Mouzone v. State

Liss, J., delivered the opinion of the Court. Clarence Mouzone, appellant, was charged with two counts of murder, two counts of use of a handgun in the commission of a felony, and two counts of carrying a handgun. The appellant was tried before a jury in the Criminal Court of Baltimore and convicted on all charges. A motion for a new trial was filed and denied.

Appellant was thereupon sentenced to two consecutive life terms on the murder charges; two fifteen year sentences, to run concurrent with each other but consecutive to the life terms on the murder convictions; and two concurrent three year sentences on the carrying a handgun charges, which were to run concurrent with the other sentences. From these judgments, appellant noted this appeal. He raises eight issues to be determined by this Court: I. Whether the trial court erred by admitting in evidence the alleged past recollection recorded statement of Anna Byrd which contradicted her testimony at trial? ⁸³ II. Whether the trial court erred by admitting Anna Byrd’s prior recorded statement because it was involuntary and completely unreliable?

III

Whether the trial court erred by admitting in evidence Anna Byrd’s testimony about her prior testimony before the grand jury?

IV

Whether the trial court erred by allowing appellant to be questioned concerning his prior grand jury testimony? V. Whether the trial court erred by denying appellant’s motion for judgments of acquittal because the evidence was insufficient?

VI

Whether the trial court erred by allowing the prosecutor to make prejudicial arguments to the jury?

VII

Whether the trial court erred by failing to make an effort to find Alan Glass who was named as the actual assailant at trial?

VIII

Whether appellant’s trial counsel adequately investigated appellant’s case and adequately represented appellant in this case? I. and II. At trial, officer Michael Sabo of the Baltimore City Police Department testified that at approximately 2:08 p.m., on August 31,1979, he responded to a call at the corner of North Avenue and North Charles Street. Upon arrival, he found the bodies of Bernard Banks and Carolyn Williams on the sidewalk.

He also observed Anna Byrd on the sidewalk, apparently having an epileptic seizure. At trial, Anna Byrd was called to testify as a state’s witness. She testified that on the afternoon of the shooting she was in the vicinity of North Avenue and Charles Street with her friend, Carolyn Williams. She stated that she heard one shot and saw a man run from the scene.

She thereupon suffered an epileptic seizure, was taken to the hospital, treated and released. She ⁸⁴ was then taken to police headquarters where she was questioned by Detective Danko of the Homicide Division. Detective Danko showed her an array of photographs, one of which she identified as appellant, the man she saw running from the scene. Anna Byrd signed her name on the back of the photograph she selected, dated it, and indicated the time of day on it.

Officer Danko then took a statement from Mrs. Byrd which contained the following description of appellant: the man [she saw running from the scene] was a black malé, approximately 23 years old, dark brown skin complexion, 5'4" to 5'6", 135 pounds, slender build, wearing a maroon print shirt, maroon dress slacks and black shoes. His hair was cut short. After Mrs. Byrd read the statement as written out by Detective Danko, she signed it as being true and correct. She also noted the date and time on the photograph as August 31, 1979 at 7:20 p.m.

At trial, Mrs. Byrd repudiated her selection of the appellant’s photograph as the picture of the man who was the "shooter” who ran from the scene. She insisted she had been mistaken and that the appellant was not the man. The state then offered the statement taken from her on the day of the shooting on the ground that although it was hearsay, it was admissible as past recollection recorded and therefore could come into evidence as one of the exceptions to the hearsay rule. Appellant objected and a hearing out of the presence of the jury was then conducted.

At the conclusion of the hearing, the statement was admitted as admissible evidence on the basis of "past recollection recorded.” It is this ruling which appellant contends was the initial error in this case. In considering the admissibility of evidence, the law vests great discretion in the trial judge. The exercise of that discretion will not be reversed absent a showing of clear abuse. See Tripp v. State, 36 Md. App. 459 , 374 A.2d 384 , cert. denied, 281 Md. 745 (1977).

