Robinson v. State

SALMON, Judge. After a three-day trial in the Circuit Court for Prince George’s County, (Spellbring, J., presiding), a jury convicted appellant, Ramone Robinson, of Assault with the Intent to Murder, Robbery with a Dangerous Weapon, Assault with the Intent to Rob, Conspiracy to Commit Robbery with a Dangerous Weapon, three counts of Use of a Handgun in the Commission of a Crime of Violence, two counts of False Imprisonment, and Battery. The trial court later struck the jury’s guilty verdict on the Assault with Intent to Murder charge because the jury had entered a not guilty verdict on the underlying count of Attempted Murder. The court also struck two of the three counts relating to Use of a Handgun in the Commission of a Crime of Violence.

Appellant was sentenced to a total of 50 years imprisonment. On appeal, appellant presents two issues for our review: I. Whether the trial court committed reversible error when it refused to allow defense counsel to cross-examine two critical State witnesses with their prior written statements.

II

Whether the trial court committed reversible error when it instructed the jury on two ultimate issues in this case. The first issue presented requires us to decide whether a defendant is entitled to production of confidential statements made by police officers, which are not, and never ²⁵⁷ were, in the possession of the Office of the State’s Attorney. This is an issue of first impression in this State. Under the principles adopted by the Court of Appeals in Carr v. State, 284 Md. 455 , 397 A.2d 606 (1979), as well as Jencks v. United States, 353 U.S. 657 , 77 S.Ct. 1007 , 1 L.Ed.2d 1103 (1957), and the “Jencks Act,” 18 U.S.C. § 3500 (1994), a defendant is entitled to production of a witness’s prior statement if, inter alia, the prosecution or the prosecutorial arm of the government is in “possession” of the statement.

We hold that, when a statement is confidential under State law, developed for a non-prosecutorial purpose, and held by a division of a law enforcement agency that is not working in conjunction with the prosecutor, the State cannot be deemed to have access to, or constructive possession of, the statement. Hence, a defendant is not entitled to production of such statements under the Jencks-Curr * rule. FACTS A. State’s Version of Events On January 18, 1996, two men in ski masks robbed a 7-11 store located on Walters Lane in Forestville, Maryland. The store closed at midnight.

The robbery commenced at approximately 1:00 a.m. and concluded after 2:00 a.m. On duty that night were three female employees: Lang Tuy Luc, Anissa Abdurahim, and Lucinda Washington. Luc was emptying the trash when a man with a ski mask aimed a gun at her head, told her to “lay down or I kill you,” and took money from her purse. The man who robbed Ms. Luc wore blue jeans, black sneakers, and a “plaid” shirt.

Inside the store, another masked man forced the two other employees to lie on the floor. The men asked Washington and Abdurahim for the store’s money. Washington told them it was in the safe, but they did not have a key. At this point, a gunman brought Luc into the store, tied her up, and left her in the store’s office.

Ultimately, the store’s safe, which weighed about 250 pounds, was taken out of the store by the robbers. ²⁵⁸ Prince George’s County Police received a 911 call alerting them that a robbery was in progress at the 7-11. Officers Christopher Smith and Samuel Hooper responded to the call in a marked police cruiser. After Officer Smith exited the police car, he saw two men in ski masks come out of the store and enter a Nissan Pathfinder, which spun its wheels and accelerated straight toward him. The police officers fired at the vehicle, and it skidded to a stop in a snowbank.

Officer Hooper yelled at the occupants to place their hands out of the vehicle. One of the gunmen fired at Officer Smith. Officer Hooper, who was standing behind a telephone pole, slipped on the ice and slid parallel to the passenger side of the vehicle. Shots were fired at Officer Hooper from the Pathfinder’s passenger window.

Both officers returned fire. The passenger, Tyrone Glover, then surrendered without incident. Appellant Robinson exited the vehicle holding a gun in his hand. Officer Hooper commanded him to drop the gun, at which point Robinson “began incoherently screaming and started pulling the trigger” of his gun.

The officers fired at Robinson, striking him four times. When the policemen approached Robinson, he was laying face down on the pavement. The gun was located near his right hand. Robinson’s clothes were cut off in order to administer emergency assistance at the scene.

