Robinson v. State, No. 1795

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Argued before CATHELL and SALMON, JJ., and JOHN J. GARRITY; SALMON; Spellbring; At bottom, in regard to the discovery issue
• Citation: 117 Md.App. 253,699 A.2d 570
• Parties: Ramone Marcasean ROBINSON v. STATE of Maryland. ,
• Decision Date: 01 September 1996
• Docket Number: No. 1795

Page 253

117 Md.App. 253 699 A.2d 570 Ramone Marcasean ROBINSON
v.
STATE of Maryland. No. 1795, Sept. Term, 1996. Court of Special Appeals of Maryland. Sept. 5, 1997.

[699 A.2d 572]

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Rebecca L. Gilbert (Steven D. Kupferberg, on the brief), Rockville, for Appellant.

Thomas K. Clancy, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Jack B. Johnson, State's Attorney for Prince George's County, Upper Marlboro, on the brief), for Appellee.

Argued before CATHELL and SALMON, JJ., and JOHN J. GARRITY, Judge (retired), Specially Assigned.

SALMON, Judge.

After a three-day trial in the Circuit Court for Prince George's County, (Spellbring, J., presiding), a jury convicted appellant, Ramone Robinson, of Assault with the Intent to Murder, Robbery with a Dangerous Weapon, Assault with the Intent to Rob, Conspiracy to Commit Robbery with a Dangerous Weapon, three counts of Use of a Handgun in the Commission of a Crime of Violence, two counts of False Imprisonment, and Battery. The trial court later struck the jury's guilty verdict on the Assault with Intent to Murder charge because the jury had entered a not guilty verdict on the underlying count of Attempted Murder. The court also struck two of the three counts relating to Use of a Handgun in the Commission of a Crime of Violence. Appellant was sentenced to a total of 50 years imprisonment.

On appeal, appellant presents two issues for our review:

I. Whether the trial court committed reversible error when it refused to allow defense counsel to cross-examine two critical State witnesses with their prior written statements.

II. Whether the trial court committed reversible error when it instructed the jury on two ultimate issues in this case.

The first issue presented requires us to decide whether a defendant is entitled to production of confidential statements made by police officers, which are not, and never

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were, in the possession of the Office of the State's Attorney. This is an issue of first impression in this State. Under the principles adopted by the Court of Appeals in Carr v. State, 284 Md. 455, 397 A.2d 606 (1979), as well as Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), and the "Jencks Act," 18 U.S.C. § 3500 (1994), a defendant is entitled to production of a witness's prior statement if, inter alia, the prosecution or the prosecutorial arm of the government is in "possession" of the statement. We hold that, when a statement is confidential under State law, developed for a non-prosecutorial purpose, and held by a division of a law enforcement agency that is not working in conjunction with the prosecutor, the State cannot be deemed to have access to, or constructive possession of, the statement. Hence, a defendant is not entitled to production of such statements under the Jencks-Carr ^* rule. FACTS

A. State's Version of Events

On January 18, 1996, two men in ski masks robbed a 7-11 store located on Walters Lane in Forestville, Maryland. The store closed at [699 A.2d 573] midnight. The robbery commenced at approximately 1:00 a.m. and concluded after 2:00 a.m. On duty that night were three female employees: Lang Tuy Luc, Anissa Abdurahim, and Lucinda Washington. Luc was emptying the trash when a man with a ski mask aimed a gun at her head, told her to "lay down or I kill you," and took money from her purse. The man who robbed Ms. Luc wore blue jeans, black sneakers, and a "plaid" shirt.

Inside the store, another masked man forced the two other employees to lie on the floor. The men asked Washington and Abdurahim for the store's money. Washington told them it was in the safe, but they did not have a key. At this point, a gunman brought Luc into the store, tied her up, and left her in the store's office. Ultimately, the store's safe, which weighed about 250 pounds, was taken out of the store by the robbers.

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Prince George's County Police received a 911 call alerting them that a robbery was in progress at the 7-11. Officers Christopher Smith and Samuel Hooper responded to the call in a marked police cruiser. After Officer Smith exited the police car, he saw two men in ski masks come out of the store and enter a Nissan Pathfinder, which spun its wheels and accelerated straight toward him. The police officers fired at the vehicle, and it skidded to a stop in a snowbank. Officer Hooper yelled at the occupants to place their hands out of the vehicle. One of the gunmen fired at Officer Smith. Officer Hooper, who was standing behind a telephone pole, slipped on the ice and slid parallel to the passenger side of the vehicle. Shots were fired at Officer Hooper from the Pathfinder's passenger window. Both officers returned fire. The passenger, Tyrone Glover, then surrendered without incident. Appellant Robinson exited the vehicle holding a gun in his hand. Officer Hooper commanded him to drop the gun, at which point Robinson "began incoherently screaming and started pulling the trigger" of his gun. The officers fired at Robinson, striking him four times.

