Walker v. State

HARRELL, Judge. I. In May 2000, the Montgomery County Police Department arranged a series of undercover drug buys from Gerald Myr ³⁶⁶ ick, a target of an investigation. The undercover agent assigned to plan and carry-out the buys was Officer Charles Carafano. Carafano initially arranged to purchase $100 worth of crack cocaine from Myrick at the pizza restaurant where Myrick worked in Derwood, Maryland.

Myrick told Carafano to arrive at approximately 7pm on 3 May 2000 because “his guy” also would be there around 7pm. When Carafano arrived in front of the restaurant, Myrick took the $100 from him and, before retreating into the restaurant, told him that “his guy” was out back. Shortly thereafter, surveillance officers observed a silver Honda with temporary registration tags depart from the rear of the restaurant. Several minutes after the Honda departed, Myrick emerged from behind the restaurant and handed Carafano three rocks of crack cocaine wrapped in cellophane.

At trial, Carafano identified Petitioner, Earl Walker, as the driver of the Honda. Carafano arranged to buy another $50 worth of crack cocaine on the next day. Myrick and Carafano agreed to meet at Myrick’s house after work. Myrick met Carafano on the stoop in front of his house and, after receiving $50 from Carafano, walked down the street.

Carafano’s colleague, Officer Helton, was surveilling the area. He observed Myrick meet with another man, later confirmed to be Roland Christian, at the street corner where they waited until the silver Honda drove-up. Myrick approached the driver’s side of the Honda while Christian approached the passenger’s side. Helton claimed that he saw Myrick reach into the driver’s side window while Christian reached into the passenger’s side window.

They then withdrew their hands and placed them in their pockets. The Honda drove away. At trial, Helton identified the driver of the Honda as Walker. Twenty minutes after Myrick had left Carafano on the stoop, he returned and handed Carafano three rocks of wrapped crack cocaine.

A third officer was tasked with following the Honda and pulled it over after the drug deal was completed. In a search of the car, a wallet was recovered from the driver’s seat containing several credit cards bearing Petitioner’s name and $240 in cash, $70 of which was confirmed to be from the ³⁶⁷ marked bills given Myrick for the 3 May 2000 drug transaction at the pizza restaurant. A search of the Honda’s passenger recovered the $50 from the 4 May 2000 drug deal. Myrick was compelled to testify at Petitioner’s trial in the Circuit Court for Montgomery County 1 after being promised immunity from state and federal prosecution for his part in the events.

Prior to the trial and pursuant to a plea agreement, Myrick gave an oral statement to the police implicating Petitioner. At the start of Walker’s trial, however, the prosecutor proffered that she had learned that Myrick was no longer willing to testify and so she moved to compel Myrick’s testimony. The court delayed ruling on the motion until after the jury was selected. Outside the presence of the jury, the prosecutor called Myrick to the stand at which time he exercised his Fifth Amendment rights and indicated that he would refuse to testify.

After both state and federal immunity from prosecution were secured for Myrick, the court granted the State’s motion to compel and Myrick took the stand to testify before the jury. Myrick gave the following testimony, in pertinent part: [PROSECUTOR]: [D'jid you meet with [Officer Carafano] for the purpose of distributing to him cocaine? [MYRICK]: Yes. Q: Did you make arrangements for him to meet you at [the 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 walked around the store.

Q: And where were you going? ³⁶⁸ 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 restaurant]. Q: And was there anybody behind [the 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. Q: After you came back from [the restaurant], did you give the cocaine to Officer Carafano? A: Yes, I did. The prosecutor then announced her intention to impeach Myrick with his prior statement to the police implicating Petitioner.

The statement, although reduced to a writing, was not signed or otherwise adopted previously by Myrick. The prosecutor acknowledged that “[w]e cannot get this statement in as substantive evidence under the Nance case [Nance v. State, 331 Md. 549 , 629 A.2d 633 (1993) (holding admissible as substantive evidence the factual portions of prior inconsistent statements reduced to writing and signed by a “turncoat witness” who later repudiated those statements at trial)] 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.” When the court asked the prosecutor whether she was “taken by surprise by [Myrick’s] testimony,” she replied “[t]his is the first I have heard this particular version.” The court also heard from defense counsel who was skeptical about ³⁶⁹ the prosecutor’s alleged “surprise.” He stated “I think in all fairness, the State [k]new there was going to be problems with Myrick — so, to now claim surprise, I just think is a little poor.” The court found that the State was surprised by Myrick’s in-court testimony and permitted the State to attempt to impeach him. The prosecutor continued her examination of Myrick: [PROSECUTOR]: Mr. Myrick, do you remember giving a statement to the police ... on the night of your arrest on May 4th of this year? [MYRICK]: 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? ... [DEFENSE COUNSEL]: Objection to the form of the question. [MYRICK]: I don’t know. [COURT]: Sustained. [PROSECUTOR]: Mr. Myrick, were you not shown this— A: Oh, yes. Q: —statement on Friday?

