Wise v. State

Eric Wise v. State of Maryland, No. 73, September Term 2019. Opinion by Hotten, J. CRIMINAL LAW – HEARSAY – PRIOR INCONSISTENT STATEMENT – POSITIVE CONTRADICTION – Nance v. State, 331 Md. 549, 569 , 629 A.2d 633, 643 (1993), codified at Md. Rule 5-802.1, admits prior inconsistent statements as an exception to the hearsay rule when the proponent shows both sufficient trustworthiness of the declarant’s original statement and an inconsistency with the declarant’s testimony. The Court of Appeals held that a witness’s written description of a murder made to police before trial, was admissible under the prior inconsistent exception to the hearsay rule, because the witness offered a contradictory and irreconcilable version of events at trial. The witness’s memory loss, sustained between his prior statement to police and trial testimony, does not necessarily preclude an inconsistency under Md. Rule 5-802.1.

An inconsistency may arise for any reason, including real or feigned memory loss; if it yields a contradiction at trial, the prior statement is admissible CRIMINAL LAW – HEARSAY – PRIOR INCONSISTENT STATEMENT – MATERIALITY – Nance v. State, 331 Md. at 569 , 629 A.2d at 643 , and its progeny never articulated the minimum degree of inconsistency a proponent must demonstrate to qualify for the prior inconsistent statement exception to the hearsay rule. The Court of Appeals held that a prior inconsistent statement must contain a material inconsistency compared with the declarant’s trial testimony. This conclusion furthers Nance’s purpose by admitting prior inconsistent statements only with sufficient substantive and probative value. Proponents cannot admit an entire prior inconsistent statement predicated on minor or peripheral factual differences in a declarant’s testimony.

Circuit Court for Baltimore City Case Nos. 113158001, 113158003 Argued: September 10, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 73 September Term, 2019 __________________________________ ERIC WISE v. STATE OF MARYLAND __________________________________ Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ. __________________________________ Opinion by Hotten, J. __________________________________ Filed: November 24, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-11-24 11:50-05:00 Suzanne C. Johnson, Clerk Petitioner, Eric Wise, (“Wise”) was tried in the Circuit Court for Baltimore City for the murder of Edward Bruce “Bunkhouse” Thomas. The jury 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. The jury acquitted him of the charges of first-degree murder, conspiracy to commit murder in the second degree, and assault in the second degree.

The State’s case against Wise hinged on the eyewitness testimony of Byron Harris, who described the events leading to the alleged murder in a signed, handwritten statement to the police. Two years later and before trial, Mr. Harris sustained brain damage and memory loss in an unrelated robbery. The memory loss interfered with Mr. Harris’s factual recall and he provided a different and contradictory version of events at trial. Wise appealed his convictions to the Court of Special Appeals.

He argued that the circuit court erred in admitting Mr. Harris’s handwritten statement under the prior inconsistent statement exception to the hearsay rule because Mr. Harris’s actual memory loss prevented a finding of inconsistency as a matter of law.1 The Court of Special Appeals affirmed the circuit court. Wise timely appealed to this Court. We granted certiorari to address the following questions:2 1 Wise also appealed the circuit court’s finding of Mr. Harris’s competency to testify at trial. The Court of Special Appeals dismissed the claim as not adequately preserved for review.

Wise v. State, 243 Md. App. 257, 277 , 220 A.3d 341 , 353 (2019). Wise did not reassert the issue before this Court. 2 In its brief, the State phrased their consolidated question presented as follows: Was Byron Harris’s signed eyewitness statement inculpating Wise properly (continued . . .) 1. Did [the Court of Special Appeals] err in affirming the admission of a statement by a witness with memory loss as a prior inconsistent statement, in conflict with Corbett v. State, 130 Md. App. 408 , 746 A.2d 954 , [cert. denied], 359 Md. 31 , 753 A.2d 3 (2000)? 2. Did [the Court of Special Appeals] err in expanding the circumstances under which hearsay is admissible under [Md.] Rule 5-802.1(a) to include statements containing a “material” inconsistency with the witness’s testimony?

We answer these questions in the negative and affirm the judgment of the Court of Special Appeals. FACTUAL AND PROCEDURAL BACKGROUND The Underlying Incident On December 17, 2012, Byron Harris observed his friend, Edward Bruce “Bunkhouse” Thomas engaged in an argument with Wise on the front porch of Mr. Harris’ rowhouse in Baltimore, Maryland. Mr. Thomas ran into the house while pushing inside Mr. Harris, who turned to see Wise and another man each brandishing a pistol. Later while watching the movie Blade II3 in his bedroom, Mr. Harris heard two gunshots outside.

