Carr v. State

• Decision Date: 08 June 1978
• Docket Number: No. 1015,1015
• Parties: Larry Tyrone CARR v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

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.

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.

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 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 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."

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 by the Supreme Court in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). The Supreme Court's decision in Jencks was based on its supervisory powers over the federal courts and is applicable only to federal criminal prosecutions. See Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 1221, 3 L.Ed.2d 1287 (1959). ¹ While automatic disclosure is not constitutionally required, a number of jurisdictions recognize the right of an accused to inspect the statement of a prosecution witness for purposes of cross-examination or impeachment. This rule has been adopted by judicial decision, See Annot. 7 A.L.R.3d 181 (1966), by statute, See Alaska Stat. § 12.45.060 (1977); Ark.Stat.Ann. § 43-2011.3(b) (1977 Repl.Vol.); Kan.Crim.Code and Code of Crim.Proc. § 22-3213(2) (1974); Tenn.Code Ann. § 40-2446 (1977 Supp.), or by rule, See Haw.R.Cr.P. 17(h); Ky.R.Cr.P. 7.26(1). An almost equal number of jurisdictions do not allow an accused to examine a prior statement of a prosecution witness as a matter of right. These jurisdictions generally recognize that the grant or denial of a request for production of a prior statement is within the sound discretion of the trial judge. See Annot. 7 A.L.R.3d 181, 198 (1966). ²

The Court of Appeals in McKenzie v. State, 236 Md. 597, 204 A.2d 678 (1964) declined to adopt the rule urged by appellant here, holding instead that a request for the production of statements within the control of the state is within the discretion of the trial judge. Id., 236 Md. at 602, 204 A.2d at 680-681. See also, Couser v. State, 282 Md. 125, 140, 383 A.2d 389, 397 (1978); Veney v. State, 251 Md. 159 165, 246 A.2d 608, 612 (1968), cert. denied, 394 U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482 (1969). The requirement of a proper foundation was recognized in Couser v. State, supra, 282 Md. at 140, 383 A.2d at 398, where the Court citing McKenzie noted "where inadequate reasons are assigned for disclosure, the request is properly denied as being in the nature of a 'fishing expedition.' "

The precise foundation that needs to be laid before an appellate court will review the trial court's denial of a request for production is a matter of some dispute. Some jurisdictions which do not allow an accused to examine the prior statement of a witness as a matter of right have a twofold requirement: (1) there must be a prior statement which is in control of the prosecution; and (2) the witness must deny having made the statement or the accused must show it is inconsistent in some material respect with the witness's testimony. See Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, 638, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973); State v. Lee, 311 So.2d 876, 879 (La.1975); Knowles v. State, 341 So.2d 913, 916 (Miss.1977). As it is often impossible, as a practical matter, for the accused to show a statement is inconsistent without knowing what it contains, a number of courts have criticized this requirement. See, e. g., State v. Tate, N.C., 239 S.E.2d 821, 825 (1978); State v. White, 15 Ohio St.2d 146, 239 N.E.2d 65, 73 (1968). These courts require that the trial judge, when requested by the accused, examine the statement in camera to see if it contains any inconsistencies.

In the instant case we need not decide what elements the accused is required to show before we would be willing to find an abuse of discretion, because under either test appellant failed to demonstrate he was entitled to the statement. Although defense counsel established that Oliver had made a prior...