In Re Lavar D.

JAMES R. EYLER, Judge. Ronald B., Britny C., and Lavar D., appellants, 1 were charged in the Circuit Court for Baltimore City, in separately filed delinquency petitions, with assault and related offenses, arising out of an altercation between appellants and the victims, Sarah Kreager and Troy Ennis, on a Mass Transit Administration (“MTA”) bus on the afternoon of December 4, 2007. After proceedings, the circuit court, sitting as a juvenile court, found each appellant involved as to charges of assault in ⁵³² the first degree, assault in the second degree, conspiracy to commit assault in the first degree, disorderly conduct, and reckless endangerment. Appellants were acquitted of several other charges.

Subsequently, the court placed each appellant under the control of the Department of Juvenile Services for community-based placement and other rehabilitative services, and also required each appellant to complete fifty hours of community service. On May 19, 2008, Lavar D. and Britny C. noted appeals. On May 23, 2008, Ronald B. noted an appeal. On September 11, 2008, we consolidated the cases for purposes of appeal.

In this Court, appellants raise several questions for our consideration. They are, as phrased by appellants, as follows: 1. Where appellants were charged with assault and related offenses and the judge, sitting as fact-finder, recognized that self-defense “has been raised in this case,” did the judge impermissibly shift the burden of proof when he stated that “the burden of proving self defense rest[s] upon the person accused of the assault”? 2. Where defense counsel proffered that the alleged victim had testified in the disposition hearing of a co-respondent, held before the same judge sitting as fact-finder in the present case, that her children were not in custody solely because of this incident, did the court err in prohibiting defense counsel from cross-examining the victim as to whether she had a pending charge for distribution of narcotics, where the alleged sale of drugs occurred in the presence of her three children? 3.

Is the evidence sufficient to establish that each appellant is a delinquent child? 4. Where the interrogating officer urged Mr. B. to “[hjhelp [sic] yourself’ before “four [other respondents] tell me exactly what happened and exactly what you did” and emphasized that “[a]fter now is too late” did the lower court err in finding that the resulting custodial statement was not the product of police inducement? 5. [Appellants’ argument # 5 was withdrawn]. ⁵³³ 6. Did the lower court err in precluding cross-examination of Mr. Ennis concerning past domestic violence of Ms. Kreager? 7. Did the lower court err in allowing the State to introduce statements by co-respondents with blank and omitted passages containing redacted statements implicating the other respondents? 8.

Did the lower court err in prohibiting the accused from refreshing one victim’s recollection of whether he had made prior false statements to the police when it ruled that “you can’t use a document he didn’t prepare to refresh his recollection”? We shall affirm. Factual Background On January 31, 2008, the first day of pretrial motions hearings, appellants moved for suppression of their statements to MTA police, arguing that the statements were coerced. When the State attempted to play the taped statements for the court, counsel for Nakita M. argued that “if the State is going to play the one part,” as to the voluntariness of the statement, “I would ask that the State play both parts or the whole thing.” Subsequently, the following colloquy ensued, in pertinent part.

THE STATE: Your Honor, the State’s intent is to, there are certain portions that the State does not believe are admissible and the State, it’s planning to stop at those points. Counsel does have a copy of a transcript that indicates those stoppage points. I don’t know if that’s what counsel’s referring to. THE COURT: I don’t know either.

THE COURT: Could you help me out, [counsel for Nakita M.]? COUNSEL FOR NAKITA M.: Yes, I can, Your Honor. If the State intends to play one part, the State should play every part of the tape. But at this point, Your Honor— ⁵³⁴ THE COURT: Well, but the only thing that’s relevant at this time is whether or not, you raised an objection, I believe, to the voluntariness.

COUNSEL FOR NAKITA M.: Yes, Your Honor. THE COURT: So that’s, that’s what’s relevant. So the— what’s germane to this hearing is the part of the tape that goes to the issue of whether or not your client’s statements were freely and voluntarily given so that’s what I’m hoping we’ll hear. COUNSEL FOR NAKITA M.: Well, at this point, Your Honor, if the State is picking and choosing what they choose to let the [cjourt hear,— THE COURT: Well, unless, if I decide [counsel for Nakita M.] that it’s not freely and voluntarily given, none of it comes in.

If I, so for me to watch the whole tape means the cat’s out of the bag, doesn’t it? So the part you all don’t want me to see I’ve then seen. What’s at issue here is whether or not this statement is freely and voluntarily given. ❖ * * (Whereupon, counsel approached the bench and the following ensued:) ❖ * * THE COURT: See, I thought it [sic] I can see the whole thing if this were a jury trial. But I’m the trier of fact so once I see it, you know— COUNSEL FOR LAVAR D.: But, Your Honor, this is the same issue I was discussing in the office.

They cannot redact Bruton [2] on their own. The solution in this kind of case is to sever these trials so that if— THE COURT: This isn’t Bruton. Only, this is a— COUNSEL FOR LAVAR D.: It is Bruton. COUNSEL FOR NAKITA M.: It is Bruton, Your Honor. ⁵³⁵ THE COURT: [Counsel for Lavar D.], see this?

I’ve determined this isn’t a Bruton situation---- The State then again attempted to play the tape, and offered to the court what was marked for identification as State’s Exhibit # 2, a copy of a transcript of the tape-recorded interview, prepared by the State, with redactions. Counsel for Lavar D. objected, and the following transpired. COUNSEL FOR LAVAR D.: This is the [cjourt redacting Bruton issues and it is not appropriate. I mean the State’s Attorney’s Office.

The State’s Attorney’s Office is not a licensed, certified transcription. We don’t know if they’ve transcribed out any exculpatory evidence. This is not a solution to get rid of the Bruton issues which are the implication by certain respondents of other respondents. It is not appropriate.

I suggested it at the arraignment. I have suggested it at every single hearing since because severance of the trials is the remedy. THE COURT: [Counsel for Lavar D.], and you didn’t get severance of trials, okay? So that horse is dead.

Subject to the motion. Thank you. Continue. COUNSEL FOR NAKITA M.: ... [W]hat the State has requested be introduced was transcribed by a person in the State’s Attorney’s Office.

I would ask that it not be introduced into evidence. * * ❖ THE COURT: I haven’t looked at the transcript---- (Whereupon, a taped interview was played for the [c]ourt.) ❖ * * During the playing of the tape, counsel again objected to the State’s starting and stopping of the tape, and the following transpired, in pertinent part. COUNSEL FOR LAVAR D.: [Tjhis is [the State’s] version of the tape. And that’s where they’re stopping and start ⁵³⁶ ing---- The evidence is the tape in its entirety. The evidence, if it has Bruton issues, should have been severed.

The State doesn’t get to come in here and stop and start like this. Just like everyone said and then put it down on what they’re claiming is some sort of official transcript which they typed up in their office based on their version of things. * * * THE COURT: But didn’t you get [the State’s redactions]? COUNSEL FOR NAKITA M.: I got it. Hi Hs COUNSEL FOR NAKITA M.: ... [B]ut in redacting it for the purpose of the motion ... why stop it and start it, stop it and start it.

You’re talking about voluntariness, stop it and start it. Who’s to say that one of the parts that you missed— THE COURT: Oh, I thought the only part, when you said play the whole thing I then said play the whole thing with the exception of the part that they said they could redact which incriminates other people. ❖ H« * THE COURT: I mean, well not redact but skip over. ❖ H: THE STATE: I presented to counsel each of the set of statements. I told them that they had been redacted by Bruton. H< Hi Hi COUNSEL FOR LAVAR D.: I don’t want their version of events.

I want the tape. THE COURT: But you got the tape. Hi ❖ Ht THE COURT: But when you’ve got the tape, you can do your own version. COUNSEL FOR LAVAR D.: Then I want my whole tape played, every single bit. ⁵³⁷ THE COURT: Then when we come to your tape.

