Walker v. State

⁵⁰⁹ ADKINS, J. Among other issues, we are asked to decide in this case whether the State may impeach its own witness with a prior inconsistent statement under Md. Rule 5-607 when the State was not surprised by the witness’s testimony. A jury in the Circuit Court for Montgomery County convicted Earl Walker, appellant, of one count each of distribution of cocaine and conspiracy to distribute cocaine arising from a May 4, 2000 transaction. The jury acquitted appellant of identical charges stemming from a May 3, 2000 transaction. Appellant presents four questions for our review.

I. Did the trial court err by allowing the State to impeach its own witness with a prior unsworn statement when the State was not surprised by that witness’s testimony?

II

Did the trial court err in denying appellant’s request for a mistrial?

III

Did the trial court err in denying appellant’s motion in limine to exclude all hearsay statements made by a non-defendant during a drug transaction about having to contact “his guy”?

IV

Was the evidence sufficient to convict appellant of the charges stemming from the May 4 transaction? As to the first issue, we shall hold that the State need not prove surprise in order to impeach its own witness. As to issues II, III, and IV, we find no error by the trial court. Appellant’s convictions are affirmed.

FACTS AND LEGAL PROCEEDINGS In early May 2000, the Montgomery County Police Department arranged a series of undercover drug buys from Gerald Myrick, the target of an investigation. Officer Charles Carafano, a detective assigned to the Special Investigation Division, Street Level Drug Enforcement Unit, arranged the buys. On May 3, Officer Carafano called Myrick at the pizza restaurant in Derwood, Maryland where Myrick was employed at the time. Carafano asked to buy $100 worth of crack ⁵¹⁰ cocaine.

Myrick told Carafano that “he had to call ... ‘his guy’ and ... would call [Carafano] right back.” Carafano testified that, a few minutes later, Myrick called him back and told Carafano to report to the restaurant “a little bit before 7:00 [p.m.]” and that “his guy was going to be there at 7:00 p.m.” When Carafano arrived at the restaurant, Myrick approached him, took his $100, 1 and retreated into the restaurant. Several minutes later, a silver Honda with temporary registration tags pulled out from the rear of the restaurant. At trial, Carafano identified appellant as the driver of the Honda. Several minutes after the Honda departed, Myrick came out from the same area behind the restaurant, and handed Carafano three rocks of suspected crack cocaine, wrapped in cellophane.

Carafano then left the premises. Officer Heath Marshall followed the silver Honda when it left the restaurant on May 3. He recorded the car’s temporary registration tag number, and noted that the vehicle had only one occupant. On May 4, Carafano again called Myrick at the restaurant, and arranged to buy another $50 worth of crack cocaine.

Again Myrick said he would “call his guy,” and he later called Carafano back to finalize the deal. This time, Myrick told Carafano to meet him at Myrick’s house after he got off from work. Myrick was standing on a stoop outside his home talking on the phone when Carafano arrived. AVhen Myrick got off the phone, he approached Carafano and asked for the $50.

Myrick then walked down the street and out of Carafano’s line of vision to get the cocaine, while Carafano waited outside Myrick’s residence. About twenty minutes later, Myrick returned and handed Carafano three rocks of unwrapped suspected crack cocaine. At trial, the parties stipulated that the substance seized on both May 3 and May 4, and suspected to be crack cocaine was, in fact, crack cocaine. ⁵¹¹ Officer Dan Helton was surveilling the area around Myrick’s house during the undercover operation on May 4. Helton observed Myrick meet with another man, later identified as Roland Christian.

The two men waited at the street corner, and “began looking up and down the road as if they were waiting for somebody or looking for somebody.” Helton then observed a silver Honda with a temporary registration tag drive up to the men. Myrick approached the driver’s side of the car, while Christian approached the passenger’s side. According to Helton, Myrick reached his right hand into the car through the driver’s side window, while Christian reached his right hand in through the passenger’s side window. The two men then retracted their hands from the car, and placed them into their right pant pockets.

Helton did not observe whether the men’s palms were open or closed when they exited the car’s windows. The Honda then drove away. Helton identified appellant as the driver of the Honda. Officer Marshall was also part of the May 4 surveillance unit, and also observed the interaction between Myrick and the occupants of the silver Honda on that date.