He ran to his front window and saw, from behind, two individuals run away from the front porch and flee on their bicycles. They headed down Gwynns Falls Parkway, turned the (. . . continued) admitted as a prior inconsistent statement under Maryland Rule 5-802.1(a) where Harris’s testimony at trial positively and materially contradicted his prior statement, regardless of the reason for the inconsistency? 3 “Blade II is a 2002 American superhero horror film based on the fictional character Blade from Marvel Comics, directed by Guillermo Del Toro” and staring Wesley Snipes. Wikipedia, the Free Encyclopedia, Blade II, https://en.wikipedia.org/wiki/Blade_II (last visited Nov. 17, 2020), archived at https://perma.cc/9TZ7-UC7K. 2 corner onto Woodbrook Avenue, and disappeared from view. Mr. Thomas, who was outside on Mr. Harris’s porch, was shot and died from the gunshot wounds.

Baltimore City Police Homicide Unit Detectives Robert Burns and J.T. Ellsworth invited Mr. Harris on January 22, 2013 to police headquarters to provide information about Mr. Thomas’s murder. The detectives’ investigation identified Wise as the primary suspect. They presented six photos of men who all sported a “Rick Ross beard.”4 Mr. Harris “immediately identified” Wise’s picture from the photo array. He signed and dated his identification of Wise beneath his picture.

On the back of the photo array, he wrote his recollection of the events leading to the alleged murder: I came on the front of my porch at 1709 Gwynns fall And saw bunk And [Wise] talking. I heard bunk Replied to [Wise, “]All summer you [and] your boys Riding back And forth up Gwynns falls with yall chest stuck out trying to be someone your not[.] Whats 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 [Wise] And his friend brandishing their guns. the one [ ] (with the Rick Ross Look) 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 II when i heard The Gun shots. 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. [Wise] was one of the guys involved in the shooting of bunkHouse. In an unrelated incident, on July 20, 2015, a man attempted to rob Mr. Harris while he stood outside beside a mailbox.

The man struck Mr. Harris’s head with a gun, causing 4 Detective Burns testified that in his investigation, Wise “was always referred to as having a Rick Ross beard.” Rick Ross is a rapper and record executive. Wikipedia, the Free Encyclopedia, Rick Ross, https://en.wikipedia.org/wiki/Rick_Ross (last visited Oct. 28, 2020), archived at https://perma.cc/C5TS-MPWV. 3 Mr. Harris to sustain a severe brain injury. Mr. Harris underwent emergency brain surgery, resulting in memory loss and some cognitive defects. Legal Proceedings A. Circuit Court Proceeding Prior to Wise’s trial, the circuit court held a hearing on September 13, 2017 to determine Mr. Harris’s competency to testify as a State’s witness.

Mr. Harris disclosed he suffered memory loss and received care from his daughter. Wise admitted medical records that confirmed Mr. Harris experienced “moderate difficulty with memory” and “cognitive defects.” The circuit court ruled that Wise failed to show Mr. Harris was incompetent to testify at trial. On September 19, 2017, Mr. Harris rearticulated his memory difficulties during the State’s direct examination at trial: [State]: Was there a shooting at your house? [Mr. Harris]: I couldn’t really tell you. [State]: Now I believe you said a little while ago that you heard shots. [Mr. Harris]: I don’t know. You got to understand something. [State]: Yes, sir. [Mr. 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]: [T]ell me what kind of memory problems you have. [Mr. 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? 4 [Mr. 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.

Despite his admitted memory lapses, Mr. Harris demonstrated his willingness and ability to describe the events leading up to Mr. Thomas’s murder. His description, however, conflated the day of his head trauma with the day of the murder, which resulted in a different account from what he previously described to the police: [Mr. Harris]: Well that day [Mr. Thomas] 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 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]: So we’re talking about two different times, is that accurate? [Mr. 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? [Mr. 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. [State] Okay, now so on the day that he got shot, is that the day that you got robbed? [Mr. Harris]: Yeah, that was the same day I got robbed. I got robbed earlier before that even happened.

