Williams v. State

⁴ MOYLAN, Judge. As the mirage of apparent substance melts into illusion again and again, there unfolds before us on this appeal a desert of non-preserved might-have-beens. The appellant, Donald Williams, was convicted by a Baltimore County jury, presided over by Judge J. William Hinkel, of 1) the first-degree murder of his step-daughter, 2) the attempted first-degree murder of his wife, 3) conspiracy to commit first-degree murder, and 4) the use of a handgun in the commission of a violent crime. With respect to all of the crimes other than conspiracy, the appellant’s role was that of an accessory-before-the-fact.

The appellant was tried jointly with his son, Maurice Williams, who was the principal in the first degree. The evidence supported the jury’s conclusion that the appellant hired his son to kill Pamela Williams, who was the appellant’s wife and the stepmother of his son and codefendant. The son was to share in the premiums collected by the appellant from two life insurance policies on the wife’s life. In the ultimately botched murder attempt, Pamela Williams was seriously injured (blinded in one eye) but she survived.

Pamela Williams’s seventeen-year-old daughter, Tiffany Chisholm, was shot and killed, however, in a deliberate effort to eliminate her as an unexpected witness to the attack on her mother. “How Have I Failed to Preserve Thee? Let Us Count the Ways” This appeal is unusual in that not one of the appellant’s four primary contentions, some of which at least tentatively appear as if they might have had significant merit, has been preserved for appellate review. Involved, moreover, is not a single variety of non-preservation but a bounteous smorgasbord of non-preservations and waivers. On appeal, the appellant now argues 1) that the evidence was not legally sufficient to corroborate the testimony of the accomplice, Mark Bowie, and was, ⁵ therefore, not legally sufficient to permit the case to have been submitted to the jury; 2) that Judge Hinkel erroneously declined to instruct the jury on the necessity for corroborating an accomplice’s testimony with respect to the conspiracy charge; 3) that the evidence was not legally sufficient to support the conviction for the murder of Tiffany Chisholm; 4) that Judge Hinkel erroneously permitted an out-of-court statement by Reginald Johnson to be introduced into evidence; and 5) that the appellant was prejudiced in four other regards, those contentions having been raised by his son and codefendant, Maurice Williams, and adopted by the appellant but not further elaborated on in the appellant’s brief.

Although the effect of non-preservation is a constant, its instances in this case take various forms. Non-Preservation: Two Claims of Evidentiary Insufficiency Two of the appellant’s four primary contentions — 1) that challenging the adequacy of the corroboration of the testimony of the accomplice and 2) that challenging the proof of the appellant’s murderous mens rea in the case of Tiffany Chisholm — question the legal sufficiency of the State’s evidence to have permitted the judge, as a matter of law, to submit the case generally and the murder charge specifically to the jury. It is clear beyond dispute that the appellant has not preserved for appellate review either challenge to the legal sufficiency of the State’s evidence. At the end of the State’s case, the appellant did, indeed, move for a judgment of acquittal.

Even that motion was in the broadest and most conclusory of terms: “I make a motion for judgment of acquittal, Your Honor.” The question, however, of whether that motion satisfied Md. Rule 4-324(a) by “staffing] with particularity all reasons why the motion should be granted,” Bates v. State, 127 Md.App. 678 , 736 A.2d ⁶ 407 (1999); Brooks v. State, 68 Md.App. 604 , 515 A.2d 225 (1986), is not before us because that motion was effectively-withdrawn by the appellant when he then introduced Defense Exhibit No. 4 relating to insurance policies taken out by the appellant on Pamela Williams’s life. By introducing that exhibit, the appellant brought himself under the provisions of Maryland Rule 4-324(c), which provides: (c) Effect of denial. A defendant who moves for judgment of acquittal at the close of evidence offered by the State may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. In so doing, the defendant withdraws the motion.

