Petition for Writ of Certiorari — Edwards v. Maryland

Supreme Court, U.8.

(1) FILED

96 245 AU 131%

OFFICE OF THE CLERK

No. 96-

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1996

STEPHEN DANIEL EDWARDS,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Special Appeals of Maryland

PETITION FOR A WRIT OF CERTIORARI

WALTER A. SMITH, JR.*

STEPHANIE ROBINSON

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004-1109

(202) 637-5728

* Counsel of Record Counsel for Petitioner

QUESTIONS PRESENTED

In California v. Green, 399 U.S. 149, 163 n. 15

(1970), this Court held that the Constitution is not

“necessarily violated” in a criminal case by “the

admission of a witness’ prior inconsistent statement for

the truth of the matter asserted.” At the same time, the

Court left open the possibility that in some

circumstances such an admission may be

unconstitutional, stating that “we may agree that

considerations of due process * * * might prevent

conviction where a reliable evidentiary basis is totally

lacking * * *.” This case, in which the murder

conviction of petitioner rests almost exclusively on prior

inconsistent statements of witnesses who denied the

truth of those statements at trial, presents the two related

questions left open in Green:

1. Whether the Due Process Clause is violated by

allowing substantive admission of a witness’ prior

inconsistent statement in a criminal case in the

absence of independent evidence corroborating the

reliability of the statement.

2. Whether the Due Process Clause is violated by

sustaining a criminal conviction on the basis of a

witness’ prior inconsistent statement in the

absence of independent evidence corroborating the

reliability of the statement.

(i)

ss

TABLE OF CONTENTS

Page

COURSES RIONGD BP URMEIREIEN BREED 5. ccccecccceessccececcccsscscsceosecsessass i

I ose at ci eninaiciinnianadeeiahisaiciekentiahinnt l

EEE a aN l

CONSTITUTIONAL PROVISION INVOLVED ............. 2

RARE SE GEE BME SONNE cennccxevcansecsscerensnincssensccsncete 2

ees eenahninehiahiabameinnananiiaanienadiienes 2

Se TIE nas cerned aseansheminnnnanensenenees 3

ee) ee ED IE STII. 0s cssnasencnsnhaneussienonceess 14

REASONS FOR GRANTING THE WRIT....................... 16

I. THE LOWER COURTS ARE IN CONFLICT

CONCERNING THE DUE PROCESS

REQUIREMENTS GOVERNING THE USE

OF PRIOR INCONSISTENT STATEMENTS

Be Sa UTA SUED cs diiecesecersenseneroansaneceresasoess 17

Il. THE NATURE OF THE DUE PROCESS

LIMITATIONS ON THE USE OF PRIOR

INCONSISTENT STATEMENTS PRESENTS

QUESTIONS ESSENTIAL TO THE FAIR

ADMINISTRATION OF CRIMINAL JUSTICE. 22

Ill. THE PRESENT CASE IS A COMPELLING

ONE FOR RESOLVING THE QUESTIONS

EINE iaithtinicurta-tianeeisisaboanuiniisetouvisenvessenansesoen 23

ET TIINIIEIIT soncsinasetuiniensneeeunenimansnssciensntsennansateerttnnseces 24

Appendix A: Order of the Court of Appeals of

Maryland Denying Review...................c.ssceeeseee: la

Cs

TABLE OF CONTENTS—Continued

Page

Appendix B: Opinion of the Court of Special

PE OE CEI, eirincicatissinsuicnsintiaseaiiiidilagnaiainis 2a

iv

TABLE OF AUTHORITIES

Page

CASES:

