Williams v. State

⁵²² KRAUSER, C.J. In February 1998, Tony Williams, appellant, was convicted by a jury in the Circuit Court for Baltimore City of first-degree murder, the use of a handgun in the commission of a crime of violence, and carrying a handgun in the fatal shooting of Dana Drake. When his convictions were upheld by this Court, appellant filed a petition for post-conviction relief. That petition was denied by the circuit court. We, however, reversed that decision and remanded the case for a new trial, because the prosecution, in our view, had failed to disclose to the defense material impeachment evidence.

Williams v. State, 152 Md.App. 200 , 831 A.2d 501 (2003). The Court of Appeals affirmed. State v. Williams, 392 Md. 194 , 896 A.2d 973 (2006). In April 2007, almost nine years after his first trial, Williams was again convicted of the same offenses.

Appealing those convictions once more, he presents four questions for our review: I. Did the circuit court err by not dismissing appellant’s indictment with prejudice, given the prosecution’s repeated Brady violations in this case?

II

Did the circuit court err in admitting a videotape of the prior testimony of Brenda O’Carroll, a key State’s witness who died before appellant’s second trial, where the prosecution withheld evidence that O’Carroll was legally blind?

III

Did the circuit court err in denying appellant’s motion to suppress statements that he allegedly made to informant Sean Williams while they were jailed together, where the informant secretly interrogated appellant about the decedent’s murder and tried to use his cooperation with the police in order to obtain a lower sentence?

IV

Did the circuit court err by failing to strike the testimony of a homicide detective who opined that the ⁵²³ evidence established appellant’s guilt beyond a reasonable doubt? For the reasons set forth below, we shall affirm. Facts The facts of this case have been set forth by this Court in two separate opinions and by the Court of Appeals in one. We need not now engage in another lengthy recounting of all the evidence presented at appellant’s retrial when a brief summary of that evidence will more than satisfy the demands of this appeal.

Dana Drake, the victim, was shot and killed with a .22 caliber gun on February 21, 1998, at approximately 3:00 a.m. About an hour-and-a-half later, appellant, who, at that time, was the victim’s flaneé, called the police to report the shooting. He asked them to meet him at a location not far from the victim’s apartment building. Driving a red Corvette and dressed in black, he led the police to the victim, who was lying dead in the stairwell of her apartment house.

Appellant told police at the scene that Ms. Drake had an “estranged relationship” with another man and that that man had threatened to hurt her. Two neighbors of the victim, Shannond Fair and Brenda O’Carroll, heard gunshots at approximately 3:00 a.m. on the day that the victim was murdered. Shannond Fair looked out his window after hearing “more than one” gunshot and, though it was “pitch dark” outside, saw somebody in black clothing running from the scene. Brenda O’Carroll was able to provide more details, but not in person.

A videotape of her testimony at appellant’s first trial was played for the jury, as she had passed away before the commencement of appellant’s retrial. She claimed to have seen appellant get out of a red Corvette, chase the victim into the apartment building, and fire two shots at her. After she heard a third shot, she saw appellant run from the building and jump into his car. She then opened her door and saw the victim sitting on the third step of the stairway leading to the next floor, “with her head ⁵²⁴ on the side, dead.” Appellant subsequently admitted to police that he had previously purchased a .22 caliber handgun.

And then, anticipating the results of a gunshot residue test he had undergone, he informed them that “he had fired a handgun earlier that day at a gun range.” Later, however, he changed his story, stating that he had accidentally fired a gun that evening. After his arrest and while incarcerated at the Baltimore City Detention Center, appellant confided to a fellow inmate, Sean Williams, that he had shot the victim and that he had done so to obtain the proceeds from an insurance policy. Less than two years earlier, he and the victim had purchased a $100,000 life insurance policy with a spousal rider providing that, if the victim died, appellant was to receive the proceeds of the policy. Appellant was, at the time of the shooting, over $90,000 in debt.

Appellant further told Sean Williams that he intended to blame the shooting on another man whom the victim was seeing. After his first trial, appellant was convicted of first-degree murder, the use of a handgun in a crime of violence, and carrying a handgun. Those convictions were overturned and a new trial was ordered because the State had failed to inform appellant, as required by Brady v. Maryland, that Sean Williams had been a registered, paid police informant. Before the new trial was to take place, Detective Sergeant Darryl Massey testified at a suppression hearing that Ms. O’Carroll, now deceased, had told him that she was legally blind at the time of the murder and that he had observed behavior that suggested her sight was impaired.

