Dumornay v. State

ALPERT, Judge. Macley Dumornay, appellant, was charged, in a twenty-one count indictment, with two counts of attempted murder and related offenses. Trial was held before a jury in the Circuit Court for Montgomery County on August 15-18, 1994 (McGuckian, J., presiding). The jury found appellant guilty of two counts of attempted second degree murder, two counts of assault with intent to maim, use of a handgun in the commission of a crime of violence, three counts of reckless endangerment, two counts of assault, two counts of conspiracy to commit an assault, breaking and entering, destruction of property, and injuring a dog.

Appellant was sentenced to the Division of Corrections for eleven years. This appeal followed, wherein appellant asks the following two questions: I. Did the court err in admitting the prior inconsistent statement of Anthony Ayi as substantive evidence?

II

Was the evidence sufficient to sustain appellant’s conviction? We hold that the trial court did not err in allowing Ayi’s statement into evidence, and the evidence was sufficient to sustain the conviction. Thus, we affirm. Facts and Proceedings According to the testimony of Aaron Smith, he invited several friends to his mother’s house in Montgomery County to watch television on the evening of March 5, 1994.

At ³⁶⁴ approximately midnight, four people arrived at Aaron’s house. Aaron knew two of these people to be Miguel Cox and Christian Bagwell, but he did not know the other two people, who were later shown to be Anthony Ayi and appellant, Macley Dumornay. Because he did not know all of the people, Aaron told them all that they could not come into his mother’s house. Aaron and Miguel Cox then got into a fight.

While they were fighting, Aaron’s older brother Derrick returned to the home with the family dog, a Rottweiler named Boss. Boss attacked the men with Cox as they were getting back into their car. Aaron further testified that the following evening, around 9:00 p.m., someone knocked on the door of his mother’s house. His brother Derrick was upstairs with his girlfriend, and Aaron had been downstairs with a friend.

Aaron looked in the peephole of the door and saw “the same two guys [referring to Ayi and appellant] that was [sic] at my house the night before.” The men began to kick in the door, and Aaron called for his brother to come downstairs. Before Derrick could get to the bottom of the steps, the men kicked in the door and Aaron saw one of the men draw a gun from his pants. Aaron and Derrick then ran into their mother’s bedroom and closed the door. Gunshots rang out and bullets began to come through the walls, so Aaron and Derrick went into the bathroom.

While there, they heard several more shots and then they heard Boss yelping. On March 25, 1994, Anthony Ayi was arrested in connection with the shooting at the Smiths’ house. Ayi gave a statement to police, explaining that he and Macley Dumornay, appellant, had participated in the shooting at the Smiths’ house. This statement was tape-recorded by the police.

Based on Ayi’s statement, a physical line-up was put together on April 5, 1994. Aaron Smith viewed this line-up, and he selected appellant as one of the men who had been in his house on the night of the shooting. On April 15, 1994, a twenty-one count indictment was filed against appellant. At appellant’s trial, Derrick Smith identified him as the man who had walked up the interior steps of the house with a gun on March 6th. ³⁶⁵ The State also called Anthony Ayi to testify at the trial.

Defense counsel objected to this witness, arguing that the State knew Ayi would contradict his earlier statement and it could not call him as a witness just to impeach him with his prior inconsistent statement. The judge ruled that Ayi could testify and that any prior statements he made would be received as substantive evidence. On the stand, Ayi admitted that he and appellant were friends, and he stated that they were together on the night of March 5th. He said that he, appellant, Miguel Cox, and Christian Bagwell had gone to the Smiths’ residence that evening.

He explained that neither he nor appellant knew the Smiths. Ayi related the events of that evening and explained that upon seeing the fight between Cox and Aaron Smith, Derrick Smith let the dog loose. Ayi said the dog then jumped into the car, attacking appellant, biting and tearing his brand-new tennis shoes. Ayi also testified that he did not see appellant at all on March 6th.

He explained that he returned, alone, to the Smiths’ residence on that evening. Ayi admitted that he had a gun with him and he explained that he burst into the Smiths’ house, kicking in the door and shooting at the dog. The prosecutor then questioned Ayi about an interview he had with the police after he was arrested in connection with the shooting at the Smiths’ house. The prosecutor asked Ayi why he told the detective that he and appellant had gone back to the Smiths’ house on the night of the shooting.

Specifically, Ayi had told the detective that “Mac [the appellant] was with me.” Ayi replied that he was confused at that point in the interview, and he thought the detective was referring to the evening of March 5th, when he, appellant, Cox, and Bagwell all went to the Smiths’ house. The prosecutor continued pointing out instances throughout Ayi’s interview with police when he used the word “we” when discussing the night of the shooting. For example, Ayi said that “we walked through the woods” to get to the Smiths’ house, “we knocked on the door,” “we kicked the door down,” and “we got in the house.” Furthermore, Ayi admitted that he had told the detective that ³⁶⁶ he kicked the door down and he and appellant entered the house. The prosecutor also asked Ayi about his telling the detective the following: “[W]hat I said when we got in and they had ran [sic] upstairs, I was a little late going upstairs.

I heard some shots, and that is why I ran upstairs because I thought, you know, they might have shot Macley or something.” Ayi responded that he did not remember making that statement. The prosecutor also questioned Ayi about why he made the following statement to the detective: So when I was going upstairs[,] that is when I seen [sic] the dog coming at me. Then I shot the dog. Then after I shot at the dog, I was—I turned around.

I was on the stairs at the time. That is probably why you seen [sic] them [sic] shells on the stairs. I turned around. Then I seen [sic] Macley coming out holding his hand.

