Stewart v. State

MOYLAN, Judge. In Nance v. State, 331 Md. 549 , 629 A.2d 633 (1993), the Court of Appeals changed dramatically the evidentiary landscape of Maryland. In this case, we are positioned to fill in, by way of a square holding, a part of the new map, and to do so in the way anticipated by prescient dicta in Bradley v. State, 333 Md. 593, 607 , 636 A.2d 999 (1994). The appellant, Michael Stewart, was convicted by a Baltimore City jury, presided over by Judge Elsbeth Levy Bothe, of murder in the first degree and the use of a handgun in the commission of a crime of violence.

On this appeal, the appellant raises three contentions: 1) The State’s use of a witness’s prior out-of-court statement, ostensibly under the authority of Nance , violated the dictates of Spence v. State, 321 Md. 526 , 583 A.2d 715 (1991). 2) The State unconstitutionally failed to provide the defense with exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). 3) The prosecutor’s improper remarks during closing argument prejudiced the appellant. On July 9, 1993, at 2872 West Lanvale Street in Baltimore, James “Man” Brandon was shot twice and killed. A key witness was George Booth. Approximately one month after the shooting, Booth was presented with a photographic array by Detective Corey Belt.

Booth chose the appellant’s photograph and identified him as the person who shot “Man.” ²⁷⁶ Booth wrote in his own words, “I’m positive that he was the one who shot ‘Man,’ ” and then placed his initials and signed his name next to the appellant’s photograph. In a second photo array presented to him, Booth again identified the appellant as the shooter. Booth wrote in his own words that before the shooting, the appellant “came around the corner and said “What’s .up?’ ” and then left. During an interview conducted after the photographic array procedure, Booth told Detective Belt that he knew the shooter as “Mike.” En route to the grand jury, Booth further indicated that Mike’s nickname was “Honky Tonk.” After his arrest, the appellant himself indicated that his nickname was, indeed, “Honky Tonk.” Although Detective Belt characterized Booth as not very cooperative, Booth’s statement to the police was reduced to writing and both initialled and signed by him.

When called as a State’s witness at trial, Booth turned out to be a classic example of what the Nance opinion refers to as a “turncoat witness.” Booth testified that, notwithstanding his earlier statements to the police, he did not recognize Brandon’s murderer as someone from the neighborhood. He further asserted that the shooter was someone he had never seen before. He explained away his earlier photographic identification as something that the police had “hounded him” into doing. He similarly explained away his comment on the photograph, the fact of which he acknowledged, that he was “positive” that it was the appellant who had shot Brandon.

Booth acknowledged that he had gone before the grand jury and there testified that Mike, better known as “Honky Tonk,” had displayed a gun to him prior to the shooting and then told him to “take a walk.” Booth acknowledged having testified before the grand jury that the appellant was the shooter. He also testified, inexplicably, that he had told the truth before the grand jury but then, on cross-examination, testified that the appellant was not the shooter. The deployment was opportune for the State, through Detective Belt, to unlimber every piece of ordnance in the Nance arsenal: 1) Booth’s extrajudicial identification of the appellant, ²⁷⁷ 2) Booth’s written and signed statement to the police, and 3) Booth’s testimony before the grand jury. All three salvos were then fired in rapid succession.

The appellant accepts, under Bedford v. State, 293 Md. 172, 176-79 , 443 A.2d 78 (1982), the first “hit,” but takes aggrieved umbrage at the second and third. For the admission of both 1) Booth’s written and signed statement to the police and 2) Booth’s testimony before the grand jury, Nance’s threshold conditions were met. Booth was present at the trial as an available witness and Booth was subject to cross-examination by the appellant. With respect to the statements to the police, Nance’s requirement is that the statement was reduced to a writing signed or adopted by the declarant, and the declarant is a witness at trial and subject to cross-examination. 331 Md. at 567-68 , 629 A.2d 633 .