(Emphasis supplied). At the end of the entire case, the appellant made no further motion for a judgment of acquittal. In dealing with an appeal in precisely the same procedural posture, the Court of Appeals in Ennis v. State, 306 Md. 579 , 510 A.2d 573 (1986), first noted, 306 Md. at 585 , 510 A.2d 573 , that the Maryland Rule has “been construed to preclude appellate courts of this state from entertaining a review of the sufficiency of the evidence, in a criminal case tried before a jury, where the defendant failed to move for judgment of acquittal at the close of all the evidence.” (Emphasis supplied). Its holding, 306 Md. at 587 , 510 A.2d 573 , is unequivocal: In the instant case, appellant moved for judgment of acquittal at the close of the State’s case.

That motion was denied. Following that denial, the appellant put on her case. ” However, she failed to renew her motion for judgment of acquittal at the close of all the evidence. Her failure to do so effectively precluded the trial court from considering her insufficiency contention. Consequently, there was nothing for the Court of Special Appeals to consider; similarly, there is nothing for us to consider here.

Art. 27, § 593; Md. Rule 4-324. (Emphasis supplied). Equally emphatic is Lotharp v. State, 231 Md. 239, 240 , 189 A.2d 652 (1963): ⁷ Since no motion for judgment of acquittal was made at any stage of the trial there can be no review of the sufficiency of the evidence on appeal. Under the provisions of § 5 of Art. XV of the Constitution of this State, Code (1957), Art. 27, § 593, and Maryland Rule 755, an appellate review of the sufficiency of the evidence in a criminal case tried by a jury is predicated on the refusal of the trial court to grant a motion for judgment of acquittal.

(Emphasis supplied). There is no Maryland case in which an appellate court of this State has ever even examined the merits of a challenge to the legal sufficiency of the State’s evidence following a criminal conviction by a jury when the defendant had failed to make a timely motion for a judgment of acquittal. Although we would not be inclined to overlook the non-preservation of the current challenge even if we had the discretion to do so, this principle of non-preservation is not even discretionary. The Court of Appeals could not have been more clear in Wersten v. State, 228 Md. 226, 229 , 179 A.2d 364 (1962): However, this was a jury trial and no motion for a judgment of acquittal was made; hence we are not at liberty to pass upon the sufficiency of the evidence.

(Emphasis supplied). Although there is no instance of a Maryland appellate court’s ever applying the “plain error” exception so as to entertain a non-preserved challenge to the legal sufficiency of the State’s evidence, it is significant that in this case the appellant does not even invoke “plain error.” In the discussion of these two contentions in the appellant’s brief, there is no mention or even allusion to either preservation generally or to the “plain error” exemption from the foreclosing effect of non-preservation. Even in the face of the State’s argument, in its brief, that neither sufficiency challenge has been preserved for appellate review, the appellant’s reply brief again fails even to mention the subject with respect to these two contentions. ⁸ Despite our holding that neither of these first two contentions has been preserved for our review, we are nonetheless constrained to note that one of them — that involving his homicidal mens rea in the case of Tiffany Chisholm— appears, at least on cursory observation, as if it might have had some substantial merit. 1 Although it seems unlikely that the appellant could totally escape complicity for the killing of Tiffany Chisholm even if he had not anticipated it, Sheppard v. State, 312 Md. 118,121-22 , 588 A.2d 773 (1988); Grandison v. State, 305 Md. 685, 703-04 , 506 A.2d 580 (1986); Veney v. State, 251 Md. 159, 174 , 246 A.2d 608 (1968); Fabian v. State, 235 Md. 306, 317 , 201 A.2d 511 (1964), it might turn out, on a closer examination of the merits, that there would still remain a question as to what precise homicidal mens rea he possessed and at what particu ⁹ lar level his homicidal guilt (first-degree murder, second-degree murder, manslaughter) would be established. This conceivably could have been the occasion to explore the still uncharted waters of second-degree murder pursuant to the common law felony-murder doctrine.

