Makell v. State

MOYLAN, Judge. The resolution of this appeal requires us to go through the recent Court of Appeals opinion in Nance v. State, 331 Md. 549 , 629 A.2d 633 (1993), with a fine-tooth comb and to separate the wheat of its actual holding from the chaff of its merely descriptive detail. The appellant, Earl S. Makell, was convicted by a Baltimore City jury, presided over by Judge Elsbeth Levy Bothe, of manslaughter and the use of a firearm in the commission of a crime of violence. On this appeal, he raises the single contention that Judge Bothe erroneously relied on Nance v. State as a basis for admitting the hearsay declarations of Willy Ferguson.

At approximately 11:45 P.M. on July 27, 1993, Michael Thomas was shot and killed in an alley near the intersection of Liberty Heights Avenue and Woodbine Street in Baltimore City. Three bullet shell casings were found by the police at the crime scene. During the investigative stage, Willy Ferguson gave promise of being the State’s indispensable witness. During the pretrial phase of this prosecution, Ferguson did three things ³³⁸ that later took on pivotal significance.

He participated in an identification procedure in which he was shown a photographic array. He selected a photograph of the appellant as the man he had seen engaged in an altercation with Michael Thomas just before Thomas was killed. Willy Ferguson then gave Detective Chauriont a statement that was reduced to writing and signed by Ferguson. In the course of that statement, Ferguson recounted that Michael Thomas was a close friend of his.

He also stated that he knew the appellant. The crux of his statement was that on the evening of July 27, 1993, he was at the intersection of Liberty Heights and Woodbine and saw Michael Thomas and the appellant fighting. He saw the appellant chase Thomas into the alley and. then he heard three shots. Approximately one minute later, Willy Ferguson entered the alley and saw Thomas lying on the ground.

Having read his statement, Ferguson told the police that it was accurate. He then signed and dated the statement. Willy Ferguson’s third significant pretrial act was his testimony before the Baltimore City Grand Jury. Ferguson was reminded of the penalty for perjury and then testified under oath.

That testimony was duly recorded verbatim. In its detail, it was even more damning, from the appellant’s point of view, than had been Ferguson’s signed statement to the police. Ferguson again testified that he had seen Michael Thomas and the appellant fighting. He added that he saw someone hand a gun to the appellant.

He described how the appellant chased Thomas into the alley, shot him in the back, and then shot him two more times. He testified that the appellant initially walked away from the prostrate Thomas, then returned and shot Thomas two more times, and finally ran from the scene. The Willy Ferguson who showed up at the trial, however, was far different from the Willy Ferguson who had assisted first the police and then the grand jury in the course of their investigations. We may never know why.

Under oath at trial, Ferguson testified 1) that he did not know Michael ³³⁹ Thomas, 2) that he did not know the appellant, and 3) that he had not been present at the scene of the shooting. It goes without saying that Ferguson’s trial testimony was significantly inconsistent with his pretrial declarations. Ferguson could not (or would not) identify the appellant at trial. He testified, moreover, that he could not recall ever having selected a photograph of the appellant from a photographic array.

He testified further that he was unable to remember whether he had ever provided the police with a written statement on the morning after the shooting. He acknowledged that the signature on the statement might be his but he could not recall ever having signed the statement. Ferguson could not recall, moreover, any details of his grand jury testimony. More sweepingly, he claimed that, because of his continuous multi-year drug stupor, he could not accurately perceive, understand, or remember anything that happened from 1988 through 1994.

Finding little sustenance in Willy Ferguson’s trial testimony, the State turned, of necessity, to his pretrial declarations. Under the authority of Nance v. State, Judge Bothe admitted 1) the pretrial identification, 2) the written and signed statement given to the police, and 3) the grand jury testimony. The appellant raises no challenge to the pretrial identification but argues strenuously that both the statement to the police and the grand jury testimony were inadmissible hearsay unredeemed by Nance . With respect to Willy Ferguson’s written and signed statement to the police, the straight holding of Nance, 331 Md. at 569 , 629 A.2d 633 , seems clear enough: We hold that the factual portion of an inconsistent out-of-court statement is sufficiently trustworthy to be offered as substantive evidence of guilt when the statement is based on the declarant’s own knowledge of the facts, is reduced to writing and signed or otherwise adopted by him, and he is subject to cross-examination at the trial where the prior statement is introduced.

