Stewart v. State

• Decision Date: 01 September 1995
• Docket Number: No. 79,79
• Citation: 342 Md. 230,674 A.2d 944
• Parties: Michael STEWART v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 230

342 Md. 230

674 A.2d 944

Michael STEWART v. STATE of Maryland.

No. 79, Sept. Term, 1995.

Court of Appeals of Maryland.

April 17, 1996.

Jennifer P. Lyman, Washington, DC, for petitioner.

Annabelle L. Lisic, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

CHASANOW, Judge.

We are called on in this case to decide whether a prior inconsistent statement by a recanting witness in a criminal case may be admitted as substantive evidence at trial even though the party calling the witness knows beforehand that the witness intends to disavow his or her prior statement. We hold that prior inconsistent statements are admissible as substantive evidence, provided they fall within the circumscribed limitations discussed in Nance v. State, 331 Md. 549, 629 A.2d 633 (1993), regardless of whether the party calling the witness knows ahead of time that the witness intends to repudiate the prior statements.

I.

The petitioner, Michael Stewart, was convicted in the Circuit Court for Baltimore City by a jury of first degree murder and use of a handgun in the commission of a crime of violence in connection with the shooting death of James "Man" Brandon. Brandon was shot twice and killed on July 9, 1993 in front of a house on West Lanvale Street in Baltimore. A key witness to the murder was George Booth, who was sitting on a railing in front of the house immediately before the shooting. Police interviewed Booth the day of the shooting. In his first statement to police, Booth stated that he did not see either the shooting or the person who murdered Brandon. In a second statement to police that same day, however, Booth acknowledged having seen a man running from the murder scene just after the shooting. He told police that prior to the killing he was sitting on a railing in front of a house near the crime scene. Just minutes before the shooting, Booth said a man wearing blue shorts and a sweat jacket had walked in front of the house and told Booth to leave the area. Booth told police he heard five shots as he walked away. He looked back and saw the man in the shorts and jacket running from the scene. Booth told police he did not know the man he saw. Both of Booth's statements of July 9, 1993 were reduced to writing by police and signed by him.

Approximately three and a half months after the shooting, Booth was presented with an array of photographs by Baltimore City Police Detective Corey Belt, who asked Booth to identify Brandon's killer. Booth selected Stewart's photograph from the array and signed his name on the photo array card above Stewart's photo. On the back of the card, Booth wrote "I'm positive that he was the one that shot Man" and signed his name to the statement. That same day, Booth also appeared before the grand jury and testified that Stewart, who Booth knew as "Mike" or "Honky Tonk," was the person who shot Brandon. Booth testified that he was sitting on the railing in front of a house on West Lanvale Street with an acquaintance. Minutes before Brandon was murdered, Stewart walked up to Booth, showed him a gun and told him to leave the area. Booth left the railing and walked down a nearby alley. He testified that he heard shots, looked back and saw Stewart "doing the shooting."

Stewart was indicted on November 23, 1993 and charged with Brandon's murder. Booth was expected to be an important witness for the State, but it soon became apparent that he was reluctant to testify. Several weeks before trial, Booth notified prosecutors that he had no intention of appearing at Stewart's trial. Booth failed to appear on the initial trial date and a bench warrant was issued. Booth was eventually located and appeared in court on April 25, 1994. At a pre-trial motions hearing, Booth offered testimony that differed substantially from his testimony before the grand jury. At the hearing, Booth testified that he had not initially selected Stewart's photo as that of the shooter. Rather, Booth claimed to have selected the photograph of another person, and that police pressured him into picking Stewart's photo. After the hearing, the circuit court denied Stewart's motion to suppress Booth's out-of-court photographic identification.

At trial the next day the State called Booth as a witness. Contrary to his earlier testimony before the grand jury, Booth testified at trial that he did not know the person who shot Brandon. He testified that the killer was someone he had never seen before. Booth stated that he did not identify Stewart's photograph from the police photo array, but rather selected another photograph. He acknowledged signing his name above Stewart's photo and writing on the back of the photo array card that he was "positive that [Stewart] was the one that shot Man," but he asserted that the police "hounded" him into doing so. The photo array card containing Booth's statement identifying Stewart as the shooter was then admitted into evidence.