Our careful examination of the transcript in this case convinces us that the trial judge arrived at the correct conclusion, but for the wrong reason, in allowing Mrs. Byrd’s ⁸⁵ statement to Detective Danko to be received into evidence. At the hearing, out of the presence of the jury, appellant’s counsel argued that the statement was not admissible under the exception to the hearsay rule known as "past recollection recorded.” The trial judge ruled that the statement was admissible on that basis. We said in Ringgold v. State, 34 Md. App. 286 , 367 A.2d 35 (1976): [T]he past recollection recorded if it is to be admitted into evidence must be offered by the witness who is either devoid of a present recollection or possessed of an imperfect present recollection and desires to use a memorandum of a past recollection. The witness must be able to assert now that the record correctly represented his knowledge and recollection at the time of making. 3 J. Wigmore, Evidence Sections 734, 746(2) (Chadbourne rev. 1970). [ 34 Md. App. at 293 .] The crucial facts which make a past recollection recorded admissible as an exception to the hearsay rule are that the record must be offered by the witness who has no recollection of the facts recorded or an imperfect present recollection and desires to use the memorandum of a past recollection.

It is important to note that under these circumstances, once verification has been established, the memorandum becomes the present evidentiary statement of the witness and may be admitted into evidence either as a part of the witness’ direct testimony or his cross-examination. In this case the statement sought to be admitted was not offered by Mrs. Byrd. She acknowledged remembering the circumstances surrounding the giving of the statement to Detective Danko, admitted signing it, and reluctantly conceded that she believed it to be true when she made the statement. However, she repudiated her identification of the appellant’s photograph and insisted that the appellant was not the man who ran past her on the day of the murders and was not the man whom she described to Detective Danko.

In the light of this testimony it is clear to us ti.at the statement ⁸⁶ could not be admitted as evidence of "past recollection recorded.” There is, however, another exception to the hearsay rule which makes the statement admissible. This exception is known as the "excited utterances” rule, also cited as the "res gestae” rule. In Moore v. State, 26 Md. App. 556 , 338 A.2d 344 (1975), Judge Moylan, speaking for this Court, indicated that the acceptance of these declarations arise out of two factors which combine to justify the admission of certain classes of hearsay: (1) necessity; and (2) the circumstantial probability of trustworthiness. Necessity arises out of the "superior trustworthiness” of the spontaneous declarations.

Dean Wigmore, in discussing the "General Principle of the Exception,” stated it to be as follows: This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts. [3 J. Wigmore, Evidence Section 1747.] Upon examination of the facts surrounding the selection of the appellant’s photograph and the statement made by Mrs. Byrd, we are convinced that the circumstances justify the admission of these facts as a spontaneous response to the ⁸⁷ occurrence of events. Mrs. Byrd responded with an epileptic seizure to the shock of seeing her friend gunned down. She was then admitted to the hospital where she was treated and released to the police.

At police headquarters she was shown an array of photographs from which she selected that of the appellant, and she then made a statement giving a description of the man who ran past her, fleeing from the scene. When the police began to question her she was crying and upset. She composed herself during the interim, and the statement was signed as being true and correct within less than three hours after the perpetration of the double murders. We conclude, therefore, that the statement and the evidence as to the selection of the photograph were admissible as part of the excited utterances surrounding the occurrence of the event.

We also reject the argument that Mrs. Byrd’s in-court repudiation of her written statement and her claim under oath that she was mistaken in her original identification of appellant render the written statement inadmissible. At most, this merely raised issues of fact to be weighed by the jury. They resolved the conflict by finding the appellant guilty beyond a reasonable doubt as to each of the charges against him. The lapse of time between the commission of the murders (at 2:00 p.m.) until the identification of the appellant by photograph was three hours.

Included was the time required to take the witness from the scene to the hospital to administer treatment for her epileptic seizure, to release and transport her to police headquarters, to submit the photos for her identification and to have her select the photograph which she identified. It is indubitable that this sequence of events was contemporaneous with the commission of the crime. The Court of