According to Marshall, the temporary registration tag number of the Honda matched that of the Honda seen leaving the pizza restaurant where Myrick worked on May 3. Marshall was ordered to follow the Honda, and later to stop the car after the drug deal was verified. Marshall also identified appellant as the driver of the Honda. While searching the car, officers recovered a wallet from the front driver’s seat.

This wallet contained several cards bearing appellant’s name and $240, $70 of which was traced to the $100 given to Myrick during the May 3 drug buy. A strip search of the passenger yielded the $50 in pre-recorded funds that had been used in the May 4 drug buy. At trial, Gerald Myrick was compelled to testify after being assured immunity from state and federal prosecution. The details of Myrick’s testimony, and the events leading up to that testimony, will be discussed more fully below. ⁵¹² DISCUSSION I. State’s Impeachment Of Its Own Witness Appellant first alleges that the trial court erred in allowing the State to impeach Gerald Myrick, its own witness, with a prior unsworn statement he made to the police.

The State counters that its impeachment of Myrick was proper under the circumstances. The background of this dispute is as follows. Myrick apparently was supposed to testify for the State under the terms of a plea agreement. Prior to appellant’s trial, Myrick gave an oral statement to the police implicating appellant.

At the start of appellant’s trial, however, the prosecutor proffered that she had learned the preceding Friday that Myrick was no longer willing to testify. Therefore, the prosecutor moved to compel Myrick’s testimony. Because Myrick’s attorney was not present at the time, the court delayed ruling on the motion. After the jury was selected, the court resumed discussion of the motion.

The prosecutor called Myrick to the stand outside the presence of the jury. Myrick exercised his Fifth Amendment rights, and indicated that he would refuse to testify if called during the trial. Myrick’s attorney opposed the State’s motion to compel Myrick’s testimony, raising concerns about the use of Myrick’s in-court testimony in future state and federal prosecutions of Myrick. After both state and federal immunity from prosecution were secured, the court granted the State’s motion to compel, and Myrick took the stand.

Myrick testified that on May 3, he arranged to meet Carafano at the restaurant where he worked. On direct examination the following dialogue occurred: Q: [D]id you meet with [Officer Carafano] for the purpose of distributing to him cocaine? A: Yes. ⁵¹³ Q: Did you make arrangements for him to meet you at [the pizza restaurant] for that same transaction? A. Yes.

Q. And, when you met with Officer Carafano, did he provide you with money? A. Yes, he did. Q. And did you go back into the [pizza] store? A. I believe I did, or I think I walked around the store.

Q. And where were you going? A. To go pick up the stuff that I had on the ground. Q. Where did you pick that stuff up? A. It was right behind [the pizza restaurant], Q. And was there anybody behind [the pizza restaurant] when you went back there?

A. Yes. Q. Who was behind there? A. Earl Walker. Q. And did he provide you with that cocaine?

A. No. Q. What was he doing back there, do you know? A. I had owed him some money. I had told him when I get off work, I would pay him. Q. And did you pay him the money that you had owed him?

A. Yes, ma’am. Thereafter, outside the presence of the jury, the prosecutor announced her intention to impeach Myrick with his prior statement to the police, which, contrary to Myrick’s in-court testimony, implicated appellant. The statement had been reduced to some sort of writing, 2 which was not signed or otherwise adopted by appellant. The prosecutor acknowledged: ⁵¹⁴ We cannot get this statement in as substantive evidence under the Nance case and the new rules that came along from Nance which do require that any prior inconsistent statement be signed by the individual prior to it being admitted into evidence as substantive evidence.

The following exchange took place between the prosecutor and the court: THE COURT: [D]o you represent that you are taken by surprise by [Myrick’s] testimony? [THE PROSECUTOR]: This is the first I have heard this particular version. THE COURT: Okay. Well, the last version you had was the one that was consistent with your statement? [THE PROSECUTOR]: When I last spoke to Mr. Myrick, he had indicated that this statement was true. The trial judge then heard from appellant’skattorney. [DEFENSE ATTORNEY]: I think, first, we would like to know when ... the last time she spoke with Myrick was; but beyond that, ...

I don’t think the State should be allowed to ask a question of a witness where they have, in essence, set up this claim of surprise. I don’t think they should be [deemed] surprised. They came in here with a written motion trying to compel testimony from this guy. This is what happens on occasion when you work with somebody who was a co-defendant, who the [c]ourt has found to be a co-conspirator, and that is the risk they take.

