Tyler v. State

CHASANOW, Judge. This case presents the question of whether in a criminal trial the State may introduce, as a “prior inconsistent statement,” the prior testimony of a witness who takes the stand but refuses to testify. We hold that the prior testimony was not admissible as a prior inconsistent statement in this case because a refusal to testify is not “inconsistent” with prior testimony. Hence, the prior testimony was inadmissible hearsay evidence not within any exception.

We reverse Petitioner’s conviction and remand for a new trial. I. Jerry S. Tyler, Petitioner, was charged with first degree murder and related offenses stemming from the shooting death of James “Jay” S. Bias, III. Bias was shot and killed in the parking lot of the Prince George’s Plaza Mall on December 4,1990. According to testimony, Bias and Tyler got into a dispute inside the mall, apparently because Tyler believed that Bias was romantically involved with Tyler’s wife.

After the argument, Bias and two friends left the mall. As Bias and his friends were driving from the mall parking lot in a Toyota truck, a green Mercedes came speeding across the parking lot ⁷⁶⁹ and pulled up alongside the truck at a stop sign. The green Mercedes was driven by Gerald Eiland. Tyler was in the passenger’s seat.

Andre Campbell, who was riding in the Toyota with Bias, testified that after the Mercedes pulled up next to the truck, he saw Tyler point at Bias and then “reach[ ] down towards his leg on the right side.... ” Campbell stated “as I saw him reaching, I [thought] he had a gun” but that “[b]efore I could get the word gun out ... the shooting began.” A total of eight shots hit the truck, two of them hitting Bias. Bias was rushed to the hospital, but died of the gunshot wounds. Although he testified at trial that he never actually saw the gun, on the day of the shooting Campbell identified Tyler as the shooter from a police photo array. Campbell’s photo identification of Tyler was admitted into evidence.

This case is before us for the second time. In their first trial in the Circuit Court for Prince George’s County, Tyler and Eiland were tried together as co-defendants. Tyler was convicted of first degree murder and use of a handgun in the commission of a felony, and Eiland was convicted of second degree murder and use of a handgun in the commission of a felony. After affirmance in the Court of Special Appeals, this Court reversed the convictions of both Tyler and Eiland because of the State’s use of peremptory challenges at trial to exclude women from the jury based solely on their gender. 1 Tyler v. State, 330 Md. 261 , 623 A.2d 648 (1993).

On remand, Tyler and Eiland succeeded in having their cases severed. 2 Eiland was tried first. At his trial, Eiland ⁷⁷⁰ took the witness stand and blamed the entire shooting on Tyler. Eiland testified that he had no idea that Tyler intended to shoot Bias. He stated that he was driving out of the mall parking lot when he noticed the Toyota truck at a stop sign.

Suddenly, Tyler noticed that Bias was in the truck and he started yelling out the window. Eiland testified that Tyler leaned over the driver’s seat and “[n]ext thing I know he just started shooting out the window.” The jury acquitted Eiland. Predictably, at Tyler’s second trial, Tyler took the stand and blamed the shooting entirely on Eiland. He testified that it was Eiland who had fired the shots at the Toyota.

Tyler stated that he was seated in the passenger seat of the Mercedes as it was stopped next to the truck. He testified that he was “having a few words” with Bias and the others in the ⁷⁷¹ truck, when suddenly and unexpectedly Eiland fired the shots out the window. Before Tyler’s trial, the State subpoenaed Eiland to appear as a witness at Tyler’s trial. Eiland moved to quash the subpoena on the ground that compelling him to testify would violate his Fifth Amendment privilege against self-incrimination.

After hearing argument, the trial judge ruled that, given his acquittal, Eiland was in no danger of incriminating himself, and therefore he could be compelled to appear. After the court’s ruling, counsel for Eiland informed the court that Eiland might still refuse to testify because some threatening conduct had been directed at him the day before by some unknown person in a brown car. Counsel explained that Eiland felt “that his safety cannot be guaranteed and that he is in great danger if he testifies in this case” and that he may “take the position that he is unable to answer questions put to him by either side.” At Tyler’s trial, the State called Eiland as a witness. After giving his name and address, he gave the following testimony: “[STATE’S ATTORNEY]: Mr. Eiland, did you shoot Jay Bias? [EILAND]: I can’t answer that question. * * * * * * [STATE’S ATTORNEY]: Mr. Eiland, are you the same Mr. Eiland that testified in a previous proceeding? [EILAND]: I can’t answer that question. [STATE’S ATTORNEY]: Your Honor, I would ask the Court to direct the witness to answer the question.