Anything else? COUNSEL FOR SHAMIRA B.: Your Honor, I just want to note, if I may, the continuing objection to the stopping and starting and the redaction of the tape. * * * Over continuous objections, the taped interview was played, with the State skipping portions of it. At some point, counsel for Shamira B. objected again on the basis that “[tjhere were so many people [in Nakita M.’s tape-recorded statement] about corespondents.... ” Subsequently, a bench conference was held, and the following transpired, in relevant part. COUNSEL FOR SHAMIRA B.: Your Honor, the statement I’m objecting to---- * * * COUNSEL FOR SHAMIRA B.: “I don’t know,” in response to a question “who kicked the young lady.” That was played in open court.

Your Honor heard it. I object to it on grounds of Bruton and I move for a mistrial. THE COURT: Yeah, but it doesn’t identify anybody. THE COURT: How’s that Bruton if it doesn’t identify anyone?

COUNSEL FOR SHAMIRA B.: Your Honor, we’re in a corespondent case. She’s talking], she’s giving direct testimony about other people involved in the assault. THE COURT: But she doesn’t identify anybody. * * * COUNSEL FOR SHAMIRA B.: Your Honor, think the [e]ourt can reasonably infer in a co-respondent case like this— THE COURT: No,— COUNSEL FOR LAVAR D.: There were 35, 40 people on the bus— ⁵³⁸ THE COURT: As a matter of fact, I’ve done cases involving barroom brawls, counsel, where there’s a hundred people fighting. That doesn’t say anything.

That’s not Bruton. * * * Counsel for several of the other appellants also noted continuing objections. After appellants’ objections were overruled, the State attempted to continue playing the tape; however, counsel for Shamira B. again objected stating that “[w]hen they refer to other co-respondents to the extent that it corroborates what witness testimony against the co-respondent is a Bruton issue—.” The court again noted the continuing objections, and denied Shamira B.’s motion. Nevertheless, as the tape was played again, counsel for Shamira B. again objected, and the following ensued. COUNSEL FOR SHAMIRA B.: Early in the interview [of Nakita M.], Detective Fleming asks Ms. M. about her and the other people who are being detained’s involvement, in this particular line at the end of the tape— * * * COUNSEL FOR SHAMIRA B.:—Detective Fleming states “why didn’t ya’ll, why didn’t anybody beat him up?” [Nakita M.] testified on the tape, it was just played in open court, they did beat him up.

It doesn’t get any more incriminating than that, Your Honor. It doesn’t get any more prejudicial. I raise the same objection— COUNSEL FOR SHAMIRA B.:—and move for a mistrial. THE COURT: And it’s noted.

It still doesn’t identify anybody. It doesn’t say who “they” are. COUNSEL FOR SHAMIRA B.: Your Honor, earlier in the tape, they’re talking about Ms. M. and the other people that are detained in the same building. My point is that the [cjourt can make a reasonable inference, the trier of fact can ⁵³⁹ make a reasonable inference from that that Detective Fleming is referring to the other people being detained— THE STATE: I don’t think that this is a Bruton issue.

I think that what is said is so general, there’s a Southern expression of “you all” and I think that, in an abundance of caution I tried to take everything out that’s Bruton related. I do not think this is Bruton material. THE COURT: I don’t think it is either. THE COURT: I don’t know who it relates to.

On February 4, 2008, during a continuation of the pretrial motions hearing, after more discussion with respect to the tape-recorded statements, the court ordered that the recordings be transcribed and certified by a court reporter. The State then asked the court to have appellants’ counsel review the tape-recordings and transcripts for Bruton issues, so that any problems in that regard could be resolved before trial. The court responded that counsel should resolve Bruton issues, and “[m]ake sure they’re appropriately redacted to [appellants’ counsel’s] satisfaction, for your client----” Counsel for one of the appellants responded that “[t]hey shouldn’t be redacted ...,” and the following transpired. THE STATE: [T]hey claim they shouldn’t be redacted, and I disagree.

That they are redacted for Bruton purposes. They can’t claim that they shouldn’t be redacted for Bruton and then come back on appeal and say, well, the [c]ourt— THE COURT: I agree. THE STATE:—was prejudice[d], because they weren’t redacted. [Counsel for Lavar D.] has been saying, well, the State can’t redact for Bruton. Well, the State can redact for Bruton, it must redact for Bruton, and that’s what the Supreme Court has said that it is.

I have given them copies [of the transcripts]. I have asked for their cooperation, Your Honor, and I’m not getting it to the degree as to what’s Bruton or not. ⁵⁴⁰ THE COURT: (indiscernible) see—here's—yeah. You all, whatever you all get should be everything. You all, whatever you all get should be everything.

What the [c]ourt gets should not be everything. So they should redact, so that I’m not—your clients aren’t implicated by what’s in a statement of somebody else. That’s the Bruton redact. On February 7, 2008, during a further continuation of the pretrial motions’ hearing, the court verified that counsel had done the “Bruton redactions,” and verified that the “redactions are both satisfactory to the State and the Defense____” Both the State and counsel for each appellant responded in the affirmative, the agreed upon transcripts of the tape-recordings were received by the court, and several of the tape-recordings were played for the court.

Of particular relevance is a portion of the December 4, 2007 statement of Ronald B. during an interview by an MTA detective, Detective Sergeant Kenneth Combs, which follows. SGT. COMBS: You understand something. It’s on video and there’s witnesses.

And then you go to court lying to me about what happened. [RONALD B.]: I don’t know (INAUDIBLE) SGT. COMBS: Help yourself cause I guarantee you out of that group out there, nine people, four of them are going to tell me exactly what happened and exactly what you did then what are you going to do? Eighteen years I been doing this job. I know what I’m doing so now you can tell me the truth or we can put down what you just told me and we can go to court and say, not only did he lie[ ] about it and has no remorse over what he did at all.

You understand what I’m saying? So what’s the judge going to do at that point? He did it. I see he did it.

I’ve got witnesses that say he did it and he going to sit there and lie about it and basically don’t care that he did it. [RONALD BJ: (Inaudible) ⁵⁴¹ SGT. COMBS: Well then explain it to me. If these people did something to make you do this then you’ve got to explain that to me right now. [RONALD B.]: Yeah, they was (INAUDIBLE) SGT. COMBS: After now is too late. [RONALD BJ: Huh?

SGT. COMBS: After now is going to be too late. So they were trying to do what? They tried to hit you, right? [RONALD BJ: Yeah.

SGT. COMBS: And then what did you do? [RONALD BJ: I hit them back. SGT. COMBS: You hit them back? [RONALD BJ: Yeah.

SGT. COMBS: Who did you hit? [RONALD BJ: I think ... I hit the girl. SGT.

COMBS: You hit the girl, okay. [Y]ou kick her? [RONALD B.]: I don’t think so. SGT. COMBS: There was a whole group around you that started stomping on her. [RONALD BJ: It was? SGT.

COMBS: Yes. And you were in that group, correct? [RONALD BJ: Yes. SGT. COMBS: Yes.

So you kicked her? [RONALD BJ: Yes. SGT. COMBS: You hit her and you kicked her? [RONALD BJ: No, I kicked her. SGT.

COMBS: Huh? [RONALD BJ: I kicked her. SGT. COMBS: You just kicked her when she was being held down outside the bus, right? [RONALD BJ: Ah huh. SGT.

COMBS: Okay. Who else kicked her? [RONALD B.]: I don’t know. ⁵⁴² * * ❖ SGT. COMBS: How many times did you kick her? [RONALD B.]: Once. * * * On February 13, 2008, during a further continuation of the pretrial motions’ hearing, counsel for Ronald B. argued that Ronald B.’s statement to police, as replicated above, should be suppressed as it was a product of police inducement. Counsel argued that the inducement was that “Ronald [B.] needs to confess before the other kids confess”; that he needed to “confess now—confess now before the other kids confess ‘cause—and—because once the other kids confess I can’t help you.” The court denied Ronald B.’s motion to suppress, stating the following.