A gun holster was found in his pants. During a post-arrest search of the scene, the store’s safe was found in the parking lot, as were some U.S. currency and some coins in wrapping tubes. From the front seat of the Pathfinder the police recovered $139.00 contained in coin tubes, which, according to Ms. Luc, were exactly “the same kind of tube” used by 7-11. Also found on the front seat of appellant’s truck were ninety-six Maryland lottery tickets.

B. Defendant’s Version of Events Robinson was the lone defense witness. He adamantly denied that he knowingly played any role in the 7-11 robbery. Robinson testified that he was driving Tyrone Glover home ²⁵⁹ when Glover asked him to stop at the 7-11. He waited in his Pathfinder while Glover went inside to get a soda and cigarettes.

Appellant, while waiting, received a page and used the pay phone outside the store to respond to it. Glover then came out of the store and fumbled around in the Pathfinder, possibly looking for change. Glover went back inside the store, and Robinson got behind the steering wheel and waited. Glover then got back in the vehicle and said he was “ready.” According to Robinson, as he drove from the parking lot several shots were fired at his truck from behind a snowbank.

He did not know who was shooting at him, and he did not see the police officers or their car. One of the bullets hit the left front tire, he lost control of the vehicle on the ice and hit a snowbank. Robinson heard “some guys” telling him to get out of the truck. He and Glover attempted to get out, but the doors were stuck due to the snow.

Before he could get his door open, several more shots were fired. When he managed to open the door, he exited the Pathfinder with his hands raised. He was told not to move. Robinson heard several additional shots, one of which hit him in the leg.

He began to hop on one foot and saw Glover exit the truck. The “guys” again ordered him not to move. Appellant kept his hands up, but he heard more shots and was hit three more times. Appellant testified that “he had no idea” where the police found the holster and denied that he had been armed.

Appellant testified that on the night of the robbery he wore blue jeans, black boots, and a multi-colored red flannel shirt. C. Evidentiary Issues and Instructions During defense counsel’s cross-examination of Officer Smith, Smith testified that he had given a statement to the Internal Affairs Division of the Prince George’s County Police Department concerning the arrest of Robinson and Glover. Defense counsel did not, however, request a copy of the statement at any time during Officer Smith’s testimony. Later, when cross-examining Officer Hooper, defense counsel discovered that Officer Hooper had also provided a state ²⁶⁰ ment to the Internal Affairs Division.

Defense counsel requested a bench conference. At the bench conference he contended that the defense was entitled to the internal affairs statements made by Officers Smith and Hooper. Defense counsel added that it was his understanding that witness statements were “discoverable, but they [the prosecution] didn’t have to hand them over until the witness ... had finished direct examination.” Judge Spellbring responded that he did not think that such a rule applied to statements given to Internal Affairs. He asked defense counsel if he had any legal authority supporting the defendant’s position.

Defense counsel 1 could not cite any authority but held his ground by, among other things, saying: “I know it’s the State’s responsibility to give us exculpatory statements.” Judge Spellbring asked the Assistant State’s Attorney whether she had attempted to get the internal affairs statements, and she responded: No, your Honor. I didn’t even know that they made statements____ It’s my understanding that statements to the Internal Affairs Division are not the privy of the State’s Attorney’s Office either. That’s an underlying policy____ They have to keep that investigation somewhat separate and apart from the State’s Attorney’s Office. Therefore, it’s been my understanding that we don’t receive those types of statements, and I have not received any in this case.

Judge Spellbring instructed the prosecutor “to inquire” as to the availability of the statements “only to determine whether there is anything exculpatory within them and for no other purpose at this point.” He requested that counsel appear in chambers the next morning and that the officers’ statements be made available to him. Present in chambers the next day were the prosecutor, defense counsel, and an Assistant County Attorney. The record does not indicate that the internal affairs statements of ²⁶¹ Officers Hooper and Smith were ever turned over to the prosecutor. Judge Spellbring placed the following on the record regarding the meeting in chambers: [Defense Counsel’s] position was that he was entitled to both the statements of Officer Smith and Officer Hooper to the Internal Affairs department. [The Assistant County Attorney’s] position on behalf of the Police Department was that these matters were a part of the officers’ personnel files and were not subject to production in this matter or any other matter.

I made the decision that 1 would view the documents in camera to determine whether there was any exculpatory information in either of the statements. I have conducted that in camera review. I have determined that there is no exculpatory information in either of those two statements. The statements were not turned over to counsel, but the originals were filed, under seal, as exhibits for appeal purposes.