I think, when we go through a trial and [the State] want[s] to use witnesses of this sort—that people lie, that people tell untruthful statements about somebody to gain favor with the State at the time—and they shouldn’t be allowed to claim surprise now, when all along, since this morning—I think in all fairness, the State [k]new there [were] going to be problems with Myrick—so, to now claim surprise, I just think is a little poor. ⁵¹⁵ After hearing from both sides, the trial court found that the State indeed, was surprised by Myrick’s in-court testimony. THE COURT: Okay, I think the State’s claim of surprise is legitimate. I will allow ... the witness to be cross-examined about the statement.... [but] you are stuck with his answers. The State then continued its examination of Myrick: Q. Mr. Myrick, do you remember giving a statement to the police ... on the night of your arrest on May 4th of this year?

A. Yeah, partially; yes, ma’am. Q. And do you remember in that statement indicating “I got [a] $100 rock of crack cocaine from Earl or Eric, drives a silverish colored Honda.” I have the statement if you want to see it? A. Okay. I remember telling him from him bugging me, I remember of some sort.

It is not really clear to me, because I was pretty much beat up at the time. Q. But— A. So I don’t know exactly what I was—you know, I haven’t even really seen the statement myself. So I don’t know. Q. Well, that is not true.

I showed you the statement on Friday, did I not? ... A. Oh, yes.... Q. And did you not tell the police “I got $100 rock of crack cocaine from Earl or Eric, drives a silverish colored Honda?” A. Yeah, I did say this on this thing. A. Surprise After The Abolition Of The Voucher Rule Appellant first asserts that the State’s impeachment of Myrick with his prior statement was improper because the State was not “surprised” by his exculpatory testimony.

Cit ⁵¹⁶ ing Spence v. State, 321 Md. 526, 530 , 583 A.2d 715 (1991), appellant alleges that the State called Myrick merely as a “subterfuge to admit, as impeaching evidence, otherwise inadmissible hearsay.” He asserts that the prosecutor’s statement, referring to Myrick’s in-court testimony, that “[t]his is the first time I have heard this particular version,” demonstrated that the prosecutor “was not surprised by Myrick’s recantation.” 3 The State vehemently objects to appellant’s characterization of the prosecutor’s comment, and argues that, although Myrick had previously refused to testify, “[w]hen the State gave [Myrick] immunity and ensured that the federal government would do the same, the landscape changed.” Therefore, the prosecutor had reason to believe that, because of his newly-attained immunity from prosecution, Myrick’s testimony would be consistent with the statement he gave to the police. The State asserts that appellant’s reliance on Spence is misplaced. The Court of Appeals has explained that the purpose of impeachment evidence is not to establish guilt, but to attack the credibility of a witness who has offered detrimental testimony. In other words, the best result the State can hope for when it tries to impeach a witness is to neutralize that witness’s testimony in the mind of the factfinder.

No matter how incriminating, evidence admitted exclusively for purposes of impeachment is not substantive evidence of guilt and will not support a .conviction. Its only purpose is to negate prior testimony. ⁵¹⁷ Stewart v. State, 342 Md. 230, 242 , 674 A.2d 944 (1996) (citations omitted). Until 1989, the general rule was that a party could not impeach his own witness. See Spence, 321 Md. at 528 n. 1, 583 A.2d 715 ; Wright v. State, 89 Md.App. 604, 610 , 598 A.2d 1214 (1991), cert. denied, 325 Md. 620 , 602 A.2d 711 (1992).

This rule, known as the “voucher rule,” was premised on the idea that a party calling a witness “vouched” for the credibility of that witness. See Gen. Motors Corp. v. Lahocki, 286 Md. 714, 727 , 410 A.2d 1039 (1980). The reason for the rule ... is traced by Wigmore back to primitive times when persons who attended trial on behalf of the parties were not witnesses in the modem sense of the term, but “oath-helpers.” They were chosen literally to “swear off’ the party on whose behalf they were called and were “ex-officio” partisans, which made it inconceivable that the party calling them could at the same time “gainsay” their testimony.

Illinois v. Gonzalez, 120 Ill.App.3d 1029 , 76 Ill.Dec. 393 , 458 N.E.2d 1047, 1054 (1983), aff'd, 104 Ill.2d 332 , 84 Ill.Dec. 457 , 472 N.E.2d 417 (1984). A limited exception to this rule applied when the party calling the witness could demonstrate that it was surprised by that witness’s testimony. See Poole v. State, 290 Md. 114, 118 , 428 A.2d 434 (1981); Sanders v. State, 1 Md.App. 630, 642 , 232 A.2d 555 (1967). The 1989 adoption of Md. Rule 1-501, now Md. Rule 5-607, eliminated the common law “voucher rale.” See Spence, 321 Md. at 528 n. 1, 583 A.2d 715 .

