Pickett v. State

SONNER, Judge. On May 29, 1997, a jury in the Circuit Court for Prince George’s County found appellant, Reginald Pickett, guilty of attempted second degree murder, robbery with a dangerous weapon, robbery, reckless endangerment, and assault and battery. On July 25, 1997, the court sentenced Pickett to thirty years incarceration for attempted second degree murder, and merged the remaining convictions. The court suspended all but twenty years of the sentence and also mandated, pursuant to Maryland Code, Art. 27, § 643B, that the first ten years be served without the possibility of parole.

Pickett noted an appeal and raises the following issue: Did the trial court err in allowing the State to “impeach” its own witness with otherwise inadmissible testimony that appellant admitted to stabbing and robbing a man in a McDonald’s parking lot in June of 1996? We find that the trial court erred in admitting the impeachment evidence and, because the court’s error was not harmless beyond a reasonable doubt, we reverse Pickett’s convictions. Facts On the afternoon of June 11, 1996, while walking from his Southview apartment to a local shopping center, Donnell Hester was attacked, in an apparent robbery attempt, by a group of teenagers and an older man, their “leader,” whom Hester identified as appellant, Reginald Pickett. Hester testi ⁶⁰¹ fied that appellant stabbed him once before Hester managed to flee to a nearby McDonald’s.

Hester used the pay phone at the McDonald’s and called 911. As he was waiting for the police to arrive, Hester once again saw appellant in the parking lot. Appellant approached him, took a swing at him, but missed. Hester then saw other members of the group come toward him.

He attempted unsuccessfully to flee, but stated that “it seemed like I was grabbed from a whole bunch of different sides.” Hester was then beaten, stabbed repeatedly, and robbed. He testified that he recalled seeing his stolen wallet in appellant’s possession after the beating. Hester later selected appellant’s photograph out of a six-photo array shown to him by police, and identified appellant as the “leader” in the June 11th assault. At trial, the State called to the stand appellant’s sister, Wilhelmina Pickett.

She testified that her brother lived with her for three or four weeks in June of 1996. She also acknowledged that her brother frequently associated with a group of teenagers. The Assistant State’s Attorney then engaged Ms. Pickett in the following colloquy: [Assistant State’s Attorney]: Okay. And there came a time ... when you talked to [your brother] and he made some admissions with respect to this incident to you? [Ms. Pickett]: He never.

I told you that. He never made none to me. * * * * [Assistant State’s Attorney]: Isn’t it a fact that he told you that he stabbed a person multiple times in a— [Ms. Pickett]: No, he did not. [Assistant State’s Attorney]: Your answer is no? [Ms. Pickett]: No. [Assistant State’s Attorney]: Isn’t it a fact that you called Crime Solvers? [Ms. Pickett]: Yes. ⁶⁰² [Assistant State’s Attorney]: And you reported that your brother was involved, didn’t you? [Ms. Pickett]: Yes, I did. * * ❖ [Assistant State’s Attorney]: Just so the record is clear, ma’am, you’re testifying under oath that Mr. Reginald Pickett never told you that he stabbed a person multiple times in a McDonald’s parking lot? [Ms. Pickett]: Reginald Pickett ain’t the one that told me. Defense counsel did not cross-examine Ms. Pickett. The State then called Prince George’s County Police Detective William Chinn.

When the Assistant State’s Attorney began questioning Detective Chinn regarding conversations he had with Ms. Pickett, defense counsel objected on the grounds that the State was eliciting inadmissible “double hearsay” or, alternatively, impermissible impeachment evidence. The Assistant State’s Attorney, without claiming to be surprised by Ms. Pickett’s testimony, argued simply that “the two statements ... directly contradicted each other ... I’m only introducing [Detective Chinn’s] statement as inconsistent to what she said here today.” Without addressing the impeachment argument, the trial court found that the proffered statement satisfied exceptions to the hearsay rule and, accordingly, allowed Detective Chinn to testify to what Ms. Pickett told him. Well, I conclude that, in this case, that we really don’t have a hearsay within hearsay situation, that is, Ms. Pickett’s original statement of — she said to someone else that her brother said.

