Thomas v. State

GRAEFF, J. Appellant, Charles Thomas, was convicted by a jury in the Circuit Court for Baltimore City, of first degree murder, use of a handgun in the commission of a felony or crime of violence, and wearing, carrying, or transporting a handgun. The court sentenced appellant to life imprisonment, all but 50 years suspended, for first degree murder and 20 years, consecutive, for the use of a handgun in the commission of a felony or crime of violence. On appeal, appellant presents four questions for our review, which we have revised slightly as follows: 1. Did the trial court err in granting the State’s motion to compel recordings of two witness statements, which were made by State’s witnesses to a defense investigator? 2.

Did the trial court abuse its discretion in admitting prior inconsistent statements? 3. Did the court err in admitting other crimes evidence? ³⁹⁴ 4. Did the motions court err in denying the defense motion to suppress two out-of-court identifications made based on a photo array? For the following reasons, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND Alvin Alston was shot on September 13, 2009, at approximately 12:00 p.m. near the corner of Coldspring Lane and Reisterstown Road, in Baltimore City, Maryland. Mr. Alston later died at a local hospital of gunshot wounds to the head. The manner of death was determined to be homicide. Eyewitnesses to the murder were interviewed by the Baltimore City Police Department.

Detective Aaron Cruz, the primary investigator in this case, spoke with Anthony Jordan on September 30, 2009, and Mr. Jordan informed him that appellant was the shooter. Mr. Jordan was nervous and concerned for his safety. Mr. Jordan was shown a photo array, and he identified appellant in about “30, 40 seconds. It was relatively quick.” Mr. Jordan also gave a statement at that time.

On November 23, 2009, Detective Cruz spoke with Latrice Wilson. Ms. Wilson arrived at the police station with her children, and her children waited in a witness waiting room. Ms. Wilson was then shown a photo array and identified appellant as the shooter. On October 15, 2009, appellant was arrested.

He provided police with two addresses; one was the home of his sister, and the other was the home of his girlfriend. Both addresses were located within blocks of the murder scene. Detective Cruz also testified that the location where appellant and the victim, Mr. Alston, previously had been arrested in an unrelated case was located less than a mile away. 1 ³⁹⁵ On cross-examination, Detective Cruz agreed that he received information that the victim, Mr. Alston, was selling drugs on the day of the murder. Six bags of heroin were recovered from Mr. Alston’s person.

Detective Daniel Nicholson was present with Detective Cruz when Mr. Jordan was shown a photographic array. The array initially was face down, and Mr. Jordan was read a set of instructions informing him that the array may or may not contain a picture of a subject in connection with the investigation. After this, Mr. Jordan turned the array over, and within seconds, Mr. Jordan selected a photograph of appellant. Mr. Jordan also wrote a statement on the back of the array; the police did not tell Mr. Jordan what to write in making that identification.

Detective Marvin Sydnor was present during Ms. Wilson’s viewing of the photographic array on November 23, 2009. Ms. Wilson also made an identification within seconds and wrote on the back of the array why she made the identification. Detective Sydnor testified that Ms. Wilson identified only one person from the array; she did not identity anyone else as the shooter or indicate that she knew anyone in the array. Mr. Jordan testified that he was selling newspapers at the pertinent intersection, located near a Burger King, when he observed a young man shoot Mr. Alston.

Mr. Jordan testified that Mr. Alston was known to him as a “hustler,” a “drug dealer.” Mr. Jordan heard Mr. Alston say: “Oh, no,” and then he heard two gunshots. Thereafter, Mr. Jordan saw a “young man in a black hoodie” get into a Jeep. Mr. Jordan maintained that he did not “see no facial” of the shooter, and he did not know if the man in the hoodie was the shooter. The day of the shooting, Mr. Jordan went to the police station and gave a statement. 2 Mr. Jordan testified that he ³⁹⁶ did not identify the shooter to the police because he had not seen anyone’s “facial.” A couple months later, according to Mr. Jordan, Detective Cruz asked him to come back to the police station. 3 Mr. Jordan testified that the police detained him for several hours.

At some point, Detective Nicholson told him: “If I even thought you had something, mm-mm to do with it I will lock you up.” Afterwards, Mr. Jordan was asked to make an identification. Mr. Jordan claimed he needed to pick someone or be detained. He testified that the police used a piece of paper to highlight certain photographs during the process. Mr. Jordan then testified that, on two occasions, he had spoken to a defense investigator, Mr. Donald Jacobs.