During the cross-examination of Officer Hooper, defense counsel began to inquire about details of the internal affairs investigation. After an objection by the State, a bench conference was convened at which the court stated: I’m going to sustain the objection. But more than that, if this area is gone into by further interrogation or in final argument, I intend on my own to instruct this jury that I have viewed the statements, that these police officers were exonerated and that I have found the statements to be totally consistent with their testimony here today. Later, during the cross-examination of another witness, the defense attempted to inquire about the witness’s trajectory analysis of the bullets that had left holes in the Pathfinder.

This analysis apparently had been performed in relation to the internal affairs investigation. After an objection by the State, the court ruled that defense counsel could pursue this line of questioning but that it was going to instruct the jury in regard to the internal affairs investigation. Defense counsel responded that “if that’s what you think you have to do that’s fine. ²⁶² But I think that [it’s] important that this gets examined.” Thereafter, the court gave the following instruction: [L]adies and gentlemen of the jury, it’s come out in this case that two matters are going on here. First, there is this case that is for you to consider; and secondly, there’s the internal investigation by the police department which takes place every time a police officer fires his weapon.

Just so there’s no issue in this case, I have precluded evidence of the Internal Affairs investigation thus far. We’re now into it. I will tell you the Internal Affairs investigation cleared the two police officers. I will tell you that I have examined the two statements that were made by the two police officers to the Internal Affairs people and have found nothing in there that is exculpatory in this case.

And for that reason neither the investigation nor those statements will be coming into this case. But now that the issue has been opened; .1 want the issue to be fully presented to you. Defense counsel did not lodge an objection to the instruction. After the State rested its case, but before the defense put forth its evidence, the jury sent the trial court a note asking it to “Please Define Exculp[a]tory.” The court informed counsel that it intended to tell the jury “it means free from guilt.” Defense counsel objected and moved for a mistrial. 2 The ²⁶³ court then instructed the jury that exculpatory means, “in the legal sense ... free from guilt.

It’s the opposite of guilty.” ANALYSIS I. At the outset, it is important to note what is not at issue. In Brady v. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194, 1196-97 , 10 L.Ed.2d 215 (1963), the United States Supreme Court held that the government must turn over evidence to the accused, if the evidence is both favorable to the accused and material to the defendant’s guilt or innocence. Appellant does not contend that the government failed to provide him with exculpatory Brady-type material. Instead, appellant’s brief focuses exclusively on the issue of whether Judge Spellbring’s failure to turn over the officer’s statements violated the Jencks-Carr rule.

In this regard, the failure to rely on Brady and its progeny is understandable in light of the Supreme Court decision in Pennsylvania v. Ritchie, 480 U.S. 39 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987), which, in at least some respects, is markedly similar to the case at hand. Ritchie was accused of various sexual offenses against his thirteen-year-old daughter. Prior to trial, Ritchie subpoenaed the file of a child protective agency (“the agency”) that had investigated the child abuse charges. 480 U.S. at 43 , 107 S.Ct. at 994 . The agency resisted the subpoena based on a Pennsylvania statute that, with eleven exceptions, mandated that reports and other information obtained by the agency in the course of their investigation be kept confidential.

Id. One of the exceptions was that the agency could disclose information in their files to courts of competent jurisdiction “pursuant to a court order.” Id. at 43-44 , 107 S.Ct. at 994 . The trial judge refused to release the records to the defendant. Id. at 44 , 107 S.Ct. at 994 .

The main witness against Ritchie at trial was his daughter. Id. Ritchie was convicted, but, on appeal, the ²⁶⁴ Pennsylvania Supreme Court vacated the conviction and remanded the case to determine if a new trial was necessary. 509 Pa. 357 , 502 A.2d 148 (1985). It concluded that the trial court had violated the Confrontation Clause and the Compulsory Process Clause of the United States Constitution and that Ritchie’s lawyer was entitled to review the agency’s entire file to search for any useful evidence.

Id. at 46, 107 S.Ct. at 995 . The Supreme Court granted certiorari and observed: Although we recognize that the public interest in protecting this type of sensitive information is strong, we do not agree that this interest necessarily prevents disclosure in all circumstances. This is not a case where a state statute grants CYS the absolute authority to shield its files from all eyes. Cf. 42 Pa.