Acosta v. State, 417 A.2d 373 (Del. 1980) o.oo... eeececcececeeee 21

Bridges v. Wixon, 326 U.S. 135 (1945) .o....ccccccccsccseccecseseeees 17

Brower v. State, 728 P.2d 645 (Alaska App. 1986)............... 20

California v. Green, 399 U.S. 149 (1970) .........cecceceees passim

Chambers v. Mississippi, 410 U.S. 284 (1973)..........cccccece0-. 23

Nance v. State, 629 A.2d 633 (Md. 1993) .0.........cccccceccceseeees 15

Opper v. United States, 348 U.S. 84 (1954) oo.....ccccccccccccsesees 2

Rochin v. California, 342 U.S. 165 (1952 ......c.ccccccceccescseseee 23

State v. Gommenginger, 790 P.2d 455 (Mont. 1990)............ 20

State v. Mancine, 590 A.2d 1107 (NJ. 1991) ..o..cecececcceees 21

State v. Moore, 485 So.2d 1279 (Fla. 1986) .........cccccccccesscees 20

State v. Robar, 601 A.2d 1376 (Vt. 1991) ooooceeeececcccceseseee 21

State v. Webb, 779 P.2d 1108 (Utah. 1989) ooo... ceceeeees 20

Stone v. Powell, 428 U.S. 465 (1976) .........ccecccceccsscescecsceseeee 23

Stone-Bey v. Swihart, 898 F. Supp. 1287 (N.D. Ind.

SUITED venissiepusepmcstiaiinbinjunbaiieiantdtiniiailnicate a iad gee net 18

Ticey v. Peters, 8 F.3d 498 (7th Cir. 1993)... .occcccccesesee. 20

Tome v. United States, 115 S.Ct. 696 (1995)..0.......cccccccceccees 22

United States v. Orrico, 599 F.2d 113 (6th Cir. 1979).......... 18

United States v. Leslie, 542 F.2d 285 (5th Cir. 1976)........... 17

Vogel v. Percy, 691 F.2d 843 (1982) ooo... cececccccccccecccceeecees 18

CONSTITUTIONAL PROVISION:

Sea. Sle, MUNIN: UIT sactutsbledsesinctcichesccbicie ss concen’ passim

LEGISLATIVE MATERIALS:

S. Rep. No. 1277, 93rd Cong. 2d Sess...........ccccccccccocccooceeeees 19

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1996

No. 96-

STEPHEN DANIEL EDWARDS,

Petitioner,

V.

STATE OF MARYLAND,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Special Appeals of Maryland

PETITION FOR A WRIT OF CERTIORARI

Stephen Daniel Edwards respectfully petitions this

Court for a writ of certiorari to review the judgment of

the Court of Special Appeals of Maryland entered in this

case on November 24, 1995.

OPINIONS BELOW

The November 24, 1995 opinion of the Court of

Special Appeals of Maryland and the April 15, 1996

order of the Court of Appeals of Maryland denying

Edwards’ petition for certiorari are unreported and are

reprinted in the attached appendix (“App.”).

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1). The judgment of the Court of Special

2

Appeals was entered on November 24, 1995. The order

of the Court of Appeals of Maryland was entered on

April 15, 1996. On July 5, 1996, Chief Justice

Rehnquist granted petitioner’s timely application for an

extension of time to file his Petition for a Wnt of

Certiorari up to and including August 13, 1996.

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the Constitution of the

United States provides, in pertinent part:

No State shall * * * deprive any person of life,

liberty or property, without due process of law * * *.

STATEMENT OF THE CASE

A. Introduction

This case presents an important question of constitu-

tional law left open by this Court in California v. Green,

399 U.S. 149 (1970): to what extent does the Due

Process Clause require corroboration when the State

attempts to prove a criminal case on the basis of prior

inconsistent statements of witnesses who either recant or

cannot remember those statements. This is an important

and recurring issue in the lower courts, and one that has

divided those courts.

Here the issue arises in a particularly compelling

context. For here the courts of Maryland—contrary to

nearly every other jurisdiction addressing the issue—

held that Due Process requires mo independent

corroboration or demonstration of reliability to sustain a

conviction on the basis of prior inconsistent statements.

And the Maryland courts have reached this conclusion in

a murder case where, as we will show, not only is the

reliability of the prior inconsistent statements v Eyam

in doubt; but those prior statements all consist o

that petitioner offered extrajudicial admissions of So

admissions the Court long ago held were sufficiently

suspect that they must be independently corroborated.

Opper v. United States, 348 U.S. 84 (1954).

3

Thus, r- gine pm below, this case a :

shooting death and the State’s pressuring of a group o

young men into agreeing that one of their friends in the

group had said to them that he committed the crime.