THE COURT: Mr. Eiland, I’m going to order you to answer the questions that have been directed to you.... [EILAND]: I can’t answer that question. [STATE’S ATTORNEY]: Mr. Eiland, did you shoot Jay Bias? [EILAND]: I can’t answer that question. [STATE’S ATTORNEY]: Why can’t you answer that question? ⁷⁷² [EILAND]: I can’t. [STATE’S ATTORNEY]: Were you in the car when Jay Bias was shot? [EILAND]: I can’t answer that question. * * * * * * [STATE’S ATTORNEY]: Were you in the Prince George’s Mall on December 4,1990? [EILAND]: I can’t answer that question. [STATE’S ATTORNEY]: And why can’t you answer that question? [EILAND]: Because, I can’t. [STATE’S ATTORNEY]: Were you driving a green Mercedes that was occupied with Jerry Tyler at the Prince George’s Mall on December 4th, 1990? [EILAND]: I can’t answer that question. * * * * * * [STATE’S ATTORNEY]: Your Honor, at this time I would request the Court to direct the witness that he must answer the questions. THE COURT: Mr. Eiland, you understood the questions? [EILAND]: Yes. THE COURT: You understood that you have previously testified under oath in this courthouse concerning the issues and the facts to which the questions the State has asked are directed. Do you understand that? [EILAND]: Yes.

THE COURT: Is there some reason that you want to articulate or express as to why you do not want to answer those questions? [EILAND]: I can’t answer that question.” Despite a second order from the court to answer the questions put to him by the State, Eiland refused to answer. After questioning Eiland about his ability to understand the questions, and procuring additional information regarding the incident with the brown car that apparently frightened Eiland, the trial judge found Eiland in contempt of court. The trial ⁷⁷³ was then recessed for eighteen days and Eiland was jailed. When recalled as a witness eighteen days later, Eiland again refused to answer questions concerning the events the day of the shooting.

Because of Eiland’s refusal to testify, the State sought to admit as evidence the transcript of Eiland’s testimony from his own trial, in which he had testified that Tyler shot Bias. Tyler objected to the admission of the prior testimony on the ground that it was hearsay, and that it did not fall within any exception to the hearsay rule. After hearing argument, the trial judge ruled that Eiland’s prior testimony incriminating Tyler was admissible under the “former testimony” exception to the hearsay rule, and a transcript of the testimony was read to the jury. Tyler was convicted of first degree murder and use of a handgun and sentenced to imprisonment for life for the murder conviction, and 20 years for the handgun conviction.

Tyler appealed to the Court of Special Appeals, arguing, among other things, that the trial judge erred in admitting Eiland’s prior testimony at trial. A divided intermediate appellate court concluded that the trial judge had not erred in admitting the prior testimony, and affirmed Tyler’s conviction. Tyler v. State, 105 Md.App. 495, 660 A.2d 986 (1995). We granted certiorari to consider Tyler’s contention that Eiland’s prior testimony was improperly admitted.

II

There is no question that Eiland’s prior testimony was hearsay. It was a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ali v. State, 314 Md. 295, 304 , 550 A.2d 925, 929 (1988)(footnote omitted). 3 Hence, the question before us is whether the ⁷⁷⁴ testimony was admissible under an exception to the general rule barring the admission of hearsay evidence. A. We agree with Tyler and with the Court of Special Appeals that Eiland’s prior testimony was not admissible under the “former testimony” exception to the hearsay rule. In fact, the State concedes this point in its brief.