THE COURT: There’s another ... argument that was made that the [cjourt will address and that is, that somehow ... Sgt. Combs, tricked or otherwise induced the respondent into making a statement by saying that he needed to help himself. In In Re Lucas F, as well as Tobert versus State, free and voluntariness is impacted on by whether or not the statement was extracted by threats or threats of violence, whether or not it was obtained by indirect or implied promises, or whether or not there was some exertion of improper influence.

The [cjourt is not satisfied that any of that’s been shown. The court also denied motions to suppress, on constitutional grounds, the statements of Shamira B., Wesley B., Lavar D., and Nakita M. The court granted Britny C.’s motion to suppress her statement. On March 3, 2008, the adjudicatory proceedings began. The State called Sarah Kreager as its first witness.

On direct-examination, Ms. Kreager testified as follows, in relevant part. On the afternoon of December 4, 2007, at approximately ⁵⁴³ 3:00 p.m., she and her “husband—boyfriend,” 3 Troy Ennis, were at Chestnut Pharmacy in Hampden filling a prescription for Xanax for Ms. Kreager. Ms. Kreager also takes Paxil for anxiety and is on the “Methadone program” for an addiction to prescription painkillers. At the time, Ms. Kreager and Mr. Ennis, who had three children together, were living in a shelter because Mr. Ennis had lost his job.

The children were not staying in the shelter, but were living with Ms. Kreager’s mother. After leaving the pharmacy, Ms. Kreager and Mr. Ennis decided to wait for the bus because it was a very cold day. She and Mr. Ennis, who was also on the “Methadone program,” had to go get his medication after leaving the pharmacy. When the bus arrived, Ms. Kreager and Mr.- Ennis got on, using their “day pass.” Ms. Kreager greeted the bus driver, and then turned to look for a seat to sit in.

Ms. Kreager stated that the bus was very crowded and she noticed that there were a lot of students on the bus, so she proceeded to the back of the bus where there were two vacant seats together so that both she and Mr. Ennis could sit down. As Ms. Kreager sat down, Mr. Ennis told her that he would rather stand, as they did not have that far to go. Mr. Ennis also had a duffel bag with him, which he did not want to leave in the aisle because it may have “gotten in the ... way for people to get through.” According to Ms. Kreager, the bus was loud and “students were laughing and carrying on,” which was “the norm, when you would get on the bus at that time with students____” When Ms. Kreager sat down, she “heard a voice from behind [her] and it said: This—that’s my home girl’s seat.” Ms. Kreager turned to look and saw a girl whom she later identified as Nakita M. The girl told Ms. Kreager that she “needed to move.” Ms. Kreager glanced around—thinking that she may possibly have taken someone’s seat—to see if ⁵⁴⁴ perhaps there was someone standing whom she had not noticed before. Ms. Kreager did not see anyone standing or waiting for the seat.

When Ms. Kreager realized that no one was waiting for the seat, she became confused, and she “almost was not sure if [Nakita M.] was even talking to [her], although she was looking dead at [her].” Ms. Kreager stated that she did not respond, but rather “kind of, shook [her] head as to not understanding and just turned around.” As she did so, she heard giggling behind her, but she just “ignored it as children, juvenile.” At that point, Ms. Kreager heard someone say, “If she doesn’t want to move, we’ll move that bitch.” When Ms. Kreager heard that, she became alarmed because of the “tone of voice” and because of “the fact that something could be taken so serious [sic] to even call [her] that name.” At that point, Ms. Kreager decided to go stand with Mr. Ennis, who was standing “down the steps right near the back ... door” of the bus. When she reached Mr. Ennis, she told him “I believe these girls are trying to start something with me.” Ms. Kreager said that she spoke in Mr. Ennis’ ear because the “bus was kind of loud.” Mr. Ennis responded to her, “Well, come up here with me. You know how kids are these days. Hayley [4] has more manners than they do.” At that point, Nakita M. stood up, and in a raised voice, asked Mr. Ennis what he had said.

Nakita M. turned to the back of the bus and said, “look, she has a little boyfriend with her,” and “[y]ou white motherfuckers think you own shit. This is our bus.” Ms. Kreager realized the situation was escalating, so she tried to dissolve it by saying, “Look, you can have the seat. It’s not a big deal. Have the seat.” Nakita M. did not sit down, however.

After that exchange, Ms. Kreager turned to Mr. Ennis because she wanted to tell him that she wanted to get off at the next stop, but as she went to face Mr. Ennis, Nakita M. swung at her, struck her in the face, and pulled her hair. Ms. ⁵⁴⁵ Kreager stumbled backwards and her body twisted around, and Nakita M. was still trying to pull her by her hair. Ms. Kreager became nervous, and could hear uproar, noise, and commotion “coming from everywhere.” She could hear someone yelling “[s]top” from the front of the bus. Nakita M. still had her by her hair, and another female came over and grabbed her by her hair as well.

Both girls tried to pull Ms. Kreager by her hair into “that crowd that was beginning to get ... very anxious or excited; aggressive.” At that point, Ms. Kreager felt someone grab her jacket and tug, and she realized that it was Mr. Ennis trying to pull her back. Mr. Ennis threw Ms. Kreager, who was on the ground on all fours, behind him. The crowd of students then began to “charge Mr. Ennis,” and Ms. Kreager saw someone try to kick him in his face. Mr. Ennis began yelling to the bus driver to open the door.

When the bus door opened, Ms. Kreager crawled out “on all fours,” and Mr. Ennis kicked the duffel bag out and told her to grab her purse. Once outside the bus, Mr. Ennis helped Ms. Kreager to her feet. Ms. Kreager stated that she “had chunks of hair falling out,” and that she “was pulling [her] hair, trying to put [her] hair back up.” Ms. Kreager was expecting the bus to pull away, but instead, she saw the group of kids moving towards the front of the bus. Mr. Ennis attempted to hold the bus doors closed, but there were students pushing through the door.

The students were climbing over a bus passenger in a wheelchair to get to the front of the bus. After the bus doors “burst out,” a large group of 20 to 30 students got off the bus and a group of approximately 7 to 12 of them “began circling” her. Ms. Kreager did not know where Mr. Ennis was at that point. At some point, Ms. Kreager was facing Nakita M., and Nakita M. had “some sort of weapon in her hand.” Ms. Kreager thought it was a nail file.

Nakita M. kept asking Ms. Kreager, “what’s good? What’s good?” Ms. Kreager was becoming nervous and realized that she was going to be attacked. ⁵⁴⁶ Ms. Kreager testified that she was struck in the back of her head, and as she turned around, saw that it was a male who had struck her with a closed fist. She was then “charged” and “tackled” by Nakita M. and another female. Ms. Kreager fell to the ground and felt someone, whom she believed to be the male that had struck her in her head, on her side.

Ms. Kreager stated that she ended up on the ground in the gutter with her hands covering her face and her body “tuck[ed] into a ball,” “trying to block the punches and the kicks that were coming around” her. She then felt a piercing in her head. Ms. Kreager described the attack as follows: I felt kicking in my ribs. I felt piercing over and over in my head.

I could feels fists, being hit in my head. I could feel kicks in my back, all over my body, over and over and over. There was, you know, no stop, no pause, and they were getting harder and harder. And I felt more and more, which, I felt as though more people were coming over, because I could—at that time—as progressed, you would feel more kicks.

You know, as I went up to feeling kicks or hits in my ribs, by the end I was feeling double of that amount. I just felt that there was more people over there. At that point, I felt someone try to pull my hair—pull me by my hair and lift my head up, and I was trying to fight by keeping my head down and resisting—trying to resist that. I felt someone else grab the other side of my hair and they lifted my hair up.

And, when my hair was lifted up, I looked up. I could see a male with boots on. I want to say, like, a butter colored boot, jeans, green jacket. As I started to look up at him, I heard a female behind me say: Kick that—kick that bitch.