Rule 5-607 provides that, “[t]he credibility of a witness may be attacked by any party, including the party calling the witness.” Md. Rule 5-607 is derived from Federal Rule of Evidence (Fed. R. Ev.) 607, and mirrors its language. See Bradley v. State, 333 Md. 593 , 600 n. 2, 636 A.2d 999 (1994). Two years after adopting the rule, the Court of Appeals, in Spence , clarified that Md. Rule 5-607 does not authorize the use of any and all prior inconsistent statements ⁵¹⁸ to impeach a witness. 4 Rather, relying on federal authority, the Spence Court held that the rule allowing impeachment of one’s own witness does not permit the State to call a witness “who it knows will contribute nothing to its case, as a subterfuge to admit, as impeaching evidence, otherwise inadmissible hearsay evidence.” Spence, 321 Md. at 530 , 583 A.2d 715 (emphasis added). We will return to a discussion of Spence , and subterfuge.

We must first address, however, the question of surprise. Here, the trial court expressly found that the State was surprised by Myrick’s testimony. Based on our review of the record, we doubt that the prosecutor truly was surprised in the classic sense. Compare Sellman v. State, 232 Md. 344, 347-49 , 192 A.2d 788 (1963)(surprise shown) and Jenkins v. State, 14 Md.App. 1, 2-3 , 285 A.2d 667 (1971)(finding of surprise held proper) with Gray v. State, 219 Md. 557, 558 , 150 A.2d 221 (1959)(no surprise where witness fully repudiated statement in prosecutor’s office prior to trial).

In saying that it was “the first I have heard this particular version,” the prosecutor evaded the court’s question about surprise, and gave a carefully qualified answer. She did not clarify that answer much when she said, “When I last spoke to Mr. Myrick, he had indicated that this statement was true.” It is not clear whether she last spoke to him before he exercised his Fifth Amendment rights, indicating he did not want to testify, or after. We will not decide the validity of the court’s determination that the prosecutor was surprised, however, because we hold that surprise is no longer a prerequisite to a party’s impeachment of its own witness under Md. Rule 5-607. The subterfuge limitation is the only limit to a party’s impeachment of its own witness under the rule.

We shall hold ⁵¹⁹ that the record supports the conclusion that the subterfuge limitation was not violated, because the prosecutor did not call Myrick primarily as a subterfuge to get before the jury inadmissible hearsay evidence. We explain this holding below, starting with the history of the surprise requirement as it related to the voucher rule. The surprise requirement under the common law “voucher rule” was developed to ease a rule that had harsh applications in certain circumstances. Although the “voucher rule” was premised on the idea that, when a party called a witness, he vouched for the credibility of that witness, it was thought unjust to preclude a party surprised by a turncoat witness from demonstrating why he called that witness.

As explained by the Court of Appeals: If the witness has made to the party who calls him, or to the attorney of such party, a statement totally variant from his sworn testimony, and on the faith of such statement he has been called, he may be asked if he made such a statement, and if he denies it, we see no objection to the proof of such statement, not for the purpose of impeaching the general character of the witness, but for the protection of the party calling him. If a plaintiff calls a witness, relying upon statements made to him or his attorney, and when on the stand he proves the defendant’s case, we think that the principles of justice require that the plaintiff should be able to show why he called him. Smith v. Briscoe, 65 Md. 561, 569 , 5 A. 334 (1886)(emphasis omitted). Since the elimination of the voucher rule by the adoption of Md. Rule 5-607, the Court of Appeals has only discussed the requirement of surprise on one occasion.

In Bradley , the Court extended its ruling in Spence , and held that the State may not, when questioning its own witness, enter a clearly “independent area of inquiry ... for the sole purpose of impeaching the witness in the clearly separate area.” Bradley, 333 Md. at 605 , 636 A.2d 999 . The Court announced what it characterized as a “limited” holding: ⁵²⁰ [A] defendant is denied a fair trial if the State, with full knowledge that its questions will contribute nothing to its case, questions a witness concerning an independent area of inquiry in order to open the door for impeachment and introduce a prior inconsistent statement. Id. at 604 , 636 A.2d 999 (emphasis added). After announcing that holding, the Court went on to say that “the State is still entitled to impeach a witness with a prior inconsistent statement if the witness’s testimony comes as a surprise.” Id. at 606 , 636 A.2d 999 .