Cons.Stat. § 5945.1(b) (1982) (unqualified statutory privilege for communications between sexual assault counselors and victims). Rather, the Pennsylvania law provides that the information shall be disclosed in certain circumstances, including when CYS is directed to do so by court order. Pa. Stat. Ann., Title 11, § 2215(a)(5) (Purdon Supp.1986).

Given that the Pennsylvania Legislature contemplated some use of CYS records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is “material” to the defense of the accused. Id. at 57-58, 107 S.Ct. at 1001-02 (emphasis added)(footnote omitted). A plurality of the Supreme Court affirmed the decision of the Pennsylvania Supreme Court to remand the case; however, it ruled that Ritchie’s lawyer was not entitled to review the agency’s file.

Id. The Ritchie Court held that the trial judge should review the file “to determine whether it contained information that probably would have changed the outcome of ... [Ritchie’s] trial.” Id. The Court said: A defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through ²⁶⁵ the Commonwealth’s files. See United States v. Bagley, supra, 473 U.S. [667], at 675, 105 S.Ct. [3375], at 3380 [ 87 L.Ed.2d 481 (1985)]; United States v. Agurs, supra, 427 U.S. [97], at 111, 96 S.Ct. [2392], at 2401 [ 49 L.Ed.2d 342 (1976)].

Although the eye of an advocate may be helpful to a defendant in ferreting out information, Dennis v. United States, 384 U.S. 855, 875 , 86 S.Ct. 1840, 1851 , 16 L.Ed.2d 973 (1966), this Court has never held — even in the absence of a statute restricting disclosure — that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court’s attention, the prosecutor’s decision on disclosure is final.

Defense counsel has no constitutional right to conduct his own search of the State’s files to argue relevance. See Weatherford v. Bursey, 429 U.S. 545, 559 , 97 S.Ct. 837, 846 , 51 L.Ed.2d 30 (1977) (“There is no general constitutional right to discovery in a criminal case, and Brady did not create one”). Id. at 59-60, 107 S.Ct. at 1002 (emphasis added) (footnote omitted). At bottom, in regard to the discovery issue, Judge Spell-bring followed the procedure recommended in Ritchie .

Appellant asserts that the trial judge erred by refusing to grant appellant’s request for production of the officers’ statements to the Internal Affairs Division following the State’s direct examination of Officer Hooper. According to appellant, under Carr v. State, 284 Md. 455 , 397 A.2d 606 (1979), and Leonard v. State, 46 Md.App. 631 , 421 A.2d 85 (1980), aff'd, 290 Md. 295 , 429 A.2d 538 (1981), a defendant is entitled, for cross-examination purposes, to inspect prior statements made by the State’s witnesses. Appellant contends that the trial ²⁶⁶ judge erred by concluding that the statements were producible only if they contained exculpatory material. The State counters that appellant failed to preserve this issue as to Officer Smith’s statement.

In regard to Officer Hooper’s statement, the State argues that the records of the internal affairs investigation were confidential and only subject to disclosure, if at all, pursuant to the Maryland Public Information Act. Md.Code Ann., State Gov’t §§ 10-611 to 10-628 (1995 Repl.Vol.). In Carr v. State, the Court of Appeals held that, for cross-examination purposes, defense counsel is, under certain circumstances, entitled to inspect prior statements of the State’s witnesses. Jones v. State, 310 Md. 569, 582-83 , 530 A.2d 743 (1987), vacated, 486 U.S. 1050 , 108 S.Ct. 2815 , 100 L.Ed.2d 916 , aff'd in part and vacated on other grounds, 314 Md. 111 , 549 A.2d 17 (1988).

By so holding, the Court adopted the underlying principles set forth by the Supreme Court in Jencks v. United States, 353 U.S. 657 , 77 S.Ct. 1007 , 1 L.Ed.2d 1103 (1957). See Chief, Montgomery County Dep’t of Police v. Jacocks, 50 Md.App. 132, 139 , 436 A.2d 930 (1981) (by judicial decision, Maryland courts have adopted the underlying principles in Jencks v. United States). In Jencks, 353 U.S. at 668 , 77 S.Ct. at 1013 , the Supreme Court held that, in criminal cases, after a witness has testified on direct examination for the prosecution and upon motion by the defense, the prosecution must produce for inspection all written reports or statements made by the witness concerning the subject matter of the testimony. 3 Three months after the Jencks decision was filed Congress enacted the “Jencks Act,” codified at 18 U.S.C. § 3500 (1994), which clarified and limited the Supreme Court’s holding in Jencks. See Jones, 310 Md. at 584 , 530 A.2d 743 ; Jacocks, 50 Md.App. at 139 , 436 A.2d 930 ; James C. Cissell, ²⁶⁷ Federal Criminal Trials § 8-1 (4th ed. 1996).