The State gave one of these young men prosecutorial

immunity in exchange for his inducing others in the

group to agree on their story, and it threatened those

others with prosecution and jail if they did not

cooperate. The State’s tactics were such that the trial

judge repeatedly stated his concerns over them and over

the effect the may have had on the resulting statements

of the young men.

Yet, when at trial all but one of these young men

recanted what they previously had been induced to

say—and instead testified under oath that their friend

had in fact never said he committed the offense— the

judge permitted the State, over objection, to prove its

case on the basis of the prior statements by reading long

passages of grand jury testimony into evidence. And he

permitted this notwithstanding that the grand jury

testimony was completely the product of leading

questions, was followed by no cross-examination, and

occurred without the presence of counsel either for the

witness or petitioner. As a result, the murder conviction

and life sentence now before this Court rest on this prior

inconsistent, recanted, uncorroborated testimony.

B. Statement of Facts

In the fall of 1993, petitioner Stephen Edwards was a

16-year-old high school student in Washington, D.C.

(Tr. 63-64, Dec. 5, 1994).! On October 2, 1993, he

returned to his old neighborhood on Maple Avenue in

Takoma Park, Maryland to visit several of his childhood

friends. (Tr. 66-67, Dec. 5, 1994).

| Citations to the record give both the transcript page (“Tr.”) and

trial date.

4

During the afternoon, Edwards played basketball on

the public courts located behind the Park Ritchie

Apartments (Tr. 67, Dec. 5, 1994) and later joined in a

game of dice with, among others, Charles Rogers.

69-70, Dec. 5, 1994). Edwards won two or three do

from Rogers in the game and asked him to pay the

money that evening as Edwards needed it for a taxi ride

home. men eh as soon as he was able to

get the correct (Tr. 86, 86, Nov. 30, 1994; Tr. 89,

Bee 4 1994).

During the evening, Edwards, Rogers, and a half-

dozen others spent time together around the Park Ritchie

Apartments and at a nearby deli, barbershop, and

a Fo 72-73, Dec. 5, ye? Be pa yy

se of the young men were together in

area when they heard gunshots from a wooded area

behind the Park Ritchie. Some of them later said

Edwards was with them when the 2 Bene So

gunshots (Tr. 22-23, 51, Dec. 5, 1994 994): oth ers said he

was not there. (Tr. 52, 142, Nov. 30, 1994). y said

Pierre Wilson, one of the boys in the and a

suspect in the case, was not present (Tr. 308-309, Nov.

29, 1994; Tr. 22-23, 50, 80-81, Dec. 5, 1994); others

said he was. (Tr. 47-48, 54, 142, 146, Nov. 30, 1994).

In any case, the body of Charles Rogers was found the

next day behind the Park Ritchie. He had been shot

several times with a .25 caliber gun. (Tr. 109-110, 164,

Dec. 1, 1994; Tr. 11, 28, Dec. 2, 1994).

Petitioner was charged with first degree murder in

connection with Rogers’ death. His initial trial ended in

a mistrial after the jury was impro exposed to

irrelevant and prejudicial evidence. He was convicted

on December 6, 1994, following a six-day retrial, and

was sentenced to life imprisonment.

The State’s theory was that Edwards killed Ro

because Rogers owed Edwards two or three dollars.

State, however, was unable to offer any physical

5

evidence or direct trial testimony that tended to inculpate

Edwards: (1) no eyewitnesses were produced; (2) the

murder weapon was never recovered; (3) although

Rogers’ clothes were examined and all of Edwards

clothes were seized from his house and examined, no

evidence was found connecting Edwards to the crime;

(4) although fingerprints were lifted from the crime

scene, none matched Edwards’; and (5) although

footprints were lifted from the crime scene, none

matched Edwards’ shoes, even though all Edwards’

shoes were seized from his home and examined.

Furthermore, Edwards himself has consistently denied

any involvement in the shooting, and testified in his own

defense at trial.

