Jones v. State

EYLER, JAMES R., J. Steven Jones, appellant, was convicted by a jury, sitting in the Circuit Court for Washington County, of attempted first degree murder, first degree assault, use of a handgun in the commission of a crime of violence, possession of a handgun under the age of 21, and wearing, carrying or transporting a handgun on or about one’s person. After merging offenses, the court imposed a sentence of 40 years for attempted first degree murder, and a consecutive ten year sentence for the use of a handgun in the commission of a crime of violence. On appeal, appellant contends that the trial court erred in allowing the State to introduce extrinsic evidence of a witness’ prior inconsistent statement because the State had failed to lay the proper foundation. Appellant also contends that the trial court erred in allowing the State to call the witness for the sole purpose of impeaching him with a prior inconsistent statement.

Perceiving no reversible error, we shall affirm. Factual Background On January 8, 2006, at approximately 5:00 p.m., David W. Webb, Jr. was standing outside 13 North Locust Street in Hagerstown, with his fiancée, Brook Rutherford. He testified that, while he was standing outside, a boy rode by on what Mr. Webb believed to be his stolen Mongoose bicycle. Mr. Webb then proceeded to approach the boy and asked him, not in “a polite way,” for the bike back.

While Mr. Webb and the boy ¹²⁸ were conversing about the bike, Mr. Webb, out of the corner of his eye, saw someone approach him from across the street. The person shot Mr. Webb in the face. After being shot, Mr. Webb ran down the street in the direction of his home. The assailant fired another shot at Mr. Webb as he ran, which missed.

Mr. Webb looked back to see where the shooter was and noticed he was crossing the street and moving toward Ms. Rutherford. Mr. Webb then ran across the street, pushed Ms. Rutherford out of the way, told her-to run inside the house, and call the police. As Ms. Rutherford was going inside, Mr. Webb saw the shooter approaching him again. Mr. Webb curled up into a ball, and the shooter shot him again in the head.

After he was shot, Mr. Webb opened his eyes and saw the shooter run “up the street and around the corner on Washington Street.” During his direct examination, Mr. Webb identified appellant as the shooter. Officer Thomas Bartles, a Hagerstown City police officer, testified that he received a call at 5:19 p.m. advising that a shooting had occurred in the unit block of North Locust Street. Officer Bartles immediately responded and observed several individuals standing around a man, later identified as Mr. Webb, lying on the ground with blood coming from his head. Officer Bartles asked Mr. Webb if he could describe the assailant.

Mr. Webb responded that “the shooter was a dark skinned black male.” Officer Bartles further testified that, on the day of the incident, uniformed patrol officers stopped two subjects in the first block of South Locust Street. Both subjects were taken to the precinct for one-on-one identification. Appellant, one of the subjects, was arrested and charged with the shooting. The trial occurred on August 31, 2006.

In addition to Mr. Webb and Officer Bartles, the State called eight witnesses. The relevant testimony is summarized below. Alice Smith, a neighbor of Mr. Webb, testified that she was outside at the time of the shooting. She observed Mr. Webb cross the street to speak to a light skinned black male on a ¹²⁹ bike and then saw another man approach Mr. W ebb and shoot him in the head.

Ms. Smith identified the weapon used as a silver handgun, about six inches long. She also testified that she heard the gun fire three times. When Ms. Smith was asked if she saw the man that shot Mr. Webb in the courtroom, she responded, “I’m going to say that he ... he looks very similar to the man. I’m not going to say it’s exactly him.

Cause it has been a while since I’ve seen him. But, yes, to me he does look a lot like him.” Thirteen-year-old Amanda Sweeney-Teal testified that she met a man who introduced himself as “Twenties,” at the corner store on the day of the shooting. 1 The State asked Ms. Sweeney-Teal whether “that person that you met that was known as Twenty, that introduced himself as Twenty, do you see him in the courtroom today?” She identified appellant as that man. She further testified that “Twenties” shot Mr. Webb and she saw three flashes from the gun. Ms. Sweeney-Teal’s friend, Patricia Weedon, testified that she was walking with Ms. Sweeney-Teal when a man, whom she later identified as appellant, approached them and introduced himself as “Twenty.” She then observed Mr. Webb involved in an altercation with the boy on the bike and observed Twenty approach Mr. Webb and shoot him.

She could not identify a weapon, however. Brooke Rutherford, Mr. Webb’s fiancée, testified that she was standing outside at the time of the altercation. Ms. Rutherford identified appellant as the man who shot Mr. Webb. Ms. Rutherford further testified that she did not see the gun.

The State also called Joshua Brown. Both of appellant’s contentions revolve around the testimony of Mr. Brown. Mr. Brown testified that on January 8, 2006, at approximately 5:00 p.m., he was on Locust Street with a Mongoose bicycle with ¹³⁰ “somebody named Kevin.” The State then asked Mr. Brown “[w]hat happened?” In response, Mr. Brown testified that “the boy named Kev shot [Mr. Webb].” He stated that he had a silver, short gun and that, after he saw Kevin pull the gun out and heard it go off, he ran. He stated that no other friends were on Locust Street at that time.