The State next asked Mr. Harris about his interview with police. Mr. Harris recalled voluntarily accompanying two detectives to police headquarters, and he also recalled answering questions about Mr. Thomas’s death. Mr. Harris neither remembered the content of the conversation, nor recalled providing a signed, handwritten statement to 5 police. Over Wise’s objection, the State showed Mr. Harris the photo array with his previously written statement on the back.

Mr. Harris again could not remember either the photo array or writing the statement on the back. On the other hand, Mr. Harris recognized his signature above Wise’s photograph and the written statement in his own handwriting. The State moved to enter the photo array and the written statement into evidence under the prior inconsistent statement exception to the hearsay rule. Wise objected, but after an extended bench conference, the court allowed the photo array into evidence.

Mr. Harris read the written statement aloud to the jury. The jury 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. The jury acquitted him of charges of first-degree murder, conspiracy to commit murder in the second degree, and assault in the second degree. The court sentenced Wise to forty-five years of imprisonment, with all but ten years suspended, the first five years without the possibility of parole.

The court also ordered three years of supervised probation upon his release from incarceration. Wise initiated a timely appeal before the Court of Special Appeals. B. Opinion of the Court of Special Appeals The Court of Special Appeals affirmed the circuit court’s admission of Mr. Harris’s signed, written statement under Maryland’s prior inconsistent statement exception to the hearsay rule. It agreed with the State that Mr. Harris’s conflicting testimony created a material contradiction, and that the reason for the contradiction, memory loss or otherwise, 6 does not factor into the legal analysis.

Wise, 243 Md. App. at 274 , 220 A.3d at 351. Maryland Rule 5-802.1(a), a codification of this Court’s holding in Nance v. State, admits prior inconsistent statements as substantive evidence under certain circumstances. Nance v. State, 331 Md. 549, 569 , 629 A.2d 633, 643 (1993). The proponent of the prior inconsistent statement must demonstrate its trustworthiness5 and show an inconsistency between the prior statement and one at trial.

This Court in Nance identified two ways an inconsistency may arise: from a positive contradiction or from a claimed lapse of memory (i.e., an implied contradiction through knowingly withholding testimony). Id. at 564 n.5, 629 A.2d at 640 n.5. Wise argued that Mr. Harris’s actual memory loss, unlike claimed memory loss, cannot produce an inconsistent statement given the reasoning in Corbett v. State. In Corbett, the Court of Special Appeals examined whether actual memory loss may produce an inconsistent statement in the same way a claimed memory loss presented an inconsistent statement under Nance.

Corbett v. State, 130 Md. App. 408 , 746 A.2d 954 (2000). The witness in Corbett experienced near total memory loss. It nullified her ability to answer the State’s questions and to narrate events at trial. The Court of Special Appeals held no 5 The parties do not dispute the trustworthiness of Mr. Harris’s written statement to police.

Maryland Rule 5-802.1(a) provides three alternative ways to satisfy the trustworthiness requirement. The prior statement must be “(1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement[.]” Md. Rule 5-802.1(a). 7 inconsistency existed between the witness’s prior written statement given to police and her monosyllabic testimony at trial.6 Id. at 425 , 746 A.2d at 963 . Wise analogized Mr. Harris’s memory loss to that of the witness in Corbett. Mr. Harris suffered actual memory loss that inhibited his ability to recollect at trial the events depicted in his previous written statement.

Since Mr. Harris truthfully testified about his memory loss, the circuit court erred in admitting the prior written statement under Corbett’s reasoning. The Court of Special Appeals rejected Wise’s argument and distinguished the facts here from Corbett. In Corbett, the witness could not recall the incident other than stating “[s]omething just happened.” Wise, 243 Md. App. at 270 , 220 A.3d at 349. The witness neither provided contradictory testimony, nor displayed the ability to testify.

Corbett, 130 Md. App. at 426 , 746 A.2d at 963 . Thus, the jury lacked a basis to compare the trial testimony to the prior written statement, let alone identify any inconsistencies. Mr. Harris, on the other hand, provided a contradictory narrative at trial. He claimed he heard shots, not from his bedroom, but from a bar down the street.