In the absence of any eyewitnesses or physical

evidence, the State premised its entire case on the

proposition that Edwards told several of the other group

members that he had shot Rogers. But the evidence at

trial made clear that the State had pressured these

witnesses to implicate Edwards and had been helped in

doing so by a suspect to whom the State gave immunity,

Pierre Wilson. As a result, at trial all but one of these

boys categorically denied that Edwards ever admitted to

shooting Rogers. In fact, Wilson himself could not

remember whether Edwards had made such an

admission. And although Wilson’s cousin, Alex

Gordon, did testify to incriminating out-of-court

statements by Edwards, it was not clear how much

Gordon knew first-hand; neither was it clear whether

Gordon actually heard Edwards say anything, nor was it

clear how much Gordon was influenced by a desire to

protect his cousin, Pierre Wilson; and in any case, it was

clear that the State had no independent evidence

corroborating what Gordon said.

Because the State’s entire case thus tumed on the

proposition that Edwards made incriminating extra-

judicial admissions, it is important to give a description

ia ei,

6

of the witnesses’ testimony related to those alleged

admissions.

1. THE STATE’S WITNESSES

a. Pierre Wilson

Pierre Wilson was himself initially a ry in the

shooting. He testified in the case only after he was

offered immunity from pa for conspiracy to

murder. He was given immunity in exchange for

helping build a case against Edwards. (Tr. 100, 106,

Dec. 2, 1994). Nevertheless, although he was to be the

State’s “star” witness, at trial he gave neutral testimony

regarding Edwards’ involvement.

Thus, on direct examination by the State, Wilson

testified that he received a telephone call from Stephen

Edwards shortly after the shooting, but Wilson did not

testify that Edwards admitted to the killing in that

conversation. (Tr. 70, Dec. 2, 1994).

As a result, the State introduced two unswom

statements that Wilson had allegedly provided to the

police. Those statements alleged that Edwards had

specifically told Wilson in their telephone conversation

that he had shot Rogers in the h the back and the

chest. Wilson, however, did not adopt those statements

at trial. Instead, he testified that he could not remember

the further substance of his conversation with Edwards.

Nevertheless, over objection the statements were

admitted as substantive evidence against Edwards.

(Tr. 82-84, Dec. 2, 1994). And they were admitted

notwithstanding that the autopsy report did not

corroborate them. That report showed that Rogers was

shot in the leg, shoulder, head, and neck, not the chest,

back, and head. (Tr. 12, 17, 20, 26, Dec. 2, 1994).

By his own admission, Wilson made between eight

and thirteen inconsistent statements to the police in

writing or by tape-recorded transcription. Throughout

these interviews, Wilson altered significant details in his

sii

7

story before finally arriving at the unsworn, extrajudicial

statements that were introduced in evidence. r. 96,

Dec. 2, 1994).

Although Wilson’s evidence against Edwards was

—— the evidence implicating Wilsca himself in

e shooting was consi ble, as was the evidence

showing his motive for inducing others to incriminate

Edwards. Specifically, several of the boys testified that

Wilson was not present when they heard the gunfire, and

that they saw Wilson shortly thereafter running, with a

bag in his hand, from the wooded area where the body

was found. (Tr. 23-24, 50-51, 80-81, Dec. 5, 1994). In

addition, several of the boys testified that Charles

Rogers said, shortly before he disappeared, that he

intended to buy some drugs from Pierre Wilson. (Tr. 21,

46, 76, Dec. 5, 1994). And in fact, according to the

autopsy, drugs (cocaine) were found in Rogers’ body.

(Tr. 8, Dec. 2, 1994).

Furthermore, it was known among the group that

Pierre Wilson was angry with Stephen Edwards, because

Wilson suspected Edwards of sleeping with his

girlfriend. In fact, Wilson had threatened Edwards with

a hammer because of his suspicions. (Tr. 74-75, 85-86,

Dec. 5, 1994). Moreover, the only one of the boys

shown to have any knowledge or experience with

firearms was Pierre Wilson: he had pistol training in the

Army and was familiar with semi-automatics such as the

.25 caliber that killed Rogers. (Tr. 130, Dec. 2, 1994).

Finally, the only physical evidence from the crime scene

connected with any of the young men implicated Pierre

Wilson: a pack of Monarch cigarettes was found next to

the body, the brand several boys said Wilson often

smoked. (Tr. 134, Dec. 1, 1994; Tr. 13, Dec. 5, 1994).

b. Lonell Britt

Lonell Britt, 17 years old at the time of the incident,

testified that he and Edwards were standing in front of a

local deli at the time of the shooting. (Tr. 176, Nov. 29,

1994). Britt further testified that in subsequent

conversations with Edwards, Edwards confirmed that he

had nothing to do with the shootings, and did not know

who the gunman was.

