Sanders v. State

ALPERT, Judge. His name was Seth Key. He was a twenty-one year old college student who worked the night shift at an Amoco Station at North Avenue and Belair Road in Baltimore City. In the early morning hours of July 9, 1980, his body was found on the bathroom floor of the self-service station.

He died of three gunshot wounds: one to the left ear, one to the neck, and the third to the back. Stephen Donnell Sanders, the appellant, was charged with the first degree murder of Seth Key and other related ⁵⁹³ offenses. He was tried by a jury in the Circuit Court for Baltimore City on February 4-8, 1985 (Pines, J., presiding) and was convicted of murder in the second degree, robbery with a deadly weapon, and the use of a handgun in the commission of a crime of violence. As a result of the convictions, appellant was sentenced to consecutive terms of thirty years for second degree murder, twenty years for robbery with a deadly weapon, and twenty years for use of a handgun in the commission of a crime of violence.

Consistently maintaining his innocence, he has noted an appeal and vigorously asserts that (1) the trial court erred in admitting an extra-judicial statement under the past recollection recorded exception to the hearsay rule, (2) appellant’s uncorroborated extra-judicial “confession” was insufficient to sustain his conviction, and (3) appellant was denied a fair trial by the prejudicial nature of the prosecutor’s closing argument. Because we perceive no reversible error, we shall affirm. THE FACTS The corpus delicti, as described earlier in this opinion, is not disputed on appeal. Rather, it is the appellant’s criminal agency that is steadfastly contested.

Cedric Fisher and Ashley Campbell, two neighborhood drug dealers, were the State’s key witnesses. Without them, the State would have no case. Therefore, their credibility was the major issue at trial. Both Fisher and Campbell testified that they completed a drug transaction with the appellant on the night of the murder and that during the course of that transaction Sanders made the fatal admissions which ultimately led to his conviction.

Let us set the scene. For approximately IV2 years Fisher and Campbell had been selling drugs in an alley behind Campbell’s house. This location was approximately five blocks from the scene of the murder at North Avenue and Belair Road. According to Fisher, he had seen the appellant, whom he knew by the name of “Step,” between 3:00 and 5:30 A.M. on the morning of July 9, 1980.

Step ⁵⁹⁴ purchased a quarter-pound of marijuana, for which he paid approximately $120.00. Fisher further testified that Step had told him that about one hour beforehand he had “made a move” at the gas station at North and Belair, and that because the guy “bumped on him,” he “had to pop him.” Translated, this meant that the appellant committed a crime at the gas station, was jumped during the commission of the crime, and shot the person who jumped him. At the time of this conversation, according to Fisher, appellant had in his possession two handguns. On July 10, 1980, the day after the incident involving appellant and Seth Key, Fisher was arrested, having been charged with burglary.

Several days later, while residing at the Baltimore City Jail, he gave a statement to Detective Howard Corbin of the Baltimore City Police Department, which included a detailed description of the discussion and transaction that had taken place among appellant, Fisher and Campbell on July 9, 1980. It is the introduction of that statement following Fisher’s testimony that forms the basis of appellant’s argument as to the first issue. Ashley Campbell, Fisher’s partner in crime (the drug dealership), while incarcerated for armed robbery in 1984, also gave a statement to the police. Campbell’s in-court testimony, although conflicting with that of Fisher as to some minor details, was substantially the same as Fisher’s insofar as it concerned appellant’s admission that he had committed the robbery at the gas station and had shot the attendant there.

After the State completed its case, the appellant, Stephen Donnell Sanders, took the witness stand, denied committing the murder, denied that he was even in Baltimore on the night of the murder, and denied ever buying narcotics from either Fisher or Campbell. I. After Fisher testified on direct examination, he was vigorously cross-examined with regard to his statement to the police and details related thereto. Although the State takes ⁵⁹⁵ a different point of view, 1 there were a number of questions that Fisher could not answer because of lack of recall. 2 Fisher left the witness stand but was promptly recalled for further redirect testimony, in order to lay a foundation for the offering of his written statement as “past recollection recorded.” Appellant contends that the court committed reversible error in admitting Fisher’s July 14, 1980 statement to the police. He argues that, in order to introduce the statement as past recollection recorded, it would have been necessary to adduce from the witness (1) that he at one time had personal knowledge of the facts, (2) that the writing was, when made, an accurate record of the event, and (3) that, after seeing the writing, he has not sufficient present independent recollection of the facts to testify accurately in regard thereto.