A: This one here, yes, I was. Q: And did you not tell the police “I got $100 rock of crack cocaine from Earl or Eric, drives a silverish colored Honda?” ³⁷⁰ A: Yeah, I did say this on this thing. The prosecutor continued her questioning of Myrick: [PROSECUTOR]: Mr. Myrick, you and I met on Friday; is that correct? [MYRICK]: Yes, ma'am. Q: And at that time I gave you a copy of your statement, did I not?

A: Yes, ma'am. Q: And did I not ask you at that time whether this statement was the truth? A: Yes, ma'am. [DEFENSE COUNSEL]: Objection. Can I approach the bench? [Whereupon bench conference followed] [DEFENSE COUNSEL]: Your Honor, based on the question [the prosecutor] just asked, what she did and what her contact with Mr. Myrick is, I am going to ask the Court for a mistrial because it puts her as a witness in this case and I don’t think she can continue on.

It violates all right to confront evidence in this case as to what she said to him and what she did. So, I am going to move for a mistrial. [THE COURT]: I don’t think this is the test. I think the test is she simply stuck with his answers. That is all.

I don’t think it makes her a witness in the case. I will overrule your objection and deny your motion to mistrial. [Whereupon the bench conference was concluded] [PROSECUTOR]: Mr. Myrick, do you remember the question? [MYRICK]: I don’t remember. Q: [Y]ou reviewed the statement on Friday; is that correct? [MYRICK]: Yeah, approximately, yeah. Q: And at that time did I not ask you whether this was a true statement?

A: Yes, you did ask me that one. ³⁷¹ Q: And at that time did you say anything to me— A: No, I didn’t say anything to you about it. Q: Mr. Myrick, you did not want to testify today; is that correct? A: No, I didn’t want to testify today. Q: And, in fact, you are here by subpoena; is that correct?

A: Yes, ma'am. Q: And, in fact, you have been ordered to testify; is that correct? A: Yes, ma'am. Q: And you are afraid; is that correct? [DEFENSE COUNSEL]: Objection. [COURT]: Sustained.

Leading. [PROSECUTOR]: Have you been threatened in any way— A: No. Q: Did you tell me on Friday that you had been? [DEFENSE COUNSEL]: Objection. Your Honor, can I approach the bench now, please? [COURT]: All right. [Whereupon bench conference followed] [DEFENSE COUNSEL]: Your Honor, I move for mistrial, again. The suggestion now from that question is that my client — even if he was threatened, whatever his answer is— that my client was involved in something like that. That is unfair— [COURT]: He has already said he wasn’t threatened.

I will sustain the objection. I will deny the motion. [DEFENSE COUNSEL]: Your Honor, I would ask the Court to disallow the State pursuing this avenue of question in where it is suggested that my client is involved in any way in his statements to [prosecutor], to his statements to the officers that night. He gave his reasons— [COURT]: He has already said — you are stuck with his answer — he said he wasn’t threatened. So I am not going ³⁷² to let you pursue that unless you have some particular evidence that you— [PROSECUTOR]: Your Honor, when I met with him on Friday, in Mr. Schmidt’s presence, Mr. Myrick said that his father — his elderly parents — had been threatened, and I am not suggesting — I mean, I don’t know whether it is Mr. Walker — I am not sure if it is really important who has threatened him, but that is why he told me on Friday that he no longer wanted to cooperate, and he did not want to testify.

And I think, given the fact that I now have a witness who is totally changing their story, and I believe, not being truthful, I think I can bring out the fact that he is making all this up now. [COURT]: Well, that is true. You can do that, but you have already asked him if he was threatened and he said he wasn’t. [PROSECUTOR]: But why can I not ask him when I met with him on Friday in the presence of Mr. Schmidt, whether he told me at that time he had been threatened or not and that is why he didn’t want to testify and he can say yes or no. [DEFENSE COUNSEL]: This is extrinsic; this is collateral. You know, we come into the situation where surprise is claimed and now you keep getting all the extra stuff with it that has nothing to do with it. [COURT]: But their testimony bolsters the State’s argument for surprise. I will allow that question.

