limiting instruction that would have restricted the evidence of threats to the purpose for which it was admissible, but they were not entitled to a ruling that excluded this evidence altogether. ¹¹² II. Cooley argues that he was unfairly prejudiced when the jury saw sheriffs escort Terrell from the courtroom after Terrell completed his testimony. 5 The record shows that, on the day after Terrell testified, Cooley’s trial counsel stated: [O]n tape, Mr. Terrell told the police officers that he was scared. It was brought to my attention after the jury left yesterday that there were several sheriffs from the Baltimore City Sheriffs Office that were in the courtroom who then left the courtroom with Mr. Terrell.

Your Honor, that would leave an impression on the jury that Mr. Terrell is under some kind of guard because of the information that was elicited on tape by the Baltimore City Police Department on May the 21st. Mr. Terrell never testified yesterday that he was scared. He said that he lied when he said those statements to the police. I was not aware that the sheriffs were going to come into the courtroom and I was not aware that the sheriff would have been escorting the witness out of the presence of the jury....

The prosecutor responded: Quite frankly, I didn’t see the extent of the entourage or whatever she’s claiming escorting Mr. Terrell out, so I don’t know how many sheriffs we’re talking about here. Quite frankly, I don’t think that, that is not prejudicial. While on the stand, it came out that he was scared and he received threats. Furthermore, I can proffer to this Court while Mr. Terrell and his grandmother were sitting outside, people—and I can’t say for sure who they were—approached him about testifying in this case.

So obviously there was a reason for him to have some protection. ¹¹³ In denying appellant’s motion for mistrial, Judge Schwait stated: I didn’t ask for extra sheriffs to come in during that testimony. They believed it was in the best interest of the security of the courtroom for them to come in. That’s in their discretion. They certainly know what this case is about.

And if they believed that we needed extra personnel here, I’m not going to second guess that. In addition to which, there are facts in this case that would indicate that there is some need for security in this kind of situation and I’m not, as [I] said, going to second guess how much security and when it comes in. (Emphasis added). A trial judge has broad discretion in maintaining the security of the courtroom.

Whittlesey v. State, 340 Md. 30, 84 , 665 A.2d 223 (1995), cert. denied, 516 U.S. 1148 , 116 S.Ct. 1021 , 134 L.Ed.2d 100 (1996). That broad discretion, however, must be exercised by a judicial officer rather than by a law