Nance established that a prior inconsistent statement is admissible as substantive evidence if the declarant “is subject to cross-examination at the trial where the prior statement is introduced.” 331 Md. at 569 , 629 A.2d 633 . With respect to the admissibility of Booth’s grand jury testimony, Nance similarly held: The declarant must also, of course, be present as a witness at trial to be tested and be cross-examined in regard to the former grand jury appearance and its contents. 331 Md. at 571 , 629 A.2d 633 . In turning to the particular requirements for the admissibility of a prior statement to the police, as an exception to the hearsay rule, Nance was satisfied. 331 Md. at 564-69 , 629 A.2d 633 . The statement to the police was based on Booth’s own knowledge of the facts.

It was reduced to writing by Booth himself in his own words. It was adopted by him, initialled by him, and signed by him. In terms of its trustworthiness under those circumstances, Nance held squarely: We hold that the factual portion of an inconsistent out-of-court statement is sufficiently trustworthy to be offered as ²⁷⁸ 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.) 331 Md. at 569 , 629 A.2d 633 .

In terms of the particular requirements for the admissibility of Booth’s grand jury testimony, as an exception to the hearsay rule, Nance was again satisfied. 331 Md. at 569-71 , 629 A.2d 633 . Booth testified under oath and subject to the penalty of perjury. His grand jury testimony was meticulously recorded and transcribed. In terms of the trustworthiness of the hearsay under those circumstances, Nance reasoned: The requirement of a formal context such as a judicial hearing or grand jury proceeding assures that the declarant did indeed make the prior statement.

There will be no doubt that it was accurately recorded and transcribed. The requirements of an oath and testimony given under penalty of perjury discourage lying, reminding the declarant of punishment by both supernatural and temporal powers. The formal setting, oath, and the reminder of perjury all convey to the declarant the dignity and seriousness of the proceeding, and the need to tell the truth____ In sum, a statement given before a grand jury is made in an atmosphere of formality impressing upon the declarant the need for accuracy; and it will be memorialized in a manner that eliminates concerns about whether the statement was actually made. (Citation omitted.) 331 Md. at 571 , 629 A.2d 633 .

In scrambling to ward off the blows unleashed by Nance, the appellant crouches behind the now rusty shield of Spence v. State, 321 Md. 526 , 583 A.2d 715 (1991). It affords scant protection. Its inefficacy in the present evidentiary world is that it is a relic from the pre-Nance days when a prior inconsistent statement could be used only to impeach testimonial credibility. As an impeaching weapon, the prior inconsistent statement could be unsheathed only when the party ²⁷⁹ wielding it was genuinely surprised by the “turncoat” testimony. “Impeachment should not be used as a sword to place otherwise inadmissible evidence before the jury.” Bradley v. State, 333 Md. at 606 , 636 A.2d 999 .

If the party sponsoring the witness, or asking the court to sponsor a witness, knew in advance that testimonial treachery was afoot, the proper defensive tactic was simply to refrain from calling the unreliable witness. In pure theory, the only legitimate purpose of impeachment is to avoid registering negative points, not to score affirmative points. 6 Lynn McLain, Maryland Evidence § 607.1(b), at 37 (1987) (“Evidence which is admitted to impeach a witness comes in only to detract from the witness’s credibility and not as substantive proof of the facts being litigated.”). In that sense, there is generally no need to impeach what can more readily be avoided. When the maximum legitimate score that the sponsor of an inconstant witness can achieve, through impeachment, is zero, a sponsor, forewarned of the inconstancy, can most easily, and with no troublesome side effects, achieve that maximum score by not putting the witness on the stand. “Impeachment ... protects a party from unfavorable testimony by neutralizing that testimony.” Bradley v. State, 333 Md. at 605 , 636 A.2d 999 .

A testimonial non-event self-evidently requires no impeachment. In that simple pre-Nance world, the prior inconsistent statements were never received for their substantive content. There always lurked in the evidentiary shadows, however, the fear that the impeaching words, though not ostensibly offered for their truth, might nonetheless work, consciously or subconsciously, some spill-over substantive impact on the ears of the jurors. Wily trial advocates leaped eagerly on every such opportunity.