Although the Maryland Legislature has not enacted a counterpart to the “Jencks Act,” Maryland courts have looked to the Act, as well as subsequent analysis and interpretation of the statute, for guidance in interpreting the proper parameters of the Carr decision. See Jones, 310 Md. at 569 , 530 A.2d 743 ; Kanaras v. State, 54 Md.App. 568, 577 , 460 A.2d 61 (1983) (Maryland courts have “implicitly accepted the underlying foundations” of the Jencks Act “without adopting wholesale the rules contained therein”); see, e.g., Bruce v. State, 318 Md. 706, 724-26 , 569 A.2d 1254 (1990); Butler v. State, 107 Md.App. 345, 357-60 , 667 A.2d 999 (1995); Whitehead v. State, 54 Md.App. 428, 440-41 , 458 A.2d 905 (1983). The Jencks Act sets forth the requirements for production of prior statements made by a prosecution witness: After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined)[ 4 ] of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. 18 U.S.C. § 3500 (b). Thus, in order for a defendant to receive a witness’s prior statement under the Jencks Act: 1) the witness must testify on direct examination; 2) defense counsel must request the statement; ²⁶⁸ 3) the statement must qualify as a discoverable statement under the Jencks Act; 4) the statement must relate to the subject matter of the witness’s testimony; and 5) the statement must be in the possession of the prosecution.

Regarding Officer Smith’s prior statement, appellant has failed to preserve the Jencks-Carr issue for our review because appellant’s trial counsel did not make a timely request for the statement. Although appellant’s trial counsel knew of the statement’s existence, he did not seek its production at any time during the cross-examination of Officer Smith. It was not until the cross-examination of Officer Hooper that appellant actually requested the Smith statement. Therefore, contrary to appellant’s contention, the trial court never prevented the defense from using the statement to cross-examine Officer Smith.

Appellant’s counsel did, however, make a timely request for Officer Hooper’s statement during his cross-examination. Moreover, neither party disputes that Officer Hooper’s statement qualifies as a discoverable “statement” under Jencks or that it relates to the subject matter of Officer Hooper’s testimony on direct. Thus, the only issue before us is whether appellant met the fifth requirement of the Jencks-Carr rule, i.e., that the statement was in the possession of the Office of the State’s Attorney. Material to the possession issue is a determination as to whether Officer Hooper’s statement to the Internal Affairs Division is confidential under State law. 5 ²⁶⁹ Section 728(b) of the Law Enforcement Officers’ Bill of Rights (LEOBR), codified at Maryland Annotated Code, article 27, sections 727 to 734B (1957, 1996 Repl.Vol.), mandates that whenever “a law-enforcement officer is under investigation or subject to interrogation by a law-enforcement agency, for any reason which could lead to disciplinary action, demotion or dismissal, the investigation or interrogation shall be conducted” in accordance with the LEOBR.

Officer Hooper’s statement to the Prince George’s County Police Department Internal Affairs Division, given as a result of a direct order to answer questions about the performance of his duties, is, therefore, covered under the LEOBR. Under LEOBR sections 728(b)(5)(iii) and (iv), the only person outside the Internal Affairs Division entitled to see the contents of an investigatory file is the law enforcement officer under investigation. See Mayor and City Council of Baltimore v. Maryland Comm. Against the Gun Ban, 329 Md. 78, ²⁷⁰ 90 , 617 A.2d 1040 (1993) (subject of an internal affairs investigation is the officer on whom the investigation is focused).

The LEOBR does not make any provision for any additional persons to obtain access to such files. Moreover, even the officer cannot obtain any part of the file unless he or she executes a confidentiality agreement with the law enforcement agency conducting the investigation, promising not to disclose any of the material contained in the record “for any purpose other than to defend the officer.” Md. Ann.Code art. 27, § 728(b)(5)(iv)l. Once the confidentiality agreement is signed, the officer is entitled to receive only exculpatory information in the investigatory file. As a general rule,