The planned murder of Pamela Williams would certainly have been a violent and life-endangering felony. If Tiffany Chisholm was killed in the course of its attempted perpetration and for the purpose of eliminating her as a witness, the mens reo-generating capacity of the common-law felony-murder doctrine might well have pertinence. There would still be involved, of course, at least a question as to the level of guilt of an accessory before the fact who had not anticipated that particular homicide. Because of non-preservation, however, it would be inappropriate even to speculate further about a question that might require a small treatise by way of resolution.

It is enough to note that the issue at least seems worthy of having been preserved for further examination. To be sure, even if this contention had been preserved for appellate review and even if the appellant had prevailed on the merits, the only conviction that would apparently have been affected would have been that for the first-degree murder of Tiffany Chisholm. The other three convictions would not have been influenced by the fortunes of the homicidal mens rea of the appellant in the case of Tiffany Chisholm. That limitation, however, does not vitiate the potential significance of the contention.

Non-Preservation: A Challenge to Jury Instructions A third of the appellant’s four primary contentions is that Judge Hinkel erroneously failed to instruct the jury, with specific reference to the conspiracy charge, that it was required to find that the testimony of the alleged accomplice, Mark Bowie, was corroborated before it could fairly consider such testimony against the appellant. Once again, non-preser ¹⁰ vation, like the head of Medusa, stares at us with a paralyzing gaze. Mark Bowie was the key State’s witness. Mark Bowie was the accomplice of Maurice Williams at the time of the shootings.

Indeed, he entered a guilty plea to murder in the second degree, as a principal in the second degree. At the conclusion of the trial, the appellant requested that Judge Hinkel instruct the jury on the requirement that the testimony of an accomplice be corroborated. Specifically, the appellant asked the court to read to the jury § 311A of the Maryland Pattern Jury Instructions: Criminal. At that point, the issue seemed to be a simple one: Mark Bowie either was or was not an accomplice.

The State did not object to the instruction being given generally but sought to inject the distinction that Mark Bowie was a possible accomplice with respect to the consummated crimes but had not been a participant and, therefore, was not an accomplice with respect to the antecedent conspiracy. The State argued that although Mark Bowie’s testimony needed to be corroborated with respect to the other three charges, it did not need to be corroborated to be considered on the conspiracy charge. The appellant made no argument to counter that distinction. He remained completely passive with respect to it.

At one point, after counsel for Maurice Williams opposed any instruction on Mark Bowie’s possible status as an accomplice, Judge Hinkel sought to ascertain which of the two codefendants had requested the instruction as to accomplice testimony. Counsel for the appellant replied: Mr. Stange [Counsel for appellant]: It was my requested instruction. The Court: For what purpose? Mr. Stange: Because we believe he’s an accomplice.

The Court: As to what? Mr. Stange: At least as to murder. (Emphasis supplied). That is a far cry from his present argument.

Judge Hinkel agreed with the State as to the propriety of the distinction and accordingly gave the jury the ¹¹ following preliminary advice before reading to them the Pattern Jury Instruction itself: The Court: You have heard testimony from Mark Bowie, who is alleged to be an accomplice in this case. That has to do with the charge of murder. So that this instruction that I give to you with respect to an accomplice does not apply to conspiracy, but applies to the charge of first degree murder. After Judge Hinkel finished instructing the jury, he called counsel to the bench and the following colloquy took place: The Court: So while we’re all lined up here, anything else on the instructions: The State: No. Counsel for Donald Williams: No, sir.

On the surface of things, the distinction requested by the State and made by the court initially seemed to be a reasonable one. There was a strong inference that Mark Bowie was Maurice Williams’s accomplice at the time of the shootings. The only evidence with respect to the formation of the antecedent conspiracy, however, was that the appellant had approached Mark Bowie a full month before the shootings and that Mark Bowie had expressly declined to get involved in any way. Before this Court, the appellant now argues, more subtly, that even though Mark Bowie may not have been a member of the original conspiracy, he may nonetheless have joined the conspiracy at the eleventh hour as he drove Maurice Williams to the crime scene.