While still under direct examination, Booth acknowledged appearing before the grand jury and testifying that Stewart was the person who showed him the gun in front of the house minutes before the shooting, told him to leave the area, and shot Brandon. Booth testified that his statements before the grand jury were truthful. On cross examination, however, Booth recanted again and testified that Stewart was not the shooter. Booth's grand jury testimony was then admitted into evidence. Additionally, both of Booth's July 9 statements to police, neither of which directly implicated Stewart, were admitted into evidence without objection.

Stewart appealed his conviction to the Court of Special Appeals, arguing, among other things, that the admission of Booth's grand jury testimony and written out-of-court statement identifying Stewart as the shooter was improper because the State's only purpose in calling Booth as a witness was to have his previous out-of-court statements implicating Stewart in the shooting admitted into evidence. The intermediate appellate court rejected Stewart's argument, and affirmed his conviction. Stewart v. State, 104 Md.App. 273, 655 A.2d 1345 (1995). We granted certiorari to consider Stewart's contention that the Court of Special Appeals erred in concluding that the statements were admissible. We affirm the ruling of the intermediate appellate court.

II.

As a general rule, prior statements by a witness that are inconsistent with the witness's in-court testimony are admissible to impeach the credibility of the witness. See Ali v. State, 314 Md. 295, 305, 550 A.2d 925, 930 (1988); Sun Cab Company, Inc. v. Cusick, 209 Md. 354, 361-62, 121 A.2d 188, 191 (1956); 6 LYNN MCLAIN, MARYLAND EVIDENCE, § 607.1(b) at 38 (1987). When offered to prove the truth of the matter asserted in the statements, however, a witness's prior inconsistent statements are hearsay ¹ and thus traditionally were held to be inadmissible as substantive evidence. See Ali, 314 Md. at 304-05, 550 A.2d at 929-30; 1 MCCORMICK ON EVIDENCE § 34, at 113 (John W. Strong ed., 4th ed. 1992). See also Sun Cab, 209 Md. at 361-62, 121 A.2d at 191 ("It is an accepted rule that any statement made by a witness prior to the trial is admissible for the purpose of impeaching the witness, but not as substantive evidence.").

In Nance, supra, however, this Court carved out an important exception to the general rule against the admissibility of prior inconsistent statements as substantive evidence. In Nance, we held that the factual portion of a witness's out-of-court statement is admissible as substantive evidence when: (1) the out-of-court statement is inconsistent with the witness's in-court testimony; (2) the prior statement is based on the declarant's own knowledge; (3) the prior statement is reduced to writing and signed or otherwise adopted by the witness; ² and (4) the witness is subject to cross-examination at the trial where the out-of-court statement is introduced. 331 Md. at 569, 629 A.2d at 643. We also held that a witness's prior inconsistent testimony before a grand jury is admissible at trial, as long as the witness is available at trial for cross-examination Nance, 331 Md. at 571, 629 A.2d at 644. These dictates have since been codified in the Maryland Rules of Evidence. Maryland Rule 5-802.1 provides in pertinent part:

"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 statement that is inconsistent with the declarant's testimony, if the statement was (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 signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement."

Applying these principles to Booth's out-of-court statements in the instant case, we find no error in the trial court's decision to admit them as substantive evidence of Stewart's guilt. Both Booth's signed written statement to police on the back of the photo array card identifying Stewart as the killer and his grand jury testimony met the requirements of admissibility set out in Nance. ³ With regard to Booth's written statement that "I'm positive that he was the one that shot Man," Nance was satisfied. ⁴ The statement was clearly inconsistent with Booth's trial testimony, in which Booth denied knowing the person who killed Brandon. The statement was based on Booth's own knowledge of the shooting, was written down by Booth himself and signed by him. In addition, Booth was available for cross-examination.

Similarly, Booth's grand jury testimony met the requirements of admissibility under Nance. The grand jury testimony was given under...