And then the male kicked me in my eye, which immediately was excruciating pain. I could feel something almost crack or crunch in my eye, and my eye immediately swelled shut. So, I could not—I could not open my eye. I was almost scared that I may have lost an eye, because I couldn’t see.

I just—everything went black—everything. ⁵⁴⁷ Ms. Kreager believed that the voice she heard saying “kick that bitch” was that of Nakita M. After Ms. Kreager was kicked in her eye, she began yelling “My eye. Stop, my eye. Please stop.” Ms. Kreager then heard a woman’s voice say, “Stop; that is a woman you are hitting. You’re going to kill her, you animals.” Ms. Kreager did not know where the woman came from because she was on the ground; she could only hear her voice.

Ms. Kreager also heard the woman, later identified as Joyce King, say that she was going to call the police, at which point the students got off of Ms. Kreager and ran. Ms. Kreager stated that there was blood coming from her nose and her eye. Ms. Kreager testified that her eye had “swelled shut” and that it “gave her sharp pains in [her] head and eye, sinus pain immediately.” It also caused her “nose to bleed” and she “was in a lot of pain____” Ms. King helped Ms. Kreager up, and told her that she had called the police. Mr. Ennis came over to where Ms. Kreager was, and told her that “[t]hey got [him] on the other side of the bus.” When the police arrived, Mr. Ennis and Ms. Kreager pointed out her eye injury, and told the officer that some of the students were still standing on the corner.

Other students had apparently kept running. Ms. Kreager was transported by ambulance to Sinai Hospital. She stated that in addition to her eye injury, she was also “very sore,” and had “approximately four to five stab wounds in the top of [her] head.... ” Ms. Kreager stated that before the attack on the bus, her eye was “normal,” and she did not have any other injuries on her body. Ms. Kreager was at Sinai for about 7 or 8 hours before returning to the shelter.

About 2 or 3 hours later, however, she became nauseous and began throwing up blood. The shelter workers called 911 and Ms. Kreager was transported to the emergency room at Johns Hopkins, and subsequently upstairs to the Wilmer Eye Clinic. Ms. Kreager obtained a prescription for an antibiotic and for a painkiller, and was released from the hospital. ⁵⁴⁸ During cross-examination by counsel for Ronald B., the following transpired, in relevant part. COUNSEL FOR RONALD B.: Now, Ms.—this—you— you’ve made a victim impact statement [5] previously, have you not?

MS. KREAGER: Yes, sir. COUNSEL FOR RONALD B.: And, in that victim impact statement, you indicated that this incident was part of the incident [sic] keeping you from your kids? MS.

KREAGER: Yes sir; it is— COUNSEL FOR RONALD B.: Okay. MS. KREAGER:—(continuing) prolonging. COUNSEL FOR RONALD B.: When were your kids last in your custody? * * * MS.

KREAGER: Currently, sir? COUNSEL FOR RONALD B.: Yes. MS. KREAGER: They’re with foster, sir—foster care. ⁵⁴⁹ COUNSEL FOR RONALD B.: Uh-huh.

Didn’t at one point, your mother file for custody of the children? THE STATE: Objection, Your Honor— THE COURT: Sustained. THE STATE:—(continuing) and ask to approach. (Whereupon, counsel approached the bench and the following occurred:) [6] THE STATE: Your Honor, I move that all additional questions on this topic be stricken.

THE STATE: It ... goes to areas that are irrelevant and immaterial. Counsel is trying to slime the—the witness on the stand—not in terms of credibility, but just in terms to be able to say: Well, she’s a lousy mother. She doesn’t have her kids. Therefore, don’t believe her.

COUNSEL FOR RONALD B.:—(continuing) her testimony in the victim impact was that this incident is the reason she doesn’t have the kids. Your Honor, if there’s some other reason she doesn’t have her kids and she wasn’t completely honest with this [cjourt when she gave her victim impact study, how do we believe her now? ⁵⁵⁰ COUNSEL FOR RONALD B.: ... [I]f she was dishonest in the victim impact statement before you a couple days ago, how can you be sure that her testimony today— THE COURT: She was dishonest? COUNSEL FOR NAKITA M.: There was a statement that was made during the victim impact statement regarding reunification of her kids. Also, Your Honor, today, the State has opened the door regarding her pending case.

So, we have questions about that and that is— THE COURT: Well, you’re not there. This— COUNSEL FOR NAKITA M.: I understand that, Your Honor; but that—they’re—they are—there’s information in that particular case, as well that—that would regard questions regarding her children, as well. And, that would limit counsel’s questions. And, the State opened the door for that, Your Honor.

We didn’t open the door. Ms. Kreager opened the door when she mentioned reunification of her kids last week during the Shamira B. victim impact statement. She opened the door. And, earlier, on direct she said that her kids were—she took her kids with her mother.

Now, she’s telling us that the kids are in foster care. COUNSEL FOR RONALD B.: And, the reason is not because of this case. COUNSEL FOR NAKITA B.: Which then goes to her character in general, that we get to ask her questions about. COUNSEL FOR RONALD B.: It goes to honesty. 5}» COUNSEL FOR WESLEY B.: I was present during the victim impact statement to Shamira B., and I’ll proffer to the [cjourt that that’s exactly what Ms. Kreager said; the reason that she has [sic] been able to get her children out is because of her [sic] incident; and that she plans to reunite with them after the trial is complete; that said directly to Your Honor.

You should be able to—we shouldn’t have to ⁵⁵¹ accept that at face value. We should be able to question her about that. COUNSEL FOR WESLEY B.: We have evidence that that’s not the facts. That’s not the case.

Our information is that that’s not accurate. THE COURT: And—and I guess my response is, even assuming what you say is true, what’s that got to do with anything? COUNSEL FOR WESLEY B.: It goes to credibility, Your Honor. COUNSEL FOR WESLEY B.: A prior instance—opportunity she had to address the [c]ourt, she lied.

COUNSEL FOR NAKITA M.: And, on direct testimony by the State, Your Honor, she didn’t tell the truth. COUNSEL FOR NAKITA M.: And, they opened the door. That’s the most important thing, Your Honor. We had agreed; but they opened the door in both cases today and during the victim impact statement.

THE COURT: I’ll give you three more questions, and then move on. * * * (Whereupon counsel returned to their trial tables and the following occurred:) COUNSEL FOR RONALD B.: Why are your children in foster care? MS. KREAGER: Because I’m actually going through some hardship at the time. I’m homeless, sir.

COUNSEL FOR RONALD B.: It had nothing to do with the fact that, on October 18, 2007, you were— THE STATE: Objection, Your Honor. ⁵⁵² THE COURT: Sustained. . COUNSEL FOR RONALD B.: With all respect, Your Honor— THE COURT: Well, if—if you’re—if it goes to anything other than impeachables, sustained. COUNSEL FOR RONALD B.: It— THE COURT: No, because arrests are not impeachables. * * * COUNSEL FOR RONALD B.: Yes, Your Honor, Thank you. * * * COUNSEL FOR RONALD B.: On October 18, 2007, where were you? THE STATE: Objection____ It’s irrelevant.

THE COURT: What’s that got to do with anything, [counsel for Ronald B.]? COUNSEL FOR RONALD B.: Your Honor, she just testified that she doesn’t have her kids because she’s homeless. THE COURT: Okay. * * * COUNSEL FOR RONALD B.: I would like to ask her about the events of October 8th.... THE COURT: And, I’ll say; Sustained.