That nuance with respect to last-minute conspiratorial involvement, however, was never argued by the appellant to Judge Hinkel and was never brought to the judge’s attention in any way. The nuance may have validity but it is not something that necessarily leaps off the page. The appellant was obviously unaware of the nuance he now advances or he would never have replied that he thought he was entitled to the accomplice instruction “at least as to murder,” which is exactly what he got. ¹² In holding that the appellant has not preserved for appellate review any -objection to the jury instruction as given by the court, moreover, we are not treating the appellant’s answer, “No, sir,” as an affirmative acquiescence in the instruction. The presence of the word “else” in the judge’s inquiry might conceivably create some ambiguity as to what exactly the appellant was asked and, therefore, as to whether the appellant expressly acquiesced.

It is, rather, the absence of any affirmative objection by the appellant at any time after the issue of the distinction arose that is foreclosing. From the moment the distinction was first proposed by the State through the court’s decision to make the distinction, the actual giving of the instruction with the prefatory distinction, and the ensuing pause during which exceptions could be registered, the appellant evidenced no disagreement or chagrin whatsoever. His only comment was that he was entitled to the instruction “at least as to murder.” That position was completely in line with the distinction ultimately made. Even though the appellant initially requested an instruction on corroboration, the failure of the appellant to object after the issue of the distinction was introduced and after the instruction containing that distinction was given is, we hold, the same as the failure of a defendant to object to a reinstruction even after having objected to the original instruction.

In Collins v. State, 318 Md. 269 , 568 A.2d 1 (1990), the defendant made a timely objection to the trial judge’s instruction to the jury on the subject of reasonable doubt. The court then reinstructed the jury and the defendant lodged no objection to the reinstruction. Even though the trial judge was generally alerted as to the existence of the issue, under the circumstances the Court of Appeals held squarely, 318 Md. at 284 , 568 A.2d 1 , that the defendant there had not preserved for appellate review his challenge to the court’s instructions on reasonable doubt: Counsel’s failure to except to the reinstruction is indicative of an acceptance and approval of the amended form used. Under these circumstances, defense counsel has failed to preserve the challenge to the court’s instructions on reason ¹³ able doubt.

Maryland Rule 4-325(e) provides that “no party may assign as error the giving or failing to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.” (Emphasis supplied). In Bowman v. State, 337 Md. 65 , 650 A.2d 954 (1994), the trial judge instructed the jury on the subject of the imperfect defense of others. Defense counsel there evidenced some chagrin at the instruction but did not particularize it. He nonetheless did state that “even though you touched upon it, you really didn’t go into a more specific kind of imperfect defense of others.

But that’s my only comment. I think it was a little sketchy even though you incorporated some of it, but it wasn’t exactly what I had in mind.” Again, the mere fact that the judge knew that imperfect defense was somehow an issue in the case was not ipso facto enough to preserve the issue for appellate review. When the trial judge then indicated that he was not going to give any further instructions, defense counsel, instead of objecting, said simply, “Thank you”: The Court: Okay. Again, I think the instructions as given are sufficient and I’m declining to give any further instructions. [Defense Counsel]: Thank you, Your Honor. 337 Md. at 68 , 650 A.2d 954 .

In holding that such undifferentiated angst followed by a “Thank you” was not enough to preserve the challenge to the instruction for appellate review, Judge Raker, 337 Md. at 68-69 , 650 A.2d 954 , was very emphatic: As the record indicates, defense counsel made no express request, in writing or orally, for an instruction on “imperfect” defense of others. He merely stated to the court that the instruction as given was not “exactly what [he] had in mind.” Furthermore, counsel did not bring to the court’s attention the portion of the instructions which he thought ¹⁴ was “sketchy,” nor did he state to the court in what manner the instructions should be amended. Here, the court conferred with counsel at the bench after the instructions were given but before the jury retired. By failing to offer specific additional instructions at this time, appellant waived his objection.

We therefore hold, in accordance with Maryland Rule 4-325, that the issue is not preserved for our review. (Emphasis supplied). This Court has held that it is not enough that the trial judge be generally alerted to the subject in issue. In Young v. State, 14 Md.App. 538 , 288 A.2d 198 (1972), an objection was lodged to the judge’s initial instruction on the jury’s function as judge of the law and the facts.

