McCray v. State

SONNER, Judge. In the Circuit Court for Wicomico County, a jury convicted appellant, Karen McCray, of first degree premeditated and felony murder, robbery, attempted robbery, assault with intent to murder, misdemeanor theft, and conspiracy to commit robbery. 1 On appeal, appellant presents the following questions for our review: I. Did the testimony of the accomplice’s minor child sufficiently corroborate the testimony of the accomplice? ⁶⁰² II. Did the trial court err in admitting prior statements of the accomplice?

III

Was appellant’s statement to the police voluntary? We find that the trial court erred in admitting the accomplice’s prior consistent statements and, accordingly, reverse and remand. FACTS Before being suffocated to death on September 12, 1996, Lucy Lyles lived on Booth Street in Salisbury, Maryland. About a month prior to her murder, she had opened her home to Tawanna Howell and Howell’s four children (ages eleven, eight, seven, and five), at the request of Ms. Howell’s mother, Diane Burgess.

While living with Ms. Lyles, Howell met and began to socialize with Karen McCray, who lived a short distance away. At trial, Howell described the events of September 12, 1996 as follows: She and her four children were at McCray’s home; the children were playing upstairs with McCray’s son, while McCray, Howell, appellant’s brother, Glen McCray, and some friends were downstairs smoking crack cocaine. While Howell was at McCray’s, Diane Burgess stopped by and told Howell that she had her children’s Social Security check. Howell left McCray’s house to cash the check.

When she returned to the McCray house, she gave McCray $20 so that McCray could purchase more crack cocaine. Howell waited for her children while McCray and the others continued to smoke. Then, at about 10:00 p.m., Howell, her four children, and McCray left the McCray house and went to the Lyles home. Before leaving, McCray inquired of Howell whether Ms. Lyles had any money and Howell told her that she probably did.

McCray told Howell that they were going to go to Ms. Lyles’s house “and scare her and try and get some money out of her.” ⁶⁰³ Howell told McCray that she did not need to hurt Ms. Lyles because, if she asked, Ms. Lyles would give her the money. Howell and the children entered the apartment by the back door, while McCray waited outside. At McCray’s request, Howell put her children in the bathroom and then returned to the back door to let McCray in. When she opened the door, Howell found that McCray had put a black net stocking over her face and that her brother, Glen, had also come over.

Howell let both of them enter and Howell began to walk toward Ms. Lyles’s bedroom door. McCray opened the bedroom door and flicked the light switch on and off. Ms. Lyles called out, asking, “Who is that?” No one answered, but all three entered the bedroom, and McCray jumped on top of Ms. Lyles’s head, “straddling her with her legs sitting on top of her face.” McCray repeatedly demanded money while Ms. Lyles said, “Oh, my God, they [sic] trying to kill me.” Howell stood at Ms. Lyles’s feet and McCray told her to grab them because Ms. Lyles was flailing her legs and arms. Howell grabbed the victim’s feet while McCray tried to tie Ms. Lyles’s hands with the cord of an iron.

Ms. Lyles continued to struggle, so McCray hit her on the side of the head with the iron. Meanwhile, Glen McCray rummaged through Ms. Lyles’s belongings, looking for money. After being struck with the iron, Ms. Lyles stopped struggling and lay on the ground mumbling, “Oh, my God, why, why?” McCray then took a large pillow and put it over Ms. Lyles’s face and sat on top of the pillow. After minutes passed, Ms. Lyles stopped moving completely and McCray got up and started going through the victim’s belongings.

McCray found Ms. Lyles’s work bag with a black wallet, from which McCray removed fifty dollars. After she found the money, McCray told Howell to get her children out of the bathroom. McCray and her brother left first and then Howell brought her children out and they left Ms. Lyles’s home and went to McCray’s home. Howell and the children went inside and, while Glen watched the children, McCray and Howell went away and bought some beer and crack cocaine.

They returned to McCray’s house and smoked the crack cocaine. ⁶⁰⁴ At approximately 1:00 a.m., McCray, Howell, and Howell’s children returned to Ms. Lyles’s house. Howell straightened up Ms. Lyles’s bedroom, while the children and McCray sat in the living room. Howell then returned to the living room and McCray left. The children went to sleep and, at approximately 7:00 a.m., Howell woke the children and took them to her mother’s house, told her mother what had happened, and left for Pocomoke in the evening, where the police later arrested her.

Howell made detailed statements, describing the killing to the police, and, subsequently, pleaded guilty to second degree murder for her involvement. Shantanna Howell, Tawanna’s twelve-year-old daughter, testified at trial. Shantanna recalled that on September 12, 1996, she, her siblings, and her mother went to McCray’s home and, later that night, they walked back to Ms. Lyles’s house and entered the apartment through the back door. Once inside, her mother told her and her brothers and sister to go into the bathroom and remain quiet.

