Holmes v. State

CHASANOW, Judge. In the instant case, Darían Tera Holmes (Petitioner) asks this Court to determine whether a witness’s prior consistent statement is admissible under Maryland Rule 5-802.1(b) to rebut a charge of fabrication where the statement was made after a motive to fabricate arose. In our view, the issue before this Court is whether the Court of Special Appeals erred in concluding that the trial court properly admitted a witness’s prior consistent statement. For the reasons set forth below, we hold that the Court of Special Appeals did not err and therefore affirm its judgment, but for different reasons and based on a rule of evidence not cited by the parties.

I. In the early morning hours of June 20, 1995, Danise Harris and her roommate Ellouise Thompson left their apartment to use a nearby telephone. Shortly thereafter, they ran into acquaintances, Petitioner, Antoine Awkard, and Miah Lewis. Petitioner and Harris began walking together ahead of the group, while Thompson stayed behind to talk with the remaining acquaintances. Moments later, a shot was fired, and Harris lay dead on the pavement.

At trial, evidence was presented that Harris died from a single gunshot wound from a .32 caliber bullet that was fired from approximately six to nine inches away. Following the shooting, Thompson gave a written statement to police indicating that she did not see who shot Harris. Two days later, on June 22, 1995, Thompson gave a second state ⁴¹⁶ ment to police, this time indicating that Petitioner shot Harris. At trial, Thompson testified consistently with her second statement to police.

During direct examination, Thompson explained that, although she told one of her sons what Petitioner had done, she initially was reluctant to give any statement to police because Petitioner knew that she had witnessed the murder and she was frightened for her safety. She also testified that Petitioner visited her the day after the murder making her feel threatened. The next day, Thompson told police that Petitioner murdered the victim. On cross-examination, defense counsel impeached Thompson with her prior inconsistent statement that she did not see who shot Harris and submitted this statement into evidence.

On redirect, the State asked Thompson to identify her second statement to police that it was Petitioner who shot Harris and then moved for its admission. Over defense counsel’s objection, the trial court admitted the statement, stating: “I will let it come in because we received the earlier statement. I think the jury has the right to look at both.” Neither the State nor defense counsel argued further regarding the admissibility of Thompson’s second statement. During closing arguments, defense counsel further questioned the credibility of Thompson’s statement implicating Petitioner.

Petitioner was convicted by a jury of second-degree murder and use of a handgun in the commission of a felony. Petitioner was sentenced to thirty years imprisonment for second-degree murder and twenty years imprisonment for the use of a handgun to be served consecutively. On appeal, the Court of Special Appeals in a reported opinion affirmed Petitioner’s convictions. Holmes v. State, 116 Md.App. 546 , 698 A.2d 1139 (1997).

This Court granted a writ of certiorari on December 15, 1997 to review whether the intermediate appellate court erred in concluding that the trial court properly admitted Thompson’s prior consistent statement.

II

As a general rule, prior out-of-court statements made by a witness that are consistent with the witness’s trial ⁴¹⁷ testimony are not admissible to bolster the credibility of a witness. The general rule has an exception where a witness’s credibility is attacked by an implication of fabrication or improper influence or motive; then, the witness’s prior consistent statements are admissible if made before the alleged fabrication or improper influence or motive existed. See City Pass. Ry.

Co. v. Knee, 83 Md. 77, 79 , 34 A. 252, 253 (1896) (noting that where a witness has been impeached by “evidence showing that he has testified under corrupt motives, or has fabricated his testimony to meet the exigencies of the case, the fact that he uttered the same statement, shortly after the transaction, and before the motive to fabricate existed, tends to support not only his integrity, but also the accuracy of his recollection”). The rationale behind the common-law, “premotive” rule was that if a witness has been attacked by a charge of “bias, interest, corrupt influence, contrivance to falsify, or want of capacity to observe or remember, the applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.” 1 McCormick on Evidence § 47, at 177 (John W. Strong ed., 4th ed.1992). At common law, a prior consistent statement was admissible only to rehabilitate the witness’s credibility and not as substantive evidence. Collins v. State, 318 Md. 269, 285 , 568 A.2d 1, 9 , cert. denied, 497 U.S. 1032 , 110 S.Ct. 3296 , 111 L.Ed.2d 805 (1990).