The “her said” part of that could be a hearsay statement, but it is not hearsay, since she’s a witness who’s here, available to testify in court, so she’s an available witness. The second portion of it is hearsay, [but], within the exception, because it’s a statement against interest by the declarant, the defendant in this case, so for those reasons, I’m going to allow the testimony. ⁶⁰³ Detective Chinn then testified, over appellant’s repeated objections, that “Ms. Pickett advised [him] that [appellant] and another individual were bragging to her about robbing and stabbing an individual in the McDonald’s parking lot earlier in the month of June.” Analysis I. The only issue in this appeal is whether the trial court erred in allowing Detective Chinn to testify that appellant confessed to his sister his involvement in the stabbing incident. Appellant argues that Chinn’s testimony constituted impermissible impeachment evidence. We agree.

The Maryland Rules of Evidence provide that the credibility of a witness may be attacked by any party, including the party calling the witness. Maryland Rule 5-607. One method of attacking the credibility of, or impeaching, a witness is to show that the witness has previously made a statement inconsistent with present testimony. Md. Rule 5-616(a)(1).

Even if that prior inconsistent statement would otherwise be inadmissible as hearsay, it may be admissible for the limited purpose of impeaching the witness. At a criminal trial, however, there are limits on the State’s power to impeach its own witness by presenting prior inconsistent statements. See United States v. Ince, 21 F.3d 576, 579 (4th Cir.1994). In Spence v. State, 321 Md. 526 , 583 A.2d 715 (1991) and, again, in Bradley v. State, 333 Md. 593 , 636 A.2d 999 (1994), the Court of Appeals reversed convictions because the trial court erroneously permitted the State to impeach its own witness and, in so doing, allowed the State to “circumvent the hearsay rule and parade inadmissible evidence before the jury ...” Spence, 321 Md. at 530 , 583 A.2d 715 .

In Spence , the State called to the stand Vincent Cole, Spence’s alleged accomplice, who had pleaded guilty to the robbery charge on which Spence was being tried. During a bench conference, prior to any questioning of Cole, the prosecutor indicated that Cole ⁶⁰⁴ would testify that Spence was not involved in the robbery, but that his purpose for calling Cole was to get-before the jury prior out-of-court statements Cole had made to police officers that inculpated Spence. The prosecutor then requested that the court call Cole as a court’s witness. Over defense counsel’s objection, the court called Cole and questioned him regarding Spence’s involvement.

Cole denied that Spence was involved in the crime. Predictably, the State’s next witness was the detective who interviewed Cole, who was permitted to testify, again over objection, that Cole made an earlier statement to him acknowledging Spence’s involvement. The Court of Appeals reversed Spence’s conviction, holding that “[t]he State cannot, over objection, have a witness called who it knows will contribute nothing to its case, as a subterfuge to admit, as impeaching evidence, otherwise inadmissible hearsay.” Id. at 530 , 583 A.2d 715 . “The sole value to the State from Cole’s testimony was that it opened the door for the ‘impeaching’ testimony of Cole’s prior inconsistent statement.” Id. In Bradley , the State again knew that its “turncoat” witness would deny making the very statements that the State wished to produce.

Nevertheless, the trial court allowed the State to question the witness, elicit the expected denial, and then, over objection, “impeach” his testimony by calling a police officer to the stand to testify to the witness’s prior, inconsistent, out-of-court statements. Adhering to the rationale of Spence , the Court of Appeals reversed, holding that “a defendant is denied a fair trial if the State, with full knowledge that its questions will contribute nothing to its case, questions a witness concerning an independent area of inquiry in order to open the door for impeachment and introduce a prior inconsistent statement.” Bradley, 333 Md. at 604 , 636 A.2d 999 . Unlike Spence and Bradley , in the case before us, there is no clear statement on the record that would allow us to conclude that the State knew, prior to calling Ms. Pickett, that she would deny her brother’s involvement. Nor do we expect the trial judge to “crawl inside the prosecutor’s head to ⁶⁰⁵ divine his or her true motivation” in calling a witness. 1 Ince, 21 F.3d at 580 (4th Cir.1994).

Nevertheless, in determining whether a witness’s testimony offered as impeachment is admissible, or, on the contrary, is a “mere subterfuge” to get before the jury otherwise inadmissible hearsay, the trial court is required, as is the case with any evidence, to weigh the testimony’s probative value against its tendency to prejudice the defendant unfairly or to confuse the jury. Id. (citations omitted); Md. Rule 5-403; 2 see also United States v. Webster, 734 F.2d 1191, 1193 (7th Cir.1984) (defendant may “argue that the probative value of the evidence offered to impeach the witness is clearly outweighed by the prejudicial impact