After they entered the bathroom, Howell closed the door. Shantanna did not see anyone else in the apartment, but, while she was in the bathroom, she heard a knock on the door and she heard Ms. Lyles ask, “who was it,” but no one answered. She then heard Ms. Lyles scream and cry, while asking for help. Shantanna also heard McCray tell Ms. Lyles to “shut up,” and heard “some banging and stuff moving around.” After some time passed, Shantanna heard someone leave and then Howell allowed them to come out of the bathroom.

Shantanna said that Howell’s hair was messy, as if “she had been working.” Shantanna indicated that her mother then told them to go to sleep. Early the next morning, they went to her grandmother’s house, where she overheard Howell tell her mother what had happened. ANALYSIS I. Appellant’s first argument on appeal alleges that the testimony of Shantanna Howell, the accomplice’s minor child, did ⁶⁰⁵ not sufficiently corroborate the testimony of the accomplice, Tawanna Howell. Her claim is based on two theories: first, the corroboration came from the accomplice’s child and therefore cannot constitute an independent source; second, the testimony of Shantanna and her mother was so “riddled with inconsistencies” that it did not provide corroboration with some “degree of cogency,” as required.

See Brown v. State, 281 Md. 241, 244 , 378 A.2d 1104 (1977). We find no merit in this claim. It has been firmly established that a “person accused of a crime may not be convicted on the uncorroborated testimony of an accomplice.” Turner v. State, 294 Md. 640, 641-42 , 452 A.2d 416 (1982). We have expressed two reasons for requiring corroboration.

First, the accomplice who is offering the testimony “is admittedly contaminated with guilt,” (citation omitted), and, second, the accomplice may have an ulterior motive for testifying, such as seeking a reduced sentence or charge. Id. at 642 , 452 A.2d 416 . We do not require the State to produce corroboration of all of the evidence. Rather, only slight corroboration is required.

As former Chief Judge Murphy said for the Court of Appeals in Brown , [T]he corroborative evidence ... must relate to material facts tending either (1) to identify the accused with the perpetrators of the crime or (2) to show the participation of the accused in the crime itself.... If with some degree of cogency the corroborative evidence tends to establish either of these matters, the trier of fact may credit the accomplice’s testimony even with respect to matters as to which no corroboration was adduced. McDowell v. State, 231 Md. 205 , 189 A.2d 611 (1963). That corroboration need not extend to every detail ... is also settled by our cases.

Brown, 281 Md. at 244 , 378 A.2d 1104 . The Court in Turner , agreeing with the reasoning of Brawn, added that “the evidence offered as corroboration must be independent of the accomplice’s testimony.” Turner, 294 Md. at 646 , 452 A.2d 416 . That is, “the proffered evidence must consist of some ⁶⁰⁶ thing more substantial than the extrajudicial comments of the accomplice.... ” Id. at 647 , 452 A.2d 416 . In this case, appellant asserts that the testimony of Shantanna cannot be considered an independent source because she is the minor child of the accomplice, with a strong interest in protecting her mother, and, as a minor child, she was under the influence and control of her mother.

We find that this argument does not, in any way, detract from the fact that Shantanna’s testimony was “independent of the accomplice’s testimony.” Id. at 646 , 452 A.2d 416 . All we require of the testimony is that it must be “something more substantial than the extrajudicial comments of the accomplice.” Id. at 647 , 452 A.2d 416 . The record demonstrates that Shantanna’s testimony was based on her independent recollection of the events on the night of the murder and not on statements by her mother to her grandmother. Thus, it satisfied the requirement of testimony independent of the accomplice’s testimony.

We also find no support for appellant’s claim that the testimony of Shantanna and Tawanna Howell was so inconsistent that it did not provide corroboration with any “degree of cogency.” As the Court of Appeals indicated in Brown , the corroborative evidence proffered must, with some degree of cogency, either identify appellant as a perpetrator of the crime or show that appellant participated in the crime. 281 Md. at 244 , 378 A.2d 1104 . In this case, Shantanna’s testimony satisfied both of these elements. She identified appellant as a perpetrator and a participant when she told the jury that, while she was in the bathroom on the night of the murder, she heard someone knock on the door, she heard Ms. Lyles screaming for help, and she recognized appellant’s voice as the one telling Ms. Lyles to “shut up.” Shantanna also testified that it was at this time that she also heard “some banging and stuff moving around” and that she then heard someone leave. Thus, Shantanna provided some corroboration of her mother’s testimony and, even if the remainder of her testimony differed from that of her mother, no more is required for the trier of ⁶⁰⁷ fact to credit her testimony in toto, should it choose to do so.

