Garrett v. State

¹⁰⁰ WILNER, Judge. At about 2:30 in the morning of January 5, 1981, three men gained entry to the home shared by Samuel Hughes and his fiance Karen Hackney. While Hackney was held at gunpoint in the downstairs den, Hughes was led upstairs to his bedroom and forced to open a safe. He was then taken back downstairs, where he and Hackney had their hands bound behind their backs and were required to lie down next to each other in prone position.

Their heads were covered with various bedding items — pillow, sheets, and sleeping bags. Eventually, someone shot Ms. Hackney in the head five times. It is not clear whether any of those shots were intended for Hughes. The three men then left, taking with them cash, drugs, and other valuable items.

Hughes identified both Emmit Brown, whom he knew, and appellant as two of the armed intruders. Brown, arrested within hours, also implicated appellant and a warrant was issued for his arrest. Six weeks after this event, appellant was arrested in New Jersey in connection with an armed robbery which occurred in that State. He gave the New Jersey police a false name and address.

It was not until late 1982 that the Maryland authorities discovered his whereabouts and ultimately obtained custody of him. He was brought to trial in the Circuit Court for Montgomery County, and, on May 4, 1983, was convicted of first degree murder, two counts of armed robbery, and two counts of using a handgun in a crime of violence. From the judgments entered upon those convictions, appellant brings this appeal, complaining that (1) the court erred in refusing to permit defense counsel to inspect the grand jury testimony of Detective Barry Collier after Collier’s in-court testimony on direct examination, and (2) the court erred in admitting evidence and instructing the jury upon appellant’s use of a false name and address in New Jersey. Coupled with appellant’s appeal is the State’s cross-appeal with respect to the sentence imposed.

The State moved the ¹⁰¹ court to impose a mandatory twenty-five year sentence without possibility of parole, pursuant to Md.Code Ann. art. 27, § 643B(c), and complains of the court’s refusal to invoke that statute. Although we agree, and indeed the State concedes, that the court erred in rejecting counsel’s request to inspect Collier’s grand jury testimony, we shall nevertheless affirm. (1) Grand Jury Testimony The circumstances surrounding the shooting of Ms. Hackney were somewhat unusual and were by no means beyond dispute. To some extent, they suggested the possibility that Hughes may have shot his fiancee, and that, indeed, was argued to the jury.

There was considerable evidence that Hughes was involved in drug trafficking. He admitted to having two or more pounds of marijuana in his home at the time of the shooting, as well as to having dealt in that product with Emmit Brown in the past. According to Hughes, when Brown knocked on the door at 2:30 in the morning, Ms. Hackney was vacuum cleaning the living room, and he was in the process of shampooing his hair. Hughes’s sister and her nine-year old daughter were asleep in one of the bedrooms; yet, despite the vacuum cleaner, the shampooing, the movement throughout the house by the three intruders, and the firing of five shots, they were not awakened.

Finally, ballistics analyses established that the bullets that killed Ms. Hackney were fired from either a .38 caliber or .357 magnum pistol. Hughes admitted to owning and having in his house both a .38 caliber and a .357 magnum pistol, that he claimed the intruders took. Although he denied having fired any guns on the day in question, a neutron activation analysis revealed traces of barium and antimony on both of his hands, those materials being indicative of gunshot residue. On the other hand, depending upon the credibility of two State’s witnesses, the case against appellant was a strong one.

Hughes positively identified appellant as one of the ¹⁰² three intruders, the one who accompanied Hughes upstairs to open the safe and who removed certain jewelry from Ms. Hackney before she was shot. Douglas Dawkins, an acquaintance of appellant for some four or five years, testified that he had seen appellant in New Jersey in 1981, and that appellant had admitted not only the robbery but to shooting “the female.” According to Dawkins, appellant stated that he was with two other men, both named Brown, and that he shot the woman five or six times because she knew him. The story relayed by Dawkins, though brief, corroborated some of the details testified to by Hughes. In addition, photographs of the crime scene taken by the police showed the position and condition of Ms. Hackney’s body as Hughes described it, i.e., her hands were tied with plastic cord and she was covered with various items of bedding.