He relies on Askins v. State, 13 Md.App. 702, 710 , 284 A.2d 626 (1971), cert. denied, 264 Md. 745 (1972). This reliance is misplaced. In Askins Judge Anderson, delivering the opinion of the court, stated in pertinent part: Past recollection recorded is where “a witness, who is either devoid of a present recollection or possessed of an imperfect present recollection, desires to use a past recollection. This he proposes to do by employing some ⁵⁹⁶ record of his past recollection.” Wigmore on Evidence (3rd Ed.), Sec. 734.

Id. at 709-10 , 284 A.2d 626 (emphasis added). Further on Judge Anderson said for the court: Stated succinctly, in order to introduce past recollection recorded, the general rule is that it is necessary to adduce from the witness “(a) that he at one time had personal knowledge of the facts, (b) that the writing was, when made, an accurate record of the event, and (c) that after seeing the writing, he has not sufficient present independent recollection of the facts to testify accurately in regard thereto.” Kinsey v. Arizona, 49 Ariz. 201 , 65 P.2d 1141 at 1148 [1937], cited with approval in Hall v. State, [ 223 Md. 158 ] at 173. 13 Md.App. at 710 , 284 A.2d 626 . But the Court of Appeals in Hall v. State, 223 Md. 158 , 162 A.2d 751 (1960), did not cite that portion of Kinsey relied upon by Judge Anderson in Askins . The court did, however, quote the following from Kinsey : “Regardless of the weight of the authority on the question, it seems to us that upon every principle of logic and common sense, evidence of this class should be admissible.

It is an undisputed and undisputable fact the human memory weakens with the passage of time, more with some individuals, less with others, but to some extent with all, and that a written record, unless changed by extrinsic forces, remains the same for all time. It would seem, then, that such a record made contemporaneously with the event by a witness who was honest and capable of observing accurately what happened, would be far better proof of the true facts than the present recollection of that same witness six months later, whether unrefreshed or refreshed by some extrinsic aid, but still in the last resort presumably independent in its nature. There are but two objections to the use of such evidence which have been seriously urged. The first is that it is hearsay in its nature, and the second, that the witness who vouches for the record cannot be properly cross-exam ⁵⁹⁷ ined.

We think both of these objections are without foundation. The recorded memory of the witness is just as much the statement of that witness as to what he personally saw or heard as is his present independent recollection of the same fact. * * * But when the person who witnessed the event testifies to the accuracy of the memorandum as made, that memorandum is just as much direct and not hearsay evidence as the language of the witness when he testifies to his independent recollection of what he saw. The objection in regard to cross-examination, on its face, might seem to have some weight, but we think a careful analysis of the question will show that it also is unfounded. What is the purpose of cross-examination?

Obviously it is to convince the triers of fact, in some manner, that the testimony of the witness is untrue, for if the cross-examiner accepts it as true, there will be no need nor desire for cross-examination. How, then, may the truthfulness of the evidence of a witness be attacked through cross-examination? It seems to us that all attacks thereon must be reduced to one of three classes: (a) Upon the honesty and integrity of the witness; (b) upon his ability to observe accurately at the time the incident occurred; and (c) upon his accuracy of recollection of the past events. When a witness testifies as to his present recollection, independent or revived, he may, of course, be cross-examined fully on all three of these points.

When he testifies as to his past recollection recorded, he can be examined to the same extent and in the same manner as to the first and second of these matters. He cannot well be cross-examined on the third point, but this is unnecessary, for he has already stated that he has no independent recollection of the event, which is all that could be brought out by the most rigid cross-examination on this point when the witness testifies from his present recollection, independent or revived.” 223 Md. at 173-74 , 162 A.2d 751 . (emphasis in original). Although ostensibly approving the notion that the witness should have no independent recollection of the event, ⁵⁹⁸ the opinion in Hall extols the virtues of “a faithful memorandum” and further cites in glowing terms Professor Wigmore’s view of the subject: There is little which we could add to Professor Wig-more’s discussion of the subject, which will be found in 3 Wigmore, Evidence (3rd Ed.) §§ 725-757.

As he says in § 725, p. 58: “The general canon applicable to Recollection is simple: The Recollection should (so far as may be expected) correspond to and represent the impressions originally gained by observation.” Where, as here, the past recollection recorded is vouched for as to accuracy by the person who made the record and it has been made at the time of the statement, Wigmore strongly favors its admissibility. He is firmly opposed to the qualification added by some courts to the effect that it is admissible only if the witness has no present