This information had not been previously disclosed to appellant. In a series of motions that followed, appellant requested that Ms. O’Carroll’s videotaped testimony be excluded or, in the alternative, that portions of her testimony, regarding what she claimed to have seen, be redacted; that the statements he had made to Sean Williams be suppressed; and, further, that the indictment be dismissed for multiple Brady violations. All of these motions were denied. ⁵²⁵ Discussion I. Appellant contends that the circuit court erred in failing to dismiss appellant’s indictment with prejudice for what he describes as “repeated” Brady violations by the State. But, he cites only two such violations, and both occurred before appellant’s first trial.

They were: the State’s failure to inform the defense that Sean Williams had been a paid police informant and the failure of Detective Sergeant Massey to disclose Ms. O’Carroll’s self-described “legal blindness.” The failure of the State to inform appellant of Sean Williams’ status was the basis for granting appellant a second trial. At a hearing after his first trial, but more than a month before his second, Detective Sergeant Massey mentioned for the first time that, when he spoke to Ms. O’Carroll, she told him that she was legally blind. At that time, he also observed that “[h]er demeanor was consistent with someone who may have a sight imparity [sic].” This information was thus revealed to appellant before his second trial, and, during that trial, he made use of it in opening statements, in the cross-examination of Detective Massey, and in closing argument. To bolster his argument that dismissal was an appropriate remedy for the two Brady violations, appellant quotes the following language from Government of the Virgin Islands v. Fahie, 419 F.3d 249, 255 (3d Cir.2005): “[W]here a defendant shows both willful misconduct by the government and prejudice, dismissal may be the appropriate sanction for a Brady violation.” The State responds that, first, there were not two Brady violations, but one, because Detective Massey’s failure to disclose Ms. O’Carroll’s eyesight problem was not a Brady violation.

And second, even if Detective Sergeant Massey’s lack of disclosure was a Brady violation, both violations were cured by the advent of the second trial and do not warrant dismissal of the indictment with prejudice. “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; ⁵²⁶ that evidence must have been suppressed by the State, either wilfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 282-82 , 119 S.Ct. 1936 , 144 L.Ed.2d 286 (1999). “Suppression contemplates the ultimate concealment of evidence from the jury....” DeLuca v. State, 78 Md.App. 395, 424 , 553 A.2d 730 (1989). In other words, “[t]he Brady[v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963)] sin is in hiding something and keeping it hidden____” Id. Therefore, a late disclosure oí Brady material, even “very near the time of trial,” does not necessarily constitute “suppression” and, hence, a Brady violation. Bloodsworth v. State, 76 Md.App. 23 , 43 n. 16, 543 A.2d 382 (1988) (holding that disclosure of exculpatory evidence twelve days before trial was not a suppression of evidence under Brady).

Ms. O’Carroll’s assertion that she was “legally blind” was not kept “hidden” but was actually disclosed by Detective Sergeant Massey well in advance of appellant’s second trial. Consequently, although the concealment of that evidence was arguably a Brady violation at the time of the first trial, it was no longer a Brady issue at the time of the second. In short, the Brady problem as to this piece of evidence was resolved by the granting of the second trial. Indeed, the provision of a new trial is the standard remedy for a Brady violation, for the simple reason that evidence, which was initially suppressed, can then be presented to a new jury.

See California v. Trombetta, 467 U.S. 479, 486-87 , 104 S.Ct. 2528 , 81 L.Ed.2d 413 (1984) (observing that “[i]n nondisclosure cases, a court can grant the defendant a new trial at which the previously suppressed evidence may be introduced”); United States v. Davis, 578 F.2d 277, 280 (10th Cir.1978) (holding that “a violation oí due process under Brady does not entitle a defendant to an acquittal, but only to a new trial in which the convicted defendant has access to the wrongfully withheld evidence”). That being so, we have no reason to now depart from this well-settled approach to curing such violations. In the instant case, there were two pieces of impeachment evidence that the ⁵²⁷ State did not disclose to appellant prior to the first trial: 1) that Sean Williams was a paid informant in other cases for the Baltimore City Police and 2) that Ms. O’Carroll told Detective Sergeant Massey that she was legally blind and that Detective Sergeant Massey observed, at that time, behavior in Ms. O’Carroll that suggested a sight impairment. Because this evidence was disclosed before appellant’s second trial, he was free to use it at that proceeding.

We, of course, agree that appellant’s situation was clearly complicated by Ms. O’Carroll’s death. She died after testifying at appellant’s first trial and her purported legal blindness was not disclosed until after her death. But, as we noted previously, “the Brady sin is hiding something and keeping it hidden,” DeLuca v. State, 78 Md.App. 395, 424 , 553 A.2d 730 (1989), and the remedy for that transgression is disclosure. The intervening death of Ms. O’Carroll, while unfortunate, does not create a Brady problem.

