Sheppard v. State

MOYLAN, Judge. Our disposition of this appeal is directly controlled by the significant change in the Maryland law of evidence effected by the Court of Appeals decision in Nance v. State, 331 Md. 549 , 629 A.2d 633 (1993). Prior to the Nance opinion, Maryland had been “one of only a handful, of states to adhere to the orthodox rule barring use of prior inconsistent statements as probative evidence.” 331 Md. at 565 , 629 A.2d 633 . If a trial witness had earlier given a statement inconsistent with the witness’s later trial testimony, the prior statement was admissible only for the limited purpose of impeaching that witness’s testimonial credibility.

The jury was instructed to use the prior statement only for that purpose and not to consider its content for the truth of the matter asserted therein. In that capacity, a prior inconsistent statement was non-hearsay, offered only for the fact that the earlier inconsistent words had been uttered, the truth of the words being immaterial. After a scholarly survey by Judge McAuliffe of the respective merits of the orthodox rule, the so-called “modern rule,” and a moderated, intermediate version of the modem rule, the Court of Appeals, 331 Md. at 569 , 629 A.2d 633 , overruled ⁵⁷³ earlier Maryland case law and expressly adopted the moderated version of the modern rule: We hold that the factual portion of an inconsistent out-of-court statement is sufficiently trustworthy to be offered as substantive evidence of guilt when the statement is based on the declarant’s own knowledge of the facts, is reduced to writing and signed or otherwise adopted by him, and he is subject to cross-examination at the trial where the prior statement is introduced, (footnote omitted). Although the trial in this case occurred before the July 1, 1994 effective date of Maryland’s recently adopted code of evidence, Title 5 of the Maryland Rules of Procedure, we note that new Rule 5-802.1(a) reflects the changes wrought by the Nance decision: The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (a) A statement that is inconsistent with the declarant’s testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement ...

The appellant, Andre Orlanto Sheppard, was convicted by a Montgomery County jury of assault with intent to murder, three counts of reckless endangerment, the use of a handgun in a crime of violence, and the carrying of a handgun. On this appeal, he raises the very significant contention that the trial judge erroneously refused to admit the prior inconsistent statements of two State’s witnesses as substantive evidence and that he erroneously refused to instruct the jury that it might consider the prior inconsistent statements as substantive evidence. ⁵⁷⁴ Because it is necessary to reverse the convictions on the basis of that contention, three other contentions raised by the appellant are moot. The facts in this case are simple. The evidence permitted a finding that, at approximately 7 A.M. on May 9, 1993, the appellant walked into a townhouse where Ralph George was sleeping and fired several shots at George with the intent to murder him.

In the process, the appellant recklessly endangered several other persons as well. The State’s key witness was the intended victim, Ralph George himself. One of the endangered guests in the townhouse that morning was Tina Rankin, whose testimony corroborated that of George. Both Ralph George and Tina Rankin gave written statements to the police and selected the appellant’s photograph from a photographic array.

Their ultimate trial testimony was fully consistent with their earlier statements to the police and their identifications of the appellant as the armed assailant. The factual wrinkle that this case adds to the Nance scenario is that the two ultimate witnesses at the trial gave not one pretrial version of the criminal episode but two. In the case of each witness, it was the second version that was inconsistent with the trial testimony. Both witnesses were interviewed by an investigator from the Public Defender’s Office and both gave signed and written statements to the investigator.

In her statement, Tina Rankin weakened significantly in her identification of the appellant as the gunman. She said that she was only forty-five percent sure of his identity. She said that she identified him only because of his skin color. She acknowledged that she did not really look at the gunman.

In his statement to the investigator, Ralph George stated that he did not believe the appellant was the gunman and that he could not