(Footnote omitted.) ³⁴⁰ Willy Ferguson’s out-of-court statement to the police was, as we have noted, inconsistent with his trial .testimony. That statement was based on Ferguson’s own knowledge (his direct observation) of the facts. The statement was reduced to writing and signed by him. Ferguson, moreover, was present at the trial on the witness stand and was available to the appellant for cross-examination.

Similarly with respect to Willy Ferguson’s grand jury testimony, the straight holding of Nance in that regard, 331 Md. at 571 , 629 A.2d 633 , seems clear enough: [A] statement given before a grand jury is made in an atmosphere of formality impressing upon the declarant the need for accuracy; and it will be memorialized in a manner that eliminates concerns about whether the statement was actually made. The declarant must also, of course, be present as a witness at trial to be tested by cross-examination in regard to the former grand jury appearance and its contents. When all of these conditions have been met, due process of law is satisfied. The grand jury testimony ... in the instant case properly could have been considered by the jury as substantive evidence.

(Citation omitted.) Willy Ferguson’s grand jury testimony was inconsistent with his trial testimony. The grand jury testimony was given in an atmosphere of formality calculated to impress on Ferguson the need for accuracy. It was, furthermore, memorialized in a manner that eliminated all concern about whether it was actually made. Once again, Ferguson was present at the trial on the witness stand and was available to the appellant for cross-examination.

Even staring down the gun barrel, however, the appellant still wriggles heroically to distinguish his situation from that before the Court of Appeals in Nance . There are, of course, multitudinous factual distinctions between this case and Nance . The question is whether any one of them makes any real difference. For our part, all of them that do not find their way into the formal holding are distinctions without a difference.

For the appellant’s part, every factual circum ³⁴¹ stance that the Nance opinion took the trouble to describe must perforce be treated as a sine qua non for the Nance decision. We will indulge the appellant in the consideration of his various subcontentions, hoping it may, once and for all, lay them to rest, lest other litigants be able to exploit them. The appellant’s brief states his central thesis: The hearsay evidence presented in this case has none of the critical indicia of reliability that the court in Nance v. State relied upon for its holding. The rationale of Nance , therefore, is inapplicable ...

Again, the appellant attempted to tie the Nance holding to its “particular facts”: Based on the particular facts of Nance , the court held that the extrajudicial statements could be admissible if certain requisite factors indicating reliability were satisfied. He then posits, instance by instance, his versions of what he believes those “critical indicia of reliability” or those “particular facts” were that Nance necessarily “relied upon.” Three “Turncoat Witnesses” vs. One Articulating it most clearly in his reply brief, the appellant asserts that there is a pivotal difference between a case, such as Nance , involving three “turncoat witnesses” and a case involving but one: The State ignores the significant factual differences between Nance and Makell, all of which were essential to the narrow holding cited above. These differences include: (1) the three separate eyewitnesses testifying in Nance , versus only one witness in Makell ... In the present case, Willy Ferguson was all by himself as a “turncoat witness.” In the Nance case, by contrast, there were three such witnesses: Rodney McCormick, Antonio Harris, and Thomas Brown.

The appellant places great significance on the fact that in Nance “all three witnesses readily testified as to some of the events, but claimed a selective loss ³⁴² of memory about important facts incriminating the defendants.” He notes that the Nance opinion commented on the fact that all three key witnesses had similar memory lapses and that all three of the witnesses recanted their testimony in a similar manner, calling it “a most unlikely coincidence that was meaningful in itself.” 331 Md. at 564 , 629 A.2d 633 . The distinction that the appellant deems to be critical is: As Ferguson was the sole witness purporting to provide direct evidence of guilt, the jurors in [this case] did not have the “unlikely coincidence” of seeing all key witnesses recant identically at trial, with the resulting implications for credibility imputed by the court in Nance . Nance’s reference to the “most unlikely coincidence” and the entire discussion of all key witnesses having similar selective losses of memory occurred at the end Of a self-contained analysis of the admissibility of prior extrajudicial identifications, provided that “the out-of-court declarant is present at trial and subject to cross-examination.” 331 Md. at 560-64 , 629 A.2d 633 . The Nance opinion pointed out that, on this evidentiary issue, it was simply reaffirming well-settled, preexisting Maryland law.