Over objection, the State introduced Britt’s grand jury

testimony, in which Britt stated that Edwards was angry

at Rogers, and that Edwards had made an admission

regarding the shooting. (Tr. 212-222, Nov. 29, 1994).

This grand jury testimony was admitted as substantive

evidence despite Britt’s claim that the State threatened to

incarcerate him unless he testified in a manner consistent

with the State’s theory of the case. (Tr. 202, Nov. 29,

1994).

Specifically, Britt testified that he understood “that I

was going to get locked up if I didn’t say what you [the

Prosecutor] wanted me to say.” (Tr. 202, Nov. 29,

1994). He also testified that he told the grand jury what

the prosecutor wanted him to say “because I was scared.

I didn’t know what to say because I ain’t never been

through nothing like that before.” (Tr. 204, Nov. 29,

1994). He ermore testified that the told

him of statements the other witnesses made and

when he wouldn’t tell the same story they did she yelled

at him and told him he was lying. (Tr. 272-274,

Nov. 29, 1994). Significantly, Britt completely dis-

owned his grand jury testimony at trial, stating “I want

to keep a innocent person from going to jail.” (Tr. 290,

Nov. 29, 1994). Also according to Britt, he was high on

marijuana at the time of his grand jury testimony.

(Tr. 314, Nov. 29, 1994).

Notwithstanding the circumstances under which Britt’s

grand jury testimony was obtained, over objection the

court allowed it to be received substantively against

Edwards at trial. (Tr. 206, Nov. 29, 1994). The court

also — a tape of that prior testimony to be played

for jury—even though it was replete with leadi

questions, even me = no counsel for Britt had been

present, and even though no cross-examination had

9

occurred. (Tr. 337, Nov. 29, 1994). The court

furthermore permitted the jury to take a transcript of that

testimony into its deliberations on petitioner’s guilt.

(Tr. 331, 337-338, Nov. 29, 1994).

In the wake of this substantial impeachment, petitioner

sought to introduce prior consistent statements made by

Britt at the first trial. The court, however, refused to let

petitioner show the jury the favorable testimony Britt

had given at the first trial of this case, testimony that

confirmed that Britt had been pressured to lie before the

grand jury. (Tr. 300-301, Nov. 29, 1994).2 And the

court took that view notwithstanding that the inaccuracy

of Britt’s ssured d jury testimony was

indisputably snoaatrated bey other evidence of record.

For example, Britt had testified before the d jury

that Edwards told him during a jail visit to keep quict

about the case, but certified jail records showed that

Britt had never visited Edwards in jail. And, when

confronted on cross-examination Britt admitted that he

had lied about the visit. (Tr. 295-296, Nov. 29, 1994).

c. David Davis

David Davis, 15 years old at the time of the incident,

unequivocally testified at trial that Edwards had told him

that he had not killed Rogers. (Tr. 61, Nov. 30, 1994).

Over objection, the State was then permitted to introduce

grand jury testimony of Davis in which he said that

Edwards appeared “angry” at one point when he

2 The Court took the same view with regard to the other

witnesses, i.e., the judge permitted the prosecutor to impeach the

State’s own witnesses by showing the entire detail of their previous

unfavorable grand jury testimony or written statements, but with

regard to their previous favorable testimony at the first trial, the

judge would not permit the detail of that testimony to be received:

istead, he allowed only the conclusory assertion that the prior

testimony was consistent with the witnesses’ current trial testimony.

(Tr. 102, Nov. 30, 1994).

10

rejoined the group, that Charles Rogers and Edwards

had a conversation in which Rogers said he did not have

money to pay Edwards, and that Edwards and Rogers

had walked off together. (Tr. 86, Nov. 30, 1994).