After an extended discussion, the trial judge gave a supplementary instruction and “no exception was taken to the supplementary instructions.” In holding that the defendant’s challenge to the jury instructions had not been preserved for appellate review, Judge Orth said for this Court, 14 Md.App. at 565 , 288 A.2d 198 : He now construes the supplementary charge as telling the jury that they were not the judge of the law as it pertains to responsibility for criminal conduct but were bound by the statutory definition and that such definition could not be disregarded in arriving at a verdict. Here again, there being no objection to the supplementary instruction as provided by § f of Rule 756, Young may not assign error as of right. (Footnote omitted; emphasis supplied). The appellant’s challenge to the jury instruction in this case was not preserved for appellate review.

Once again, the appellant does not even ask us to consider the possibility of “plain error.” He argues that his objection to the ultimate instruction was, indeed, preserved by virtue of his initial and general request for an instruction. He does not argue, even as a contingent alternative, a “plain error” exemption from the ¹⁵ preservation requirement in case the preservation issue should be decided against him. Again, however, we cannot help but note that if the contention had been preserved, it may have had some merit. There was at least a genuine dispute of fact as to whether Mark Bowie ultimately joined the conspiracy and was, therefore, an accomplice with respect to it.

In such a circumstance, where a witness might or might not be an accomplice, the defendant could be entitled to a conditional instruction. In this regard, we observed in Trovato v. State, 36 Md.App. 183, 187-88 , 373 A.2d 78 (1977): The permissibility of such a finding would simply entitle the appellant in a jury trial to an instruction, upon proper request, to the effect that if the jury found the witness to be an accomplice, they must then find independent corroborative evidence linking the appellant to the crime. The fact that the evidence was legally sufficient to permit the finding that the witness was an accomplice does not imply that the evidence could not also have been legally sufficient to permit the finding that the witness was not an accomplice. The fact finder was entitled to resolve that question either way.

On the other hand, even if this contention had been preserved for appellate review and even if the appellant had prevailed on the merits, the apparent impact would have been only on the conspiracy conviction and not on the other three convictions. Such limited applicability, however, would not divest the contention of significance. The fact that the jury presumably found, on the other hand, that the testimony of Mark Bowie was, indeed, corroborated with respect to the other three charges, on which it had been fully advised as to the need for corroboration, might make the appellant’s argument with respect to the conspiracy conviction moot. The corroboration of an accomplice’s testimony is a unitary phenomenon and not something that varies from charge to charge.

If the jury actually found adequate corroboration generally, the failure to have instructed them that they had to find it with respect to a particular count may have been ¹⁶ rendered meaningless. The appellant’s present contention might have had more compelling merit if the jury had convicted him of conspiracy, as to which they had not been instructed as to the need for corroboration, but had acquitted him of all other charges, as to which they had been so instructed. It is not necessary for us to speculate, however, as to how this contention might have been resolved on its merits if the merits were to have been considered. It is enough to note that cogent arguments could have been mounted in either direction and that the contention was at least worthy of being preserved for serious analysis.

Non-Preservation: Subsequent Waiver of an Evidentiary Challenge The appellant’s final fully developed contention challenges the admission into evidence, through Detective Jay Landsman, of a five-page written statement (in question and answer form) given to the police by Reginald Johnson, a witness for the State. The shootings in this case took place on the night of August 29-30, 1990. The investigative trail then went cold for almost eight years. During the intervening years, at sometime in 1993 or 1994, Maurice Williams, the gunman, had a critical conversation with Reginald Johnson, in the course of which Maurice Williams made damaging admissions as to his role in the shootings.

In addition to admitting his own guilt, Maurice Williams also implicated the appellant. The police only learned of these admissions on March 20, 1998 when Detective Landsman interviewed Reginald Johnson and took the statement now in question. At trial, Reginald Johnson testified, without objection, as to the incriminating conversations Maurice Williams had with him in 1993 or 1994. The present contention involves the State’s supplementation of Johnson’s testimony by introducing into evidence, through Detective Landsman, the March 20, 1998 written statement given by Johnson to the police. ¹⁷ The appellant before us makes a two-pronged attack on the introduction of the written statement.