I will overrule the objection. [Whereupon the bench conference was concluded] Q: Mr. Myrick, when I met with you on Friday, didn’t you tell me that you had been threatened? A: No, I don’t recall. I don’t remember. Q: You don’t recall telling me that?

A: No, ... Q: And did you not tell me that you didn’t want to testify? ³⁷³ A: Yes, I did tell you I didn’t want to testify because— Q: Because you were afraid? A: No, because the statement I wrote was a lie, and I am not going to convict somebody with my wrongdoings. Q: That is what you told me on Friday.

A: No. That is what — I didn’t tell you anything---- Q: Mr. Myrick, on Friday, when we met in the presence of your lawyer ... you knew I was a State’s Attorney, did you not? A: Right. Yeah. I just wanted to hear what you were trying to say to me.

Q: And did you not tell me that day that you had been threatened and that is why you didn’t want to testify? [DEFENSE ATTORNEY]: Objection. [THE COURT]: Sustained. Walker ultimately was acquitted of the counts relative to the 3 May 2000 episode, but convicted of the charges pertaining to the 4 May 2000 transaction. The court imposed concurrent sentences of five years on each conviction, with all but eighteen months suspended, followed by three years of supervised probation.

II

The flagship issue of Petitioner’s appeal to the Court of Special Appeals questioned whether the State may impeach its own witness with a prior inconsistent statement, under Maryland Rule 5-607 (2000), when the State is not surprised by the witness’s testimony. 2 Walker v. State, 144 Md.App. 505, 509 , ³⁷⁴ 798 A.2d 1219, 1221 (2002). Walker asserted that the State’s impeachment of Myrick with his prior inconsistent statement was improper because the State was not “surprised” by his exculpatory testimony at trial. Apparently, Walker believed that the prosecutor’s statement “[t]his is the first time I have heard this particular version,” denoted a lack of surprise. Relying on Spence v. State, 321 Md. 526, 530 , 583 A.2d 715, 717 (1991), Walker alleged that the State called Myrick as a witness merely as a “subterfuge to admit, as impeaching evidence, otherwise inadmissible hearsay.” The State objected to Walker’s characterization of the prosecutor’s comment and argued that the prosecutor’s reasonable expectation was that the shelter offered by immunity from prosecution should have resulted in Myrick giving testimony at trial consistent with the statement he gave to the police.

Therefore, the prosecutor was surprised that Myrick did not testify as expected. The Court of Special Appeals held that a party is not required to demonstrate surprise before impeaching its own witness; rather, the only limit on a party’s impeachment of its own witness is the subterfuge limitation which it concluded was not violated in this case. To reach its conclusion, the intermediate appellate court reviewed the history and purpose of the common law “voucher rule,” explaining that the rule was predicated on the notion that “a party calling a witness ‘vouched’ for the credibility of that witness.” 144 Md.App. at 517 , 798 A.2d at 1225 . The court noted the development of an exception to the voucher rule permitting a party to call a witness otherwise excluded by the voucher rule if the party could demonstrate that it was surprised by the witness’s testimony.

Id. Only pursuant to the surprise exception to the voucher rule could a party impeach it’s own witness. The court also observed that Maryland Rule 5-607, originally adopted in 1989 as Maryland Rule 1-501, eliminated the ³⁷⁵ voucher rule by providing that “[tlhe credibility of a witness may be attacked by any party, including the party calling the witness.” Md. Rule 5-607. Of additional significance to the court’s analysis was our decision in Spence which limited the use of prior inconsistent statements to impeach a party’s own witness by precluding the State from calling a witness “who it knows will contribute nothing to its case, as a subterfuge to admit, as impeaching evidence, otherwise inadmissible hearsay evidence.” 321 Md. at 530 , 583 A.2d at 717 (emphasis added); Walker, 144 Md.App. at 518 , 798 A.2d at 1226 .