He recalled telling Mr. Jacobs that he had been treated unfairly by police, but he was not sure if he told Mr. Jacobs that the police told him who to pick out in the array. Mr. Jordan was presented with a copy of the photo array. He agreed that his signature appeared on both the front and the back of the document. His statement on the back of the array read: “On the corner of Reisterstown and Coldspring I witnessed that a young man shot Alvin two times.” Over objection, Mr. Jordan’s prior statement to police, taken on the day of the shooting, was played into evidence for the jury.

In this statement, Mr. Jordan states that a person wearing a black hoodie got out of a Jeep, approached the victim, and said something to Mr. Alston, to which Mr. Alston replied: “Oh, no.” The person in the hoodie then shot Mr. Alston two times in the head, got back into the Jeep, and fled the scene. Mr. Jordan denied that he had ever seen the shooter before. Mr. Jordan also was presented at trial with a transcript of the recorded statement taken on September 30, 2009, when he was interviewed by Detective Cruz and shown a photo array. Mr. Jordan agreed that the police asked him at the end of that ³⁹⁷ interview if he had been threatened, and Mr. Jordan denied that he had been.

He also agreed that he told police that he came to the station that day freely and voluntarily, and that he had not been promised anything in exchange for his statement. On cross-examination, Mr. Jordan maintained that he never saw the shooter’s face. When asked by defense counsel if he told police that he “glanced at the person,” Mr. Jordan testified that he “did not see no one.” On redirect, Mr. Jordan was presented with an audio tape cassette recording of his statement to Detective Cruz on September 80, 2009, and he agreed that he signed the cassette. Over defense objection, the State then played the tape for the jury.

During that interview, Mr. Jordan stated that he “glanced” at the shooter. When asked by the officer whether he “recognized who he was,” Mr. Jordan replied: “Right.” Ms. Wilson testified that she was in the area of the shooting. Her car had stalled, and she was sitting inside her vehicle when she saw a van arrive. After the van left, four men were standing nearby.

One man was standing on the corner “fiddling with some papers.” Moments later, a man wearing a hoodie pulled out a gun and shot the man with the papers twice in the back of the head. Ms. Wilson described the shooter as being a tall, African American male, wearing a black pullover hoodie, jeans, and white “tenners.” Ms. Wilson saw the gun and described it as a “silver, revolver.” Ms. Wilson saw the shooter’s faee. She had seen him before in the neighborhood, but she did not know this man’s name. Ms. Wilson saw the shooter put the gun back in his waistband, then run away from the area.

After the police arrived on the scene, Ms. Wilson was able to restart her car, and she went to the police station. After waiting in the police waiting room, Ms. Wilson spoke with Detective Cruz and gave a statement consistent with her testimony. 4 ³⁹⁸ On November 28, 2009, the day of her daughter’s birthday, police officers arrived at Ms. Wilson’s residence and demanded that she accompany them to the police station to make an identification. They threatened to arrest her if she did not come with them at that time. At the station, Ms. Wilson was presented with a photo array, which she signed on the front and back, indicating that she picked out a photograph of the shooter.

Ms. Wilson wrote on the back: “I saw the man in the photo shoot another man in the back of the head. I was on west Coldspring.” Ms. Wilson testified that none of the detectives told her who to pick or what to write. Ms. Wilson initially identified appellant at trial as the person she saw at the time of the shooting. Subsequently, however, she stated that she saw appellant at the scene, but she did not see appellant shoot the victim.

On cross-examination, Ms. Wilson agreed that she previously had testified that she initially picked out a photo other than appellant’s from the array, and Detective Cruz told her “stop playing,” “come on, you know who the guy is.” She also testified that the shooter was “definitely taller than the victim because the way he was standing over top of him.” On redirect examination, Ms. Wilson testified that she told Detective Cruz that appellant was there, but he was not the shooter. She testified at trial that appellant was not the shooter in this case, stating: “[N]o, he did not shoot the victim.” Over defense objection, the jury then heard a recorded statement Ms. Wilson gave to a defense investigator, Mr. Jacobs. 5 Ms. Wilson told Mr. Jacobs that she did not remember anything about the shooting. When asked about the photo array, Ms. Wilson told Mr. Jacobs she did not remember what the shooter looked like, but she did remember making an identification from a photo array. She then told Mr. Jacobs that she did remember some details of the shoot ³⁹⁹ ing, including that four men got out of the van, that the shooter shot the victim in the head, and that, afterwards, the shooter ran toward her stalled car while the other two men ran in the opposite direction.