Next question? * * * [During a bench conference, the following occurred], COUNSEL FOR RONALD B.: She was arrested selling drugs to an undercover officer with three children present. * * * THE COURT: So what? THE COURT: That’s not an impeachable. ⁵⁵³ COUNSEL FOR RONALD B.: But, it goes to credibility as to why— THE COURT: That is not an impeachable. COUNSEL FOR RONALD B.: Thank you, Your Honor. ¹* H» The following day, during a continuation of cross-examination, counsel for Wesley B. asked Ms. Kreager whether her testimony was that she did not have any pre-existing injuries prior to the incident, to which Ms. Kreager responded that she did not have any “black eyes, stab marks,” bruising, or abrasions prior to the incident. Counsel for Wesley B. also asked the court to reconsider its ruling that counsel could not question Ms. Kreager as to the alleged incident on October 18, 2007, arguing that an arrest was probative as to Ms. Kreager’s veracity.

The court again refused to allow cross-examination in that regard. Counsel for Nakita M. asked Ms. Kreager whether her eye was “purple” when she got on the bus that day, to which Ms. Kreager responded that it was not. On redirect-examination, the State asked Ms. Kreager whether she had a black eye before boarding the bus, and Ms. Kreager responded that she did not. The State also asked Ms. Kreager whether “anyone [had] attack[ed][her] or punch[ed][her] before the December 4th attack on the bus,” to which Ms. Kreager responded, “No, ma’am.” On recross-examination, counsel for Wesley B. asked whether “Mr. Ennis [had] ever struck [her] prior to December 4th?” The State objected to the question, and the court sustained the objection.

Dr. Mahajabin Ali, an emergency room physician at Sinai Hospital, testified to the following, in relevant part. Dr. Ali attended to Ms. Kreager in the emergency room. After receiving a call from paramedics, Dr. Ali and her staff “prepared to take care of a trauma patient,” as the paramedics had “designated that this patient had the potential for serious life threatening injury____” When Dr. Ali first made contact with Ms. Kreager, Ms. Kreager was “extremely anxious and agitated,” and she had a “very significant injury” to the area surrounding her left eye. Dr. Ali stated that Ms. Kreager’s ⁵⁵⁴ eye was “markedly swollen and she had great difficulty opening it,” and that there was also “marked tenderness.” Over the course of a few hours, while Ms. Kreager was in the emergency room, her eye developed increased “echimosis, or bruising----” According to Dr. Ali, Ms. Kreager stated that “she had been kicked and punched and, in particular, that no objects had been used.” A CT scan of Ms. Kreager’s face “indicated that she did, indeed, have quite a severe injury to the eye with the potential for loss of vision.” Those injuries included “multiple orbital fractures,” “entrapment of the inferior rectus muscle,” and an “intraocular hemorrhage.” Dr. Ali could not determine by looking at the scan how old the fractures were, and could not determine whether Ms. Kreager’s eye injury was preexisting, or whether it was possibly obtained prior to December 4.

Dr. Ali did not find “any physical signs,” however, that “indicated that the injury was older than reported by” Ms. Kreager, and stated that it was “unlikely” that the bruising around Ms. Kreager’s eye occurred three days prior. An examination of Ms. Kreager also revealed lacerations on her scalp. No internal injuries were noted. Dr. Ali testified that Ms. Kreager was “anxious, agitated, and uncooperative,” but that the administration of pain medication caused her to be less so.

This was not significant to Dr. Ali, because, according to Dr. Ali, while Ms. Kreager was initially exhibiting “drug seeking behavior,” after “further exam and getting the results of her CT scan [Ms. Kreager] did, in fact, have a painful injury.” Troy Ennis testified as follows, in pertinent part. On December 4th, he and Ms. Kreager boarded the MTA bus after leaving a pharmacy. The bus was “rowdy” and “people were screaming and yelling.” Mr. Ennis stood by the back of the bus, and Ms. Kreager also went towards the back of the bus. Shortly after they got on the bus, Ms. Kreager came to Mr. Ennis and whispered in his ear, telling him that “[t]hese girls in the back are trying to start with me over a seat.” Mr. Ennis looked to where the girls were sitting and ⁵⁵⁵ “they were looking at [him], like, laughing and smiling....” Mr. Ennis told Ms. Kreager, “My daughter has more manners than they do.” At that point, a “heavyset girl jumped up and said, like, what the ... hell did you say, or something like that and started screaming in [Ms. Kreager’s] face.” The girl was yelling in Ms. Kreager’s face and another girl, who was wearing glasses, came up behind her.

Ms. Kreager turned her head away and the “heavy set girl” took a swing at her. Another girl grabbed Ms. Kreager’s hair and tried to pull her towards the back of the bus. While the girls were trying to hit Ms. Kreager, Mr. Ennis grabbed her by her jacket and “threw her behind” him. At that point, “pretty much the whole front of the bus and the back of the bus, everybody just came towards where” Ms. Kreager and Mr. Ennis were to “try to ... bum rush [them].” The crowd began kicking Mr. Ennis while he “balled up” to try to protect himself.

Ms. Kreager was still behind him, and he was covering her. Mr. Ennis yelled for the bus driver to let them out, and was able to push open the doors. He grabbed Ms. Kreager, her purse, and his duffel bag, and they got off of the bus. After they got off of the bus, Ms. Kreager began pulling the loose hair out of her head, saying that she “couldn’t believe what happened over a seat.” Mr. Ennis noticed people running towards the front of the bus, and he ran to the bus doors to try to hold them shut.

Ms. Kreager told Mr. Ennis to let go of the doors, and when he did, the doors came open and people came out. Three or four people “came towards” Mr. Ennis, “trying to fight” him. They were swinging at him and kicking at him. Somebody tackled Mr. Ennis, and he “balled up” on the ground.

There were five or six males trying to kick Mr. Ennis. While Mr. Ennis was on the ground, he could see six or seven people “over top” of Ms. Kreager, kicking her. At that point, “[s]ome lady came out of the house yelling,” telling the kids to “[g]et off that girl. That’s a woman you’re beating,” ⁵⁵⁶ and stating that she had called the police.

Mr. Ennis stated that the kids began running away towards the corner. After the kids ran away, the lady helped Ms. Kreager out of the gutter. Mr. Ennis testified that Ms. Kreager’s “eye was bad,” “her nose was bleeding and she was bleeding from her head.” Soon after, the police arrived and Mr. Ennis told them what had happened. According to Mr. Ennis the inside of the bus was “beat up,” the “front of the seats were loose,” and a “couple of the windows were ... like, flapping.” He stated that the bus did not look that way when he boarded it.

Mr. Ennis could still see the kids, who were “[j]ust at the next comer,” and he pointed them out to an officer who “got in his car and went down there.” Shortly thereafter, officers took Mr. Ennis and the bus driver to the location where the kids were to identify the attackers. Out of 15 or 16 kids who the officers had sitting on the ground, Mr. Ennis “picked the kids out who assaulted [him] or who [he saw] assaulting” Ms. Kreager. On cross-examination, counsel for Ronald B. asked Mr. Ennis whether he had ever used the name “Troy Stinson” [7] before, to which Mr. Ennis responded, “No, I haven’t.” Counsel then asked Mr. Ennis whether he was “familiar with where [he was] on ... October 18, 2007?” During a subsequent bench conference, counsel told the court that he had “information” that Mr. Ennis had “identified himself as Troy Stinson on a previous date,” and that he was attempting to rebut Mr. Ennis’s testimony that he had never used that alias before.

After the court told counsel to lay a foundation for the line of questioning he was pursuing, the following ensued. COUNSEL FOR RONALD B.: On the date of October 18, 2007 did you have any contact with the Baltimore City Police Department? THE STATE: Objection. THE COURT: Overruled.

MR. ENNIS: I don’t remember. ⁵⁵⁷ COUNSEL FOR RONALD B.: You believe that—during the month of October, do you remember having any contact with any member of [the] Baltimore City Police Department? THE STATE: Objection. MR.

ENNIS: No, I don’t remember. COUNSEL FOR RONALD B.: Do you believe your memory can be refreshed? MR. ENNIS: Yes.