The Maryland rules of evidence have been in effect since July 1, 1994. Maryland Rule 5-802.1 is the counterpart to Federal Rule of Evidence 801(d)(1). 1 Maryland Rule 5-802.1 provides in pertinent part: ⁴¹⁸ “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: (b) A statement that is consistent with the declarant’s testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive.” Subsection (b) of the Maryland rule is derived from Fed. R.Evid. 801(d)(1)(B), and both rules are silent as to whether the consistent statement must have been made prior to the time of the alleged fabrication or improper influence or motive. With regard to the federal rule, the United States Supreme Court has addressed the issue of whether a witness’s “out-of-court consistent statements made after the alleged fabrication, or after the alleged improper influence or motive arose, are admissible.” Tome v. United States, 513 U.S. 150, 152 , 115 S.Ct. 696, 699 , 130 L.Ed.2d 574, 579 (1995). Limiting its holding to the “requirements for admission under Rule 801(d)(1)(B),” the Supreme Court held that Fed.R.Evid. 801(d)(1)(B) embodies the common-law rule requiring a prior consistent statement, introduced “to rebut a charge of recent fabrication or improper influence or motive” to have been made before the alleged fabrication or improper influence or motive came into existence.

Tome, 513 U.S. at 167 , 115 S.Ct. at 705 , 130 L.Ed.2d at 588 . In Tome , the petitioner was charged in a one-count indictment with sexually abusing his four-year-old daughter. The government’s theory was that the crime was committed while the child was in Tome’s custody and discovered when the child was spending the summer with her mother. The defense asserted that the allegations were fabricated in order to prevent the return of the child to Tome who had primary ⁴¹⁹ custody.

On the first day of trial, the child, then six years old, testified as the government’s first witness and appeared to have no difficulty answering questions during her direct examination or general background questions during cross-examination. On the second day of her cross-examination, however, the child hesitated in answering questions regarding the alleged abuse and appeared to lose concentration at times. After the child’s testimony, the government called six witnesses who testified regarding prior statements made by the child describing the alleged abuse; these statements were offered by the government and admitted into evidence by the court pursuant to Fed.R.Evid. 801(d)(1)(B). Tome, 513 U.S. at 152-54 , 115 S.Ct. at 699-700 , 130 L.Ed.2d at 579-80 .

Examining the language of the federal rule, the Supreme Court reasoned that Fed.R.Evid. 801(d)(1)(B) limited the admissibility of prior consistent statements by focusing on “rebutting charges of recent fabrication, improper influence and motive to the exclusion of other forms of impeachment.” Tome, 513 U.S. at 160 , 115 S.Ct. at 702 , 130 L.Ed.2d at 584 . The Supreme Court explained: “This limitation is instructive, not only to establish the preconditions of admissibility but also to reinforce the significance of the requirement that the consistent statements must have been made before the alleged influence, or motive to fabricate arose. That is to say, the forms of impeachment within the Rule’s coverage are the ones in which the temporal requirement makes the most sense. Impeachment by charging that the testimony is a recent fabrication or results from an improper influence or motive is, as a general matter, capable of direct and forceful refutation through the introduction of out-of-court consistent statements that predate the alleged fabrication, influence or motive.

A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive. By contrast, prior consistent statements carry little rebuttal force when most other types of impeachment are involved.” ⁴²⁰ Tome, 513 U.S. at 158 , 115 S.Ct. at 701 , 130 L.Ed.2d at 582-83 . Thus, under Fed.R.Evid. 801(d)(1)(B), a prior consistent statement “may not be admitted to counter all forms of impeachment or to bolster the witness merely because [he or] she has been discredited.” Tome, 513 U.S. at 157 , 115 S.Ct. at 701 , 130 L.Ed.2d at 582 . Moreover, the Supreme Court reasoned, Fed.R.Evid. 801(d)(1)(B) employs “somewhat peculiar” language similar to the language contained in the common-law cases.

Tome, 513 U.S. at 159 , 115 S.Ct. at 702 , 130 L.Ed.2d at 583 . In reaching its decision, the Supreme Court rejected the government’s argument that the common-law rule is inconsistent with the federal rules liberal approach to relevancy, noting that “[h]earsay evidence is often relevant” and that “[r]elevance is not the sole criterion of admissibility.” Tome, 513 U.S. at 163 , 115 S.Ct. at 704 , 130 L.Ed.2d at 586 . A case-by-case balancing approach was also rejected by the Supreme Court because: “It involves considerable judicial discretion; it reduces predictability; and it enhances the difficulties of trial preparation because parties will have difficulty knowing in advance whether or not particular out-of-court statements will be admitted.” Tome, 513 U.S. at 165 , 115 S.Ct. at 704-5 , 130 L.Ed.2d at 587 . The Supreme Court further expressed its fear that the emphasis at trial could shift from the in-court statements to the out-of-court statements if Fed.R.Evid. 801(d)(1)(B) was not limited to premotive statements.