This comment, however, was made in the context of discussing the long recognized exception to the voucher rule, i.e., that a party could impeach his own witness if he was surprised. The Court cited a voucher era case to explain its point: For instance, if the State called Adrian Bradley expecting him to provide testimony favorable to the State, but Bradley unexpectedly did otherwise, impeachment would be permitted. See Poole v. State, 290 Md. 114, 118 , 428 A.2d 434 (1981)(explaining that, even prior to the elimination of the voucher rule, impeachment of one’s witness by a prior inconsistent statement would be permissible where “the calling party [was] surprised” by the witness’s testimony). In this case, however, the State expressly informed the trial judge that it knew Adrian Bradley would deny any incriminating statements were made in the telephone conversation.

Id. at 606-07, 636 A.2d 999 . We do not read Bradley as intending to hold that surprise is a prerequisite to a party’s impeachment of its own witness under Md. Rule 5-607, as it was under the voucher rule. Rather, we think the Bradley court intended to clarify that if, unlike Bradley , the prosecutor was truly surprised by his or her witness, the prosecutor necessarily could not be introducing the prior statement as a subterfuge. In other words, the subterfuge limitation that was applied in Bradley would not be violated if surprise were shown. ⁵²¹ This is not the same as saying that surprise is required every time the prosecution impeaches its own witness. 5 There are cases in which the prosecutor has legitimate reasons for calling the witness, because the witness can provide useful testimony.

The prosecutor may know, however, that the witness’s testimony will not be fully consistent with the witness’s prior statements. Thus, for example, the State might call a witness to a robbery, who would testify to a description of the robber, including height, weight, hair, and type of facial features. The State might know, however, that the witness had retreated from his original statement to the police that the area of the robbery was sufficiently well lit for him to see the robber clearly. If the witness testified on the stand that it was quite dark, and his vision was poor, the State, despite its knowledge of the witness’s retreat, would have a legitimate need to introduce his prior statement to impeach his description of the lighting conditions.

This would not be a subterfuge because the witness’s testimony was still useful to the State, and questions about the lighting conditions did not amount to an independent area of inquiry. See, e.g., United States v. DeLillo, 620 F.2d 939, 946-47 (2d Cir.1980)(prosecutor with advance knowledge of inconsistency allowed to impeach witness with prior statement when witness, in testifying that corporation had committed criminal fraud, omitted details, ⁵²² previously stated, that would implicate one of its principals in the crime). 6 The Court of Appeals cited DeLillo as an example of a case in which “[t]he State may impeach those portions of a witness’s testimony that do not comport with the prosecution’s theory of the case[,]” provided the area of inquiry is not clearly independent. Bradley, 333 Md. at 604-05 , 636 A.2d 999 . Foreman v. State, 125 Md.App. 28 , 723 A.2d 912 (1999), illustrated another circumstance in which prior statements can be used to impeach, even in the absence of surprise.

In that case, the prosecutor had reason to suspect, but not full knowledge, that his witness would recant. In Foreman , a domestic assault prosecution, the victim and his mother had refused the prosecutor’s request for an interview. At trial, the jury heard the testimony of a police officer that the mother had stated that Foreman had kicked the victim, slapped him, and pushed him into the wall. The jury also heard from an EMT, who testified that the mother had said that Foreman had punched the victim in the face and kicked him in the chest.

When the victim and mother were called to the stand, they both testified that the victim sustained injuries when beaten up at school, and that the injuries were not caused by appellant. The State was then allowed to re-call the police officer to impeach the mother’s testimony. On appeal, Foreman argued that the introduction of the mother’s prior statement for impeachment purposes was error under Spence because the prosecutor knew she would repudiate that statement if called to testify. We rejected this argument. ⁵²³ In this case, the record shows that it was at the suggestion of appellant’s trial counsel that the victim and the victim’s mother refused the prosecutor’s request for an interview.