COUNSEL FOR RONALD B.: I’ll show you what’s been marked as Respondent’s Exhibit No. 2. I don’t want you to read it out loud. THE COURT: No, you can’t [use] a document he didn’t prepare to refresh his recollection. COUNSEL FOR RONALD B.: Isn’t it true that on October 18, 2007 when Ms. Kreager was arrested— THE STATE: Objection.

THE COURT: Sustained. Stricken. After abandoning that line of questioning, counsel for Ronald B. asked Mr. Ennis about his relationship with Ms. Kreager. The following transpired, in relevant part.

COUNSEL FOR RONALD B.: Have you ever assaulted Ms. Kreager? THE STATE: Objection. THE COURT: Sustained. COUNSEL FOR LAVAR D.: In the month prior to this incident, did you strike Ms. Kreager?

MR. ENNIS: No, I didn’t. THE STATE: Objection. THE COURT: Sustained.

COUNSEL FOR LAVAR D.: So, your testimony is that your relationship with Ms. Kreager is a peaceful one? ⁵⁵⁸ MR. ENNIS: Yes. THE STATE: Objection, it’s not his testimony. THE COURT: Sustained.

He didn’t testify anything, so how can his testimony be that if he—he hasn’t— COUNSEL FOR LAVAR D.: Is your relationship with Ms. Kreager a peaceful one? THE STATE: Objection. THE COURT: Overruled. MR.

ENNIS: Yes, it is. COUNSEL FOR LAVAR D.: It is? Isn’t it true, sir, that in 2006—in 2000—and I’ll give you the exact date— * * * COUNSEL FOR LAVAR D.: I believe the exact date is in November 28th—almost December of 2000 you were convicted of deadly weapon with the intent to injure Ms. Kreager? THE STATE: Objection.

THE COURT: Sustained. COUNSEL FOR LAVAR D.: Okay, have you ever attended—and isn’t it true that you have attended a program at the House of Ruth? [8] THE STATE: Objection. THE COURT: Sustained. COUNSEL FOR LAVAR D.: Within the last year have you been ordered to stay away from Ms. Kreager? [9] THE STATE: Objection.

THE COURT: Sustained. H* Mr. Ennis agreed that there were possibly 40 children on the bus on December 4th, and that he identified the ones who ⁵⁵⁹ had attacked him and Ms. Kreager out of a group of approximately 12 to 15. Mr. Ennis testified again that he had never used the alias “Troy Stinson.” Mr. Ennis testified that he did not know a police officer named Andrew McCarty, and that he did not recall having any contact with any police officers that asked for his name in October, 2007. The court sustained further objections to the same or similar questions about Mr. Ennis’s use of an alias as “asked and answered.” Joyce King testified as follows.

On December 4 at approximately 3:00 p.m., she was sitting at her dining room table when she heard a loud noise that caused her to look up. There is a bus stop outside of her dining room window. When Ms. King looked up, she saw a bus that had slammed into the curb and saw the back doors of the bus “fly open, and a girl,” who she later identified as Ms. Kreager, “come flying out, and a whole bunch of kids came behind her.” Ms. King thought there were approximately 15 to 20 students who got off of the bus behind Ms. Kreager. Ms. King then saw Ms. Kreager down on the ground, and “as she tried to get back up, they all started kicking and punching her.

All the children came off the bus ... they just kicked and punched.” According to Ms. King “[e]very body that jumped off [the] bus,” was involved in hitting, punching, and kicking Ms. Kreager. Ms. King jumped out of her chair and ran outside. She saw Ms. Kreager struggling to get to her feet, and then saw her kicked again, “and she went down.” Ms. King started screaming, “You’re going to kill her. Leave her alone.” Ms. Kreager tried to get up again, but “[e]very-one was around her” and they “kicked her across the rest of the sidewalk into the gutter.” Ms. King did not see Ms. Kreager strike anybody.

Ms. King ran over to where Ms. Kreager was and picked her up onto the curb. She then yelled for her daughter to call 911. While she was holding Ms. Kreager, she noticed that the “bus was rocking” violently. She thought that “there was something going on on the other side of the bus, but [she] couldn’t see that.” Ms. King thought ⁵⁶⁰ that there “was a riot on the bus because it was rocking so hard.” When Ms. King’s daughter came back outside of the house and yelled out that the “police are on their way,” the “kids start[ed] running.

They got about halfway down the block and stopped. They started running again when the police started showing up.” Ms. King testified that there was also a man in a wheelchair, a man on a cell phone, the bus driver, and Mr. Ennis present at the scene. Ms. King stated that when she first came into contact with Ms. Kreager, her eye “looked like it had exploded,” and she was “bleeding from the top of her head.” Ms. King could not identify the children involved, and could not provide a description of them other than that they were “students and they were black.” Lieutenant Robert Rosendale, shift commander for the Northern District MTA Police, testified that when he arrived on the scene, Baltimore City officers already had a group of approximately 20 to 25 individuals seated on the ground. Shortly thereafter, Mr. Ennis and the bus driver were at the scene, and Lieutenant Rosendale asked them if they recognized anyone involved in the assault.

Mr. Ennis and the bus driver identified nine suspects, six of whom were male. The other individuals were released. Officer Larry Ball, with the MTA police, testified that when he arrived on the scene, there were six black male juveniles and three black female juveniles being detained. Counsel for Lavar D. stipulated that an olive green jacket belonged to Lavar D. 10 Detective Combs testified that nine individuals were brought to his office as part of the investigation, which he was supervising.

Detective Combs learned during the investigation that one of the individuals involved in the incident had been wearing a green coat. ⁵⁶¹ Detective Combs went to the hospital to interview Ms. Kreager after the incident. At that point, Ms. Kreager’s eye was “swollen shut,” but he did not believe that it was purple. A few days later, Detective Combs saw Ms. Kreager again, and “[a]round her eye was turning purple.” Detective Combs did not note any injuries on any of the individuals who had been arrested. Daniel Williams, the MTA bus driver, testified as follows, in pertinent part.

On December 4, he was driving a “school run,” meaning he picked up children from Robert Poole Middle School. Prior to making the “school run,” he conducted a “pre-trip” to make sure “all seats [were] normal, the mirrors sufficient---- No dents, no doors broken, anything like that....” Prior to the “school run” nothing was broken on the bus. At approximately 3:00 p.m., Mr. Williams picked up about 43 students from the middle school. At first, “it was a normal school ride.” Subsequently, Mr. Williams picked up three more passengers: a female, a middle-aged male, and an elderly male.

Mr. Williams stated that there were three empty seats on the bus, one of which “was the seat behind the back door where there was one girl kneeled over filing her nails that was taking up two seats.” Mr. Williams described the girl as “brown skinned—dark skinned, kind of medium hair, hair went almost to her shoulder, kind of heavy set girl.” According to Mr. Williams, the female passenger, who he identified as Ms. Kreager, “could not sit down because the student would not let her sit down.” Mr. Williams did not notice anything unusual about Ms. Kreager’s eye when she boarded the bus, and stated that it “[l]ooked fine.” He also testified that Ms. Kreager and Mr. Ennis were not arguing when they got on the bus. Mr. Williams heard the heavy-set girl tell Ms. Kreager, “you can’t sit down,” and heard the middle-aged male passenger, who he identified as Mr. Ennis, say “[l]eave my girlfriend alone.” After hearing the exchange, Mr. Williams said, “[w]hy don’t you leave the woman alone and let her have a seat?” He ⁵⁶² then picked up a wheelchair passenger. After the passenger in the wheelchair boarded the bus, “it went crazy.” According to Mr. Williams, Ms. Kreager and the “female that was filing her nails was screaming at each other,” and then the “whole back of the bus jumped on” Ms. Kreager and Mr. Ennis. Mr. Williams did not hear any racial slurs and did not see Ms. Kreager spit on anyone.

