Nance v. State

McAULIFFE, Judge. This case presents the classic evidentiary problem of the turncoat witness. We must determine the admissibility, as substantive evidence, of witnesses’ out-of-court identifications, signed statements to police, and grand jury testimony, all of which the witnesses largely repudiated at trial. I Shortly after nine o’clock on the evening of April 3, 1990, gunshots erupted near the intersection of East Lombard and ⁵⁵³ South Exeter Streets adjacent to the Flag House projects in Baltimore City.

A passer-by, Sandra Keve, was struck in the leg and crawled to safety. The target of the shooting, Aaron Carroll, was struck repeatedly by bullets. He staggered down Exeter Street, collapsing onto a spectator, Antonio Harris. Harris called out for help to a friend, Rodney McCormick, and the two men carried Carroll to a grassy patch nearby, where he died.

The Medical Examiner reported that Carroll had been hit by at least four shots. The State crime laboratory reported that the bullets retrieved from Carroll's body had been fired from at least two revolvers, either of .22 caliber or .38 caliber. The Extrajudicial Events There then ensued a sequence of investigatory steps by police and the Grand Jury for Baltimore City which, for clarity’s sake, we set out episodically in some detail. Detectives Marvin Sydnor and Bertina Silver testified to the events at which police were present.

The record also includes the pertinent grand jury proceedings. Beginning at 11:35 p.m. on April 3, Rodney McCormick gave a statement to police detectives in which he said he heard shots on the street, and then joined Harris in aiding Carroll. McCormick added that he believed the shooting to be related to a turf dispute between drug dealers. He stated that earlier on April 3 he had overheard a conversation at a neighborhood store, Bell’s Carry Out, in which Petitioner Nance told Petitioner Hardy and a third man, “After we fuck him up, if he-come back down here, we gonna kill him.” McCormick further reported that later on April 3 he observed Nance, Hardy, and the third man beating Carroll, during which fight Nance took away Carroll’s pistol.

Both the questions and answers of this interview were written out on paper. The entire statement was read aloud to McCormick, who acknowledged it as true, noted the date and time, 1:05 a.m. of April 4, and signed it. ⁵⁵⁴ Immediately thereafter, at 1:13 a.m. of April 4, McCormick was shown an array of six photographs. Detective Silver testified that McCormick was first read a standard instruction, which explained in pertinent part: This group of photographs may or may not contain a picture of the person who committed the crime now being investigated. ... When you have looked at all the photos tell me whether or not you see the person who committed the crime.

McCormick selected the picture of Petitioner Nance as the man involved in the earlier fight with Aaron Carroll; Detective Silver recorded his remark, “That’s him right there.” To signal his choice, McCormick signed the photograph and also noted the time and date. Beginning at 2:30 a.m. on April 4, Antonio Harris gave a statement to police detectives in which he said that he saw Nance, Hardy, and a man named Matthew come up the street, pull guns, and shoot Carroll, who was unarmed. He reported, “Matthew fired first, then everybody else started shooting.” He heard “a good eight” shots. Carroll then ran to Harris and fell on him; then, with McCormick’s help, Harris carried the victim away.

Harris described Nance’s weapon as a small revolver. He described Hardy’s physical appearance and clothing. Harris identified Nance as his own brother, presumably his half-brother. He added that he had known Hardy for more than 10 years.

Harris further told police that Carroll was shot for trying to deal drugs in a building where Carroll’s killers sold them, and which they considered their own territory. As before, the questions and answers of this interview were reduced to writing. The entire statement was read aloud to Harris; he acknowledged it as accurate and true, initialed each of its 12 pages, and signed its last page at 3:30 a.m. Immediately thereafter, at 3:45 a.m. of April 4, Harris was read the standard instructions for a photographic array procedure as quoted above.

He viewed several groups of six photographs each, from which he selected the picture of his ⁵⁵⁵ half-brother, Nance. He signaled his choice by signing the photograph and noting the time and date. At 1:36 p.m. that afternoon, Harris again viewed an array of photographs, from which he selected and signed the picture of Hardy. Detective Silver recorded Harris’ comment, “That’s Hardy.” The Grand Jury for Baltimore City convened on April 4.

Testifying under oath and penalty of perjury, McCormick and Harris repeated the substance of their statements given earlier to police. 1 In addition, McCormick and Harris acknowledged having selected photographs of Petitioners as the men they saw either beating Carroll or shooting Carroll. Their grand jury testimony was recorded and transcribed verbatim. Beginning at noon on November 26, 1990, Harris gave another statement to police and to an Assistant State’s Attorney. 2 Harris told them that he had been approached by one Ernest Barnes, a friend of the third suspect, Matthew. Harris reported that he accompanied Barnes to the office of Matthew’s lawyer, to whom he said that he would not testify at trial against any of the gunmen.