The court aptly observed that, in Bradley v. State, 333 Md. 593 , 636 A.2d 999 (1994), we extended our ruling in Spence by holding 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.’ ” Walker, 144 Md.App. at 519 , 798 A.2d at 1227 (quoting Bradley, 333 Md. at 605 , 636 A.2d at 1005 ). The Court of Special Appeals reasoned further that because the surprise exception was developed to limit the harsh application of the voucher rule, the elimination of the voucher rule necessarily meant that the surprise exception to that rule also was no longer material to the analysis of cases where a party sought to impeach its own witness. 144 Md.App. at 519 , 798 A.2d at 1227 . 3 The intermediate appellate court noted that there may be, however, a relationship between the subterfuge limitation discussed in Spence and Bradley and surprise such that a demonstration by the State that it was surprised by it’s witness’s trial testimony necessarily indicated that the prosecutor could not be introducing the prior statement solely as a subterfuge. 144 Md.App. at 520 , 798 A.2d at 1227 . The court therefore read Bradley not as requiring surprise as a prereq ³⁷⁶ uisite to a party’s impeachment of its own witness, but that the prosecutor’s line of questioning must not be a subterfuge to admit otherwise inadmissible evidence. It was suggested by our intermediate appellate colleagues that the subterfuge limitation to Md. Rule 5-607 does not apply unless the State has full, advance knowledge that the witness will recant his or her prior statement at trial. 144 Md.App. at 523 , 798 A.2d at 1229 .

In this regard, the court alluded to one of its earlier cases where the prosecutor had partial, but not full, knowledge that the witness might recant his testimony, Pickett v. State, 120 Md.App. 597 , 707 A.2d 941 (1998). In that case, the court applied the balancing test of Maryland Rule 5-403 4 to weigh the probative or impeachment value of the witness’s prior inconsistent statement against any unfair prejudicial effect on the defendant in deciding whether to admit the prior statement for impeachment purposes under Rule 5-607. Pickett, 120 Md.App. at 605-07 , 707 A.2d at 945-46 . The Court of Special Appeals advocated evaluating the witness’s testimony as a whole to determine if the testimony is “useful to establish any fact of consequence significant in the context of the litigation, [then] the witness may be impeached by means of a prior inconsistent statement as to any other matter testified to.” 144 Md.App. at 528 , 798 A.2d at 1232 (quoting John W. Strong, McCormick on Evidence § 38, at 142 (5th ed.1996)).

When 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.” 144 Md.App. at 528 , 798 A.2d at 1232 (quoting Spence, 321 Md. at 530 , 583 A.2d at 717 ). Finding that the voucher rule and its surprise exception are no longer part of Maryland law, the court concluded in Walker’s case that the prosecutor’s mere knowledge that Myrick ³⁷⁷ was unwilling to testify did not mean that the State called him to the stand merely as a subterfuge to gain admission of his prior statement implicating Walker. There were, the court found, other legitimate reasons for calling Myrick to testify. 144 Md.App. at 530 , 798 A.2d at 1233 . For example, Myrick’s testimony corroborated the testimony of the police regarding the May 3 events that Walker was present at the scene of the drug transaction and received some of the proceeds from the transaction.

Id. The court concluded that the State did not violate the rule in Bradley that “the State may impeach those portions of a witness’s testimony that do not comport with the prosecution’s theory of the case” only if “the area of inquiry is not clearly independent.” Bradley, 333 Md. at 604 , 636 A.2d at 1005 ; Walker, 144 Md.App. at 532 , 798 A.2d at 1234 . Myrick testified at trial that the money he gave Walker on May 3 was money owed him from a prior debt, thus undermining the inference that Walker was involved in the drug transaction and facilitating the need to impeach Myrick’s testimony insofar as it was inconsistent with his prior statement to the police. Id.

The court concluded that the prior inconsistent statement damaged his credibility with regard to the new statement, and thus, was probative evidence. Id. Walker asserted that the trial court failed to weigh the probative value of Myrick’s prior statement against its prejudicial effect on Walker because the court did not consider the statement specifically before authorizing its use to impeach Myrick. The State pointed-out that at an earlier hearing on a motion in limine the court was informed as to the substance of Myrick’s statement to the police. 144 Md.App. at 533 , 798 A.2d at 1235 .

By later allowing the statement to be used to impeach Myrick, the State argued, the court impliedly determined the probative value of the impeaching statement outweighed its prejudicial effect on appellant. Id. The Court of Special Appeals, referring to its Pickett decision, defined probative value as the “likelihood of actually damaging the witness’s credibility.” Id. The test for determining the probative value of Myrick’s testimony became the same test for determining whether the prosecution called the ³⁷⁸ witness as a subterfuge — “whether the witness has something useful to contribute to the prosecution’s case other than the introduction of his prior inconsistent statement.” Id.