Yet Davis also testified that he said these things not

because he knew them to be true, but because he had

heard them from other people, because the prosecutor

insisted that he say them, and because he knew he could

correct it later. As Davis testified at trial, “It was like, it

was like, like I would say something, right, like she

asked me a question and then I gave her the answer, and

then she asked me about a thousand more times, you

know, until I, until I tell her what she want to hear. And

you know, I was trying to get out of there, because she

just kept asking me the same questions over and over

again, right, so I just started saying what J heard.”

(Tr. 105, Nov. 30, 1994; emphasis is supplied). As he also

testified in court, he didn’t acceding to the

demands of the police and the arog sw “cause I knew

I was going to have to come back here anyway, so I'd

just straighten it out when I came here.” (Tr. 114,

Nov. 30, 1994).

d. Ramon Wilson

Ramon Wilson, 17 years old at the time of the

incident, was like Pierre Wilson, Lonell Britt, and David

Davis in that he did not provide helpful testimony to the

State when it called him at trial. So, again, the State

introduced prior grand jury testimony over Edwards’

continuing objection. (Tr. 162-163, Nov. 30, 1994).

Before the grand jury, Ramon Wilson testified that

Edwards admitted to shooting Rogers in the head, back,

and chest. em 161, Nov. 30, 1994).

3 This putative admission, not surprisingly, is the same as the

gudemant"tak Places Wilken eniaial te Mieael. and it too is

inconsistent with the autopsy report. See supra at 61.

11

Wilson maintained that his trial testimony was the

truth, and that he would have told the grand jury the

truth but for the fact that the government arranged for

Pierre Wilson to meet with him privately, just before he

was called before the grand jury. In that meeting,

according to Ramon Wilson, Pierre Wilson told Ramon

Wilson how he should testify in order to avoid going to

prison. Later, again according to Ramon Wilson, a

state’s attorney and a police officer joined the meeting

and further pressured Wilson into providing testimony

favorable to the State. (Tr. 178-179, 193, Nov. 30,

1994).

As Wilson testified at trial, “I’m saying this, though.

Reason why, you know, reason why all this is there,

because what, you know, the way you [the prosecutor]

put the pressure on me to make me do that.” (Tr. 152,

Nov. 30, 1994). He furthermore testified that the

prosecutor brought Pierre Wilson into the interrogation

room so Pierre could “persuade” Ramon to tell Pierre’s

version of what happened, a version Ramon then

repeated to the prosecutor while Pierre and police

detectives remained in the room, with Pierre prompting

when Ramon’s version was not “right.” (Tr. 178-179,

185, 190-193, Nov. 30, 1994). But the true version,

Ramon testified at trial, was that Stephen Edwards

“never admitted” shooting Charles Rogers. (Tr. 193,

Nov. 30, 1994).

e. John Wims

Like the others described above, John Wims, 17 at the

time of the incident, was called by the State but had no

incriminating evidence to offer against Stephen

Edwards. So once again, the State introduced a prior

statement the witness gave while being interrogated by

police detectives and the prosecutor. In that statement,

Wims said Edwards was angry at Rogers, threatened to

kill him, and admitted to shooting him in the back, head,

and chest—again mimicking Pierre’s story. (Tr. 240,

241, 243, 247, Nov. 30, 1994). And in this instance,

12

moreover, the statement was unsworn because the State

chose not to take Wims before the grand jury at all.

Over Edwards’ objection, Wims’ prior unswom

statement was received substantively as proof that

Edwards committed the crime. And this was so even

though Wims said the statement was not true and that he

gave it because he had been questioned for some 5-6

hours and “because I felt that I was under restraint, that I

wouldn’t be able to leave unless I told them what they

wanted to hear.” (Tr. 252, 257, Nov. 30, 1994).

f. Alex Gordon

The remaining State witness was Alex Gordon, Pierre

Wilson’s cousin. Gordon, 15 years old at the time of the

incident, was the only witness the State called that it did

not try to impeach. On the other hand, Gordon

remembered very little information until he was

“refreshed” by reading a statement he had allegedly

given in police custody. (Tr. 160, Nov. 28, 1994).

Upon being refreshed, Gordon said that Edwards had

admitted to shooting Rogers, but Gordon was unclear

about whether Edwards had expressly stated that he shot

Rogers, or whether Gordon had simply seen Edwards

acting as if he were firing a gun when talking with

Ramon Wilson.4 Gordon was also unclear about what

part of his testimony was first hand knowledge, and

4 Q. Tell us who you heard him [Edwards] talking to.

Ray [Wilson].