As this Court made clear in Huffington v. State, 304 Md. 559 , 500 A.2d 272 (1985), recon. denied, 305 Md. 306 , 503 A.2d 1326 , cert. denied, 478 U.S. 1023 , 106 S.Ct. 3315 , 92 L.Ed.2d 745 (1986), the former testimony exception applies in a criminal trial only when (1) the witness has given testimony under oath; (2) the witness who gave the prior testimony is unavailable to testify; and (3) the accused had an opportunity to cross-examine the witness at the prior trial or hearing where the testimony was elicited. 304 Md. at 566 , 500 A.2d at 275 . See also Grandison v. State, 305 Md. 685, 744 , 506 A.2d 580, 609 , cert. denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 (1986). The purpose of the cross-examination requirement is to protect the accused’s constitutional rights under the Confrontation Clause of the Sixth Amendment. 4 See Huffington, 304 Md. at 566-67 , 500 A.2d at 275-76 . ⁷⁷⁵ In the instant case, the trial judge properly concluded that Eiland was “unavailable” because he refused to testify. See Simmons v. State, 333 Md. 547, 559, 636 A.2d 463, 469 (witness who refused to testify was “unavailable” for purposes of hearsay exception), cert. denied, — U.S. -, 115 S.Ct. 70 , 130 L.Ed.2d 26 (1994).

The Court of Special Appeals and the State recognized, however, that Eiland’s testimony was not admissible as former testimony in Tyler’s criminal trial because Tyler had no opportunity to cross-examine Eiland when the prior testimony was elicited at Eiland’s separate trial in 1993. Thus, the 1993 testimony did not fall within the former testimony exception. B. The Court of Special Appeals held that Eiland’s testimony was admissible as a prior inconsistent statement under the holding of Nance v. State, 331 Md. 549 , 629 A.2d 633 (1993). In Nance , we held that a witness’s prior testimony is admissible as substantive evidence when the prior testimony is inconsistent with the witness’s in-court testimony, and the witness is subject to cross-examination concerning the statement at the trial where the statement is admitted.

Nance, 331 Md. at 570-71 , 629 A.2d at 643-44 . This holding has since been codified in Maryland Rule 5-802.1, which provides in pertinent part: “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 ⁷⁷⁶ verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement____” In the instant case, Eiland’s prior testimony cannot be deemed “inconsistent” with his refusal to testify at Tyler’s trial. At Tyler’s trial, Eiland flatly refused to answer any questions regarding the shooting of Jay Bias or the events that occurred at the Prince George’s Plaza Mall on December 4, 1990. In fact, aside from giving his name and address and stating that he understood the questions being put to him, Eiland gave no testimony at all.

He made clear that he would not answer any questions about the shooting. The effect was virtually the same as if Eiland had not physically taken the witness stand. Clearly, if Eiland had not taken the stand, his prior testimony could not be deemed “inconsistent.” Similarly, we hold that Eiland’s refusal to testify was not inconsistent with his prior testimony, in which he blamed the shooting on Tyler. See Barksdale v. State, 265 Ga. 9 , 453 S.E.2d 2, 4 (1995)(holding that a prior statement was not admissible because the witness refused to testify and hence “gave no testimony in court with which the prior statement could be judged to be inconsistent”); State v. Williams, 182 N.J.Super. 427 , 442 A.2d 620, 623 (App.Div.1982)(witness’s refusal to answer questions was not “testimony” and thus could not be inconsistent with previous, out-of-court statement); Davis v. State, 773 S.W.2d 592, 593 (Tex.Ct.App.l989)(“A refusal to testify is not an inconsistent statement.”).

The Court of Special Appeals analogized the instant case to a case where a witness claims a loss of memory. We have noted that a witness’s testimony that he or she cannot remember events about which the witness testified earlier may be inconsistent with the earlier testimony, and hence the earlier testimony may be admissible under Nance as a prior inconsistent statement. In Nance , we held to be admissible prior statements by witnesses who testified that they remembered some parts of the events described in their earlier statements, but did not remember other parts: ⁷⁷⁷ “Harris, McCormick and Brown did not uniformly testify that they had no memory of their sessions with police or the grand jury in which they made the identifications or statements. Instead, they remembered some parts of these earlier events, did not remember others, and outright denied or repudiated other parts.

Their lapses of memory conspicuously occurred whenever the questions at trial approached matters potentially implicating Nance and Hardy in the murder.” 331 Md. at 572 , 629 A.2d at 644-45 . We explained: “Inconsistency includes both positive contradictions and claimed lapses of memory. When a witness’s claim of lack of memory amounts to deliberate evasion,