See Turner, 294 Md. at 642 , 452 A.2d 416 (evidence establishing material facts with some degree of cogency are facts providing only slight corroboration); Grant v. State, 65 Md. App. 547, 552-553, n. 1 , 501 A.2d 475 (1985) (citing numerous Maryland Court of Appeals and Court of Special Appeals cases supporting the proposition that only slight corroboration is required).

II

Appellant also argues that the court erred on two occasions by admitting prior statements made by her accomplice, Howell, once by admitting a prior consistent statement and once by allowing the admission of a prior inconsistent statement. The trial court admitted the prior consistent statement during the testimony of Howell’s mother, Ms. Burgess. The State questioned Ms. Burgess about Howell’s description to her of the robbery and murder. Defense counsel objected on the grounds that the answer would be hearsay.

The following colloquy then took place: THE COURT: Wouldn’t this be admissible under Rule 5-802.1(c)? Maybe you better approach the bench. (Whereupon counsel approached the bench, and the following ensued.) THE COURT: Excuse me, not (c). 5-802.1(b), “A statement that is consistent with the declarant’s testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive.” Did you not try to bring out improper motive of the declarant and, if so, and if this is a consistent statement, I don’t know if it is, but that’s what is proffered to be? ... Would it not be admissible under that section? [DEFENSE COUNSEL]: That’s for the Court to decide.

THE COURT: Okay. Well, I overrule your objection. After the court overruled defense counsel’s objection, Ms. Burgess testified as to what Howell told her about the murder. Appellant argues that the court erred by allowing Ms. ⁶⁰⁸ Burgess’s testimony under Rule 5-802.1(b), because Howell’s statement was made after her motive to lie arose and because Howell admitted to fabrication when she admitted that, initially, she had deliberately omitted any reference to her children or Glen McCray. 2 We hold that the court did err in allowing Ms. Burgess to testify about Howell’s prior consistent statements, and that the Court of Appeals’s recent decision in Holmes v. State, 350 Md. 412 , 712 A.2d 554 (1998), is dispositive on this issue.

In Holmes , the Court of Appeals determined whether a witness’s prior consistent statement was admissible under Rule 5-802.1(b) to rebut a charge of fabrication, when the statement was made after a motive to fabricate arose. Judge Chasanow, writing for the Court, adopting the reasoning and holding of Tome v. United States, 513 U.S. 150, 152 , 115 S.Ct. 696, 699 , 130 L.Ed.2d 574 (1995), held that “a prior consistent statement [that] is offered pursuant to Md. Rule 5-802.1(b) for the purpose or rebutting a charge of fabrication or improper influence or motive, ... is admissible only if it precedes the alleged fabrication, improper influence, or motive.” However, the Court found that Rule 5-802.1(b) was not the sole basis for admitting prior consistent statements in our courts. Maryland Rule 5-616(c) is directly on point and governs the rehabilitation of a witness whose credibility has been attacked.... Under Md. Rule 5-616(c)(2), a prior consistent statement is admissible to rehabilitate a witness as long as the fact that the witness has made a consistent statement detracts from the impeachment.

Prior consistent statements used for rehabilitation of a witness whose credibility is attacked are relevant not for their truth since they ⁶⁰⁹ are repetitions of the witness’s trial testimony. They are relevant because the circumstances under which they are made rebut an attack on the witness’s credibility. (Footnote omitted.) The Court went on to hold that the State “is not required to assert the purpose for which it is seeking admission of a prior consistent statement unless asked by the court,” even though a statement admissible under Md. Rule 5-802.1(b) is admissible as substantive evidence, and a prior consistent statement admissible under Md. Rule 5-616(c)(2) is for rehabilitative purposes only and not as substantive evidence. Because Holmes does not require the State to articulate whether it is seeking to admit the prior consistent statement for substantive or rehabilitative purposes, it places two burdens on the defendant.

First, it is incumbent on the defendant to inquire about the basis upon which the State intends to introduce the prior consistent statement. Second, the defendant must request a jury instruction limiting the use of the prior consistent statement for rehabilitative purposes only. In Holmes , the Court found that Md. Rule 5-802.1(b) did not apply because the State offered the witness’s prior consistent statement, not to rebut a motive to fabricate, but, rather, to rebut a prior inconsistent statement, and found the prior statement admissible under Md. Rule 5-616(c)(2). Here, although Md. Rule 5-802.1(b) does apply, under the reasoning of Holmes , it cannot be a basis for admitting Howell’s prior consistent statements.

As Judge