The State then continued questioning as follows: [State]: Are you familiar with an individual named Twenty? [Witness]: No. [State]: You don’t know anyone named Twenty? Do any of your friends use that nickname? [Witness]: Oh, I don’t know. [State]: Okay. Do you recall being at the Hagerstown Police Department? Do you remember being interviewed by.... [Defense Counsel]: Objection.

The Court: Overruled. [Defense Counsel]: For the record, it’s her own witness. The Court: That doesn’t make any difference. [Defense Counsel]: And he hasn’t been declared____ The Court: Overruled. [State]: Do you recall being interviewed by Sergeant Kifer and Sergeant Robinson from the Hagerstown Police Department? Do you recall that? [Defense Counsel]: Objection. The Court: Overruled.

Court Reporter: We are not recording his answer. [State]: Can you repeat your answer? Do you remember talking to Sergeants____ [Witness]: Yes, ma’am. [State]: Yes. Okay. Do you recall them interviewing you regarding this incident? [Defense Counsel]: Objection.

The Court: Overruled. [Witness]: Yes, ma’am. ¹³¹ [State]: Okay. Do you recall what you told them? Do you remember what you told Sergeant Kifer? [Witness]: No. [State]: You don’t remember what you said to him? [Defense Counsel]: Objection. Asked and answered.

The Court: Overruled. [State]: Do you recall telling Sergeant Kifer---- [Witness]: No ma’am. [State]: Can I finish my question? Do you recall telling Sergeant Kifer that Twenty was on Locust with you? [Witness]: Locust? [State]: Yes. [Witness]: Ah, I don’t know anybody named Twenty. [State]: So you ... is it your testimony here today that when you were talking ... when you were interviewed by members of the Hagerstown Police Department you never said the name Twenty? [Witness]: Yeah, I said the name Twenty. [State]: You did? Who were you talking about? [Witness]: The dude that was with us. [State]: Now, there was somebody with you? [Witness]: Yeah. [State]: Who ... where was he? [Witness]: Huh? [State]: Who was ... [Witness]: He was around the corner. [State]: He stayed around the corner? [Witness]: Yeah. [State]: When you say around the corner.... [Witness]: Around the corner on Franklin. [State]: So, Twenty never came on to Locust? [Witness]: No. [State]: But Kevin Harris.... Let me ask you this, do you recall two girls being across the street? ¹³² [Witness]: No, I don’t. [State]: Okay.

Earlier in your testimony you talked about two females that were walking and talking. [Witness]: But they wasn’t with me though. [State]: I’m sorry? [Witness]: They was not with me. [State]: Those two girls weren’t with you? [Witness]: No, they was not "with me. [State]: Okay. Who was with them? [Witness]: Huh? [State]: Was anyone with those two girls? [Witness]: The boy named Kevin was with ’em. [State]: Okay. How do you know Twenty? [Witness]: Huh? [State]: How do you know Twenty? [Witness]: How do I know him? Through the boy named Kev. [State]: Okay.

Do you consider Twenty your friend? [Witness]: Oh, no. [State]: He was not your friend? [Witness]: It was just somebody I knew. [State]: Thank you. Nothing further. Following Mr. Brown’s, testimony, the State called Sergeant Paul Kifer, supervisor of the Criminal Investigation Unit, to the stand. The pertinent part of his testimony follows: [State]: Okay.

Sergeant, I’m going to direct your attention to, ah, an incident that occurred on North Locust Street on January eight, 2006, a shooting. Are you familiar with that investigation? [Witness]: Yes, I am. [State]: Okay. Ah, are you familiar with an individual named J.D. Brown or Joshua Brown? [Witness]: Yes, I am. [State]: How are you familiar with him? ¹³³ [Witness]: We had gotten information as part of the investigation that there was someone that could possibly be---- [Defense Counsel]: Objection, your Honor, to background. The Court: Overruled. [Witness]: Ah, someone possibly named JB or used the name JB.

During our investigation with the Narcotics Task Force, ah, Mr. Brown was picked up in a separate incident, ah, as part of that investigation, brought into the police department. I was there at that time and Sergeant Robinson and I then interviewed him. [State]: Okay. When did the interview occur? [Witness]: That was on the tenth, I believe. Let me just refer to my notes here real quick.

The tenth is when the ... the detail took place. He w as actually brought in and I actually interviewed him on the eleventh, early in the morning on the eleventh. [State]: Of January? [Witness]: Yes. [State]: Did you speak to him about the shooting incident on January eighth, 2006? [Witness]: Yes, I did. [State]: Did he give a name or a nickname of a shooter? [Defense Counsel]: Objection, your Honor. [State]: Impeachment, your Honor. [Defense Counsel]: Objection, your Honor. The Court: Overruled. [Witness]: Yes, he did. [State]: What name did he give? [Defense Counsel]: Objection. The Court: Overruled. [Witness]: He gave the name of Twenty. [State]: Okay.

Thank you. Nothing further. Appellant called no witnesses on his behalf. The jury convicted appellant on all charges. ¹³⁴ Contentions First, appellant contends that the trial court erred in allowing the State to introduce extrinsic evidence of Mr. Brown’s prior inconsistent statement because the State failed to lay a proper foundation.