He claims that it was error to have admitted the statement because it did not qualify as that exception to the Rule Against Hearsay traditionally known as “Past Recollection Recorded” and now codified as Md. Rule 5-802.1(e). He also claims that it was error to have admitted the written statement because it violated his right to confrontation under the Sixth Amendment of the United States Constitution, as implemented by Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968). Once again, the appellant finds himself in the compromising posture of not having preserved for appellate review his objection in either of these regards. Indeed, his position is “twice-curst.” In the first instance, he did not adequately object to the introduction of the written statement on either of the particularized grounds he now argues before us.

In the second place, even if he had, arguendo, properly noted an initial objection, that objection was waived when the same evidence came in on other occasions, both earlier and later, without objection. Closely intertwined with all of this discussion is a redaction problem, raised not by the appellant himself but by Judge Hinkel sua sponte on the appellant’s behalf and based on classic hearsay grounds. Jumbled together, all of these considerations create a mare’s nest of confusion. We shall try as best we can to isolate the sub-issues into self-contained compartments.

A. Past Recollection Recorded: Reginald Johnson testified as a State’s witness on the second day of trial, February 18, 1999. He had been a coworker and social friend of Maurice Williams for a number of years. He was familiar with the 1990 murder of Maurice Williams’s stepsister and the attempted murder of his stepmother and with the rumors swirling about the case at that time and in the years that followed. His critical testimony ¹⁸ concerned a conversation he had with Maurice Williams sometime in 1993 or 1994, in the course of which Maurice Williams made damaging admissions.

In his testimony, Johnson related the following, with no objection being lodged by either the appellant or Maurice Williams: A: Well, he just said he was involved with it and it was something to do with some insurance money. And that Tiffany getting killed was a mistake. Q: Okay. Did he get into more detail than that?

A: No. I can’t recall going into deep detail. (Emphasis supplied). When Johnson indicated that he could not “recall going into deep detail,” the State showed him a copy of his written statement to the police of March 20, 1998. Initially, the statement was not offered or received in evidence but was only used as a stimulus to refresh the witness’s present recollection.

Baker v. State, 35 Md.App. 593, 598-605 , 371 A.2d 699 (1977). In that capacity as a memory aid, it had at least partial success: Q: Do you recall making a statement, a written statement about that? A: Yes. Q: If I could have this marked as State’s exhibit.

And counsel has been provided a copy. I’m going to ask you to look through this and see if it refreshes your memory as to what Maurice told you that night. A: Yes, I recall most of it. Q: Do you recall what Maurice told you about what happened?

A: Some of it. Q: Some of it you recall and some of it you don’t? A: Yes. Q: What part of it do you recall?

A: Well, I remember me asking how he got there. Q: What was his response? ¹⁹ A: He told me that Mark Bowie took him out there to Reisterstown Mall. I remember mentioning something about insurance and I don’t remember how much. Q: Did you mention insurance or did he mention insurance?

A: He mentioned it. Q: And you said that he said that Tiffany was an accident? How did he say that? A: Something like it was a mistake or she knew too much or something like that or something to that effect.

(Emphasis supplied). The appellant did not object to that testimony by Reginald Johnson, notwithstanding the fact that the references to insurance circumstantially linked him to the shootings. It had already been established that the appellant was the beneficiary of the life insurance policies on his wife’s life. Johnson’s trial testimony was not in any way inconsistent with what he had said in his signed statement to the police.

As far as his recounting of the admissions made by Maurice Williams was concerned, his trial testimony was almost, but not quite, as extensive as his written statement. In shifting gears from using the statement as a stimulus to refresh present recollection to offering it in evidence as an instance of past recollection recorded, the State developed from Johnson that looking at the statement did not refresh his recollection totally. He did, however, remember giving the statement. He read each of the five pages of his statement and signed each page at the bottom.

