Wise v. State

ERIC WISE V. STATE OF MARYLAND Case No. 2206, September Term 2018, Argued, 09/12/2019 Opinion by Harrell, J. HEADNOTES EVIDENCE – HEARSAY – PRIOR INCONSISTENT STATEMENTS – POSITIVE CONTRADICTIONS IN TESTIMONY THAT ARE A RESULT OF ACTUAL MEMORY LOSS The Court of Appeals, in Nance v. State, 331 Md. 549 (1993), held that an exception exists to the bar on the admission of hearsay evidence as substantive evidence when a witness testifies inconsistently with his or her prior statement. In prosecuting the present case of the murder of Edward Bruce Thomas, the State introduced into evidence against Eric Wise a prior written statement of the State’s eye witness who testified at trial to a different narrative of events than he wrote and signed previously during the police investigation. Complicating the situation, however, was the fact that the witness had suffered a traumatic brain injury between when he gave the police the written statement and his in-court testimony. It was established that the injury left the witness with memory recollection problems.

Defense counsel objected to the introduction of the prior inconsistent statement, arguing that Harris had actual memory loss due to the injury and Nance did not apply in that situation. See Corbett v. State, 130 Md. App. 408 (2000). The trial judge ruled that the prior statement could come in as an inconsistent statement from the trial testimony, appearing to reject the argument that Corbett prevented the entry of the statement into evidence. The Court of Special Appeals determined that Harris testified to positive material inconsistencies with his earlier written statement.

The prior inconsistent statement was not barred from entry under Corbett as the witness contradicted directly material aspects of the prior statement, memory difficulties notwithstanding. APPELLATE PROCEDURE – PRESERVATION – MARYLAND RULE 4-323(a) – PRESERVATION OF OBJECTION MADE IN LIMINE AT TRIAL The Court of Appeals held that the grounds for not admitting evidence raised in a motion in limine is not preserved for appellate review unless the same objection is renewed at trial. Klauenberg v. State, 355 Md. 528 (1999). Defense counsel here objected at a pretrial in limine hearing to the competency of the State’s witness to testify because of his memory loss/difficulties, but failed to renew expressly the objection at trial when the witness was offered by the State.

Although the defense contended that the objection was renewed by counsel’s reference back to the factual grounds on which the in limine objection was based, the appellate court held the so-called renewal was inadequate as the references back were not specific enough in nature so as to put the trial court on notice that the defense was re-asserting incompetency. Circuit Court for Baltimore City Case No. 113158001, 03 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2206 September Term, 2018 _____________________________________ ERIC WISE v. STATE OF MARYLAND _____________________________________ Gould, *Wright, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ. _____________________________________ Opinion by Harrell, J. _____________________________________ Filed: November 20, 2019 *Wright, Alexander, J., now retired, participated in the hearing of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article Pursuant to Maryland Uniform Electronic Legal Materials Act IV, Section 3A, he also participated in the (§§ 10-1601 et seq. of the State Government Article) this document is authentic. decision and the preparation of this opinion. 2019-11-20 15:01-05:00 Suzanne C. Johnson, Clerk “Re-mem-mem Re-mem-mem-mem-ber Re-mem-mem Re-mem-mem-mem-ber Re-mem-mem Re-mem-mem-mem-ber Then, then, remember then.” Refrain from the classic Doo-Wop song “Remember Then” by The Earls (1962). Appellant, Eric Wise, aims his arguments essentially at the State’s key witness, Byron Harris, who saw reputedly Wise fleeing the scene of the murder of Edward Bruce Thomas in Baltimore on 17 December 2012. Harris selected Wise’s picture from a photo array shown to him by the police on 22 January 2013 as part of their investigation of the murder.

On the back of the array, he wrote and signed a narrative of the events he claimed to have witnessed a month earlier. Between then and Wise’s trial in 2017, Harris suffered a traumatic brain injury. That injury, it is conceded by the parties, impaired Harris’ contemporaneous recall abilities. At an in limine hearing, the trial judge found Harris competent to testify, over Wise’s objection.