The court noted that the prejudice component of the balancing test required consideration of whether the evidence prejudiced the defendant unfairly or misled or confused the jury. Finding that even though the record in this case did not reflect whether the trial court explicitly conducted a balancing test, the court deferred to the “strong presumption that judges properly perform their duties” and held that application of the Rule 5 — 403 balancing test “compels the conclusion that Myrick’s prior inconsistent statement was not introduced as mere subterfuge,” and the trial court did not err in allowing the State to use the statement for impeachment purposes. 144 Md.App. at 535 , 798 A.2d at 1236 . The Court of Special Appeals then turned to Walker’s second assertion of error, the trial court’s denial of his request for a mistrial after the prosecutor questioned Myrick about a meeting between the prosecutor and Myrick. Id.

Reiterating our standard for the review of a trial court’s disposition of a motion for a mistrial, the court observed that appellate review “is limited to whether the trial court abused its discretion in denying the motion for mistrial,” and the trial court will not be reversed “unless the defendant clearly was prejudiced by the trial court’s abuse of discretion.” 144 Md.App. at 536 , 798 A.2d at 1237 (quoting Klauenberg v. State, 355 Md. 528, 555 , 735 A.2d 1061, 1075 (1999)). Walker, relying solely on United States v. Edwards, 154 F.3d 915 (9th Cir.1998), asserted to the Court of Special Appeals that during the course of her examination the prosecutor was allowed to testify as a State’s witness without being called as such or being subject to cross-examination. The State contested the relevance of Edwards and contended that the prosecutor in the instant matter, unlike the prosecutor in Edwards , “ ‘engaged in proper cross-examination on a point critical to explaining Myrick’s in-court recantation of his statement to police in which he had incriminated Walker as the person who supplied him with the cocaine that he sold to’ the ³⁷⁹ undercover officer on the dates in question.” 144 Md.App. at 538 , 798 A.2d at 1238 . The Court of Special Appeals found significant differences between Edwards and the present case warranting a different result here.

The court concluded that the trial court did not abuse its discretion in refusing to grant Walker’s motion for a mistrial. 144 Md.App. at 541-42 , 798 A.2d at 1239-40 .

III

We granted certiorari on Walker’s petition to consider whether, in order to impeach its own recanting witness, the State first must show surprise by the apparent recantation and whether the prosecutor’s cross-examination of Myrick as to the pre-trial conversation between them provided grounds for a mistrial. 370 Md. 268 , 805 A.2d 265 (2002). We hold that the trial court and Court of Special Appeals properly found that proof of surprise is not a necessary prerequisite under Md. Rule 5-607 analysis. As to the second question, however, the trial judge abused his discretion in denying defense counsel’s request for a mistrial. The prosecutor’s cross-examination of Myrick was improper prosecutorial conduct affecting Walker’s right to a fair trial.

A new trial is required. A. Walker argues that the Court of Special Appeals’s holding “clouds an important distinction between two separate issues: what is required before a party can call a witness to the stand, and what is required before a party may impeach its own witness with a prior inconsistent statement.” Petitioner maintains that surprise should be a necessary element before a party may impeach its own witness. He characterizes the intermediate appellate court’s holding as permitting a party to call a witness so long as the party has a “legitimate purpose” for calling the witness other than introducing a prior statement implicating the defendant. The “legitimate purpose” hurdle, according to Petitioner, is so low that it could be ³⁸⁰ overcome “in virtually every case and for every witness that is called to the stand.” Myrick’s testimony is an example, cóntends Petitioner, of testimony that is merely cumulative to that already presented and not material to the issues involved at trial.

In this regard, Petitioner claims that the intermediate court incorrectly analogized the present matter to our decision in Bradley in finding Myrick’s testimony admissible. Walker also criticizes the Court of Special Appeals’s finding that the prosecutor appropriately questioned Myrick about the subject areas which triggered the need for the impeaching examination. Again, he attacks the court’s use of Bradley . Petitioner contends that the “independent area of inquiry” standard established in Bradley set forth a modified, albeit narrowed, version of the “voucher rule.” Where the common law voucher rule prohibited a party from calling a witness who was expected to provide unfavorable testimony, Bradley narrows the scope of the exclusion to the expectations of individual questions, thereby restricting the State to asking its witness only questions expected to elicit favorable and probative responses.

