Walker v. State
| Decision Date | 31 May 2002 |
| Docket Number | No. 0658 Sept. Term, 2001.,0658 Sept. Term, 2001. |
| Citation | 798 A.2d 1219,144 Md. App. 505 |
| Parties | Earl G. WALKER v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
David A. Martella (Barry H. Helfand, on the brief) Rockville, for appellant.
Rachel Marblestone Kamins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Douglas Gansler, State's Attorney for Montgomery County, Rockville, on the brief) for appellee.
Argued before SALMON, SONNER, ADKINS, JJ.
Among other issues, we are asked to decide in this case whether the State may impeach its own witness with a prior inconsistent statement under Md. Rule 5-607 when the State was not surprised by the witness's testimony. A jury in the Circuit Court for Montgomery County convicted Earl Walker, appellant, of one count each of distribution of cocaine and conspiracy to distribute cocaine arising from a May 4, 2000 transaction. The jury acquitted appellant of identical charges stemming from a May 3, 2000 transaction. Appellant presents four questions for our review.
III. Did the trial court err in denying appellant's motion in limine to exclude all hearsay statements made by a non-defendant during a drug transaction about having to contact "his guy"?
IV. Was the evidence sufficient to convict appellant of the charges stemming from the May 4 transaction?
As to the first issue, we shall hold that the State need not prove surprise in order to impeach its own witness. As to issues II, III, and IV, we find no error by the trial court. Appellant's convictions are affirmed.
In early May 2000, the Montgomery County Police Department arranged a series of undercover drug buys from Gerald Myrick, the target of an investigation. Officer Charles Carafano, a detective assigned to the Special Investigation Division, Street Level Drug Enforcement Unit, arranged the buys.
On May 3, Officer Carafano called Myrick at the pizza restaurant in Derwood, Maryland where Myrick was employed at the time. Carafano asked to buy $100 worth of crack cocaine. Myrick told Carafano that "he had to call ... `his guy' and... would call [Carafano] right back." Carafano testified that, a few minutes later, Myrick called him back and told Carafano to report to the restaurant "a little bit before 7:00 [p.m.]" and that "his guy was going to be there at 7:00 p.m."
When Carafano arrived at the restaurant, Myrick approached him, took his $100,1 and retreated into the restaurant. Several minutes later, a silver Honda with temporary registration tags pulled out from the rear of the restaurant. At trial, Carafano identified appellant as the driver of the Honda. Several minutes after the Honda departed, Myrick came out from the same area behind the restaurant, and handed Carafano three rocks of suspected crack cocaine, wrapped in cellophane. Carafano then left the premises.
Officer Heath Marshall followed the silver Honda when it left the restaurant on May 3. He recorded the car's temporary registration tag number, and noted that the vehicle had only one occupant.
On May 4, Carafano again called Myrick at the restaurant, and arranged to buy another $50 worth of crack cocaine. Again Myrick said he would "call his guy," and he later called Carafano back to finalize the deal. This time, Myrick told Carafano to meet him at Myrick's house after he got off from work. Myrick was standing on a stoop outside his home talking on the phone when Carafano arrived. When Myrick got off the phone, he approached Carafano and asked for the $50. Myrick then walked down the street and out of Carafano's line of vision to get the cocaine, while Carafano waited outside Myrick's residence. About twenty minutes later, Myrick returned and handed Carafano three rocks of unwrapped suspected crack cocaine. At trial, the parties stipulated that the substance seized on both May 3 and May 4, and suspected to be crack cocaine was, in fact, crack cocaine.
Officer Dan Helton was surveilling the area around Myrick's house during the undercover operation on May 4. Helton observed Myrick meet with another man, later identified as Roland Christian. The two men waited at the street corner, and "began looking up and down the road as if they were waiting for somebody or looking for somebody." Helton then observed a silver Honda with a temporary registration tag drive up to the men. Myrick approached the driver's side of the car, while Christian approached the passenger's side. According to Helton, Myrick reached his right hand into the car through the driver's side window, while Christian reached his right hand in through the passenger's side window. The two men then retracted their hands from the car, and placed them into their right pant pockets. Helton did not observe whether the men's palms were open or closed when they exited the car's windows. The Honda then drove away. Helton identified appellant as the driver of the Honda.
Officer Marshall was also part of the May 4 surveillance unit, and also observed the interaction between Myrick and the occupants of the silver Honda on that date. According to Marshall, the temporary registration tag number of the Honda matched that of the Honda seen leaving the pizza restaurant where Myrick worked on May 3. Marshall was ordered to follow the Honda, and later to stop the car after the drug deal was verified. Marshall also identified appellant as the driver of the Honda.
While searching the car, officers recovered a wallet from the front driver's seat. This wallet contained several cards bearing appellant's name and $240, $70 of which was traced to the $100 given to Myrick during the May 3 drug buy. A strip search of the passenger yielded the $50 in pre-recorded funds that had been used in the May 4 drug buy. At trial, Gerald Myrick was compelled to testify after being assured immunity from state and federal prosecution. The details of Myrick's testimony, and the events leading up to that testimony, will be discussed more fully below.
Appellant first alleges that the trial court erred in allowing the State to impeach Gerald Myrick, its own witness, with a prior unsworn statement he made to the police. The State counters that its impeachment of Myrick was proper under the circumstances.
The background of this dispute is as follows. Myrick apparently was supposed to testify for the State under the terms of a plea agreement. Prior to appellant's trial, Myrick gave an oral statement to the police implicating appellant. At the start of appellant's trial, however, the prosecutor proffered that she had learned the preceding Friday that Myrick was no longer willing to testify. Therefore, the prosecutor moved to compel Myrick's testimony. Because Myrick's attorney was not present at the time, the court delayed ruling on the motion.
After the jury was selected, the court resumed discussion of the motion. The prosecutor called Myrick to the stand outside the presence of the jury. Myrick exercised his Fifth Amendment rights, and indicated that he would refuse to testify if called during the trial. Myrick's attorney opposed the State's motion to compel Myrick's testimony, raising concerns about the use of Myrick's in-court testimony in future state and federal prosecutions of Myrick. After both state and federal immunity from prosecution were secured, the court granted the State's motion to compel, and Myrick took the stand.
Myrick testified that on May 3, he arranged to meet Carafano at the restaurant where he worked. On direct examination the following dialogue occurred:
Thereafter, outside the presence of the jury, the prosecutor announced her intention to impeach Myrick with his prior statement to the police, which, contrary to Myrick's in-court testimony, implicated appellant. The statement had been reduced to some sort of writing,2 which was not signed or otherwise adopted by appellant. The prosecutor acknowledged:
We cannot get this statement in as substantive evidence under the Nance case and the new rules that came along from Nance which do require that any prior inconsistent statement be signed by the individual prior to it being admitted into evidence as substantive evidence.
The following exchange took place between the prosecutor and the court:
The trial judge then heard from appellant's attorney.
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