Hardison v. State

BYRNES, Judge. Appellant Arthur Maurice Hardison was tried and convicted by a jury in the Circuit Court for Baltimore City of two counts each of assault with intent to murder, assault and battery, use of a handgun in the commission of a crime of violence, and carrying a handgun. After merging the lesser included offenses into the assault with intent to murder convictions, the trial court sentenced appellant to five years for both of the assault with intent to murder convictions and a mandatory five years on both of the handgun violations. Appellant presents for review two questions, which we have rephrased: I. Did the trial court err in ruling inadmissible evidence offered for the purpose of impeachment of a key prosecution witness?

II

Did the trial court err in denying appellant’s request for a missing witness instruction? We find that the trial court erred when it excluded extrinsic impeachment evidence of a prior inconsistent oral statement made by an important prosecution witness. As the court’s error was not harmless, we shall reverse appellant’s convictions. We do not reach the second issue presented. 1 FACTS The Shooting Incident Ronald Copeland and Leonard White were injured in a shooting incident on May 7, 1995.

That afternoon, Copeland went to his mother’s house in east Baltimore to do his wash. As he was hanging wet laundry on a clothesline, several young boys began to pester him. Copeland took it upon himself to ²²⁹ punish one of them — a nine year old named Dougie, Jr. — by hitting him in the eye. The child ran to his mother’s home on Bethel Court.

There he found appellant, who was his mother’s boyfriend, and enlisted his aid. Copeland and appellant had known each other for years, having grown up in the same neighborhood. Appellant walked across the playground to Copeland’s mother’s house and suggested to Copeland that he explain his actions to Dougie Jr.’s mother, Tanya. Copeland, appellant, and Dougie, Jr. then walked to Bethel Court, where they encountered Tanya.

At the sight of her son’s injury, Tanya burst into tears. A decision was made to call the police. Copeland returned to his mother’s house to await their arrival. The police came and spoke to Copeland, Tanya, and Dougie, Jr., at Copeland’s mother’s house.

The officer told Tanya that she would have to appear before a commissioner to swear out a complaint against Copeland. Tanya had expected the police to take Copeland into custody on the spot and became angry upon being informed that they could not do so. After the police departed, Tanya and Dougie, Jr. returned to Bethel Court, where Tanya contacted Dougie, Sr. and told him what had happened to his son. She then arranged for a friend with a car to give her a ride to the police station.

Presently, Dougie, Sr. and a friend arrived. When they saw the damage to Dougie, Jr.’s eye, they ran to Copeland’s mother’s house and confronted Copeland, who had been joined by his cousins Leonard White and Eric White. Dougie, Sr. and his friend were armed with a bat and a knife. A scuffle ensued and Copeland and his cousins managed to disarm their visitors.

Copeland testified that he did not recall seeing the bat and knife again after that. In any event, Dougie, Sr. and his friend turned and ran up Fayette Street, toward Bethel Court, with Copeland and his cousins in pursuit. In the meantime, appellant was standing in Bethel Court talking to his friend Darnell. Tanya was in the court too, awaiting her ride.

The participants’ versions of events diverge dramatically from that point. According to Copeland, ²³⁰ as he ran into the court, Tanya exclaimed, “Oh, you are not dead yet!” The realization that Tanya had dispatched Dougie, Sr. and his friend to kill him prompted Copeland to lash out, punching Tanya in the face several times with his closed fist. Appellant reacted to this attack on his girlfriend by drawing a gun and shooting Copeland in the thigh, hip, and chest. As Copeland turned to escape, he saw appellant and Leonard White grapple for the gun and appellant shoot White. 2 Appellant testified that, as he was standing in Bethel Court talking to Darnell, Dougie, Sr. came running toward the court with Copeland, bat in hand, running after him.

When Copeland reached Tanya, he came to a halt and started to beat her in the face with his fist. Leonard White arrived and took the bat from Copeland. When appellant yelled out at Copeland in anger, Copeland reached into his back pocket, pulled out a knife, and confronted him. Fearing for his life, and aware that his friend Darnell usually carried a gun in his “dip,” appellant grabbed Darnell's gun, turned, and shot Copeland.

Leonard White then came after appellant with the bat. Appellant blocked the bat with his arm and he and White began to fight for the gun. During the struggle, the gun accidently fired, hitting White. Appellant ran away, disposing of the gun in the parking lot of a chicken restaurant.

Tanya did not witness the shooting. She testified that, after Copeland hit her on the face, she ran into her house. She was inside when the gunfire erupted. Leonard White was not present for the trial.