At no time prior to trial, however, did either of these witnesses “recant” their statements to [the police officer] and EMT[.] In the absence of any recantation, the prosecutor was not foreclosed from attacking their credibility through questions directed at proving ... that they had made statements that are inconsistent with their present testimony. Id. at 33-34, 723 A.2d 912 . We read Foreman as holding that, in the absence of full knowledge on the part of the State that its witness will recant his or her prior statement, the subterfuge limitation to Md. Rule 5-607 is inapplicable. 7 Pickett v. State, 120 Md.App. 597 , 707 A.2d 941 (1998), is another example of a prosecutor having partial knowledge— something more than absolute surprise but less than full knowledge of the turncoat witness’s intent. There, without deciding whether surprise was necessary, we applied the Md. Rule 5-403 balancing test, 8 weighing the probative or impeachment value of the turncoat witness’s prior inconsistent statement against its prejudicial effect on the defendant in deciding whether to admit the statement for impeachment purposes under Md. Rule 5-607.

See id. at 605-07 , 707 A.2d 941 . In Pickett , the State called the defendant’s sister to the stand. On direct examination, the prosecutor hoped to elicit testimony that the defendant had admitted to his sister his involvement in the crime. The sister, however, testified “I told you that.

He never made [any admissions] to me.” Id. at ⁵²⁴ 601, 707 A.2d 941 . The defense did not cross-examine the witness. Subsequently, the State called a police detective who testified, over defendant’s objection, that he had engaged in several conversations with the witness, during which she had divulged that her brother had “bragg[ed] to her” about his involvement in the crime. See id. at 602-03 , 707 A.2d 941 .

In appealing his convictions, Pickett argued that the detective’s testimony “constituted impermissible impeachment evidence.” Id. at 603 , 707 A.2d 941 . Recognizing that it was unclear whether the prosecutor knew that the witness’s testimony would be exculpatory to the defendant prior to calling her, we looked to the Fourth Circuit case of United States v. Ince, 21 F.3d 576 (4th Cir.1994), for guidance. Relying heavily on the reasoning of Ince , we stated: [We do not] expect the trial judge to “crawl inside the prosecutor’s head to divine his or her true motivation” in calling a witness. Nevertheless, in determining whether a witness’s testimony offered as impeachment is admissible, or, on the contrary, is a “mere subterfuge” to get before the jury otherwise inadmissible hearsay, the trial court is required, as is the case with any evidence, to weigh the testimony’s probative value against its tendency to prejudice the defendant unfairly or to confuse the jury.

In these circumstances, the testimony’s probative value is defined as its value for impeachment purposes, that is, its likelihood of actually damaging the witness’s credibility. Id. at 604-05 (citations and footnotes omitted). In performing the Md. Rule 5-403 balancing test, we determined that the prejudicial value of the prior statement was great, because it served as a “detailed admission of the crimes charged” and “portray[ed] [the defendant] as a ruthless and remorseless thug.” Id. at 605 . As to the statement’s probative or impeachment value, we concluded that the statement had little probative value because the State did not need to attack the witness’s credibility because her testimony did not affirmatively damage the State’s case, and because much of her testimony was helpful to the State.

We held that the ⁵²⁵ court erred, as a matter of law, in allowing the State to impeach the witness with her alleged prior inconsistent statement inculpating the defendant. See id. at 607 . Pickett’s holding that trial judges need not crawl into the prosecutor’s head to divine his or her true motivation in calling a particular witness is consistent with Spence and Bradley . In those cases, there was no need to crawl inside the prosecutors’ heads because their intentions were objectively clear—in Spence because the witness disclosed to the judge and prosecutor in a bench conference that his testimony would be exculpatory to the defendant, and in Bradley because the prosecutor informed the trial court prior to calling his witness that he knew that the witness would testify inconsistently with his prior statements.

Thus, no judicial “guessing” as to the prosecutors’ true intentions was undertaken in those cases. Pickett arguably provides authority for the resolution of this case because here, as in Pickett , it is not clear that the prosecutor had full knowledge that the witness would recant. We think that the record in this case, however, suggests more strongly than did the record in Pickett that the prosecutor had knowledge. A cleaner path to resolution of this case, then, lies in resolving the question of whether surprise is even required for impeachment of one’s own witness under Md. Rule 5-607, an issue on which the Pickett Court expressly reserved decision.

See id. at 605 n. 1, 707 A.2d 941 . Indeed, we have found no Maryland case that squarely decides it. Md. Rule 5-607 contains language identical to Fed. R. Ev. 607. Because our rules of evidence are largely modeled after their federal counterparts, we often look to the federal courts, and their interpretation of federal rules, for guidance in interpreting our own rules.