A number of police officers testified, although they added little to the basic story related by Hughes. Essentially, they described the crime scene and identified certain items of evidence collected by them. On March 2, 1983 — two months before trial — appellant asked the court to direct the State to “transcribe the Grand Jury testimony of all witnesses who will be called to testify at the trial.” No request was made, at that time, to inspect any such testimony. The State opposed the motion on the ground that the only purpose for a transcription would be to provide access to appellant and that appellant had failed to establish a “particularized need” for such access.

The court (Judge Raker) granted the motion. On April 17, 1983, it ordered that all grand jury proceedings in the case be transcribed prior to May 2, 1983, and that the cost of the transcription be paid by the public defender, a condition to which the public defender had agreed. Pursuant to that order, the grand jury testimony of Detective Barry Collier was transcribed and was in the possession of the prosecutor at time of trial. Collier was one of five police officers who investigated the shooting; he was the last of the five to testify at trial. ¹⁰³ On direct examination he: (1) confirmed that certain photographs which had already been admitted into evidence without objection accurately depicted the scene of the crime as he had observed it, (2) stated that he had assisted Detective Arnold in collecting evidence at the scene, (3) stated that he was present at the autopsy performed on Ms. Hackney, and identified certain items of clothing and bullet fragments removed from her at that time, all of which were admitted into evidence without objection, and (4) identified a .25 caliber pistol taken from Emmit Brown at the time of his arrest, the pistol having previously been placed into evidence without objection.

On cross-examination, Collier acknowledged that he was “one of the chief investigators” in the case and that his duties included the gathering of evidence and the delivery of certain items to the Federal Bureau of Alcohol, Tobacco and Firearms for analysis. He identified, from a list shown him by defense counsel, the items taken to that agency, including the victim’s clothing, bullets and bullet fragments, carpet samples, a blanket and a pillow, the handgun taken from Emmit Brown, and the neutron analysis kit containing the swabbings from Hughes’s hands. The items themselves had already been placed into evidence and identified by the expert witness from the Bureau of Alcohol, Tobacco and Firearms. Finally, Collier acknowledged having testified before the grand jury.

When nearly finished with cross-examination of Detective Collier, counsel, for the first time, asked to see his grand jury testimony, calling the court’s attention to Judge Raker’s pre-trial order. The court, however, summarily and, in our judgment, erroneously denied the request. The colloquy following counsel’s request was as follows: “THE COURT: I don’t need a bench conference to deal with this. We can take a lunch recess.

Have you finished cross-examining him? MS. DUROVIC [Defense Counsel]: Well, Your Honor, I can’t make that determination because I have to first ¹⁰⁴ request from the Court what I’d like, which is, I’d like a copy of his grand jury testimony. THE COURT: I don’t know where his grand jury testimony is.

You know as well as I do that they don’t get that transcribed right away. MS. DUROVIC: Judge Raker ordered that it be transcribed. MR.

DEAN [State’s Attorney]: Your Honor, could we have arguments at the bench. I think it would be more appropriate at the bench. THE COURT: Well does the bench transcribe? MS.

DUROVIC: Your Honor, Judge Raker ordered— THE COURT: Wait a minute. You already said that once. I don’t need to hear that again. MS.

DUROVIC: I don’t know, Your Honor. THE COURT: All right. Well I don’t have anything to produce because no one knows where it is. So, do you have any other questions of him?

MS. DUROVIC: Your Honor, we would ask that the Court inquire of the State as to whether, in fact, the grand jury transcripts have been transcribed in compliance with Judge Raker’s order. THE COURT: I’m not going to ask him that right now. Do you [apparently referring to the prosecutor] have any other questions of this witness?” Throughout this colloquy, the prosecutor, who had the grand jury transcript in his possession, inexplicably remained mute, thereby permitting the court to labor under the impression that the transcript was not available.