Ms. Wilson also told Mr. Jacobs that she hesitated in picking out a photo from the array because she believed she saw a photo of a man she had seen on prior occasions in the company of her father-in-law. She concluded by again telling Mr. Jacobs that she could not remember details from the shooting. On recross-examination, defense counsel asked about conflicts between her cross-examination, stating that the shooter walked away, and her interview with Mr. Jacobs, stating that the shooter ran. Ms. Wilson testified that the shooter walked toward her location and did not run from the scene.

A gun was not found in connection with this case, but several pieces of ballistic evidence were recovered. A live round recovered near the scene of the shooting was a Winchester nine millimeter Luger. Two shell casings recovered near the body were also nine millimeter Lugers. These shell casings were determined to have been fired from the same firearm.

A DNA test was performed on the bullet, and the results were inconclusive. Regarding motive, the jury learned that, after Mr. Alston was pronounced dead, Detective Cruz went to the hospital and spoke with Randolph Alston, the victim’s brother. After this conversation, and after reviewing witness statements, Detective Cruz learned that the victim previously had been arrested, with appellant and another individual, for conspiracy to distribute heroin and related charges that carried a potential sentence of 40 years incarceration. Three days prior to the murder, a court date relating to that charge was postponed.

By the time of what would have been the ninth scheduled trial date, because Mr. Alston, the person the State alleged to have been actually selling the drugs, was deceased, the prosecutor offered plea agreements to appellant and Marvin Brown, who then pleaded guilty and received sentences of time served. Appellant was not in jail the day ⁴⁰⁰ Mr. Alston was shot, but the third individual, Mr. Brown, was incarcerated at the time of the murder. We shall include additional details in the following discussion. DISCUSSION I. Appellant contends that the trial court erred in granting the State’s motion to compel production of statements that two State’s witnesses made to a defense investigator.

He asserts that the statements were not discoverable because the defense did not intend to use the statements at trial, and the statements were protected under the work product doctrine. The State disagrees. It asserts that “the trial court properly determined that two audio recordings of State’s witnesses made by a defense investigator were subject to discovery by the State, and the trial court properly exercised its discretion to compel disclosure after conducting an in camera review of the recordings.” A. Proceedings Below Prior to trial, the State filed, pursuant to Maryland Rule 4-263(e)(6), a motion to compel disclosure of recorded statements the defense obtained from Mr. Jordan and Ms. Wilson. Defense counsel argued that the recordings of these State’s witnesses, obtained by the defense investigator, Mr. Jacobs, were not discoverable because they were attorney work product, and he did not intend to use the recordings at trial.

After further inquiry, however, defense counsel confirmed that, if these witnesses testified “to something different, then at that point in time the material would be used as impeachment material.” 6 ⁴⁰¹ The court ordered the defense to provide the recordings to the court for an in camera review. After its review, the court ordered disclosure of the recordings of Mr. Jordan and Ms. Wilson to the State. With respect to appellant’s claim of protection pursuant to the work product doctrine, the court found, inter alia, that the recordings of Mr. Jordan and Ms. Wilson did not include opinions, thoughts, or conclusions of defense counsel, but instead, they were recordings of facts from the witnesses. B. Maryland Rule 4-263(e)(6) Maryland Rule 4-263 sets forth the discovery requirements of the parties in a criminal case.

The obligations of the defense are set forth, in relevant part, as follows: (e) Disclosure by Defense. Without the necessity of a request, the defense shall provide to the State’s Attorney: (6) Documents, Computer-generated Evidence, and Other Things. The opportunity to inspect, copy, and photograph any documents, computer-generated evidence as defined in Rule 2-504.3(a), recordings, photographs, or other tangible things that the defense intends to use at a hearing or at trial. (g) Matters Not Discoverable.

(1) By any Party. Notwithstanding any other provision of this Rule, neither the State’s Attorney nor the defense is required to disclose (A) the mental impressions, trial strategy, personal beliefs, or other privileged attorney work product or (B) any other material or information if the court finds that its disclosure is not constitutionally required and would entail a substantial risk of harm to any person that outweighs the interest in disclosure. The Court of Appeals has explained the underlying policies of the discovery rules: ⁴⁰² We have often stated that the scope of pretrial disclosure requirements under Maryland Rule 4-268 must be defined in light of the underlying policies of the rule____Inherent benefits of discovery include providing adequate information to both parties to facilitate informed pleas, ensuring thorough and effective cross-examination, and expediting the trial process by diminishing the need for continuances to deal with unfamiliar information presented at trial. Williams v. State, 364 Md. 160, 172 , 771 A.2d 1082 (2001).