Questions that the State does not think will provide favorable responses, but only will trigger the need to cross-examine the witness with an otherwise inadmissible statement, cannot be asked, Petitioner suggests. Pursuant to his interpretation of Bradley , Walker explains that the element of surprise is still an important part of the “independent inquiry” analysis because surprise would indicate that the prosecutor did not have “full knowledge” that his or her questions would contribute nothing to the State’s case. Walker also claims that the court misread that part of Bradley which stated when “failure to inquire into a possibly independent area of inquiry could create a gap in the witness’s testimony such that a negative inference may arise against the prosecution,” the State is permitted to “fill such a gap by questioning and then impeaching the witness.” Bradley, 333 Md. at 606 , 636 A.2d at 1005-06 . Petitioner alleges that the facts of his case and those in Bradley were sufficiently similar that the holding in Bradley that delving into an independent area of inquiry was improper mandates a reversal here.

Fur ³⁸¹ thermore, Petitioner faults this Court in Bradley and the intermediate appellate court in Walker for not enunciating a clearer standard governing where an “independent line of inquiry” should be drawn. According to his reading, these decisions indicate that any question can be asked of a “turncoat witness” until the point is reached where a question is asked expecting to elicit a recanting answer. At this point the trial judge is to evaluate whether the next question delves into an independent or dependent area of inquiry. Petitioner complains, however, that the cases are silent as to whether the answers elicited by the questions leading up to the recanting testimony should have been allowed.

He postulates that if the independent area of inquiry is assessed based on the last question that was not expected to elicit a recanting response then “any creative prosecutor could craft a line of questioning that would close the ‘gap’ between the recanting portions of the testimony.” The answer to this self-defined problem, from Walker’s vantage, is only to allow a party to impeach its own witness when the party is surprised by an unexpected answer. The State responds that the Court of Special Appeals correctly held that the State may impeach its witness with a prior inconsistent statement as long as the State did not call the witness as a mere subterfuge to introduce the prior statement. Respondent points to the language of Rule 5-607 as clear support for the court’s holding: “ft]he credibility of a witness may be attacked by any party, including the party calling the witness.” The subterfuge limitation, Respondent contends, is the only proper limitation on a party who seeks to impeach its own witness. If Petitioner’s suggestion were adopted and a brightline rule created, the result would give new life to the voucher rule eliminated by the adoption of Rule 5-607.

A further result would be that a party not surprised by its witness recanting or changing his or her story on the witness stand may not call that witness for any purpose or, if the witness were permitted to testify, the party may not impeach the recanting witness with a prior inconsistent statement. Respondent naturally agrees with the federal and state cases referred to by the intermediate appellate court refusing ³⁸² to engraft a requirement of surprise onto Rule 5-607 or its other courts’ equivalents. The State maintains that Myrick was not called by the prosecutor as a subterfuge because Myrick had other useful information to impart on direct examination. Respondent finds Walker’s appellate arguments to be inapposite to those he presented at trial regarding Myrick’s importance to the proceedings.

At trial, Walker argued that Myrick “[was] somebody necessary to the State’s case,” and he moved to dismiss the first two counts arising from the May 3 events if Myrick did not testify. Respondent therefore finds unpersuasive and contrary to Walker’s statements at trial Petitioner’s present allegations that Myrick’s testimony was merely cumulative. The State also argues that the prosecutor’s inquiry into why Myrick paid Walker the $100.00 was not an independent area of inquiry prohibited by Bradley . If calling Myrick was not a subterfuge, then impeaching him with his prior inconsistent testimony was permissible.

Respondent retorts that Petitioner’s assertion that defense counsel should have been allowed to examine Myrick outside the presence of the jury does not provide a basis for reversal because Walker only suggested that course of action and did not object to the court’s ruling denying that request. 5 Even if the issue had been preserved properly for review, the State contends the trial court properly exercised its discretion in permitting Myrick to testify in open court without first subjecting his anticipated testimony to scrutiny without the jury present. See Bruce v. State, 351 Md. 387, 393 , 718 A.2d 1125, 1127 (1998). Respondent continues to urge that the trial court weighed the probative value of Myriek’s prior statement against its ³⁸³ potential prejudicial impact, correctly concluding that the probative value outweighed the potential for unfair prejudice. Agreeing with the intermediate appellate court that the record is unclear whether the trial judge reviewed the actual written statement before it permitted the State to impeach Myrick with its contents, the State argues nonetheless that there is a strong presumption that trial judges know the law and perform their duties correctly and, regardless, the Court of Special Appeals was correct that it would be inappropriate to remand the case back to the trial court for that limited purpose.