What it does do, however, is raise evidentiary and constitutional issues. To be more precise, whether the circuit court was correct in admitting the videotaped testimony of Ms. O’Carroll, given the appellant’s inability to ask her about her “legal blindness,” is an evidentiary and constitutional question separate and apart from the question of a Brady violation, and that issue we will address in the next section of this opinion.

II

Appellant contends that the court’s admission, at appellant’s second trial, of Brenda O’Carroll’s videotaped testimony from the first trial violated Rule 5-804(b)(l) of the Maryland Rules of Evidence and the Sixth Amendment because he did not have the opportunity to cross-examine Ms. O’Carroll about her statement that she was legally blind. The State counters that, because appellant did have the opportunity to cross-examine Ms. O’Carroll at his first trial and because he had a similar motive to develop Ms. O’Carroll’s testimony at both his first and second trials, her videotaped testimony was properly admitted under Rule 5-804(b)(l). It ⁵²⁸ further points out that appellant was free at his second trial to cross-examine Detective Sergeant Massey about Ms. O’Carroll’s statement; that, in fact, he did; and that he was granted permission by the court to supplement the record with medical records or whatever other evidence could be found to establish that Ms. O’Carroll had impaired vision and then to later argue to the jury that it must consider her observations in light of that evidence. Rule 5-804(b)(1) provides: The following [is] not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former Testimony.

Testimony given as a witness in any action or proceeding ..., if the party against whom the testimony is now offered ..., had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. (Emphasis added.) Each of the Rule’s elements must be satisfied before a court may admit former testimony. United States v. Salerno, 505 U.S. 317, 321 , 112 S.Ct. 2503 , 120 L.Ed.2d 255 (1992). The opportunity for cross-examination required by Rule 804(b)(1) “is generally satisfied when the defense is given a full and fair opportunity to probe and expose [the] infirmities [of a witness’ testimony] ... thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.” United States v. Salim, 855 F.2d 944, 954 (2d Cir.1988) (quoting Delaware v. Fensterer, 474 U.S. 15, 22 , 106 S.Ct. 292 , 88 L.Ed.2d 15 (1985) (per curiam)).

The courts that have addressed the issue have found sufficient opportunity for cross-examination where the witness in question was cross-examined at a previous proceeding. See, e.g., United States v. Avants, 367 F.3d 433, 444 (5th Cir.2003) (“Obviously, [defendant’s] attorney had the requisite opportunity to cross-examine [the witness] at [defendant’s] preliminary hearing in 1966; he actively did so.”); United States v. Reed, 227 F.3d 763, 768 (7th Cir.2000) (finding sufficient opportunity where witness was cross-examined at defendant’s ⁵²⁹ first trial); United States v. Salim, 855 F.2d 944, 953-54 (2d Cir.1988) (finding sufficient opportunity even where questions were required to be submitted in writing); People of the Territory of Guam v. Hayes, 1993 WL 469357 , at ³ (D.Guam, Oct. 12, 1993) (finding sufficient opportunity where witness was cross-examined at defendant’s first trial). While appellant certainly had the opportunity to cross-examine Ms. O’Carroll at his first trial, the opportunity to examine is not enough. According to Rule 5~804(b)(l), appellant must also have had, at that time, a similar motive to develop the testimony.

A similar motive, we caution, is not necessarily an identical one. See Murray v. Toyota Motor Distributors, Inc., 664 F.2d 1377, 1379 (9th Cir.1982). This Court applied the “similar motive” requirement of Rule 5 — 804(b)(1) in Forrest v. P & L Real Estate Investment Company, 134 Md.App. 371 , 759 A.2d 1187 (2000). In that case, Robert Forest and Stacie Brown (whom we shall refer to collectively as the “Forests”) brought an action on behalf of their two children against their landlord and the landlord of their uncle and aunt, Clinton and Heidi Elliot, for injuries their children sustained as a result of exposure to lead-based paint that was found in both their apartment and in the Elliots’ apartment.

Id. at 376, 378 , 759 A.2d 1187 . Before the Forests’ suit was filed, however, Clinton Elliot was deposed by his landlord as the Elliots had brought the same type of action on behalf of their own children. Id. at 379 , 759 A.2d 1187 . Because Mr. Elliot died before the Forests’ case went to trial, the Forests sought, at trial, to introduce Mr. Elliot’s deposition testimony, particularly his statements that the Forests and their children had visited his apartment, that there was deteriorated paint in his apartment, and that he had given his landlords notice of that fact.

Id. at 380 , 759 A.2d 1187 . The landlords’ objections to the testimony were sustained, and the deposition was excluded. Id. When the jury returned a defense verdict, the Forests appealed, raising this issue.

Id.