See Garay v. Overholtzer, 332 Md. 339, 355 , 631 A.2d 429 (1993). We seek such guidance on this issue. In the federal system, the common law voucher rule was replaced by Fed. R. Ev. 607 in 1975. The change was predicated on the modern reality that “[a] party does not hold out his witnesses as worthy of belief, since he rarely has a free ⁵²⁶ choice in selecting them.” Advisory Committee Notes to Fed. R. Ev. 607.

As we indicated earlier, under the voucher rule parties could impeach their own witnesses only if they could demonstrate surprise. In the post-voucher rule era, courts that have considered the question, including at least six federal circuits, have held that, under Fed. R. Ev. 607, it is no longer necessary for parties to show surprise in order to impeach their own witnesses. See Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 740 (1st Cir.1982), cert. denied, 459 U.S. 1105 , 103 S.Ct. 728 , 74 L.Ed.2d 953 (1983); United States v. DeLillo, 620 F.2d 939, 946-47 (2d Cir.), cert. denied, 449 U.S. 835 , 101 S.Ct. 107 (1980); United States v. Palacios, 556 F.2d 1359, 1363 (5th Cir.1977); United States v. Webster, 734 F.2d 1191, 1193 (7th Cir.1984); United States v. Dennis, 625 F.2d 782 , 795 n. 6 (8th Cir.1980); United States v. Long Soldier, 562 F.2d 601 , 605 n. 3 (8th Cir.1977); Scholz Homes, Inc. v. Wallace, 590 F.2d 860, 863 (10th Cir.1979). According to those courts, “Rule 607 abolishe[d] the voucher rule and its corollaries, such as having to ... show that [your witness’s] testimony surprised you.” United States v. Ienco, 92 F.3d 564, 568 (7th Cir.1996).

See also United States v. Kane, 944 F.2d 1406, 1412 (7th Cir.1991)(“The test is whether the prosecution exhibited bad faith by calling a witness sure to be unhelpful to its case”). State courts interpreting state rules that, like Md. Rule 5-607, are verbatim adoptions of Fed. R. Ev. 607 have also refused to engraft a requirement of surprise, following the lead of the federal courts. See Burgin v. Alabama, 747 So.2d 916, 919 (Ala.Crim.App.1999); Eubanks v. Alaska, 516 P.2d 726, 728 (Alaska 1973); Arizona v. Acree, 121 Ariz. 94 , 588 P.2d 836, 838 (1978); Connecticut v. Graham, 200 Conn. 9 , 509 A.2d 493, 498 (1986); Morton v. Florida, 689 So.2d 259, 262 (Fla.1997), overruled on other grounds, Rodriguez v. State, 753 So.2d 29 (Fla.2000); Illinois v. Gonzalez, 120 Ill.App.3d 1029 , 76 Ill.Dec. 393 , 458 N.E.2d 1047, 1055 (1983), aff'd, 104 Ill.2d 332 , 84 Ill.Dec. 457 , 472 N.E.2d 417 (1984); Kansas v. Farley, 225 Kan. 127 , 587 P.2d 337, 341 (1978); Thurman v. Kentucky, 975 S.W.2d 888, 893 (Ky.1998), cert. denied, 526 ⁵²⁷ U.S. 1009, 119 S.Ct. 1150 , 143 L.Ed.2d 217 (1999); Louisiana v. Cousin, 710 So.2d 1065, 1070 (La.1998); Maine v. Dodge, 397 A.2d 588 , 592 n. 6 (Me.1979); Smith v. Oklahoma, 766 P.2d 1007, 1009 (Okla.Crim.App.1988); Oregon v. Warren, 88 Or.App. 462 , 745 P.2d 822, 824 (1987), cert. denied, 305 Or. 45 , 749 P.2d 1182 (1998); Pennsylvania v. Kimbell, 563 Pa. 256 , 759 A.2d 1273 , 1279 (2000); West Virginia v. Collins, 186 W.Va. 1 , 409 S.E.2d 181, 188 (1990); Washington v. Hancock, 109 Wash.2d 760 , 748 P.2d 611, 612 (1988). But see Wilkins v. Mississippi, 603 So.2d 309, 322 (Miss.1992)(still need to show surprise or unexpected hostility).