At trial, Harris testified, among other things, that he could not recall picking Wise’s photo from the array or writing and signing the statement on the back of the array on 22 January 2013, although he identified the signature and handwriting to be his. Harris testified, at another point in the trial, to a contemporaneous recollection of the events leading to Thomas’ murder that differed from the written statement on the photo array, conflating apparently the events leading to his July 2015 brain trauma with the previously written narrative of the December 2012 murder of Thomas. Over Wise’s objection, the trial judge allowed the written statement to be read to the jury by Harris under Md. Rule 5-802.1(a) as a prior inconsistent statement from, at least part of, his trial testimony. A jury in the Circuit Court for Baltimore City convicted Wise of assault in the first degree, use of a firearm in the commission of a crime of violence, and wearing, carrying or transporting a handgun.

He was acquitted by the jury of charges of first degree murder, conspiracy to commit murder in the second degree, and assault in the second degree. He was sentenced to 45 years of imprisonment, with all but 10 years suspended, with the first five years to be served without the possibility of parole. The court ordered also three years of probation upon his release from incarceration and recommended commitment to the Patuxent Institution. This timely appeal followed.

Wise complains here that the circuit court erred in admitting the photo array and the written statement (and principally allowing Harris to read aloud the statement) under Nance v. State, 331 Md. 549 (1993), later codified as Md. Rule 5-802.1(a), as a prior inconsistent statement because it was established at trial that Harris had actual, rather than feigned, memory loss or difficulty. Further, Wise argues that the court erred in permitting Harris to testify at all, claiming he was incompetent as a result of his memory problems, which problems the court acknowledged initially during the pretrial in limine hearing on competency. The State responds that the Nance doctrine was applicable because Harris contradicted his earlier written statement in a portion of his trial testimony and that his memory problems are irrelevant. Regarding competency, the State contends that Wise failed to preserve properly a competency objection, as one was made only during the in 2 limine hearing and not renewed properly at trial.

We shall affirm the judgment of the circuit court. FACTUAL BACKGROUND On 17 December 2012, Thomas was shot and killed in a vestibule off the front porch of a dwelling at 1709 Gwynns Falls Parkway in Baltimore. Harris was living there at the time. A few weeks later, on 22 January 2013, Harris, as a witness to the events surrounding Thomas’ murder, went to the police station to aid in the investigation.

Apparently, Harris identified a picture of Wise from a photo array and, on the backside of the photo array, wrote and signed a statement detailing his memory of the December 17 incident. That statement read, as Harris narrated it to the jury at trial: I came on the front of my porch at 1709 Gwynns Falls and saw Bunk[1] and the defendant talking. I heard Bunk replied to the defendant “all summer you and your boys riding back and forth up Gwynns Falls with yall chests stuck out trying to be someone you’re not. What’s up with that?” I turned to go back in the vestibule when Bunk ran up on the porch, pushing me to get in the vestibule hallway, and I turned to see the def. and his friend brandishing their guns.

The one def. (with the Rick Ross look[2]) had a nine millimeter and the other one I could not see what brand it was but clearly it was a gun in his hand. Later I was in my room watching Blade 2 when I heard the gunshots. I ran through my living room to the front window and saw from the back two individuals running off of my porch, grabbed their bicycles, riding up Gwynns Falls, turning onto Woodbrook.

The def was one of the guys involved in the shooting of Bunkhouse. In July of 2015, in an incident not shown to have been related to the murder of 1 Thomas’ nickname, according to Harris, was “Bunk” or “Bunkhouse.” 2 It is established elsewhere in the record that this reference was to Wise. 3 Thomas, Harris was the victim of a robbery attempt, during which he sustained a blow to the back of the head. The blow resulted in a severe brain injury and required that Harris undergo surgery. A sequela of the injury was that Harris suffered thereafter from problems with his memory.