He explained that he feared Barnes would retaliate if he testified, and wished to deceive him. Harris said he was afraid, “Cause every time he [Barnes] has a problem, about two days or a day after somebody’s always getting beat up or hurt.” Nevertheless, Harris confirmed his original statement to police and indicated his willingness to testify in court. Detective Silver wrote out the questions and answers of this interview on paper. The entire statement was read aloud to Harris, who acknowledged it as true, noted the time and date, and signed it. ⁵⁵⁶ Beginning at 10:43 a.m. on January 22, 1991, a third witness, Thomas Brown, gave a statement to police and an Assistant State’s Attorney.

He told them that he saw Nance, Hardy, Matthew, and others beating Aaron Carroll during the daytime of April 3, 1990, because Carroll sold drugs in their territory. Carroll then ran off, saying “It’s gonna be war,” as Nance pointed a gun at him. Brown added that later Matthew warned him, ‘You don’t know nothing.” Brown said he was afraid of the men he saw. The questions and answers of the interview were reduced to writing.

Brown read the entire statement, initialed each of its pages, acknowledged it as true, noted the date and time, and signed it. The next day, January 23, 1991, Brown gave a second statement to police concerning a letter he had received from Petitioner Hardy. Brown stated that Hardy wrote, in part, ‘You were my only hope in dealing with those things left unfinished.” He explained that Hardy meant Brown was the only person left on the street available to kill Antonio Harris for cooperating with the police investigation of Aaron Carroll’s murder. The questions and answers were again reduced to writing.

Brown read the entire statement, initialed each page, acknowledged it as correct, and signed it. The In-Cowrt Testimony At trial, the witnesses recanted, ¡either by disavowing their prior identifications and statements or by claiming no memory of them. Called as a court’s witness, Antonio Harris testified that he ran and hid during the shooting, and saw the incident only after the wounded victim approached him on Exeter Street; he repeatedly asserted that he did not see the killing. He stated that after Carroll died, he and McCormick left the scene and then used heroin to the point of intoxication.

On cross-examination Harris remembered giving the April 4 statement to police. He acknowledged having initialed or signed its pages. He remembered answering the detectives’ questions pertaining to his name, address, age, and his prior acquaintance with Nance and Hardy. As for the questions ⁵⁵⁷ and responses implicating Petitioners in Carroll’s death, Harris sometimes repudiated his former answers or sometimes stated he did not remember giving them.

He acknowledged having viewed photo arrays and having put his signature on the pictures of Nance and Hardy, but contended that he merely indicated to police that they were persons he knew and recognized. Harris further testified that he did not remember his grand jury testimony. He acknowledged his signature on the November 26 statement, but asserted that he had no memory of the questions and answers concerning his encounter with Ernest Barnes, and no current memory of accompanying Barnes to the office of Matthew’s lawyer. He stated that he was not afraid of reprisals, nor had he been threatened.

Harris could not explain how the police obtained the information contained in his April 4 and November 26 statements to detectives. He could not explain how the grand jury obtained the information contained in his transcribed testimony. He contended that he was steadily intoxicated by drugs throughout the months in question. Rodney McCormick testified that he assisted the wounded Carroll.

He denied that he had seen a fight involving Nance, Hardy, Matthew, and Carroll earlier on April 3. He said both that he did remember, and that he did not remember, giving a statement to police. He remembered giving detectives his name, address, and date of birth; he acknowledged his signature on the statement. He stated that he did not remember the questions or his former answers concerning a drug turf war at the projects, the conversation in Bell’s Carry Out, or the melee in which Carroll was beaten.

McCormick said he remembered looking at a photo array and acknowledged his signature on the picture of Nance. He first stated that he did not remember selecting Nance’s photograph, and later that he was simply pointing out someone he knew. McCormick testified that he had no memory of his appearance before the grand jury. He added that he was not deliberately pretending to forget the prior events out of fear. ⁵⁵⁸ Thomas Brown remembered making statements on January 22 and January 23, 1991; he acknowledged having signed both.

He denied having identified by name any of the participants in the April 3 fight. He testified that the police forced him to make the January 22 statement to escape criminal charges himself. Brown averred that the answers recorded in the January 23 statement were false. He explained that Hardy’s letter to him about “dealing with those things left unfinished” meant only that Brown was to find witnesses and bring them to court.

Detectives Sydnor and Silver testified that all of the statements in question were freely given and signed. They stated that the interviews and photo arrays were accurately documented. The detectives believed that Harris and McCormick were sober during all of their sessions with police. Detective Silver said that Antonio Harris informed her on March 13, 1991—shortly before the trial—that he would change his testimony: “He told me that he wasn’t going to testify, that he was scared and we were protecting him now, but who was going to protect him after he gave his statement?” Apart from the out-of-court statements and identifications by Harris, McCormick, and Brown, no evidence linked Petitioners to the murder of Aaron Carroll.