It was to forestall just such exploitation and abuse of the impeachment device that the limiting strictures of Spence were imposed. The Court of Appeals described the evil it sought to ward off: It is obvious that the prosecutor’s sole reason for prevailing on the court to call Cole as a court’s witness was to get before the jury Cole’s extrajudicial hearsay statement impli ²⁸⁰ eating Spence. The prosecutor knew that Cole’s testimony would be exculpatory as to Spence. The inescapable conclusion is that the State, over objection, prevailed on the court to call a witness who would contribute nothing to the State’s case, for the sole purpose of “impeaching” the witness with otherwise inadmissible hearsay.

The State concedes, as it must, that Detective Naylor’s testimony about Cole’s statements regarding Spence’s participation did not fall within the hearsay exception and was inadmissible as substantive evidence against Spence ... The 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 evidence. (Emphasis supplied.) 321 Md. at 530 , 583 A.2d 715 . See also Wright v. State, 89 Md.App. 604 , 598 A.2d 1214 (1991), cert. denied, 325 Md. 620 , 602 A.2d 711 (1992).

Under the pre-Nance regime, and even today when the prior inconsistent statement is offered only as an impeachment device, Bradley v. State, 333 Md. 593 , 636 A.2d 999 (1994), there always existed the chronic danger that the jurors might use the statement, whatever the judge’s admonitions to the contrary, for a purpose other than that for which it had been formally received. The courts, therefore, were understandably chary about permitting the introduction of prior inconsistent statements and sought to keep the process as antiseptic as possible. Hence, Spence and Wright . In such an antiseptic world, this appellant would have had an unassailably valid complaint.

When the State called Booth as its second witness on the first day of trial, it was not at all surprised that he had by that time become, in the words of Nance , a “turncoat witness.” Booth had already unfurled his new colors a full twenty-four hours earlier, when testifying, under oath, at a pretrial hearing on the appellant’s motion to suppress an identification of him made by Booth. At that hearing, Booth testified that the appellant was not the shooter and that Booth had been coerced by the police into selecting ²⁸¹ the appellant’s photograph from the array. As soon as Booth was called as a trial witness, the appellant immediately objected, seeking to interpose Spence as a bar to the anticipated claim by the State of mock surprise and consequential entitlement to impeach. The objection was overruled.

For whatever solace it affords the appellant, we agree with him that if Spence applied, Spence would have been violated. If the only value at trial of Booth’s written statement to the police and his grand jury testimony had been to impeach Booth’s trial testimony, the State would have been as guilty of subterfuge in calling Booth as it was guilty of subterfuge, in the Spence case, in calling the witness Cole. Were the State today still chargeable with such indirection, the deliberate use of a ploy to get before the jurors substantive evidence that they should not consider, the State would call down on its head the full fury of Spence’s condemnation: 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. The statement was one which the State knew Cole would not acknowledge making.

The obvious purpose of calling Cole was not because Cole would contribute anything to the State’s case, but because Cole’s testimony would enable the State to place Cole’s prior statement before the jury and to call Detective Naylor to “impeach” Cole. The improper prejudicial effect is obvious. We must conclude that Cole’s statement and Naylor’s testimony about Cole’s hearsay statement implicating Spence was not offered because the State needed to impeach a witness it insisted be called—the hearsay was really being offered as evidence of Spence’s guilt. (Emphasis supplied.) 321 Md. at 530-31 , 583 A.2d 715 .

Equally pertinent would have been the imprecation from Wright v. State: Here, the State knew exactly what [the witness’s] testimony would be. Prior to trial [the witness] had repeatedly told the State he would testify ... that he did not see appellant running with a gun from the scene of the shooting. The ²⁸² Court of Appeals did not accept this “subterfuge” in Spence , and we will not accept it here. 89 Md.App. at 610 , 598 A.2d 1214 . According to the pre-Nance ethos, the State’s sin was in creating a risk, without any necessity for such risk or any countervailing purpose to be served, that something given to the jurors only in its non-hearsay capacity might be considered by them, in their laymen’s innocence, in its hearsay capacity.

Failing to appreciate the limited purpose of impeachment, they might, in untutored confusion, actually consider the prior statements as substantive evidence of guilt. 1 Only necessity, based on genuine surprise, could ever justify even running such a risk. That was the lesson of Spence and Wright In