When the policemen approached Robinson, he was laying face down on the pavement. The gun was located near his right hand. Robinson's clothes were cut off in order to administer emergency assistance at the scene. A gun holster was found in his pants.

During a post-arrest search of the scene, the store's safe was found in the parking lot, as were some U.S. currency and some coins in wrapping tubes. From the front seat of the Pathfinder the police recovered $139.00 contained in coin tubes, which, according to Ms. Luc, were exactly "the same kind of tube" used by 7-11. Also found on the front seat of appellant's truck were ninety-six Maryland lottery tickets.

B. Defendant's Version of Events

Robinson was the lone defense witness. He adamantly denied that he knowingly played any role in the 7-11 robbery. Robinson testified that he was driving Tyrone Glover home

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when Glover asked him to stop at the 7-11. He waited in his Pathfinder while Glover went inside to get a soda and cigarettes. Appellant, while waiting, received a page and used the pay phone outside the store to respond to it. Glover then came out of the store and fumbled around in the Pathfinder, possibly looking for change. Glover went back inside the store, and Robinson got behind the steering wheel and waited. Glover then got back in the vehicle and said he was "ready."

According to Robinson, as he drove from the parking lot several shots were fired at his truck from behind a snowbank. He did not know who was shooting at him, and he did not see the police officers or their car. One of the bullets hit the left front tire, he lost control of the vehicle on the ice and hit a snowbank. Robinson heard "some guys" telling him to get out of the truck. He and Glover attempted to get out, but the doors were stuck due to the snow. Before he could get his door open, several more shots were fired. When he managed to open the door, he exited the Pathfinder with his hands raised. He was told not to move. Robinson heard several additional shots, one of which hit him in the leg. He began to hop on one foot and saw Glover exit the truck. The "guys" again ordered him not to move. Appellant kept his hands up, but he heard more shots and was hit three more times. Appellant testified that "he had no idea" where the [699 A.2d 574] police found the holster and denied that he had been armed.

Appellant testified that on the night of the robbery he wore blue jeans, black boots, and a multi-colored red flannel shirt.

C. Evidentiary Issues and Instructions

During defense counsel's cross-examination of Officer Smith, Smith testified that he had given a statement to the Internal Affairs Division of the Prince George's County Police Department concerning the arrest of Robinson and Glover. Defense counsel did not, however, request a copy of the statement at any time during Officer Smith's testimony.

Later, when cross-examining Officer Hooper, defense counsel discovered that Officer Hooper had also provided a statement

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to the Internal Affairs Division. Defense counsel requested a bench conference. At the bench conference he contended that the defense was entitled to the internal affairs statements made by Officers Smith and Hooper. Defense counsel added that it was his understanding that witness statements were "discoverable, but they [the prosecution] didn't have to hand them over until the witness ... had finished direct examination." Judge Spellbring responded that he did not think that such a rule applied to statements given to Internal Affairs. He asked defense counsel if he had any legal authority supporting the defendant's position. Defense counsel ¹ could not cite any authority but held his ground by, among other things, saying: "I know it's the State's responsibility to give us exculpatory statements."

Judge Spellbring asked the Assistant State's Attorney whether she had attempted to get the internal affairs statements, and she responded:

No, your Honor. I didn't even know that they made statements....

It's my understanding that statements to the Internal Affairs Division are not the privy of the State's Attorney's Office either. That's an underlying policy.... They have to keep that investigation somewhat separate and apart from the State's Attorney's Office. Therefore, it's been my understanding that we don't receive those types of statements, and I have not received any in this case.

Judge Spellbring instructed the prosecutor "to inquire" as to the availability of the statements "only to determine whether there is anything exculpatory within them and for no other purpose at this point." He requested that counsel appear in chambers the next morning and that the officers' statements be made available to him.

Present in chambers the next day were the prosecutor, defense counsel, and an Assistant County Attorney. The record does not indicate that the...