II The Circuit Court for Baltimore City (Mitchell, J.) admitted all of the disputed evidence. The court ruled that the witnesses’ out-of-court identifications of Petitioners by means of the photo array procedures could be used as substantive evidence of guilt. It left unresolved the substantive import of the witnesses’ written statements bearing on identification; counsel were allowed to argue this point to the jury. 3 The court ⁵⁵⁹ instructed the jury that, ordinarily, prior inconsistent statements may be used only to impeach witness credibility. The jury convicted Petitioners of first-degree murder, conspiracy to murder, second-degree attempted murder of Sandra Keve, and related handgun offenses.

The trial court sentenced each to imprisonment for life for the murder of Carroll, a consecutive term of life imprisonment for conspiracy to murder, a consecutive 30-year term for the attempted murder of Ms. Keve, and a consecutive 15-year term for the weapons charges. The Court of Special Appeals affirmed. Nance v. State, 93 Md.App. 475 , 613 A.2d 428 (1992). We granted certiorari to address the substantive use of the recanted extrajudicial identifications; the sufficiency of such evidence, if admissible, to support the convictions; and the admissibility, as substantive proof, of the witnesses’ prior inconsistent grand jury testimony.

Ill The witnesses’ identifications of Petitioners, statements to police, and grand jury testimony were hearsay. That is, they were statements, 4 other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Ali v. State, 314 Md. 295, 304 , 550 A.2d 925 (1988). As it derives its value not solely from the credit given to the witness reporting it, but to the perception, veracity, and competency of the declarant, hearsay evidence is generally not admissible as affirmative proof of guilt.

See Johnson v. State, 237 Md. 283, 290-291 , 206 A.2d 138 (1965); Judy v. State, 218 Md. 168, 174-175 , 146 A.2d 29 (1958). Hearsay is admissible if offered for impeachment, i.e., ⁵⁶⁰ to show that witnesses on prior occasions had uttered statements inconsistent with their present testimony. Ali, supra, 314 Md. at 305 , 550 A.2d 925 ; Sun Cab Company, Inc. v. Cusick, 209 Md. 354, 361-362 , 121 A.2d 188 (1956). If, however, there are separate circumstances providing the requisite indicia of trustworthiness concerning the truthfulness of the out-of-court statements, such statements may be admitted substantively as an exception to the rule against hearsay.

Ali, supra, 314 Md. at 304-305 , 550 A.2d 925 . The question lying at the heart of this case is whether the extrajudicial identifications and grand jury testimony of the witnesses were admissible as substantive evidence, notwithstanding the witnesses’ repudiation of those statements. Petitioners argue that the witnesses’ recantation necessarily dissipated the reliability of such evidence to the point that it must be excluded from the prosecution’s case in chief. They further contend that because the defense did not have the opportunity to cross-examine the declarants at the time the prior statements were made, it was unfair to admit them substantively.

They add that the defense was denied effective cross-examination at the trial, where the witnesses persistently claimed loss of .memory. Petitioners fear that the admission of grand jury testimony would defeat the State’s interest in protecting the secrecy of grand jury proceedings. Finally, Nance and Hardy argue generally that a rule permitting the use of prior inconsistent statements as substantive evidence would encourage police to pressure witnesses into making out-of-court statements without regard to their accuracy, because police would know that if the witnesses later recanted, the prior statements would be admissible at trial. The Extrajudicial Identifications It is well settled in Maryland that a court may admit, as substantive proof, evidence of a third party testifying as to an extrajudicial identification by an eyewitness when made under circumstances precluding the suspicion of unfairness or unreliability, where the out-of-court declarant is present at trial and subject to cross-examination.

Bedford v. ⁵⁶¹ State, 293 Md. 172, 176-179 , 443 A.2d 78 (1982); Johnson, supra, 237 Md. at 289-291 , 206 A.2d 138 ; see Judy, supra, 218 Md. at 172-176 , 146 A.2d 29 ; Basoff v. State, 208 Md. 643, 650-651 , 119 A.2d 917 (1956). An extrajudicial identification is sufficient evidence of criminal agency to sustain a conviction, even though the declarant is unable to identify the accused at trial. Bedford, 293 Md. at 185 , 443 A.2d 78 . 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. Id., 293 Md. at 178-179 , 443 A.2d 78 , citing Commonwealth v. Torres, 367 Mass. 737, 739 , 327 N.E.2d 871 (1975). It is admitted because the original identification was made under less suggestive circumstances than those existing at trial, and is accordingly more reliable. Bedford, 293 Md. at 178-179 , 443 A.2d 78 , relying on Torres, supra, and People v. Gould, 54 Cal.2d 621, 626-627 , 7 Cal.Rptr. 273 , 354 P.2d 865 (1960).