He no longer remembered fleeing suspects, but rather recalled returning to his house to see police already out front. “Comparison of these statements evinces a patent and material inconsistency[.]” Wise, 243 Md. App. at 270 , 220 A.3d at 349. The Court of Special Appeals held that Mr. Harris’s conflicting testimony presented a positive contradiction under Nance. Id. at 272, 220 A.3d at 350. 6 In Corbett, the Court of Special Appeals reversed the circuit court because it never made a preliminary finding as to whether the witness suffered from actual memory loss or feigned memory loss. Corbett, 130 Md. App. at 426-27 , 746 A.2d at 963 . 8 Wise alternatively argued that Mr. Harris’s testimony did not amount to a positive contradiction because he never expressly recanted or repudiated his earlier written statement.

The Court of Special Appeals rejected Wise’s stringent interpretation of positive contradiction. Instead, “if a witness tells a story that is impossible to square factually with a prior statement he or she has given, that is enough to satisfy the Nance rule.” Id. at 271, 220 A.3d at 349. Mr. Harris provided two impossible to square accounts of Mr. Thomas’s shooting. Initially, Mr. Harris heard gunshots from his bedroom and then saw two men flee the scene on bicycles.

At trial, Mr. Harris heard gunshots from a bar down the street and arrived at his house to find police already at the scene. These two conflicting versions of events presented a cognizable positive contradiction under Nance. The Court of Special Appeals qualified its holding with a materiality requirement. Proponents may not use “the slightest contradiction between a prior statement and the trial testimony [to permit] wholesale admission of the prior statement as a hearsay exception[.]” Id. at 271, 220 A.3d at 350-51.

The Court illustrated its materiality requirement with a hypothetical. If Mr. Harris testified to a slightly different detail (watching Dracula instead of Blade II), the State could not admit the prior statement predicated on a trivial inconsistency between the two statements. Id. at 272, 220 A.3d at 350. The Court of Special Appeals observed that Mr. Harris did not merely alter peripheral details between his prior written statement and his trial testimony.

His trial testimony contradicted the most important fact in the State’s case: the eyewitness identification of the murder suspect. While Mr. Harris never specifically renounced his 9 prior identification, his statement at trial made such an identification impossible. He could not have observed the suspects firsthand because he heard gunshots from inside a bar. He could not have seen the suspects fleeing because he remembered police already at the scene by the time he returned home.

Wise, 243 Md. App. at 272 , 220 A.3d at 350. Wise sought and we granted certiorari to review whether the circuit court properly admitted Mr. Harris’s written description as a prior inconsistent statement under Nance and Md. Rule 5-802.1(a). DISCUSSION Standard of Review This Court ordinarily reviews admissibility of evidence under an abuse of discretion standard. Hopkins v. State, 352 Md. 146, 158 , 721 A.2d 231, 237 (1998).

Maryland rules of evidence, however, cabin the admission of hearsay to limited exceptions. See Md. Rule 5-802 (“Except as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.”). Whether evidence qualifies for a hearsay exception presents a question of law for the circuit court. This Court reviews questions of law without deference.

Bernadyn v. State, 390 Md. 1, 7-8 , 887 A.2d 602, 606 (2005) (“Whether evidence is hearsay is an issue of law reviewed de novo.”). When circuit courts make factual findings in support of their legal conclusions, this Court cannot disturb such factual findings absent clear error. Gordon v. State, 431 Md. 527, 538 , 66 A.3d 647, 653 (2013). 10 Contentions of the Parties Wise argues the circuit court erred by admitting the photo array and Mr. Harris’s written statement contained thereon. According to Wise, Maryland law only allows two categories of prior inconsistent evidence: positive contradiction and feigned memory loss.7 Since actual memory loss falls outside both of these categories, it cannot form the basis for a prior inconsistent statement.

See Corbett, 130 Md. App. at 425-26 , 746 A.2d at 963 (holding prior inconsistent statement exception not satisfied when witness cannot remember events described in pretrial statement). Wise cites Stewart v. State to define positive contradiction as a refutation, recantation, or express change to key parts of a witness’s observations. Stewart v. State, 342 Md. 230, 235 , 674 A.2d 944, 947 (1996).8 Mr. Harris never recanted, withdrew, or expressly changed his testimony, so the State cannot admit the previous written statement as a positive contradiction. To show a positive contradiction, Mr. Harris would have needed to testify that Wise did not commit the assault and shooting. 7 This Court also described claimed lack of memory as an “implied inconsistency.” Nance, 331 Md. at 564 n.5, 629 A.2d at 640 n.5 (citing People v. Johnson, 3 Cal. 4th 1183 , 14 Cal.