The only eyewitness to the shooting to testify, other than Copeland and appellant, was Earnest Hollis, who was called by the State. Hollis did npt know any of the people involved in the incident. On the afternoon of the shooting, he was working his shift as a supervisor at Church Home Hospital. As he stood outside of ²³¹ the hospital smoking a cigarette, he noticed five or six black males running up Fayette Street, toward Bethel Court, yelling and “waiving sticks.” One of the men was wearing a white tee-shirt.

The group arrived at Bethel Court, where they met up with a man wearing a red sweatshirt. The man in the white shirt approached the man in the red shirt and pulled out a gun. The man in red grabbed the man in white’s right arm, which was holding the gun, and a shot went off. Everyone in the court dispersed except the two men, who kept struggling, at times holding their arms and the gun up in the air as they did so.

Finally, the man in white re-gained control, stepped back, and shot the man in red, who stumbled backward. The man in white shot the man in red again, and he fell. The man in white then walked away, in the direction of a chicken restaurant. The uncontradicted testimony of several witnesses established that, at the time of the incident, appellant was wearing a white tee-shirt, Leonard White was wearing a red shirt, and Copeland was wearing a black shirt.

In addition, after the shooting, the police retrieved a bat and a knife from the area of Bethel Court where the altercation had occurred. Appellant identified the knife as being the one that Copeland had used against him. Examinations of Hollis and Officer Schmidt Regarding Hollis’s Out-Of-Court Statement Approximately fifteen to twenty minutes after the shooting, Earnest Hollis was interviewed by Baltimore City Police Officer Thomas Schmidt. Hollis sat in the patrol car while Officer Schmidt asked him questions and took notes as he responded.

Hollis did not write out a statement or give a recorded statement. Officer Schmidt did not show Hollis his notes. On cross-examination, counsel for appellant questioned Hollis about what he had told Officer Schmidt he had seen: MR. CARDIN: Did you tell the police that a fist fight started and four males were beating up two males? ²³² MR.

HOLLIS: No sir, I don’t remember. MR. CARDIN: I will be specific and say, “A fist fight started and four black males were beating up the two black males.” Did you tell the police that? MR.

HOLLIS: No sir, I don’t remember. MR. CARDIN: Uh-huh. Did you tell the police about a person in a black shirt, a black tee-shirt?

MR. HOLLIS: It is possible, I don’t remember in describing one of the gentlemen in the group of people that was running up Fayette Street. MR. CARDIN: Well, let me ask you this.

Did you tell the police that while the gun was being — 'while there was a struggle going on that another person was shot? MR. HOLLIS: No, sir. MR.

CARDIN: Specifically, did you tell the police that the male with the red sweatshirt grabbed the shooter’s hand and they started wrestling. When two shots were fired, one of these shots struck the male with the black shirt? MR. HOLLIS: No sir, I didn’t mention a gentleman with a black shirt.

MR. CARDIN: Okay. And that the person in the black shirt who was struck at that time then ran from the scene, did you tell the police that? MR.

HOLLIS: No, sir. Officer Schmidt testified for the State. On cross-examination, he acknowledged that, soon after arriving on the scene, he interviewed Hollis. Later that day, he wrote his police report and incorporated Hollis’s statements into it.

The State objected when appellant asked Officer Schmidt whether Hollis had told him that he had seen four black males beating up two black males. At the bench, appellant’s counsel stated that he had posed the question to elicit evidence of a prior inconsistent statement by Hollis. The trial court sustained the objection, explaining that the basis for the ruling was that the statement was oral hearsay, that it “ha[d] not been identified by Mr. ²³³ Hollis as his statement,” that it had not been “tie[d] back to the witness,” and that the requirements of Maryland Rule 5-613 had not been met. Appellant’s counsel proffered the following question of Officer Schmidt: “Did Mr. Hollis tell you that ‘a male with the red sweatshirt grabbed the shooter’s hand and they started wrestling when two shots were fired.

One of these shots struck the male with the black shirt, who then fled the scene.’?” The trial court reiterated its ruling during the ensuing colloquy: THE COURT: Okay. Sustain the objection as to that. MR. CARDIN: Okay.

THE COURT: On the basis that it is hearsay. That it hasn’t been independently shown to the witness, and that the witness is not a party. MR. CARDIN: I would make it clear, though, that this is absolutely contrary— THE COURT: And furthermore, counsel objected to the State, when the State was asking what Mr. Hollis said, and I sustained those objections.

MR. CARDIN: Your honor, I understand. THE COURT: To the police officer. MR.

CARDIN: Only the prior inconsistent statements are admissible for purposes of impeachment. THE COURT: I understand, but you have to get the witness, who is being impeached, to acknowledge that this was a statement. You’ve got to be either prior under oath or a signed statement. Here is just an oral assertion— MR.