He also did not see Mr. Ennis with a knife. Mr. Williams estimated that “maybe thirty—twenty-six, thirty students had” Ms. Kreager and Mr. Ennis “at the back of the door.” Mr. Williams characterized the noise level on the bus at the time that “the riot broke out” at “about a seven because the children in the front was not participating that much with the wildness going on in the rear.” As soon as Mr. Williams stopped the bus, the “whole back door flung open ... the left side of the door flung open” and Ms. Kreager and Mr. Ennis were “forced out on the ground being beaten, kicked, and stomped.” Prior to being forced out of the bus, Mr. Williams observed the heavy set girl striking Ms. Kreager, and “then the other students followed.” Mr. Williams observed about six students around Mr. Ennis before he fell out of the back door. After Ms. Kreager and Mr. Ennis went out the back door, approximately 18-20 students also exited the back door and “they were beating [Ms. Kreager]. She was laying on the ground.” Some students who could not get out the back door ran to the front of the bus and “started kicking the front door while [Mr. Ennis] was holding the front door trying to keep them inside the bus.” Mr. Williams helped the elderly man off of the bus, and as he was doing so he was kicked, pushed, and punched.

When he got the elderly man off of the bus, he saw a male kicking Ms. Kreager in the face. Mr. Williams hollered to the students to “get off the woman, you gonna kill her,” and then Ms. Kreager stood up with blood running down her face. Shortly thereafter, a woman came running out of a house near where the bus was parked, and a couple of minutes later, an ambulance arrived. ⁵⁶³ Mr. Williams stated that during the attack, he saw the girl who had been filing her nails on the bus hitting Ms. Kreager in the head constantly while a boy also hit her. Mr. Williams called 911 and the MTA for assistance, and identified his voice on a tape-recording stating that “these kids are going crazy.” After the students “finished beating” Ms. Kreager and Mr. Ennis, they “walked down the street, strolled.” Once the police arrived, they asked Mr. Williams and Mr. Ennis if they could identify any of the students involved in the attack.

Mr. Williams “pointed to the ones” he knew, making a total of nine identifications. Mr. Williams stated that he was “[o]ne hundred percent” certain that he had identified the right individuals, and that he was so certain because “[i]t was devastating what happened on that coach. I’ll never forget it.” Mr. Williams testified that after the incident, he noticed that one of the back windows of the bus was broken and the back door was broken. One of the front seats of the bus was also broken.

On March 11, 2008, during the continuation of the adjudicatory proceedings, counsel for the appellants stipulated to the admission of the transcripts of the tape-recorded interviews with the Bruton redactions. The relevant portions of the redacted transcripts follow. TAPED STATEMENT OF NAKITA M. [NAKITA. M.]: We was on the school bus and everybody we was talking or whatever.

So a white lady got—a white lady and her husband, or whoever he is to her, got on the bus. She had an attitude ... already peeped out she had an attitude with him and I was just looking. And that’s when, when I was looking, she must have thought maybe I was looking at her or something and she whispered something in her boyfriend’s ear. And then she was sitting down, and he said, “Well, spit on one of them B’s then.” So, I looked back at her and then I got up.

As I was getting up to move back so wouldn’t no spit get on me in case she do spit. She was spitting, she started spitting across the room. So the spit almost got on me, that’s when I turned around ⁵⁶⁴ and she hauled off and banged me. So I started banging her back. [NAKITA M.]: When she got on the bus ... her eye was red and stuff____ * * * FEMALE VOICE: You all got to fighting on the bus and then what happened? [NAKITA MJ: She got off the bus. * * * [NAKITA MJ: As they was getting off the bus the bus driver we was telling him to pull off but he ain’t pull off. [T]he man got back on the bus with this knife talking about I’ll stab any of you all niggers. * * * FEMALE VOICE: Okay.

So when you all were fighting the young lady, what was the man doing? [NAKITA MJ: I was fighting [Ms. Kreager] first because she banged me. I was fighting her and [Mr. Ennis] was breaking it up. He broke it up, they got off the bus____He gets back on the bus with a knife trying to stab somebody— * * * FEMALE VOICE: Who kicked [Ms. Kreager] in the face? [NAKITA MJ: I didn’t kick her. FEMALE VOICE: I didn’t say you kicked her.

I said who kicked her in the face? [NAKITA MJ: I don’t know. * * * [NAKITA MJ: I don’t know who kicked her in the face, I only hit her with my hand. * ❖ * FEMALE VOICE: Who kicked [Ms. Kreager]? [NAKITA MJ: I don’t know. It was so many people on that lady I don’t know. ⁵⁶⁵ Hi Hi Hi [NAKITA M.]: There was so many people on this lady, I don’t know who kicked the lady. FEMALE VOICE: Who held her hair? [NAKITA M.]: I didn’t have her hair, I was just banging her. [Blanked out passage]. FEMALE VOICE: And who else? [NAKITA M.]: (Inaudible) still out there fighting I got back on the bus and got my stuff.

(Inaudible). H« Hi Hi FEMALE VOICE: Okay, now we got that part straight. She banged you first and then /all start fighting, but you know who did it, you were right there. [NAKITA M.]: I wasn’t right there. There was a lot of people fighting this lady, I don’t remember who kicked her.

I don’t know who kicked her. [Blanked out passage]. H« Hi Hi MTA POLICE INTERVIEW OF [RONALD B.] [RONALD B.]: When we was riding on the bus ... it was a stop and [Ms. Kreager and Mr. Ennis] got on the bus.... [RONALD B.]: [T]he girl when her eye was messed up and her eye was messed up and she start uh.... SGT. COMBS: Who’s eye was messed up? [RONALD B.]: The lady, the white lady.

SGT. COMBS: Okay. [RONALD B.]: Her eye was messed up and she thought we was talking about them and that’s when she started fussing____ Then um, she told her ... I don’t know if that’s her boyfriend or not; she told him something and he was like “spit on them. Spit on them niggas.” [Emphasis in original]. ⁵⁶⁶ SGT.

COMBS: Did the woman spit on [Nakita]? [RONALD B.]: I don’t know. I don’t think she spit on her. SGT. COMBS: So when you say they started fighting, what happened? [RONALD BJ: I don’t know.

SGT. COMBS: The lady hit Nakita? [RONALD BJ: Yes. Well I thought she hit her first. * * * SGT. COMBS: So you didn’t see it? [RONALD BJ: No. [RONALD BJ: It was a whole lot of people on the bus so I couldn’t really see. # * * SGT.

COMBS: What did you do? [RONALD BJ: Nothing. * * * MTA POLICE INTERVIEW OF [LAVAR DJ SGT. WHITE: Um, Lavar I want you to briefly describe the event that happened today that led up to the aggravated assault. [LAVAR DJ: The man ... and woman had got on the bus [LAVAR DJ: They were Caucasian. The lady was already mad at her husband____ SGT. WHITE: How could you tell? * * * [LAVAR DJ: Cause she had got on the bus screaming all that other stuff but then that’s when um, Nakita and them was talking on the bus and they wasn’t talking to the lady but the lady thought they was talking to her so she told her husband something and her husband said “Spit in her face” and then Nakita walked up, got in the back of the bus so ⁵⁶⁷ she won’t spit in her face then that’s when the uh the lady had banged Nakita in her face and the man pulled out a knife.

SGT. WHITE: The lady went after Nakita and banged her in her face? [LAVAR D.]: Yeah and the lady she was still ... the lady was mad and she just banged Nakita. SGT. WHITE: She followed her to the back of the bus and banged her? [LAVAR D.]: Yeah she followed her cause we was like where the doors, the back doors are at.

Nakita got up and went all the way to the back. She got up and followed Nakita and banged her and that’s when they got off the bus and the man pulled out the knife. SGT. WHITE: You didn’t see anybody hitting or kicking on the lady? [LAVAR D.]: Nah, I just told I saw a whole bunch of people. * * * [LAVAR D.]: I got off the bus, walked off and that’s when the police came and....

SGT. WHITE: Who was with you when you got off the bus and walked off? * * * [LAVAR D.]: Who was with me? SGT. WHITE: Yeah. [ 17 blanked out lines of colloquy between Sgt.