He vouched for the fact that his signature attested to the writing as being “in fact correct.” At that point, the State offered the written statement in evidence. Counsel for the appellant, as well as counsel for the codefendant, said, “Objection.” Beyond that, the nature of and the grounds for the appellant’s objection are a mystery: Mr. Brown: Objection. ²⁰ Mr. Stange [Counsel for appellant]: Objection. The Court: I will see you here. Whereupon, Counsel along with Donald Williams approached the bench for a bench conference.

Mr. Stange: Witness is on the stand— The Court: I know. Mr. Stange: — to testify. (Emphasis supplied). That was the only objection to Johnson’s written statement that the appellant ever made.

From the subsequent colloquy between Judge Hinkel and counsel for the codefendant, it seems clear that their disagreement was over whether the statement would qualify as a hearsay exception pursuant to Rule 5-802.1(e), which reads, in pertinent part, as follows: 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: (e) A statement that is in the form of a memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, if the statement was made or adopted by the witness when the matter was fresh in the witness’s memory and reflects that knowledge correctly. At the end of the discussion, in which the appellant did not join, the court concluded: The Court: [T]his one I think is admissible under that rule that if it is his statement and he says it is his statement and it can’t refresh his recollection, then it can come in. So I will allow it in. Mr. Brown [Counsel for codefendant]: Very well.

The appellant entered no objection to Judge Hinkel’s ruling. The appellant now argues that the statement failed to qualify for admissibility under Rule 5-802.1(e) in two regards. ²¹ He claims first that there was an inadequate showing of flawed memory, to wit, with respect to “matters about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately.” See, however, Mouzone v. State, 294 Md. 692, 701 , 452 A.2d 661 (1982)(to qualify a past recollection recorded, the proponent must show only some impairment of present recollection); Sanders v. State, 66 Md.App. 590, 599 , 505 A.2d 557 (1986)(it is only necessary to show “some impairment of memory”). The appellant also claims that a three-to-four-year lapse of time between the event described and the making of the memorandum disqualified it as a statement made “when the matter was fresh in the witness’s memory.” Had the issue been preserved for appellate review, the statement might arguably have been vulnerable in this regard, notwithstanding Bloodsworth v. State, 307 Md. 164, 189-92 , 512 A.2d 1056 (1986)(the language of Bloodswortk as to the lapse of time going only to weight, not admissibility, points in one direction; the actual facts in Bloodswortk, a mere two-day lapse between the event and its memorialization, points in the other direction.) Before Judge Hinkel, however, the appellant did not even mention Md. Rule 5-802.1(e) or its earlier incarnation as the past recollection recorded exception to the hearsay rule. The appellant did not make either of the more nuanced criticisms of the statement he now advances.

For that matter, neither did the appellant’s codefendant, arguably permitting the appellant to piggy-back on the codefendant’s argument. Deferring for a moment our discussion of the subsequent decision of Judge Hinkel to have part of the statement redacted, the question of the statement’s general admissibility never again arose. We hold that the appellant’s present attack on the statement as somehow violating Md. Rule 5-802.1(e) has not been preserved for appellate review. ²² B. Sixth Amendment Confrontation: In arguing that Judge Hinkel erroneously permitted the statement given by Reginald Johnson to the police on March 20, 1998 to be introduced into evidence and to be read to the jury by Detective Landsman, the appellant now advances, for the first time on appeal, the additional argument that the admission of the statement violated his Sixth Amendment right to confrontation. He invokes the Supreme Court cases of Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968); Richardson v. Marsh, 481 U.S. 200 , 107 S.Ct. 1702 , 95 L.Ed.2d 176 (1987); Gray v. Maryland, 523 U.S. 185 , 118 S.Ct. 1151 , 140 L.Ed.2d 294 (1998); and the Maryland decision of In re Montrail M., 87 Md.App. 420 , 589 A.2d 1318 (1991).