Did you hear what he said to Ray?

Yeah.

What did he say to Ray?

It was—really he was showing Ray. ***. It was like him

and Ray was talking, and he was like, like he had a gun in his hand,

ro nite iti ort ices (Tr. 147, Nov. 28,

1994).

Ae yhetep

esate ~ oven senaatllll

13

what part was hearsay based on what Ramon Wilson

told him. (Tr. 52-53, Nov. 29, 1994). But this much is

clear: Alex Gordon talked repeatedly to his cousin,

Pierre Wilson, before talking to the police and Alex was

concemed that “they was trying to put it on Pierre.”

(Tr. 70, Nov. 29, 1994). And, in any event, the

substance of what Gordon said was never corroborated

by other reliable evidence.

2. THE DEFENSE’S WITNESSES

The defense called three significant witnesses—two

other young men who were present at the time the shots

were heard (Steven Francis and Ivan Diaz) and Stephen

Edwards, the petitioner.

a. Steven Francis

Steven Francis, 16 years old at the time of the incident,

was with the other witnesses on Maple Avenue on

October 2, 1993. He testified that Stephen Edwards was

with him when the gunshots were heard from behind the

Park Ritchie, and that Pierre Wilson was not present.

He also testified that Pierre Wilson came running up

later from behind the Park Ritchie with a black bag.

(Tr. 23-24, Dec. 5, 1994). This fact was confirmed by a

security camera videotape that was taken at the

apartment building and that was shown at trial by the

State. (Tr. 65, Dec. 2, 1994). Francis also denied ever

hearing Stephen Edwards admitting to shooting Charles

Rogers, or hearing Edwards threaten Rogers over

money. (Tr. 35, Dec. 5, 1994).

b. Ivan Diaz

Ivan Diaz was also in the Maple Avenue group, and

was 15 years old at the time of the incident. He testified

that Rogers “was talking about buying some weed from

Pierre.” (Tr. 46, Dec. 5, 1994). He also testified that

Edwards asked for money from Rogers and they

“exchanged a couple of dollars.” (Tr. 48, Dec. 5,1994).

Afterwards, Edwards remained with the group while

14

Rogers walked behind the apartments. (Tr. 49, Dec. 5,

1994). Ten minutes later, according to Diaz, the boys

heard gunshots from behind the apartments. At the time,

Diaz testified, Edwards “was right there, right beside

me.” (Tr. 51, Dec. 5, 1994). But Pierre Wilson was not

there, and did not appear until “four or five minutes

later” after the thn. 04 (Tr. 50, Dec. 5, 1994).

Moreover, with regard to the money Rogers owed

Edwards, Diaz testified that Edwards had said to Rogers

“What’s up with the couple dollars you owe me,” and

that Edwards was “not angry” about it because “it was

only a couple of dollars.” (Tr. 56, 57, Dec. 5, 1994).

c. Stephen Edwards

Finally, Stephen Edwards testified on his own behalf.

He verified that he was 16 years old in October 1993

and was 17 at the time of trial. He also verified that he

won “$2 or $3” from Rogers in a dice e on

October 2. (Tr. 70, Dec. 5, 1994). He explained that

“Me and Pierre don’t really get along” because of a

“beef over his girlfriend.” (Tr. 74, Dec. 5, 1994). He

also testified about Pierre confronting him earlier with a

“stonecutting hammer” because of their “beef.” (Tr. 74-

75, Dec. 5, 1994).

He further testified that on October 2 Rogers had “said

he wanted to get some smoke from Pierre* * *.”

(Tr. 76, Dec. 5, 1994). And he testified that Rogers paid

Edwards the money, walked off behind the apartments

and, five or ten minutes later, he heard ots. (Tr.

79, Dec. 5, 1994). Later, he saw Pierre Wilson coming

from the area, carrying a shoulder bag, and moving fast.

(Tr. 80-81, Dec. 5, 1994). Finally, he testified that he

never told anyone he had shot Rogers, and did not even

know where he had been shot. (Tr. 84, Dec. 5, 1994).

