Ali v. State

Decision Date01 September 1986
Docket NumberNo. 106,106
Citation550 A.2d 925,314 Md. 295
PartiesNajee Shadeed Abdul ALI a/k/a William Thompson v. STATE of Maryland. ,
CourtMaryland Court of Appeals

Melissa M. Moore, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief) Baltimore, for appellant.

Valerie V. Cloutier, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief) Baltimore, for appellee.

Argued Before ELDRIDGE, COLE, RODOWSKY, COUCH * and McAULIFFE, JJ., and MARVIN H. SMITH and CHARLES E. ORTH, Jr., Associate Judges of the Court of Appeals of Maryland (retired), Specially Assigned.

McAULIFFE, Judge.

The extraordinary survival of one of two intended victims of a planned execution-style murder provided the State with eyewitness testimony implicating the Petitioner, Najee Shadeed Abdul Ali. Upon this and other evidence, Ali was convicted of murder, kidnapping, and related offenses, and sentenced to imprisonment for life plus twenty-five years. He appealed to the Court of Special Appeals, challenging two evidentiary rulings--the first dealing with the exclusion of a police report, and the second dealing with the admission of expert testimony. The Court of Special Appeals affirmed, Ali v. State, 67 Md.App. 339, 507 A.2d 648 (1986), and we granted certiorari. We affirm, but, with respect to the first question, on grounds different than those relied upon by the Court of Special Appeals.

I. Facts

During the early morning hours of June 3, 1981, Tyrone Harrell (Tyrone) and one or two accomplices drove or escorted Marvin Brown and Debbie Rae McNally Waligora to the area of Forge Road and Belair Road in Baltimore County, for the purpose of killing one or both of them. Brown was shot twice in the head, and killed. Waligora ran when she saw Brown shot. As she ran, she was shot once in each arm, knocking her to the ground. She was then shot three times in the chest and once in the back of the head. She lost consciousness, and the perpetrators left the scene. Upon regaining consciousness, Waligora was able to drag herself to the shoulder of Forge Road, where she was seen by a passing motorist.

Waligora was able to tell police who responded to the scene that Tyrone had shot Brown and her, and she was able to give them Tyrone's address. The police placed an immediate surveillance on Tyrone's home, and within hours of the shooting observed Ali and another male depart from the rear of the home. They also observed Robert Harrell (Robert), Tyrone's brother, carry a small trash can from the residence and discard it in a nearby dumpster. The police recovered the can, and found it to contain two handguns, bullets, spent shell casings, gloves, and a Crown Royal drawstring bag. One gun was a .38 caliber Derringer, and the other was a .25 caliber semi-automatic pistol. The .25 caliber pistol was later identified as the weapon that fired a bullet which was removed from Waligora, and was also identified as the weapon that had ejected shell casings found at the scene of the shootings. 1 Tyrone was arrested at his home. Ali, who took up residence in Louisiana under an assumed name shortly after these events, was found and arrested in 1985.

At Ali's trial, the issue was criminal agency. There was no dispute that Brown had been murdered and Waligora criminally assaulted--the question was whether Ali had been involved. Both sides agreed that Tyrone had been a principal actor in the shootings. 2 The State contended that Ali was also a principal participant, having accompanied Tyrone and another to the place of the shooting and having assisted in the actual and attempted executions. Ali admitted having been present at Tyrone's home on the day of the shootings, but denied any involvement in, or advance knowledge of, the criminal events.

The State's principal witness was Waligora, who testified to the following facts. She and Brown had been visiting at Tyrone's home with Tyrone, Ali, and another male known to her only as Leroy, when initially cordial relations turned sour. 3 Brown was beaten, after which Brown and Waligora were strip-searched and held captive. Tyrone gave rubber gloves to Ali and Leroy, placed a pistol in a Crown Royal bag, and told the others that Brown had to be taught a lesson. Leroy forced Brown to drive to the scene of the shooting in Brown's car, while Tyrone and Ali escorted Waligora in a white Lincoln. When they arrived, Waligora was taken to Brown's car, where Tyrone shot Brown. When Waligora bolted and ran, she was shot.