In United States v. Webster, 734 F.2d 1191 (7th Cir.1984), Judge Posner explained why following a strict surprise requirement was not ideal. Webster urges us, on the authority of Graham, Handbook of Federal Evidence § 607.3 (1981 and Supp.1983), to go beyond the good-faith standard and hold that the government may not impeach a witness with his prior inconsistent statements unless it is surprised and harmed by the witness’s testimony. But we think it would be a mistake to graft such a requirement to Rule 607, even if such a graft would be within the power of judicial interpretation of the rule. Suppose the government called an adverse witness that it thought would give evidence both helpful and harmful to it, but it also thought that the harmful aspect could be nullified by introducing the witness’s prior inconsistent statement.

As there would be no element of surprise, Professor Graham would forbid the introduction of the prior statements; yet we are at a loss to understand why the government should be put to the choice between the Scylla of forgoing impeachment and the Charybdis of not calling at all a witness from whom it expects to elicit genuinely helpful evidence. Id. at 1193. McCormick On Evidence also criticizes those courts that continue the surprise requirement after abolition of the vouch ⁵²⁸ er rule. Instead, it advocates reliance on the “mere subterfuge” limitation.

It has been widely held that a criminal prosecutor may not employ a prior inconsistent statement to impeach a witness as a “mere subterfuge” or for the “primary purpose” of placing before the jury substantive evidence which is otherwise inadmissible. Application of the “mere subterfuge” or “primary purpose” doctrine focuses on the content of the witness’s testimony as a whole. If the witness’s testimony is useful to establish any fact of consequence significant in the context of the litigation, the witness may be impeached by means of a prior inconsistent statement as to any other matter testified to. John W. Strong, McCormick on Evidence § 38, at 142 (5th ed.1999) (footnotes omitted).

Weinstein’s Federal Evidence also criticizes the surprise rule as being too mechanical: “[Inflexible insistence as under prior law, on a showing of surprise and affirmative damage before the government may impeach its witness, would mean a return to the unsatisfactory mechanical approach that helped lead to the adoption of Rule 607.” 4 Joseph M. McLaughlin, Weinstein’s Federal Evidence § 607.02[2][c] (2d ed.l997)(footnote omitted). Weinstein is quick to add, however, that the results under a balancing test are often similar to those under the surprise test. “In most cases, of course, the Rule 403 analysis and the surprise-damage requirement will lead to the same result. The former approach, however, provides somewhat more flexibility in an unusual case.” Id. (footnote omitted).

We think Weinstein’s point is well-taken. The explanation for the similar results may be that a balancing test does not remove the question of prior knowledge altogether from the equation. In those cases in which it is clear that the prosecutor has full knowledge that a witness “will contribute nothing to [the State’s] case,” calling that witness with the primary purpose of placing before the jury his or her prior inconsistent statement will be considered a subterfuge. See Spence, 321 ⁵²⁹ Md. at 530, 583 A.2d 715 (emphasis added); see also Bradley, 333 Md. at 604 , 636 A.2d 999 (“[A] defendant is denied a fair trial if the State, with full knowledge that its questions will contribute nothing to its case, questions a witness concerning an independent area of inquiry in order to open the door for impeachment and introduce a prior inconsistent statement”); United States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975)(“The overwhelming weight of authority is, however, that impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible”); Sheila A. Skojec, Annotation, Propriety, Under Federal Rule of Evidence 607, of Impeachment of Party’s Own Witness, 89 A.L.R. Fed. 13 , § 6 (2001)(collecting cases).

We are persuaded by the reasoning of McCormick, 9 Weinstein, and the extra-jurisdictional cases. We therefore hold that a showing of surprise is not a prerequisite to impeachment under Md. Rule 5-607. Surprise was developed as an exception to the voucher rule. Now that we have replaced the voucher rule, the exceptions developed to soften the voucher rule are no longer necessary.

Although a party’s knowledge or suspicion that its witness will recant still may be relevant to the determination of whether the party is calling that witness as a “mere subterfuge,” as mentioned above, surprise is not a prerequisite to a party’s impeachment of its own witness under the rule. B. The Ruling In This Case Instead of deciding the validity of the trial court’s finding of surprise, we must examine the more general question of whether the court properly allowed the State to ⁵³⁰ impeach Myrick with his alleged prior inconsistent statement. In other words, our analysis must center on whether, given its knowledge of Myrick’s unwillingness to testify, the State called Myrick to the stand merely as