Admitting that the prior inconsistent statement was prejudicial to the defendant, though not unfairly so, the State contends that the impeachment value of the statement was considerable and outweighed the prejudice. Myrick’s testimony affirmatively damaged its case, argues the State, because his testimony indicated that his statement to the police was a lie. Impeachment of his credibility therefore was important to rehabilitate the State’s case. Finally, Respondent asserts that Walker’s arguments mistakenly confuse substantive evidence with impeachment evidence.

Even though the prior inconsistent statement would not be admissible as substantive evidence, it is permissible to use it for impeachment purposes because the purpose of the latter is to “attack the credibility of a witness who has offered detrimental testimony,” not to provide substantive evidence of guilt. Stewart v. State, 342 Md. 230, 242 , 674 A.2d 944, 950 (1996). B. At common law the voucher rule provided that the party calling a witness vouched for the credibility and veracity of that witness’s testimony. Patterson v. State, 275 Md. 563, 570 , 342 A.2d 660, 665 (1975).

The party calling the witness, pursuant to the voucher rule, could not impeach or discredit its witness by offering proof of prior contradictory statements. Id. If the calling party became disappointed by the witness’s testimony or if the evidence adduced from the witness was not beneficial to the calling party, he or she could not impeach the witness without a showing of something more. Poole v. State, ³⁸⁴ 290 Md. 114, 118 , 428 A.2d 434, 437 (1981).

If the witness’s testimony at trial was contrary to prior statements made to the calling party and the statements involved facts material to the case, then the calling party could impeach its own witness upon a showing that the party was surprised by the witness’s testimony. Id. “The Court should be satisfied that the party has been taken by surprise, and that the evidence is contrary to what he had just cause to expect from the witness based upon his statements,.... ” Murphy v. State, 120 Md. 229, 233-34 , 87 A. 811, 812-13 (1913). Once these prerequisites are satisfied, the witness may be cross-examined by the calling party as to his or her prior contradictory statements. Poole, 290 Md. at 119 , 428 A.2d at 438 .

The voucher rule is no longer a part of Maryland law. 6 Former Maryland Rule 1-501, now Maryland Rule 5-607, was adopted in 1989 and eliminated the voucher rule by providing that the credibility of a witness may be attacked by any party, including the calling party. 7 See Spence, 321 Md. at 528 n. 1, 583 A.2d at 716 n. 1. Following replacement of the voucher rule with Rule 5-607, debate commenced whether the surprise exception to the voucher rule continued to operate independently such that the party calling the recanting witness must be surprised by the witness’s testimony as a prerequisite to attempting impeachment. Petitioner relies on our holding in Bradley to support his argument that surprise still needs to be shown before a party may impeach its own witness. In Bradley the State charged ³⁸⁵ the defendant with kidnaping, armed robbery, and use of a handgun in the commission of a felony or crime of violence.

The victim testified that a man approached her as she was getting out of her car, placed a gun against her stomach, forced her to drive several blocks before ordering her out of the vehicle, and absconded with her car. Bradley, 333 Md. at 596 , 636 A.2d at 1001 . As part of its effort to place the defendant in the victim’s car at the time of the crime, the State proffered a phone bill reflecting calls made on the victim’s car phone within thirty minutes following the theft. 333 Md. at 597 , 636 A.2d at 1001 . The State then called the defendant’s cousin, Adrian Bradley, who testified that his home phone number matched the one listed on the victim’s phone bill and that he had received one or two phone calls from the defendant at about the same time the victim’s car was stolen.

Id. In response to questions from the prosecutor, Adrian Bradley denied that he told the investigating detective that the defendant had told him during their phone conversations that defendant had stolen a car or that he responded by telling the defendant he was stupid for stealing the victim’s car. Id. The State next called the detective who recounted his interviews with the defendant and his cousin.