In reviewing a trial court’s decision whether a party is required to disclose information, we note that “[discovery questions generally ‘involve a very broad discretion that is to be exercised by the trial courts. Their determinations will be disturbed on appellate review only if there is an abuse of discretion.’ ” Cole v. State, 378 Md. 42, 55 , 835 A.2d 600 (2003) (quoting North River Ins. Co. v. Mayor and City Council of Baltimore, 343 Md. 34, 47 , 680 A.2d 480 (1996)). Factual findings of the trial court will not be reversed unless clearly erroneous, but the question whether a discovery violation occurred under the Maryland Rules is reviewed de novo.

Id. at 55-56 , 835 A.2d 600 . Where a discovery rule has been violated, the remedy is “in the first instance, within the sound discretion of the trial judge. The exercise of that discretion includes evaluating whether a discovery violation has caused prejudice.” Id. at 56 , 680 A.2d 480 . Here, the circuit court properly determined that the defense violated Rule 4-263(e)(6) by refusing to provide the recordings.

Contrary to appellant’s claims on appeal, the record shows that appellant intended to use the statements of Mr. Jordan and Ms. Wilson if the witnesses testified to something different from what was stated in the recordings. See State v. Young, 94 Or.App. 683 , 767 P.2d 90, 93 (1989) (“if defense counsel, even though not certain, can ‘reasonably predict’ that she will use certain exhibits to impeach a State’s witness, she must give timely discovery to the prosecutor”); State v. Dunivin, 65 Wash.App. 728 , 829 P.2d 799, 801-02 (a prosecutor “intends to use” a document for purpose of the discovery ⁴⁰³ rule where the State is “aware of the document and there is a reasonable possibility that the document will be used during any phase of the trial”), review denied, 120 Wash.2d 1016 , 844 P.2d 436 (1992). Thus, the trial court properly exercised its discretion to review the recordings in camera and then to order that the statements be disclosed to the State. C. Work Product We also agree with the trial court that the statements were not protected from disclosure under the work product doctrine.

The work product doctrine “protects materials prepared in anticipation of litigation from disclosure.” Blair v. State, 130 Md.App. 571, 607 , 747 A.2d 702 (2000). Accord E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 407 , 718 A.2d 1129 (1998). There are two categories of attorney work product, fact and opinion, included in this doctrine. Id. “Fact work product generally consists of ‘materials gathered by counsel (or at counsel’s instructions) in preparation of trial.’ ” Blair, 130 Md.App. at 607 , 747 A.2d 702 (quoting Joseph F. Murphy, Jr., Maryland Evidence Handbook § 904(A) (3d ed. 1999)).

A witness’ statement generally is considered fact work product. Id. at 608, 747 A.2d 702 . Opinion work product concerns the attorney’s mental processes. Id. at 607 , 747 A.2d 702 .

Although both fact and opinion work product generally are not discoverable, opinion work product “ ‘is almost always completely protected [from] disclosure.’ ” Id. at 608 , 747 A.2d 702 (quoting Forma-Pack, 351 Md. at 408 , 718 A.2d 1129 ). By contrast, “ ‘as the work product of the attorney becomes less a matter of creative legal thought and more a mere recognition of observed fact, the work product becomes increasingly susceptible to discovery.’ ” Id. (quoting Duplan Carp. v. Peering Milliken, Inc., 397 F.Supp. 1146, 1200 (D.S.C.1974)). Thus, fact work product may be subject to disclosure.

See Morris v. State, 59 ⁴⁰⁴ Md.App. 659, 669 , 477 A.2d 1206 (1984) (the doctrine “was never intended to be an evidentiary privilege”). Here, the circuit court, after listening to the recordings, found that the statements of Mr. Jordan and Ms. Wilson to appellant’s defense investigator were fact work product. The court stated, and appellant does not dispute, that the recordings did not reveal the creative thought processes or mental impressions of counsel, but rather, they conveyed only the verbatim factual content of the witnesses’ statements. Other states addressing similar situations have determined that such statements from witnesses are not protected from disclosure under the work product doctrine.

See People v. Lego, 116 Ill.2d 323 , 107 Ill.Dec. 647 , 507 N.E.2d 800, 805 (1987) (order compelling defense to produce tape recordings made by defendant’s investigators of State witnesses did not violate work product rule because “[t]he verbatim statements of witnesses obtained by the investigator here do not fall within the scope of protection afforded by the rule”), cert. denied, 488 U.S. 902 , 109 S.Ct. 251 , 102 L.Ed.2d 240 (1988); State v. Culkin, 791 S.W.2d 803, 811 (Mo.Ct.App.1990) (rejecting claim that notes of interview between defense counsel and a State’s witness constituted work product because they did not include “opinions, theories or conclusions” of attorney); People v. Perez, 171 Misc.2d 75 , 653 N.Y.S.2d 527, 529 (Sup.Ct.1996) (tapes of defense interviews of State’s witnesses not work product, noting that recorded interviews “are unlikely to contain opinions, theories or conclusions of defense counsel”). We agree with this analysis. Disclosure of a defense investigator’s recorded statement of the State’s witness, which contains only the verbatim statements of the witness, does not violate the work product doctrine. The circuit court’s decision, to direct disclosure of the recordings after its in camera review, was not erroneous and does not entitle appellant to a new trial.