Second, appellant contends that the trial court erred in allowing the State to call Mr. Brown as a witness for the sole purpose of impeaching him with a prior inconsistent statement that would otherwise constitute inadmissible hearsay. Discussion A. Foundation Requirements to Admit Prior Inconsistent Statements At common law, Maryland followed the “voucher rule,” which did not allow a party to impeach its own witness because the party “vouched” for the witness’s credibility when putting him or her on the stand. However, a narrow exception existed. While a party ordinarily may not impeach his own witness by proof of prior statements which are inconsistent with, or contradictory to, his testimony at trial, where such party satisfies the court that he has been taken by surprise and that the testimony is contrary to what he had a right to expect, it is within the sound discretion of the trial court to determine whether or not proof of prior inconsistent statements should be permitted.

Hernandez v. State, 7 Md.App. 355, 365 , 255 A.2d 449 (1969) (citations omitted). Even if the party was surprised, however, before proving the prior inconsistent statement through extrinsic evidence, a proper foundation had to be laid. Smith v. Briscoe, 65 Md. 561, 569-70 , 5 A. 334 (1886). The foundational requirement was met by interrogating the witness as to when, the place at which, and the person to whom the contradictory statements were made.

Baltimore Transit Co. v. Castranda, 194 Md. 421, 439 , 71 A.2d 442 (1950). If the witness denied making the prior statement or stated that he did not remember whether ¹³⁵ he made it, the foundational elements for introducing the statement were satisfied. Campbell v. Patton, 227 Md. 125, 141 , 175 A.2d 761 (1961); Moxley v. State, 205 Md. 507, 516-17 , 109 A.2d 370 (1954). In 1994, the Maryland Rules of Evidence were adopted, and the voucher rule was eliminated.

See Maryland Rule 5-607(“The credibility of a witness may be attacked by any party, including the party calling the witness.”); see also Committee Note to Maryland Rule 5-607 (“This Rule abrogates the common-law voucher rule.... ”). Furthermore, the use of prior statements of witnesses, for the purpose of impeachment, including the required foundational elements, are now codified in Maryland Rule 5-613(a). The Rule provides: (a) Examining Witness Concerning Prior Statement. A party examining a witness about a prior written or oral statement made by the witness need not show it to the witness or disclose its contents at that time, provided that before the end of the examination (1) the statement, if written, is disclosed to the witness and the parties, or if the statement is oral, the contents of the statement and the circumstances under which it was made, including the persons to whom it was made, are disclosed to the witness and (2) the witness is given an opportunity to explain or deny it.

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Unless the interests of justice otherwise require, extrinsic evidence of a prior inconsistent statement by a witness is not admissible under this Rule (1) until the requirements of section (a) have been met and the witness has failed to admit having made the statement and (2) unless the statement concerns a non-collateral matter. Maryland Rule 5-613. There is little case law commenting on or explaining the foundational elements, following the adoption of the Maryland rules.

See McCracken v. State, 150 Md.App. 330, 342-45 , 820 A.2d 593 (2003). Because the common law foundational elements and the Rule foundational elements are essentially the ¹³⁶ same, case law prior to the adoption of the Maryland Rules of Evidence is relevant. The foundational requirements exist in order to be “fair and just to the witness ... [so] that he may be enabled to refresh his recollection in regard to such statements....” Devan v. State, 17 Md.App. 182, 192 , 300 A.2d 705 (1973) (quoting Brown v. State, 72 Md. 468, 475 , 20 A. 186 (1890)). The purpose of the foundational requirements is “to accord the witness the opportunity to reflect upon the prior statement so that he may admit it or deny it, or make such explanation of it as he considers necessary or desirable.” Devan, 17 Md.App. at 193 , 300 A.2d 705 .

The Court has also stated that there is no unvarying formula or ritual required for the establishment of a foundation to impeach. It is required that a witness be informed, sometime during the course of his testimony, that his interrogator is aware of and relying upon a statement the witness is claimed to have made at a particular time and place, to a particular person. Id. After the adoption of the Maryland Rules of Evidence, this Court, in McCracken v. State, 150 Md.App. at 342-44 , 820 A.2d 593 , had an opportunity to analyze the foundational requirements that must be met before a prior inconsistent statement can be proved by extrinsic evidence.

In McCracken , the defendant was arrested for carrying a concealed antique civil war gun into a bank. Id. at 334-35 , 820 A.2d 593 . After the defendant was arrested but before his Miranda rights were administered, the defendant told the police officers that if the trigger of the gun he was carrying was pulled, a projectile would be discharged and someone could be killed. Id.

The trial court suppressed these statements. Id. at 336 , 820 A.2d 593 . The defendant testified in his own defense at trial, and during the State’s cross-examination, he stated that the gun was not loaded or capable of being fired. Id. at 339 , 820 A.2d 593 .

Without further questioning on cross-examination, the State then called one of the arresting officers in rebuttal to testify that the defendant had told him the gun was ¹³⁷ loaded at the time of arrest. Id. at 339-40 , 820 A.2d 593 .