According to his own words at trial, “[a] lot of things I’m supposed to remember, I don’t remember.” Prior to Wise’s trial, the court held a hearing on 13 September 2017 to consider whether Harris was competent to testify as a State’s witness. Wise moved to preclude Harris from testifying, claiming the brain injury inhibited his ability to remember accurately the incident, thus rendering him incompetent. Medical records were provided expressing a conclusion that Harris had “moderate difficulty with memory.” Harris’ testimony at the hearing was all over the place, to put it mildly. As a beta-test of his mental inhibitions, Harris was asked what the current date was; he misidentified both the exact date and the year.3 Nonetheless, the court ruled that Wise failed to meet his burden to establish that Harris was incompetent to testify at trial.

The problem with Harris’ recall faculties had not dissipated by the time he took the witness stand at the September 2017 trial. Under questioning by the State, Harris continued to struggle to remember the day of Thomas’ shooting: [State]: Was there a shooting at your house? [Harris]: I couldn’t really tell you. [State]: Now I believe you said a little while ago that you heard shots. [Harris]: I don’t know. You got to understand something. 3 The date of the hearing was 13 September 2017. Harris testified that the date was 17 September 2007.

Although objectively not the same date, properly identifying the month and only missing the date and the year by a few digits were before the trial judge as she considered his competency as a witness. 4 [State]: Yes, sir. [Harris]: I been having blackouts. I have been, I have been operated on my skull where as though at times I tend to forget things. * * * [State]: Tell me what kind of memory problems you have. [Harris]: It get to the point where as though I just be forgetting things. Since my injury, I just forget a lot of things. * * * [State]: So you don’t remember hearing shots at some point on the block? [Harris]: I couldn’t tell you. Even if I did I couldn’t tell you.

I be forgetting a lot of things since, like I said, since I had this surgery done to my head I been forgetting a lot of things. Yet, crucially, when asked elsewhere (again by the State) to describe the events of the day of Thomas’ murder, Harris provided a narrative of what he claimed to remember. His testimony conflated apparently the day he was robbed and beaten and the day of Thomas’ murder, incidents that occurred nearly three years apart; nonetheless, he did testify to a scenario of the murder that differed from the statement it was claimed that he wrote as part of the police investigation of the murder: [State]: When you went to the bar, do you recall when that was, what month, what year? [Harris]: Well that day he got killed, I was, I was already going down, like I said, I was going down to the bar. So I went down there, I went down there to get me something, I don’t remember what I went and got, but I went down to the bar and got me something and that’s when I heard the shots, the police was all up there in front of my house. * * * [State]: Now let’s talk about the day when somebody got shot.

What do you remember about that day? [Harris]: Ain’t too much to remember. I didn’t even know somebody had got, up in my hallway, I didn’t know anybody got shot until somebody had told 5 me out there on the front. * * * [State]: Mr. Harris, you said that on the night that you were robbed you went to the bar, is that right? [Harris]: Uh-huh. [State]: Okay. Now and you’re, I believe you said that you also went to the bar, or did you go to the bar on the night of the shooting? [Harris]: Yeah, I was at the bar. [State]: So we’re talking about two different times, is that accurate? [Harris]: No. That night when the shooting occurred, I was already down at the bar, I was down this way. I wasn’t up there where I lived at. [State]: Okay, but we are talking about you being at the bar on two different dates? [Harris]: No, we talking about the day he got shot.

I was down there at the bar, I wasn’t up there at my house. Harris testified also, contrary to the statement on the back of the photo array, that he had never seen Thomas arguing with anyone: [State]: Well was he ever in the presence of other people when you were with him? [Harris]: I couldn’t really say? [State]: Why can’t you say? [Harris]: Because when I come downstairs Bunk would be on the front of the porch or he’d be down the street. [State]: Did you ever see him arguing with anybody? [Harris]: No, I never. [State]: Never? [Harris]: Eh-eh. When shown the photo array on which it appeared he identified Wise, and wrote, on the back, a narrative of the events of 17 December 2012, Harris stated he did not 6 remember seeing the array before nor did he recall writing the statement on the back.4 He did recognize, however, his signature above the photograph of Wise on the front and acknowledged that the statement on the back was his handwriting. Following this acknowledgement, the State moved to enter the photo array, and the statements contained thereon, into evidence under the prior inconsistent statement exception to the hearsay rule.