The written statement in question consists primarily of admissions made to Reginald Johnson by Maurice Williams in which Maurice Williams acknowledges his own guilt. To the extent to which some of those admissions also implicate the appellant, however, the appellant now claims that since Maurice Williams never took the stand, the appellant was thereby denied the right to confront his accuser. The appellant’s problem is that he never raised before Judge Hinkel any objection based on the Confrontation Clause. We have painstakingly set out every pertinent word by court or counsel from the time the State first offered the written statement during the testimony of Reginald Johnson on February 18 through Judge Hinkel’s ultimate ruling that it was admissible.

The only issue on the table dealt with when and how a statement utilized initially as a stimulus for present recollection refreshed might, when it partially fails in that regard, ripen into an exception to the hearsay rule on the ground that it is then an instance of past recollection recorded. There was no mention by anyone of the Sixth Amendment or the Confrontation Clause or Bruton v. United States or any state or federal progeny of Bruton . Such an issue was simply not before the court. ²³ When Judge Hinkel subsequently raised the issue of redacting several designated portions of the statement before it was read to the jury, a subject that we shall discuss more fully infra in another context, there was no mention by appellant’s counsel, by counsel for the codefendant, by the court, or by the State of any problem related to the Confrontation Clause or to Bruton . The distinction then being drawn for redaction purposes was between bad hearsay (where the rumor mill was the source) and good hearsay (that which qualified as an admission by a party opponent).

There was no distinction being discussed between what was admissible against one codefendant but not against another. A Bruton-type problem was not remotely alluded to by anyone. Because Judge Hinkel’s purpose, when he sua sponte raised the issue of redaction, was so clearly that of distinguishing the hearsay declarations where Maurice Williams had been the source (which were not to be redacted regardless of whom they implicated) and the hearsay declarations that had emanated from either the rumor mill or from James Howard (which were to be redacted), we are constrained to note our chagrin at the mischaracterization of Judge Hinkel’s purpose in the appellant’s reply brief, a mischaracterization that has no basis in fact: “When the trial judge realized that the proceedings might be imperiled by incipient Bruton error in reading the entirety of Reggie’s statement, he ordered reference to the defendant redacted, and the prosecutor agreed to ‘deal with it.’ ” There is no basis for concluding that Judge Hinkel “realized” the peril of or was attempting to deal with an “incipient Bruton error.” The danger of such a blatant mischaracterization is that it increases the likelihood that some appellate tribunal might invoke the “plain error” exemption from the preservation requirement by giving the false impression that the trial judge was fully alerted to a possible violation of the Confrontation Clause and that the failure of a defendant to alert the trial judge to the existence of a Bruton issue, therefore, made no difference. The question of whether a judge has been ²⁴ alerted to, or is sua sponte aware of, the existence of a particular legal issue in a case is one of the factors that may-have an important bearing on a “plain error” analysis.

Potential Bruton problems were not in any way a part of the redaction discussion and the assertion that they were in Judge Hinkel’s mind has no basis in fact. Although the evidentiary ruling that the written statement was to be admitted came in the course of the testimony of Reginald Johnson on February 18, the statement itself was not actually read into evidence until Detective Landsman took the stand on February 22. At that time, there was no objection to his reading the statement by anyone on any ground. A fortiori, it follows that the appellant raised no issue with respect to Bruton v. United States or the Confrontation Clause.

Indeed, even when the appellant raised the admission of the written statement as one of his grounds to support his motion for a new trial on April 20, he did not argue a Bruton violation. His attack on admissibility at that hearing, not pursued on this appeal, was two-fold. He claimed that the admissibility ruling was on the basis of Md. Rule 5-802.1(e) and that that Rule, which became effective on July 1, 1994, should not have been applied to the trial of a crime that occurred prior to that effective date. His second attack on admissibility was based on the fact that Reginald Johnson was not a “turncoat witness” within the contemplation of Nance v. State, 331 Md. 549 , 629 A.2d 633 (1993).

His argument at that hearing did not raise the issue of the Confrontation Clause or of Bruton v. United States. We hold that no objection to the written statement on the basis of the Confrontation Clause has in any way been preserved for appellate