See, e.g., Bedford v. State, 293 Md. 172 , 443 A.2d 78 (1982). The lead-in to the discussion from which the appellant seeks to derive special comfort was Nance’s analysis of the traditional rationale for the well-settled law: The rationales for this exception to the rule against hearsay have been fully articulated. The extrajudicial identification is admitted for its greater probative value because it occurred closer to the time of the offense, and is therefore more likely to be accurate. It is admitted because the original identification was made under less suggestive circumstances than those existing at trial, and is accordingly more reliable.

(Citations omitted.) 331 Md. at 561 , 629 A.2d 633 . The two appellants in the Nance case then sought to distinguish the extrajudicial identifications offered against them from those that had received the blessings of the courts ³⁴³ in earlier cases. The Nance appellants pointed out that most instances of admissibility are where witnesses have made prior extrajudicial identifications but are simply unable to make identifications in the courtroom. They pointed out that, by contrast, the identifying witnesses in their case had recanted the earlier identifications.

For several pages, the Nance opinion surveyed the case law around the country and concluded that a recantation by an identifying witness is not fatal to the admissibility of an extrajudicial identification. 331 Md. at 561-64 , 629 A.2d 633 . It was in this regard that the Court of Appeals reverted to its themes 1) that an extrajudicial identification is “more likely to be accurate” than an in-court identification because it is made “closer to the time of the offense” and 2) that an extrajudicial identification is “more reliable” because it is made “under less suggestive circumstances than those existing at trial.” 331 Md. at 561 , 629 A.2d 633 . By way of then applying that general wisdom to the facts of the Nance case, the Court of Appeals referred to the miscellany of indications that scullduggery may well have accounted for the recantations at trial and the relative unreliability of that trial testimony: [TJhere was evidence from which the jury could infer that the witnesses had made truthful identifications out of court, only to become disingenuous at trial. There was evidence that an atmosphere of fear and threats of reprisals existed in the interim between the crime and the trial.

Witness Antonio Harris was bound by fraternal ties to his half-brother, Nance. The witnesses at trial experienced only a selective failure of memory; they remembered the innocuous features of their prior statements, but forgot the incriminating assertions bearing on identification. Finally, the jurors no doubt perceived that all of the key witnesses similarly recanted, a most unlikely coincidence that was meaningful in itself. (Emphasis in original.) 331 Md. at 563-64 , 629 A.2d 633 .

All of this, including the passing reference to the plurality of “all of the key witnesses similarly recant[ing],” was simply ³⁴⁴ part of the Court’s argument as to why evidence of an extrajudicial identification will, as a general principle, survive a courtroom recantation. The facts of the Nance case were simply offered as proof of the traditional wisdom that extrajudicial identifications are frequently “more reliable” than in-court testimony because they are less vulnerable to intervening venality. The appellant may not, by plucking a toothsome morsel completely out of context, impose a limiting condition that the Nance holdings do not even arguably suggest. The Nance case, coincidentally, involved three “turncoat witnesses.” That coincidental fact was of no significance whatsoever to the Nance decision.

The Nance holdings would have been precisely what they were if only one “turncoat witness”—any one of the three—had been involved. Threats, Intimidation and Family Ties Again expressing it most succinctly in his reply brief, the appellant cites as one of the distinctions which he posits as “essential to the narrow holding” of Nance : the evidence of threats against the witnesses and familial ties in Nance , versus the total absence of any motive to fabricate trial testimony in Makell ... There was, indeed, evidence in the Nance case that two of the turncoat witnesses, Antonio Harris and Thomas Brown, •had received at least implied threats that ill fortune might befall them if they testified against the defendants. There was also evidence that Antonio Harris was the half-brother of the defendant Nance.

The allusions to this evidence in the Nance opinion, however, came only in the course of the opinion’s statement of facts, recounting in full detail everything that the witnesses had said or done pretrial as well as everything they did on the witness stand. These particular facts did not figure in any meaningful way in the subsequent legal analysis or as elements in Nance’s holdings. They deal, moreover, neither with the prerequisite of being available for cross-examination nor with the special indicia of trustworthiness that makes certain prior inconsistent state ³⁴⁵ ments admissible as substantive evidence. The coincidental facts stressed by the appellant in this subcontention go only to the possible reason why a “turncoat witness” turned his coat.

Neither the Nance opinion specifically nor the mainstream of American law that Nance deliberately joined care one whit why the testimonial inconstancy comes about. It may be through fear or intimidation. It may be for love or affection. It may be for cold hard cash.