Ali's version, on the other hand, was this. On the day before the shootings, Ali was with Tyrone, Brown, Waligora, and Edward Haskins at Tyrone's home. They were drinking and socializing, and at one point, Waligora was "selling sex" to the men for drugs. Ali went home at 5:00 p.m., but returned to Tyrone's home at 9:30 p.m., at Tyrone's request. Tyrone told Ali that Brown and Waligora had broken into Tyrone's home earlier, and had stolen personal property from him. Tyrone said he was going with Brown and Waligora to recover the property. Robert then arrived, and at 1:30 a.m. the next morning, the Harrell brothers left with Brown and Waligora. Tyrone and Robert returned about four hours later, placing guns, rubber gloves, and bullets on the table, and informing Ali that they "had to off" Brown and Waligora. When Tyrone saw the police establishing a surveillance around the home, Ali and Haskins left via the rear door because they did not wish to become involved.

Of the various persons alleged to have been present at Tyrone's home or at the scene of the shooting, only Waligora and Ali testified at trial. Because Waligora was the only witness who placed Ali at the scene of the shooting, impeachment of Waligora's testimony was an important objective for Ali. Moreover, it was to some extent an attainable objective.

At the time of this occurrence, Waligora was a stripper-dancer at several establishments on Baltimore City's "block." She admitted to a previous drug conviction, and said she was awaiting trial on several additional drug charges. She admitted she was attempting to buy drugs from Tyrone, but claimed she was doing so in an attempt to provide information for the police, and thus improve her own position with respect to her pending charges. She gave several statements to the police, including three separate statements to Officer Robert Ash on the first three days of her hospitalization. These statements were in part inconsistent with each other, and with Waligora's trial testimony, in details that ranged from the insignificant to the substantial. Ali's efforts to demonstrate these inconsistencies produced the first evidentiary question, and the State's efforts to explain the inconsistencies produced the second.

II.

The first evidentiary question involves, on its face, the business records exception to the hearsay rule, and the non-hearsay character of a prior inconsistent statement offered for impeachment. Lurking just beneath the surface, however, are more difficult questions involving the respective burdens of the party offering, and the party objecting to, a document admissible for a limited purpose but not admissible generally, and the function of the general objection as it may interact with those burdens.

In order to show that there were inconsistencies between several statements given by Waligora to the police, and to show that there were inconsistencies between her trial testimony and certain portions of her prior statements, Ali's attorney called Officer Ash as a defense witness. 4 Officer Ash testified that he had taken statements from Waligora on three occasions: on the day of the shooting, just after she had been transferred from the shock trauma unit to a hospital room, and on each of the two succeeding days, June 4 and 5, in her hospital room. In answer to defense counsel's questions, Officer Ash disclosed the details of the three statements, including each statement that the defense believed demonstrated an inconsistency. 5 Defense counsel then sought to introduce into evidence a supplemental police report prepared by Officer Ash on June 8, which reproduced the statements he had received from Waligora. The following colloquy ensued:

Defense Attorney: Your honor, I would like to enter this into evidence at this time.

Prosecutor: Objection, your honor.

The Court: Sustained.

Defense Attorney: Well, the jury has heard the testimony. No further questions.

The State does not question the adequacy of the foundation laid for admitting the report as a business record within the meaning of the Maryland business records statute, Maryland Code (1974, 1984 Repl.Vol.) § 10-101 of the Courts and Judicial Proceedings Article. See Holcomb v. State, 307 Md. 457, 515 A.2d 213 (1986). The State argues, however, that the statements made by Waligora to Officer Ash constitute second level hearsay, and are therefore inadmissible unless independently exempted from the operation of the hearsay rule by some other exception. The State is correct in its understanding of the law relating to business records, but incorrect concerning the existence in this case of an independent basis for the admissibility of Waligora's statements to the officer. We last stated the general rule in Holcomb, 307 Md. at 461-62, 515 A.2d 213:

In general, those portions of the report of a police investigation which record the facts obtained by the direct sense impressions of the investigating officer are admissible as a business record while those portions which report objectionable hearsay and opinions of the investigator are inadmissible as a business record.

Embraced within the concept of direct sense impressions is not only what the officer sees, but also what the officer may hear, feel, taste, or smell, and if such sensory observations are properly recorded in a business record, they may be admissible. If what the officer hears is a "fact," such as an audible warning heard at a railroad gate crossing,...

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