Tome, 513 U.S. at 165 , 115 S.Ct. at 705 , 130 L.Ed.2d at 587 . Although the Supreme Court acknowledged that there may be instances where out-of-court statements made after the alleged fabrication have some probative force, the Court noted that such statements rebut the alleged fabrication in a “less direct and forceful” manner. Tome, 513 U.S. at 158 , 115 S.Ct. at 701 , 130 L.Ed.2d at 583 . Turning to the instant case, the Court of Special Appeals declined to follow the Tome limitation on the use of prior consistent statements under Fed.R.Evid. 801(d)(1)(B) noting that, while the federal rule includes the phrase “recent fabrication,” the Maryland rule omits the word “recent.” Holmes, ⁴²¹ 116 Md.App. at 555-56 , 698 A.2d at 1143 .

Concluding that the omission “signifies a more flexible approach to the admission of prior consistent statements, not to be limited by the timing of the statement,” the intermediate appellate court noted that: “Consistent statements made prior to the alleged fabrication surely rebut the allegation of fabrication, but ‘there may [also] be some rebuttal value in a statement made after some motive existed, but before it became strong.’ Likewise, ‘[a] postmotive statement is relevant to rebut ... a charge of recent fabrication based on improper motive ... when the speaker made the prior statement while affected by a far more powerful motive to tell the truth.’ ” (Citations omitted). Holmes, 116 Md.App. at 556 , 698 A.2d at 1143-44 . Based on its interpretation of Md. Rule o—802.1(b), the Court of Special Appeals rejected Petitioner’s argument that Thompson’s second “statement impermissibly bolstered Thompson’s credibility by repeating her testimony” and held that the trial court properly admitted Thompson’s statement. Holmes , 116 Md. App. at 555-56 , 698 A.2d at 1143-44 .

We affirm the judgment of the Court of Special Appeals but on other grounds. Petitioner argues that Maryland should continue to adhere to the common-law rule as the Supreme Court did in Tome and the majority of other jurisdictions have done. Noting that “post-motive to fabricate statements carry little probative weight,” Petitioner asserts that the common-law rule will permit the “admission of statements which are a ‘square rebuttal’ of the charged fabrication, Tome, 513 U.S. at 158 , [ 115 S.Ct. at 701 , 130 L.Ed.2d at 583 ] while excluding statements which carry little, if any, probative force to rebut [the] charged fabrication.” The State counters that the plain language of Md. Rule 5-802.1(b) permits the admission of a witness’s prior consistent statement to rebut a charge of fabrication because the rule does not impose a requirement as to the timing of the fabrication or the prior consistent statement. The State contends that the omission of the word “recent” from Md. Rule 5-802.1(b) indicates an intent to depart from the federal requirement that the consistent state ⁴²² ment precede the fabrication.

Therefore, the State concludes, “[a]ll that is required is that the statement be relevant to rebut a charge of fabrication; if the relevancy requirement is met, the statement may be admitted regardless of its timing.” We agree with Petitioner that Md. Rule 5—802.1(b) embodies the common-law, premotive rule, and we give our rule the same interpretation the Supreme Court gave the federal rule in Tome ; however, Thompson’s prior consistent statement was properly admitted under a different Maryland rule as we shall explain in Part IV. We recently reiterated the longstanding principles of construction that are applied with regard to the Maryland rules. “In construing a rule, we apply principles of interpretation similar to those used to construe a statute. First, we must examine the ‘words of the rule, giving them their ordinary and natural meaning.’ Where the language of the rule is clear and unambiguous, our analysis ends.” State v. Harrell, 348 Md. 69, 79-80 , 702 A.2d 723, 728 (1997) (citations omitted)(quoting In re Victor B., 336 Md. 85, 94 , 646 A.2d 1012, 1016 (1994)). Where the language of the rule is ambiguous, this Court will examine the history of the rule to aid in determining the “reasonable intendment of the language used in the light of the purpose to be effectuated.” Long v. State, 343 Md. 662, 668 , 684 A.2d 445, 448 (1996). “The ultimate goal of this Court is ‘to give the rule a reasonable interpretation in tune with logic and common sense.’ ” Harrell, 348 Md. at 80 , 702 A.2d at 728 (quoting In re Victor B., 336 Md. at 94 , 646 A.2d at 1016 ).

With this goal in mind, Maryland rules “dealing with the same subject matter will be construed so as to harmonize with each other and not produce an unreasonable result.” Johnson v. State, 274 Md. 29, 41 , 333 A.2d 37, 43 (1975). Furthermore, absent a clear indication to the contrary, we shall assume that the rule “was not intended to amend, nullify, or supersede the common law.” See Richwind v. Brunson, 335 Md. 661, 672 , 645 A.2d 1147, 1152 (1994). ⁴²³ As we indicated earlier, the language of Md. Rule 5-802.1(b) is silent as to whether the rule requires that the consistent statement precede the alleged fabrication or improper influence or motive. Although the rule omits the word “recent,” as used in the federal rule, this omission does not signify an