It may be because of loss of memory, partial or total, genuine or perjurious, as a result of drugs, alcohol, amnesia, senility, mental retardation, the mere passage of time, or for any other reason. It may be out of sheer perversity. It may be for no reason at all. It may be for reasons unknown.

The law’s only concern is with what happens in this regard, not with why it happens. The appellant seeks to rely on a factor that is immaterial to the admissibility equation. The Hobgoblin of Consistency The appellant seeks to establish as an “essential” predicate for Nance the fact that the three turncoat witnesses there, in their respective pretrial performances, were consistent with each other. We have already disposed of that factor in pointing out that a Unitarian interpretation of Nance would be just as valid as would a trinitarian interpretation.

The appellant goes further, however, and points out that in Nance each of the pretrial statements to the police was internally consistent with the grand jury testimony of that particular witness. The wedge of distinction the appellant then attempts to drive is that in this case Willy Ferguson’s grand jury testimony differed in some significant details from his written and signed statement to the police. Again, however, it is a distinction without a difference. What is initially required by Nance is that the out-of-court declarations of a witness be inconsistent with the witness’s trial testimony.

If there are more than one out-of-court declarations, consistency or inconsistency between or among them is inconsequential. For purposes of admissibility, they ³⁴⁶ are to be measured against the trial testimony, not against each other. In Sheppard v. State, 102 Md.App. 571 , 650 A.2d 1362 (1994), we were dealing with two witnesses, both of whose trial testimony was inconsistent with pretrial statements each had given to a defense investigator. Before talking to the defense investigator, however, each of the witnesses had earlier given the police statements that were inconsistent with the subsequent statements given to the defense investigator.

Although the circumstances at bar do not precisely replicate the circumstances in Sheppard , the seal of approval we placed on otherwise qualifying evidence under Nance , notwithstanding internal inconsistency, was a very broad one: Theoretically, there is no reason why a jury could not look upon a witness and consider his sworn testimony and then be presented with a smorgasbord of earlier versions of events given by that witness—some resolutely consistent with the trial testimony, some wildly inconsistent, and others at various points between. Opposing counsel could then have a field day testing, probing, impeaching, and rehabilitating. It would fall the ultimate lot of the jurors to choose on which, if any, version—or amalgam of versions—to bestow decisive weight and credibility. 102 Md.App. at 577 , 650 A.2d 1362 . Should the internal inconsistency argument fail him, the appellant falls back on the broader indictment that Willy Ferguson’s very status in life makes anything ever said by him inherently untrustworthy: The fact that Ferguson was a known drug offender makes his testimony inherently untrustworthy and unreliable because he had a strong incentive to satisfy his police contacts and keep himself out of trouble.

Nance , however, is not so rigid in its rejection. With respect to Ferguson’s out-of-court statement given to the police, Nance holds unequivocally that it is sufficiently trustworthy to be offered as substantive evidence of guilt when the statement is based on the declar ³⁴⁷ ant’s own knowledge of the facts, is reduced to writing and signed or otherwise adopted by him, and he is subject to cross-examination at the trial where the prior statement is introduced. (Emphasis supplied.) 331 Md. at 569 , 629 A.2d 633 . Nance added no proviso that redeeming trustworthiness shall not be available to out-of-court declarations made by drug offenders.

Willy Ferguson’s statement satisfied all of the qualifying criteria. With respect to his grand jury testimony, moreover, Nance held clearly that, because of his station in life, Willy Ferguson is not forever cast out as someone beyond the testimonial pale: The requirements of an oath and testimony given under penalty of perjury discourage lying, reminding the declarant of punishment by both supernatural and temporal powers. The formal setting, oath, and the reminder of perjury all convey to the declarant the dignity and seriousness of the proceeding, and the need to tell the truth. (Citation omitted). 331 Md. at 571 , 629 A.2d 633 .

Nance did not deny the saving grace of the trustworthiness conditioning devices to ostensible drug offenders. 1 Cross-Examining a Forgetful Witness At the threshold of looking for the required inconsistency between a witness’s disappointing trial performance and his more promising pretrial performance, Nance, 331 Md. at 556 , 629 A.2d 633 , treated a claimed loss of memory as simply one form of recantation: ³⁴⁸ At trial, the witnesses recanted, either by disavowing their prior identifications and statements or by claiming no memory of them. (Emphasis supplied.) The appellant argues, however, that