Responding to the court’s invitation, the prosecutor then asked a few more questions on redirect, following which defense counsel engaged in brief recross examination. The court then excused the jury for lunch, and the conversation regarding the grand jury transcripts continued: “THE COURT: ... Ms. Durovic, you want to make a big point out of Judge Raker’s order in connection with this matter, in these ¹⁰⁵ grand jury proceedings. There’s a docket entry in here number 56 that says, ‘Hearing on defendant’s motion for appropriate relief, Raker, J., granted.

Proceedings of grand jury not already transcribed are to be transcribed. Office of public defender to pay cost of transcript. Court denies defendant access to transcript. Order to be submitted.’ ‘On April 18th, 1983 your order of Court, Raker, J., that expense for transcribing portion of the grand jury proceeding shall be paid for by the public defender’s office file’ Now, I don’t know where those transcripts are but I do object to the fact that you make a big point about it in front of the jury when it’s obviously the public defender’s office responsibility to see that they are transcribed and paid for.

MS. DUROVIC: Your Honor, excuse me. THE COURT: Now, I don’t want to hear anything more about this. MS.

DUROVIC: Your Honor, let me just make this clear for the record. THE COURT: I don’t want to hear anything more. MS. DUROVIC: The state was— THE COURT: Ms. Durovic, I said I don’t want to hear anything more about it.

MS. DUROVIC: Your Honor, I’ve got to make a record. THE COURT: Listen, can you hear? You just keep quiet a minute.

You’re trying to embarrass the Court in front of the jury. Now, I don’t know whether the public defender’s office made arrangements to get that transcribing done. If they didn’t, you should make sure that it was done. The transcript of the proceedings is not here with the jacket and I object to the fact that you keep insisting upon the fact that I should have this transcript.

I had nothing to do with the transcript, if it were going to be ¹⁰⁶ prepared it was the responsibility of your office to see that it got prepared and I don’t want to hear anything more about it.” At that point, the prosecutor finally advised the court that, in accordance with Judge Raker’s order, he had directed the grand jury stenographer to prepare a transcript of the testimony taken before the grand jury, and that he had in fact received and had available the transcript of Detective Collier’s testimony. He nevertheless, for the first time at trial, formally objected to defense counsel having access to it because “there’s no showing of a particularized need for the transcripts.” In response, counsel called the court’s attention to Leonard v. State, 46 Md.App. 631 , 421 A.2d 85 (1980), aff'd 290 Md. 295 , 429 A.2d 538 (1981), to which the court responded, “I don’t know about that, there’s already an order in the Court that says you’re not to have that.” That ended the discussion on the matter. At the time of trial in this case, it was clear from Carr v. State, 284 Md. 455 , 397 A.2d 606 (1979), and Leonard v. State, supra, that once a State’s witness has testified on direct examination, defense counsel is entitled to inspect any prior written statement given by the witness that is relevant to his testimony and that is available, for possible use in cross-examination. That right of inspection, it was said in both Carr and Leonard , is not limited either by the pre-trial discovery rules or to statements that are merely exculpatory in nature.

The purpose of the inspection is for counsel to determine whether the earlier statement is in any material way inconsistent with the witness’s trial testimony and so may be used to impeach the credibility of the witness. Neither Carr nor Leonard dealt specifically with grand jury testimony, although in Erman v. State, 49 Md.App. 605, 618 , 434 A.2d 1030 (1981), cert. denied 456 U.S. 908 , 102 S.Ct. 1756 , 72 L.Ed.2d 165 (1982), we suggested (without deciding) that, on the basis of a statement in Attorney Griev. Comm’n v. Strathen, 287 Md. 111, 117 , 411 A.2d 102 ¹⁰⁷ (1980), the principle announced in Carr and Leonard may-well apply to such testimony. That suggestion was made again in Gillis v. State, 53 Md.App. 691, 695 , 456 A.2d 89 , cert. denied 296 Md. 172 (1983), decided three months before the trial in this case.