Ayi replied that he was talking about the night of March 5th, when he ran down the stairs outside the house. The prosecutor then asked, “Isn’t it true [that] Detective Reed’s next sentence was ‘[You saw Macley] [c]oming out of where?’ and your response was ‘the house holding his hand[.]’ ... Then Detective Reed says okay, and your response is ‘then we ran and left.’” Ayi responded, “Yeah, that is what it says.” Ayi’s only explanation for why he told police that appellant was with him the night of the shooting was that he was confused during the questioning about whether the detective was asking about the first night he went to the Smiths’ house or the second night. After the prosecutor concluded her questioning of Ayi, she then asked the court for permission to play the tape-recorded interview that Ayi had with Detective Reed after his arrest in connection with the shooting at the Smiths’ home.

Defense counsel noted an objection and then the tape was played for the jury. At the close of the State’s case, appellant moved for judgment of acquittal. This motion was denied. Appellant then took the stand in his own defense.

He stated that he had gone to the Smiths’ house on March 5, 1994, with Ayi and Cox. ³⁶⁷ He explained that Aaron Smith and Cox had gotten into a fight over some money. Appellant testified that as he was running to his car, the Smiths’ dog came running after him, but did not bite him. Appellant denied returning to the Smiths’ house the next day. Based on the evidence, the jury convicted appellant of fifteen of the twenty-one counts.

On December 14, 1994, Judge McGuckian sentenced appellant to the Division of Corrections for eleven years. This appeal followed. Admission of a Prior Inconsistent Statement Appellant argues that the trial court erred in allowing the prosecution to introduce the prior inconsistent statement of Anthony Ayi as substantive evidence. The State argues that appellant failed to preserve this issue for review because, although he raised his objection to the admission of this evidence initially, he apparently abandoned his objection before the statement was actually admitted.

We disagree with the State. Prior to the time Ayi was called to the stand to testify, defense counsel objected to the State bringing in his prior statement as substantive evidence. The court was not persuaded by defense counsel’s argument and allowed the prior inconsistent statement to be admitted as substantive evidence. In response to this ruling, defense counsel replied, “Your Honor, I would just like the Court to note my objection.” Ayi was then called to the stand and questioned about what happened on the evenings of March 5-6, 1994.

His testimony about the night of March 6th contradicted his earlier statement to police. The prosecutor then used Ayi’s previous statement to question him extensively about his earlier version of the incident. After the prosecutor finished asking Ayi questions, she asked the court if she could play the tape of the statement in its entirety for the jury. Defense counsel approached the bench and argued first, that the statement should not be admitted into evidence and second, that if the statement were allowed into evidence, certain parts of the tape ³⁶⁸ should be redacted and members of the jury should not receive a copy of the transcript of the tape.

At the end of the bench conference, defense counsel concluded: I think an instruction can be given to the jury at the end, and they can be told that anything that [the prosecutor] read in the statement they can consider that as substantive evidence, but I don’t think that it is appropriate to give them copies of the whole transcript or to play the whole tape for them. Prior to the playing of the taped interview for the jury, defense counsel objected to starting the tape at the beginning because it was repetitive and did not contradict Ayi’s trial testimony. The judge disagreed, ruling that in the interest of the jury’s understanding, it was best to start the tape at the beginning. The tape was then played for the jury.

The State’s contention that appellant failed to preserve this issue is based on its view that defense counsel waived her objection by explicitly stating that the jury could consider anything that the prosecutor read in the statement as substantive evidence. The State is wrong. Defense counsel duly noted her objection to Ayi’s testimony before he was called to the witness stand and further noted her objection to the judge’s ruling that Ayi’s prior inconsistent statement would be received as substantive evidence. Defense counsel renewed her objection when, prior to the playing of the taped interview and after the statement that the State argues was a waiver of the objection, she again told that court that her first choice was that the tape not be played at all.

Thus, it cannot be said that she waived her right to appellate review of this issue. Having held that the issue of the admission of Ayi’s taped statement was properly preserved, we address the merits of appellant’s argument. Appellant contends that, generally, prior, inconsistent statements are not admissible as substantive evidence. Although the Court of Appeals, in Nance v. State, 331 Md. 549 , 629 A.2d 633 (1993), permitted the admission of prior inconsistent statements as substantive evidence if certain conditions are met, appellant asserts that the present case ³⁶⁹ goes beyond that holding.

Appellant submits that the taped statement he gave to police does not have the necessary indicia of reliability because Ayi did not write, sign, or otherwise adopt the statement. Therefore, appellant contends, the statement was clearly inadmissible under Nance . The State contends that Ayi’s taped statement was correctly admitted under Rule 5-802.1(a), which was effective as of July 1, 1994 and provides that statements that were “recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement” are admissible. 1 Md. Rule 5-802.1(a) (1995). This argument is inaccurate.

Rule 5-802.1 applies in trials held on or after July 1, 1994; however, for crimes committed prior to that date, no evidence may be admitted unless that evidence would have been admissible under the law and rules in effect on June 30, 1994. Because the crime in the instant case was committed on March 6, 1994, the question still remains whether Ayi’s taped statement is admissible under Nance . We hold that it is. The purpose behind the Court of Appeals’s decision in Nance and the logical extensions that derive therefrom were discussed at length in the recent case of Tyler v. State, 105 Md.App. 495, 532 , 660 A.2d 986 (1995).

Judge Moylan explained that Nance illustrates the “decided liberalizing trend in the law of evidence favoring the freer admissibility of evidence.” Id. at 532, 660 A.2d 986 . He further noted that the spirit of Nance is to “prevent an undisputed ‘turncoat’ ³⁷⁰ from manipulating and impeding the processes