CARDIN: Mr.— THE COURT: —By a third party that a witness made a statement, and the witness has denied it. MR. CARDIN: The witness has denied making the statement to the officer. That Mr. Hollis denied it.

It was read to Mr. Hollis, and he denied making it, and it’s contrary to what he testified to this jury as to how he was shot. ²³⁴ THE COURT: I’m going to sustain the objection on the basis that it’s hearsay. DISCUSSION A Prior Inconsistent Statement Of A Witness Offered For The Purpose Of Impeachment Is Not Hearsay Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Maryland Rule 5-801(c); Ali v. State, 314 Md. 295, 304 , 550 A.2d 925, 929 (1988). As this definition makes plain, whether an out-of-court statement is hearsay depends upon the purpose for which the statement is offered at trial. A statement that is offered substantively, to prove the truth of its contents, is hearsay, and is not admissible unless an exception to the rule against hearsay applies or admission into evidence is constitutionally required or statutorily allowed.

Maryland Rule 5-802; Stewart v. State, 342 Md. 230, 236, n. 1 , 674 A.2d 944, 947, n. 1 (1996). By contrast, a statement that is offered for a purpose other than to prove its truth is not hearsay at all. Ali v. State, at 304, 550 A.2d 925 . These general principles guide the analysis of admissibility of a witness’s prior inconsistent statement.

If a statement made before trial by a witness who testifies to the contrary at trial is offered as substantive evidence, it is inadmissible hearsay; it may be substantively admissible, nevertheless, under the hearsay exception for prior inconsistent statements set forth in Maryland Rule 5-802.1. That rule provides, in pertinent part: The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (a) A statement that is inconsistent with the declarant’s testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or ²³⁵ other proceeding or in a deposition; (2) reduced to writing and signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement. Cf., Nance v. State, 331 Md. 549 , 629 A.2d 633 (1993) (where special indicia of trustworthiness and reliability exist prior inconsistent statements may be admissible substantively). 3 If a witness’s prior inconsistent statement is offered for the purpose of impeachment, it is not being offered as substantive evidence. The objective in using a prior inconsistent statement for impeachment is to attack the declarant’s credibility by demonstrating that his testimonial version of events is inconsistent with a version of events that he related prior to trial.

When used as a technique to undercut a witness’s credibility, the statement is offered to prove its existence, not its truth, and is not hearsay. Stewart v. State, at 236, 674 A.2d 944 ; Smith v. Branscome, 251 Md. 582, 590 , 248 A.2d 455, 461-462 (1968); Sun Cab Co., Inc. v. Cusick, 209 Md. 354, 361-362 , 121 A.2d 188, 191 (1956). 4 As the Court of Appeals observed in Smith v. State: Use of a statement for impeachment purposes is not hearsay, since only the fact that the statement was made is being offered, not the truth of the statement. 273 Md. 152, 161 , 328 A.2d 274, 279 (1974). In this case, appellant sought to elicit extrinsically, through Officer Schmidt, a statement that witness Earnest ²³⁶ Hollis had made to him shortly after the shooting. The essence of the statement was that, as Leonard White (red shirt) and appellant (white shirt) struggled for the gun, a shot was fired accidentally, hitting Copeland (black shirt).

Appellant was attempting to use the oral statement to impeach Hollis. Hollis was an available declarant who, during his direct examination, denied making such a statement to the police. Had Officer Schmidt been permitted to answer the question posed, his testimony would have revealed that Hollis’s rendition of events to the jury differed from the observations that he had made within minutes of the shooting. 5 Thus, Hollis’s out-of-court statement to Officer Schmidt was not being offered to prove the truth of the assertion that Copeland had been shot accidentally by appellant during a struggle for the gun; rather, it was being offered to cast doubt on Hollis’s credibility as an eyewitness. In ruling on the admissibility of Hollis’s out-of-court statement, the trial court erred, from the outset, in assessing the statement as hearsay.

At no time did appellant seek to offer the statement as substantive evidence; indeed, there was an express proffer of admissibility for the sole purpose of impeachment. Nevertheless, the trial court treated the statement as if it had been offered to prove the truth of the matter asserted and, on that basis, analyzed its admissibility by applying the rule against hearsay and the prior inconsistent statement exception to it. Having taken that wrong turn, the court found itself on a path lined with issues that were not relevant to the evidentiary question before it: for example, whether the statement had been reduced to writing and signed by Hollis and whether the statement had been given ²³⁷ under oath. These issues, pertinent to the Rule 5-802.1(a) hearsay exception, had no bearing on the admissibility of Hollis’s statement for the purpose of impeachment. 6 Admissibility Of Extrinsic Evidence Of A Prior Inconsistent Statement For The Purpose Of Impeachment Maryland Rule