II

Appellant next challenges the admission of two prior statements made by Mr. Jordan and Ms. Wilson, Mr. Jordan’s ⁴⁰⁵ statement to the police and Ms. Wilson’s statement to the defense investigator. He contends that the State failed to lay the proper foundation under Maryland Rule 5-613 to impeach the witnesses with the prior statements. The State disagrees. It argues that Maryland Rule 5-613, which governs the use of prior inconsistent statements when offered to impeach a witness’ testimony, was inapplicable here because the statements were offered pursuant to Rule 5-802.1(a), which pertains to the admission of prior inconsistent statements as substantive evidence.

The general rule regarding the admissibility of evidence is as follows: A ruling on the admissibility of evidence ordinarily is within the trial court’s discretion. Blair v. State, 130 Md.App. 571, 592 , 747 A.2d 702 (2000). This Court generally reviews such rulings for an abuse of discretion. State v. Simms, 420 Md. 705, 724-25 , 25 A.3d 144 (2011). “An abuse of discretion occurs ‘where no reasonable person would take the view adopted by the [trial] court,’ or when the court acts ‘without reference to any guiding rules or principles.’ ” Brass Metal Prods. v. E-J Enters., 189 Md.App. 310, 364 , 984 A.2d 361 (2009) (quoting King v. State, 407 Md. 682, 697 , 967 A.2d 790 (2009)).

Hajireen v. State, 203 Md.App. 537, 552 , 39 A.3d 105 cert. denied, 429 Md. 306 , 55 A.3d 908 (2012). As appellant notes, Maryland Rule 5-613 permits impeachment of a witness’ credibility by evidence that the witness made a prior statement that is inconsistent with his or her in-court testimony, but only if a sufficient foundation first has been established. The Rule provides: (a) Examining witness concerning prior statement. A party examining a witness about a prior written or oral statement made by the witness need not show it to the witness or disclose its contents at that time, provided that before the end of the examination (1) the statement, if written, is disclosed to the witness and the parties, or if the statement is oral, the contents of the statement and the ⁴⁰⁶ circumstances under which it was made, including the persons to whom it was made, are disclosed to the witness and (2) the witness is given an opportunity to explain or deny it.

(b) Extrinsic evidence of prior inconsistent statement of witness. Unless the interests of justice otherwise require, extrinsic evidence of a prior inconsistent statement by a witness is not admissible under this Rule (1) until the requirements of section (a) have been met and the witness has failed to admit having made the statement and (2) unless the statement concerns a non-collateral matter. In Hardison v. State, 118 Md.App. 225 , 702 A.2d 444 (1997), this Court explained: Maryland Rule 5-616 permits extrinsic evidence of prior inconsistent statements to be used for the purpose of impeachment, in accordance with Maryland Rule 5-613(b). Under Rule 5-613(b), for extrinsic evidence of a witness’s prior inconsistent oral statement to be admissible for impeachment, the following foundation must be laid: 1) the contents of the statement and the circumstances under which it was made, including the person to whom it was made, must have been disclosed to the witness during his trial testimony; 2) the witness must have been given the opportunity to explain or deny the statement; 3) the witness must have failed to admit having made the statement; and 4) the statement must concern a noncollateral matter.

Before the requirements of Rule 5-613(b) come into play, however, the prior statement of the witness must be established as inconsistent with his trial testimony. See Stevenson v. State, 94 Md.App. 715, 721 , 619 A.2d 155, 158 (1993). Id. at 237-38 , 702 A.2d 444 . These foundational requirements, however, apply only when the prior inconsistent statement is offered to impeach.

As this Court indicated in Pinkney v. State, 151 Md.App. 311, 322-23 , 827 A.2d 124 , cert. denied, 377 Md. 276 , 833 A.2d 32 (2003), when extrinsic evidence of a prior inconsistent statement is offered as substantive evidence, Maryland Rule 5-802.1 controls. We explained that Rule 5-802.1 “does not ⁴⁰⁷ contain the same foundational requirements as Rule 5-613.” Id. at 323, 827 A.2d 124 .