The detective recounted that Adrian Bradley told him that the defendant bragged about stealing a car during their phone conversations at the time of the theft. Id. The prosecutor told the court that he was not surprised by Adrian Bradley’s testimony because, prior to trial, Adrian Bradley recanted the statements he made earlier to the detective. 333 Md. at 597-98 , 636 A.2d at 1001 . The trial judge permitted the jury to consider the detective’s testimony regarding his conversation with Adrian Bradley, but only for impeachment purposes.

This Court concluded, however, that although the earlier part of Adrian Bradley’s testimony was relevant and admissible, the latter portion was elicited solely to allow the State to impeach him through the use of otherwise inadmissible hearsay evidence and thus error entitling the defendant to a new trial. We held that “it is impermissible for a party in a criminal case, over objection, to venture into an independent ³⁸⁶ area of inquiry solely for purposes of ‘circumventing the hearsay rule and parading inadmissible evidence before the jury.’ ” 333 Md. at 602 , 636 A.2d at 1003 (quoting Spence, 321 Md. at 530 , 583 A.2d 715 ). Furthermore, we held that “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.” 333 Md. at 604 , 636 A.2d at 1004 (emphasis added). Bradley built upon Spence .

In Spence the State called a witness, Cole, knowing he would contribute nothing to the State’s case other than to get before the jury a hearsay statement implicating the defendant. When Cole did not testify as the State anticipated, the prosecutor called another witness to the stand to testify as to Cole’s earlier statements regarding the defendant. The State admitted that the latter witness’s testimony was inadmissible as substantive evidence and was only admissible to impeach Cole’s prior testimony. Spence, 321 Md. at 530-31 , 583 A.2d at 717 .

We found this maneuver by the State to be a “blatant attempt to circumvent the hearsay rule” and held that the State may not “call a witness who it knows will contribute nothing to its case, as a subterfuge to admit, as impeaching evidence, otherwise inadmissible hearsay evidence.” Id. Our holding in Spence applied to the witness’s testimony as a whole. Our holding in Bradley focused on discrete questions asked of the witness. Bradley, 333 Md. at 603 , 636 A.2d at 1004 .

Pursuant to Bradley , even if the sole purpose in calling a witness is other than subterfuge, the questioning by a party of its own witness concerning an “independent area of inquiry” intended to open the door for impeachment and introduction of a prior inconsistent statement could be found improper. 333 Md. at 604 , 636 A.2d at 1005 . We qualified our holding in Bradley by stating that “our holding is not applicable where there is no clearly independent area of inquiry or where failure to inquire into a possibly independent area of inquiry could create a gap in the witness’s ³⁸⁷ testimony such that a negative inference may arise against the prosecution.” 333 Md. at 606 , 636 A.2d at 1005-06 . As in Spence , the relevant factor in Bradley was whether the prosecutor had “full knowledge” that the witness intended at trial to recant his earlier statements to the authorities. The prosecutor in Spence admitted knowing that Cole would testify that Spence was not involved in committing the crime.

He also admitted that his primary intent in calling Cole was to set the stage to impeach his testimony with his prior statements implicating Spence, though elicited from a follow-on witness. 321 Md. at 528 , 583 A.2d at 716 . The prosecutor in Bradley likewise indicated that he knew before trial that Adrian Bradley had recanted his prior statements to the police and quite possibly would do so on the witness stand. 333 Md. at 597-98 , 636 A.2d at 1001 . In Bradley we stated that “the State is still entitled to impeach a witness with a prior inconsistent statement if the witness’s testimony comes as a surprise.” 333 Md. at 606 , 636 A.2d at 1006 . The meaning attributed to this statement by Walker, however, is not the meaning we attribute to it.

Petitioner asserts that Bradley reinvigorates the surprise prerequisite as it existed under the voucher rule. We interpret Bradley to mean that a showing of surprise by the calling party is but one possible indication that the calling party did not have full knowledge that the witness would recant on the stand. In the absence of such knowledge, the party may impeach its own witness’s testimony pursuant to Rule 5-607. As we stated in Bradley , if the State did not create the need to impeach its witness’s testimony, then it is permitted to impeach its witness with a prior inconsistent statement. 333 Md. at 607 , 636 A.2d at 1006 .

If a witness is called by a party to provide testimony helpful and relevant to that party’s case and the witness’s testimony is admissible, then the witness is permitted to testify. If a witness’s testimony is intended to be relevant to the calling party’s case, but the witness answers the calling party’s question(s) in an unexpected manner, such that the calling party then seeks to impeach its own witness through his or her prior statements, ³⁸⁸ the