Rptr. 2d 702, 719 , 842 P.2d 1, 18 (1992)). 8 Wise derives his definition from the text of the opinion; however, this Court in Stewart never used the term “positive contradiction,” let alone defined it. This Court held when a prior statement “was clearly inconsistent with [the witness’s] trial testimony,” it satisfies Nance’s inconsistency requirement. Stewart, 342 Md. at 239 , 674 A.2d at 949 . Wise reads into Stewart a requirement for positive contradiction not supported by the text of the opinion. 11 Wise relies on Nance to argue the only other admissible form of prior inconsistent statement comes from feigned memory loss.

This limited exception only seeks to thwart “turncoat” witnesses and their attempts to avoid speaking truthfully at trial. Wise uses Corbett to distinguish between feigned memory loss and actual memory loss. A feigned memory loss creates inconsistency through omission. Corbett, 130 Md. App. at 421 , 746 A.2d at 960 (“When a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied.”) (quoting Nance, 331 Md. at 564, n.5 , 629 A.2d at 640, n.5 ) (emphasis omitted).

A genuine memory loss presents no basis to contradict or subvert the previous statement. Both parties acknowledge Mr. Harris’s genuine memory loss, and according to the circuit court, Mr. Harris “lacks specific memories as to the events.” During his testimony, he did not recall or reiterate the salient facts contained within the prior written statement, so Corbett must apply. For Wise, Corbett categorically excludes actual memory loss as an admissible basis for prior inconsistent statements. Wise also argues the Court of Special Appeals’ “materiality” requirement contravenes Nance because it adds a third ground for admitting prior inconsistent statements.

Stewart, 342 Md. at 233 , 674 A.2d at 946 (holding “that prior inconsistent statements are admissible as substantive evidence, provided they fall within the circumscribed limitations discussed in Nance v. State[.]”) (internal citations omitted). Alternatively, if “materiality” describes a threshold requirement for contradictions, it impermissibly dilutes the exception under this Court’s case law. Past cases required a “clear,” “unequivocal,” or “positive” contradiction, akin to an express recantation of a prior 12 statement. Wise asserts that material contradictions, on the other hand, confer a more forgiving standard in which proponents may show prior inconsistencies through mere inference.

The State argues the Court of Special Appeals correctly affirmed the circuit court’s decision to admit Mr. Harris’s written description through the prior inconsistent statement hearsay exception. Mr. Harris’s testimony at trial presents a positive contradiction under Nance because he articulated an irreconcilable narrative of events from what he previously described in his written statement to police. Mr. Harris testified he heard gunshots from the bar down the street, while his written statement recounted that he heard gunshots from his bedroom and saw two men fleeing the scene. This Court need not inquire into the reason for the inconsistency and may treat actual memory loss in the same way as feigned memory loss.

When a witness testifies to a contradictory version of events, whether through conflation, omission, or some other reason, it qualifies as a positive contradiction. The reason for the inconsistency is irrelevant. See McClain v. State, 425 Md. 238, 252 , 40 A.3d 396, 404 (2012) (holding “the ‘cold record’ itself,” not the underlying reason, determines an inconsistency). Maryland Rule 5-802.1 admits prior inconsistent statements, regardless of the reason for inconsistency, so juries may evaluate the truthfulness and credibility of conflicting witness testimony.

Id. at 250 , 40 A.3d at 403 (“When a jury is presented with such conflicting testimony from a single witness, courts cannot speculate as to which side of the contradiction the jury will assign greater credibility . . . ‘what 13 evidence to believe, what weight to be given it, and what facts flow from that evidence are for the jury . . . to determine[.]’”) (internal citations omitted). The State further argues the Court of Special Appeals’ “materiality” requirement neither created a new test nor diluted the standard to admit hearsay under the prior inconsistent statement exception. The materiality requirement prevents the use of de minimis contradictions to admit an entire prior statement. Minor, peripheral, or immaterial contradictions should not allow wholesale admission of otherwise consistent statements.

If anything, the Court of Special Appeals’ gloss restricts the hearsay exception in Wise’s favor by excluding prior statements containing only trivial inconsistencies. Prior Inconsistent Statement A. The Court of Special Appeals correctly affirmed the admission of Mr. Harris’s prior inconsistent statement given Mr. Harris’s contradictory testimony at trial. Maryland Rule 5-802.1(a) expresses the requirements for admitting prior inconsistent statements at trial: 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: (a) A