Carr v. State, 1015

• Court: Court of Special Appeals of Maryland
• Writing for the Court: THOMPSON
• Citation: 387 A.2d 302,39 Md.App. 478
• Parties: Larry Tyrone CARR v. STATE of Maryland.
• Docket Number: No. 1015,1015
• Decision Date: 08 June 1978

Page 478

39 Md.App. 478 387 A.2d 302 Larry Tyrone CARR
v.
STATE of Maryland. No. 1015. Court of Special Appeals of Maryland. June 8, 1978.

[387 A.2d 303]

Page 479

Jonathan A. Azrael, Assigned Public Defender, for appellant.

W. Timothy Finan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty., for Baltimore City and Joseph Fleischmann, Asst. State's Atty., for Baltimore City on the brief, for appellee.

Page 478

Argued before THOMPSON, DAVIDSON and MASON, JJ.

THOMPSON, Judge.

The appellant, Larry Tyrone Carr, was convicted by a jury in the Criminal Court of Baltimore of assault with intent to murder, robbery with a deadly weapon, and use of a handgun in the commission of a crime of violence. Concurrent terms of 15, 20, and 5 years respectively, were imposed on the charges. On appeal two questions are presented for our determination: (1) whether appellant was entitled to inspect a prior written statement of a state witness for use in cross-examination; and (2) whether the trial judge should have granted a new trial on the basis of a post trial recantation by a State's witness.

I The Facts

During the early morning hours of May 27, 1975, Kirk McCall, Raymond Oliver, and Larry Lewis were on their way to purchase some narcotics when McCall was robbed and shot. McCall testified that after he and his companions decided to purchase the narcotics, McCall went home to obtain the necessary funds. When he rejoined his friends appellant was present and Oliver informed McCall that appellant would supply the narcotics. McCall gave sixty-five dollars to Oliver who gave it to appellant. The group then proceeded to procure the drugs. After they had been walking for approximately 15 minutes, McCall became disenchanted and asked for the return of his money. Appellant complied but as McCall turned to leave appellant produced a weapon and demanded the money. McCall, who had a cane in his hand, turned and struck appellant in the face. As McCall turned to run appellant shot

Page 480

him in the back, took the money from the victim's pocket, and fled.

Although appellant, who was arrested two months after the crimes were committed, could not remember where he was at the time, he testified that he was not with McCall. To support this claim he produced two witnesses, Norman Johnson and Marion Harris. Johnson's house was less than one-half block away from the location of the crimes, and on the night in question Johnson, Harris, and a few other friends were talking in front of Johnson's house. At approximately 12:30 a. m. McCall and another person, who neither Johnson nor Harris knew, stopped on their way down the street and conversed for a short period of time. About a minute and a half after McCall and his companion had left, Johnson heard a shot. He turned and saw McCall lying in the street. Seconds later the man who had accompanied McCall was standing over him. At no time, either before or [387 A.2d 304] after the shooting, did Johnson or Harris see appellant.

II Production of Oliver's Prior Statement

McCall testified he did not know Johnson or Harris and had not stopped to talk to them on the night of the shooting. To corroborate his testimony the State called Oliver. His version of the shooting was essentially the same as McCall's although it did differ in unimportant details. During cross-examination of Oliver the defense elicited that he had given a prior written statement to the police. Defense counsel attempted to question Oliver about the details of the statement but the State objected and the trial judge ruled that if counsel wanted to use the statement, he would have to quote from it. Defense counsel responded by stating that although he had information as to the statement's contents, he did not have a copy. When he asked the court to require production of the statement the court refused ruling appellant was entitled to the statement only if it were exculpatory; and he was not entitled to the statement if it were only inconsistent. The court did note that the prosecutor could voluntarily furnish counsel with a copy but the prosecutor refused commenting, "It's too late for that crap."

Page 481

In arguing that the trial judge erred in refusing to require production of Oliver's statement, appellant asks this Court to hold that an accused is entitled, as a matter of right, to the prior statements of State witnesses after they have testified on direct examination. Essentially this is the rule adopted...