All doubt about the matter was put to rest by Jones v. State, 297 Md. 7 , 464 A.2d 977 (1983), decided shortly after the trial here. In Jones , the Court of Appeals held explicitly that “after a State’s witness has testified on direct examination, a defendant is entitled to inspect [that witness’s] grand jury testimony for cross-examination purposes without any requirement that he show any other need.” Id. at 15 , 464 A.2d 977 . That ruling, said the Court in addressing the State’s motion for reconsideration, was based on “common law principles of procedure and evidence” and did not represent a change in the law. Id. at 24 , 464 A.2d 977 .

It merely “explained the ‘particularized need’ referred to in Strathen.” Under Jones , therefore, if not under Carr, Leonard, Erman, and Gillis , it is clear that appellant was entitled to inspect Detective Collier’s grand jury testimony, which had been transcribed and was available, and that the court erred in refusing to permit that inspection. The question raised by the State is whether, under the circumstances of this case, that error was harmless. In determining whether an error is harmless, we look to see whether “the erroneous ruling, in relation to the totality of the evidence, played a significant role in influencing the rendition of the verdict, to the prejudice of the appellant.” Dorsey v. State, 276 Md. 638, 653 , 350 A.2d 665 (1976). Unless we, “upon [our] own independent review of the record, [are] able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed ‘harmless’ and a reversal is mandated.” Id. at 659 , 350 A.2d 665 .

See also Spence v. State, 296 Md. 416, 425, n. 2 , 463 A.2d 808 (1983); Huffington v. State, 295 Md. 1, 16 , 452 A.2d 1211 (1982). ¹⁰⁸ In Jones v. State, supra, the defendant had sought the grand jury testimony of the State’s two principal witnesses. According to the briefs filed in the case, one of the witnesses, Lawson, was an independent eyewitness to the robbery and shooting with which Jones was charged; the other, Clanton, was an accomplice of Jones who had agreed to testify against him. The trial court examined the grand jury testimony of both witnesses.' It concluded that Lawson’s testimony before that body varied in some respects from his trial testimony and thus made parts of his grand jury testimony available to counsel. The court found no such inconsistencies in Clanton’s earlier testimony, however, and therefore refused to permit an inspection of his grand jury testimony.

The Court of Appeals rejected that approach, as we and it had earlier in Leonard , for essentially the same reason. The trial judge is not in the same position as defense counsel either to discern potential inconsistencies or to evaluate their possible relevance and impact for purposes of cross-examination. Thus [297 Md.] at p. 17, 464 A.2d 977 , the Court held: “We see no difficulty with the trial judge reviewing the witnesses’ grand jury testimony and excising those matters which do not relate to the subject case, but he should not be making decisions as to what is or is not inconsistent or immaterial to the defendant’s case.” Thus finding error, the Court continued [297 Md.] at p. 17, 464 A.2d 977 : “We do not believe it appropriate for this Court to review the trial testimony of Clanton and Lawson for the same reasons outlined above with respect to the trial judge; not doing so, we cannot apply the harmless error rule.” From this last statement in Jones , it is clear that the question of whether the court’s error was harmless cannot be resolved on the basis of our perception of Collier’s grand jury testimony. For purposes of this case, we must assume that there may have been some statements therein that ¹⁰⁹ were inconsistent with his trial testimony and that might have been used to impeach his credibility.

That does not end the inquiry, however. We still must consider whether the presumed inability to impeach the testimony given by Detective Collier could have “played a significant role in influencing the rendition of the verdict....” The Jones Court was spared the need to engage in that kind of analysis because the answer in that case was obvious; the two witnesses, as noted, were critical ones to the State’s case. That is not the situation here. The case against appellant, as we have observed, rested almost entirely on the testimony of Hughes and Dawkins, which was corroborated to some extent by the physical evidence admitted prior to Collier’s taking the stand.

The critical issue of credibility related to their testimony, not Collier’s. Collier, as we have said, did little more than identify items of physical evidence already admitted as exhibits. It is hard for us to imagine how his credibility, or lack thereof, could in any way have influenced the jury’s verdict. If the jury had disbelieved everything Collier said, it would still have been left with the