Because the declarant is available as a witness at trial for cross-examination about the prior identification, some of the danger that the hearsay rule seeks to avoid is not present. Bedford, supra, 293 Md. at 178 , 443 A.2d 78 ; Johnson, supra, 237 Md. at 290, 206 A.2d 138 . We observe, also, that the steps of an identification procedure, such as a photographic array or police line-up, can be objectively recounted by the witness and are readily documented, further enhancing the identification’s trustworthiness. Petitioners insist that this case, in which the witnesses recanted their prior identifications, differs significantly from Bedford and others where the witnesses merely were unable to identify the accused at trial.

They rely on Gibbs v. State, 7 Md.App. 35, 253 A.2d 446 (1969), in which the victim of a robbery testified at trial not only that he was mistaken in his out-of-court identification, but that the defendant was not in fact the robber. The positive exculpation of the defendant in Gibbs is a far cry from the instant case, where the witnesses at trial said only that they did not observe Nance and Hardy ⁵⁶² engage in criminal acts. Furthermore, the witness in Gibbs did not, as here, repeatedly and consistently confirm his original identification in signed statements to police and in grand jury testimony. Ample authority supports the admission of an extrajudicial identification even where the witness recants at trial.

Interpreting the corresponding Federal Rule of Evidence applicable to identifications, 801(d)(1)(C), the United States Court of Appeals for the Second Circuit upheld the probative use of a prior identification later disclaimed by the witness on the grounds that it was made when the witness’s memory was fresher and there had been less opportunity for influence to be exerted upon him. United States v. Marchand, 564 F.2d 983, 996 (2d Cir.1977), cert. denied, 434 U.S. 1015 , 98 S.Ct. 732 , 54 L.Ed.2d 760 (1978). Accord United States v. O’Malley, 796 F.2d 891, 898-899 (7th Cir.1986) (witness recanting identification of defendant as extortionist). See United States v. Elemy, 656 F.2d 507, 508 (9th Cir.1981) (rule enacted to remedy problem where before trial witness identifies the defendant and then, because of fear, refuses to acknowledge his previous identification).

See also 4 Weinstein & Berger, Weinstein’s Evidence at page 801-222 (1992) (Congress intended that absence of memory, or even a denial, by the identifying declarant at trial would not bar testimony of a witness to the identification). State appellate courts have taken the same view. See, e.g., People v. Malone, 193 Mich.App. 366 , 483 N.W.2d 470, 471-472 (1992) (extrajudicial identification admitted substantively even though witness refused to acknowledge it at trial); State v. Grover, 55 Wash.App. 252 , 777 P.2d 22, 23-25 (1989) (out-of-court statement of identification excluded from operation of hearsay rule notwithstanding that witness denied any memory of crime or of her identification of defendant). More generally, the Supreme Court of Virginia has justified the probative use of prior identifications in these terms: “[T]he memory of a witness may fade---- It is also not beyond the realm of possibility that an identifying witness may be inhibited by threat or intimidation from making a ⁵⁶³ positive in-court identification.” Niblett v. Commonwealth, 217 Va. 76 , 225 S.E.2d 391, 394 (1976).

This Court in Bedford, supra, 293 Md. at 178 , 443 A.2d 78 , also implicitly recognized the possibility of witness intimidation: “The failure of the witness to repeat the extrajudicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances.” Among such other circumstances are threats and fear of retaliation. One final case is applicable. In People v. Lucky, 45 Cal.3d 259 , 247 Cal.Rptr. 1, 18 , 753 P.2d 1052, 1070 (1988), cert. denied, 488 U.S. 1034 , 109 S.Ct. 848 , 102 L.Ed.2d 980 (1989), the Supreme Court of California stated a refinement to its holding in People v. Gould, supra, 7 Cal.Rptr. at 273, 354 P.2d at 865. The California court held that a repudiated identification may form the basis for conviction if it was reiterated by the witness under oath at a preliminary examination or other judicial proceeding, and there was evidence from which the factfinder could credit the witness’s prior testimony over his or her failure to confirm the extrajudicial statements at trial.

In the instant case, the petitioners do not contend that the identification procedures were suggestive or otherwise unfair. Rather, they argue that the value of the evidence of the prior procedures lies in the statements that accompanied and were a part of the identifications, and they contend these statements should not have been admitted as substantive evidence. Harris and McCormick twice repeated their identifications, once in signed statements and once under oath in a proceeding before the grand jury. For reasons discussed hereafter, we find those statements to be independently admissible as substantive evidence.

Moreover, there 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 ⁵⁶⁴ 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