White and Lavar D.] SGT. WHITE: No. Let’s be for real. What happened on there? [LAVAR D.]: Just told you. ⁵⁶⁸ [LAVAR D.]: I’m not lying. I was with a group of boys that had walked off and we ... we was walking ... we had got around there and every ... all I had seen was people running and then that’s when they had caught everybody and made everybody sit down.

SGT. WHITE: They only caught nine people so what’s going on? [Lavar D.’s response blanked out]. ^ H» í* [LAVAR D.]: Man, it was some other girls that had hit that lady that aint get caught____ SGT. WHITE: Who else didn’t [get caught]? [ 25 blanked out lines of colloquy between Sgt. White and Lavar D.] •i= * * [ 87 blanked out lines of colloquy between Sgt.

White and Lavar D.] * % * [LAVAR D.]: ... I bet money if y’all look on that camera [that was on the bus] y’all see me..... * * * [LAVAR D.]: sitting down. ■I> $ í [LAVAR D.]: You probably do see me. I was on the bus. * ❖ * [LAVAR DJ: You probably see me but you aint going see me hitting nobody. I’m chilling on the chairs for real. # * * SGT.

WHITE: I don’t know why you won’t tell me who it is but it’s okay cause I can guarantee you if one of them do ... people over there arguing right now is going to come back up in here and they going to say ... [LAVAR D.]: They ain’t going to say ... they aint going to say I did it. ⁵⁶⁹ SGT. WHITE: They going to say oh yeah Lavar got a couple of licks in too. [LAVAR D.]: (INAUDIBLE) SGT. WHITE: Don’t believe that. [ 19 blanked out lines of colloquy between Sgt. White and Lavar D.] SGT.

WHITE: Lavar, Lavar, Lavar. I’m going to stop the tape____Is there anything that you would like to tell me that you haven’t told me that can help me clear up the situation ... ? [LAVAR DJ: The main thing, I aint do nothing. INTERVIEW RESUMES [LAVAR DJ: At first I was on the bus. I got off the bus and then the bus driver started calling the police and I walked off.

I saw a little bit of that fight but then I started to walk off. LT. ROSENDALE: You didn’t participate in the fight ...? [LAVAR DJ: No. ❖ * * LT. ROSENDALE: Do you know that somebody identified somebody in a green jacket? [LAVAR DJ: No. LT.

ROSENDALE: What color is your jacket? [LAVAR DJ: Green. LT. ROSENDALE: Did you see him actually kick her? [ 15 blanked out lines of colloquy between Sgt. White and Lavar DJ RECORDED INTERVIEW OF [WESLEY B.] [DET.

SMITH]: There was a couple, male and a female. What do you think happened aboard that coach? [WESLEY B.]: They got on the bus. The lady had an attitude. Looked like she already got beat up.

She had a ⁵⁷⁰ black eye or something. And she whispering to a, some man. The man (inaudible) in his ear, and said spit on 'em. [Continuation of recorded interview of Wesley B.] [WESLEY B.]: I hit the man two times. I didn’t touch the lady.

I just saw the lady on the ground. [DET. SMITH]: Okay, and where did you strike him? Were you on the coach or off the coach at that time? [WESLEY BJ: One time on the coach, one time off the coach. [DET. SMITH]: And why did you strike the man? [WESLEY B.]: Because he told us, he told the lady to spit on us and he kept telling us to get out of the bus and fight.

On March 11, 2008, the State rested its case. On March 13, 2008, appellants began their case, calling Officer Andrew McCarty as a witness. Officer McCarty testified that on October 18, 2007, he was working undercover looking for drug activity. In that capacity, he came into contact with an individual who identified himself as “Troy Stenson.” He stated that the person identifying himself as “Troy Stenson” identified Ms. Kreager as his wife.

Subsequently, the State and appellees agreed to a stipulation, namely that on October 18, 2007, Mr. Ennis gave the name “Troy Stenson” to a police officer. Floyd Gross, Jr. testified to the following. On December 4, 2007, at approximately 3:00 p.m., the bus driver, i.e., Mr. Williams, helped him 11 onto the bus, which was “full of school kids.” When Mr. Gross got onto the bus, he noticed that “there was some commotion going on in the back of the bus,” and that there was “a lot of confusion and people were running back and forth on the bus.” Mr. Gross was facing forward, towards the front of the bus. He could ⁵⁷¹ not see what was happening in the back of the bus, and did not turn around to look in the back of the bus because he “don’t turn around to [sic] good,” but he could “hear the rumbling of what was going on,” and noticed that the “bus driver ... tried to get some ... order on the bus by hollering to the back of the bus.” After the bus driver failed to get control over the commotion, Mr. Gross heard the “back door of the bus come open,” and then the students who had been on the bus got off of the bus.

Just prior to the back door being “kicked open,” Mr. Gross heard “a white couple ... saying that they was being attacked or being bothered by the students in the back of the bus____” When the students got off of the bus, Mr. Gross observed “[a] white lady ... outside the bus ranting and raving to one of the students that was on the bus.” Mr. Gross did not notice anything unusual about the woman’s face or eye. Mr. Gross testified that about 5 or 6 children tried to get off the front of the bus, near where he was sitting, but that he put out his hand to keep them from passing him. One of the girls that he stopped, who he identified in court as Nakita M., told him that “the lady outside the window had spit on her.” After Nakita M. told him that the lady outside of the bus had spit on her, the group “calmed down for a minute and the lady on the outside was still ranting and raving up at the bus.” At that point, one of the group that he had stopped “reached across [him] and opened the window and said something to her.” Mr. Gross stated that the lady outside “was the lady that ... had gotten hurt,” and that when she was outside of the bus, she had threatened the group inside the bus “by closing her hands in a balled fist,” and “act[ing] like she wanted to fight them.” The other people on the bus “were running back and forth on the bus” and there was “a lot of confusion.” The group that Mr. Gross stopped got off of the bus at some point, but Mr. Gross did not “pay any attention” to where they had gone. Mr. Gross stated that he did not see the “white man,” who was with the lady outside of the bus, with a knife.

He stated ⁵⁷² that while the white man was on the bus, however, he “was saying that he was tousling with three to four kids in the back of the bus. That he held his own. And more like a boast or brag.” He testified that after the bus driver helped him to get off of the bus, he saw the white woman, who showed him her eye. Mr. Gross stated that at that time, her eye was “swollen closed.” On cross-examination, Mr. Gross agreed that he did not remember Nakita M. saying anything about spitting until after he spoke to counsel for Nakita M. Unique Curtis testified to the following, in pertinent part.

On December 4, 2007, at about 3:00 p.m., she was on the school bus coming from Robert Poole Middle School. While on the bus, Ms. Curtis observed a white woman and a white man board. The lady was walking in front of the man. According to Ms. Curtis, the woman sat down, and the man stood in the “back doorway” of the bus.

Ms. Curtis noticed that the woman had a black eye. She testified that everyone on the bus “was laughing at her eye,” and that the woman “got mad,” and “[t]urned around, said something to Nakita.” Nakita M. then “waved her off’ and “got up to move.” After Nakita M. got up, the woman whispered something in the man’s ear, and the man “turned around and said, ‘spit on those nigga’s.’” Ms. Curtis described the subsequent events as follows. That’s when Nakita was like, no ain’t nobody going to spit on me, ain’t nobody going to spit on me. The lady took off her book bag, was like don’t talk to him like that, don’t talk to him like that.

And Nakita was like, well ain’t nobody going to spit on me. That’s when the white man was like, well I’ll beat y’all ass. That word. * * * That’s when the lady was, don’t talk to him like that. And Nakita was like, well ain’t nobody going to spit on me.

That’s when the lady banged Nakita. * * * ⁵⁷³ Ms. Curtis stated that after “the lady” struck Nakita M., Nakita M. “kind of stumbled down. Almost fell.