Wise objected. After a lengthy bench conference, the court ruled that the photo array would be received into evidence. Harris was permitted to read the written statement aloud to the jury. The State relied heavily on the statement on the back of the photo array in arguing their case to the jury.

No other State’s evidence tied clearly Wise to the murder. QUESTION PRESENTED Wise presents the following questions, which we have rephrased5: I. Did the trial court err in admitting the photo array and Harris’s handwritten statement as a prior inconsistent statement under Nance v. State, 331 Md. 549 (1993)?

II

Did the trial court err in ruling that Harris was competent to testify? 4 Detective Robert Burns, one of the two detectives who took Harris’ statement, testified at trial that he was present when Harris considered the photo array. Detective Burns testified that Harris, while in the detectives’ presence, identified Wise on the front of the photo array, signed and dated the front, and wrote the statement on the back. 5 Appellant’s questions were stated thusly: 1. Did the trial court err in admitting the photo array and Mr. Harris’s handwritten statement as a prior inconsistent statement under the Nance doctrine that provides that inconsistency can be implied from a witness who feigns memory loss, even though Mr. Harris suffered from actual memory loss? 2. Did the trial court err in ruling that Mr. Harris was competent to testify despite his insufficient capacity during his competency hearing to recall the events he allegedly witnessed? 7 STANDARD OF REVIEW This Court analyzes without deference the trial court’s ruling on the admissibility of evidence under a hearsay exception.

Gordon v. State, 431 Md. 527 (2013). “[A] circuit court has no discretion to admit hearsay in the absence of a provision providing for its admissibility. Whether evidence is hearsay is an issue of law reviewed de novo.” Bernadyn v. State, 390 Md. 1, 7-8 (2005). We review, however, factual findings made by the trial court supporting the hearsay ruling with significant deference and will not disturb the findings “absent clear error.” Gordon, 431 Md. at 538 . DISCUSSION I. Prior Inconsistent Statement Wise’s main challenge to the trial court’s ruling is that the prior inconsistent statement exception to the hearsay rule, recognized in Nance v. State, 331 Md. 549 (1993) and adopted as Md. Rule 5-802.1(a), does not extend to situations where the testifying witness has actual, rather than feigned, memory loss.

See Corbett v. State, 130 Md. App. 408 (2000). As Harris’ memory impairment was established as a matter of fact, his trial testimony cannot be inconsistent with a prior written statement. Thus, the court should not have allowed Harris’ written statement on the back of the photo array to be read to the jury as substantive evidence of Wise’s guilt. Wise claims that the Nance rule is meant to address exclusively “turncoat” witnesses who repudiate on the witness stand their prior statement or feign forgetfulness at trial, 8 rather than witnesses suffering from actual memory loss.

Focusing on Nance’s determination that “there was evidence from which the jury could infer that the witnesses had made truthful identifications out of court, only to become disingenuous at trial,” Wise argues that Harris’ actual memory loss removes him from the ambit of this hearsay exception. Nance, 331 Md. at 558 . Hearsay, an out-of-court statement offered to prove the truth of the matter asserted, is not admissible as substantive evidence unless it is embraced by a recognized exception. Md. Rule 5-802.

Although, before Nance, prior statements made by a witness that were inconsistent with in-court testimony were only admissible to impeach the credibility of the witness, Maryland adopted in Nance the modern rule that these inconsistent statements may be admitted as substantive evidence under certain circumstances. Nance, 331 Md. at 569 . The Nance holding was codified as Md. Rule 5-802.1(a), which provides that, so long as certain procedural steps are taken to ensure the validity of the prior statement, the statement may be admitted as substantive evidence if the witness is subject to cross- examination. Nance envisioned two ways a court may find a prior statement inconsistent. “Inconsistency includes both positive contradictions and claimed lapse of memory.” Nance, 331 Md. at 564 n.5 (citing State v. Devlin, 251 Mont. 278 (1991)).

As to the latter situation, the Court stated that “[w]hen a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied.” Id.