C. The Lower Court Rulings

In the trial court, petitioner repeatedly objected on Due

Process grounds to the State being permitted to rely on

the prior inconsistent statements of its own witnesses to

ote ed Mi Rats pee

15

prove its case, particularly given the coercive tactics

used to obtain those statements, their lack of trustworthi-

ness, and the lack of corroboration for the statements.

(Tr. 7-9, Nov. 29, 1994). Alternatively, petitioner con-

tended that even if the prior statements could be received

as substantive proof, their lack of trustworthiness and

lack of independent corroboration rendered them

insufficient as a matter of Due Process to prove guilt

beyond a reasonable doubt. (Tr. 8, Nov. 29, 1994).

The trial judge rejected both contentions, relying on a

previous Maryland Court of Appeals decision, Navice v.

State, 629 A.2d 633 (Md. 1993). In Nance, the court

held that prior inconsistent statements of recanting or

forgetful witnesses may be used as substantive proof of

guilt in a criminal proceeding, provided the statements

were given “in an atmosphere of formality impressing

upon the declarant the need for accuracy,” provided

further they were memorialized in a way that would

eliminate concerns about whether they were “actually

made,” and provided, finally, that the declarant was

available for cross-examination at trial. When these

three conditions are met, according to Nance, “due

process of law is satisfied.” Jd. at 644.

Believing itself bound by Nance, the trial court

therefore rejected petitioner’s Due Process contentions

—without considering the trustworthiness of the

witnesses’ former statements, without regard to the

tactics of the State that had produced the statements, and

notwithstanding the trial judge’s reservations about those

tactics. As the judge said, “I must admit that I had some

difficulty with some of the testimony that was

unrebutted [that] * * * a male detective had said

allegedly to some of these young witnesses with respect

to veiled or sometimes not so veiled references to

possible prosecution of them * * *.” (Tr. 45, Dec. 6,

1994). As he also said, “I was somewhat troubled by

some of the testimony with respect to how at least one

detective approached some of these people and the

16

impact that that may have had on what they said * * *.”

(Tr. 48, Dec. 6, 1994). Nevertheless, he permitted all

the pressured statements of these young witnesses to be

received against petitioner, and found them sufficient as

a matter of Due Process to sustain the conviction against

him. (Tr. 45-48, Jan. 19, 1995).

Petitioner appealed these rulings to the Court of

Special Appeals of Maryland, arguing, as that court

noted, that the prior statements were unreliable and must

as a matter of Due Process “be scrutinized for

trustworthiness.” App. lla. That court summarily

rejected the contention, simply stating that “That is not

the law in Maryland” and stating further that, because

the minimal requirements of Nance were met, “due

process of law is satisfied.” App. 1la (quoting Nance,

629 A.2d at 644). Petitioner therefore raised the issue

again in his petition for certiorari to the Court of

Appeals of Maryland. On April 15, 1996, that court

denied the petition without opinion.

REASONS FOR GRANTING THE WRIT

The Court should grant review in this case for three

reasons. First, the Due Process requirements governing

the use of prior inconsistent statements in criminal cases

present a troubling and difficult issue, one that this

Court expressly left open in California v. Green, and

one that has subsequently divided the lower courts.

Second, this difficult issue is an important and recurring

one, and one whose resolution is essential to the fair,

uniform administration of criminal justice. Third,

because the prior inconsistent statements in this case

form virtually the whole of the State’s evidence,

because those statements resulted from tactics by the

State that were at the very least questionable, and

because a murder conviction now rests on the prior

statements, this is a compelling case for resolving the

issue.

oe need andi aasl ENS .

17

I. THE LOWER COURTS ARE IN CONFLICT

CONCERNING THE DUE PROCESS

REQUIREMENTS GOVERNING THE USE

OF PRIOR INCONSISTENT STATEMENTS

IN CRIMINAL CASES

In California v. Green, 399 U.S. 149, 163 n.15 (1970),

this Court noted that its prior decision in Bridges v.

Wixon, 326 U.S. 135 (1945), had “suggest[ed] the

existence of a possible constitutional problem in

admitting a witness’ prior inconsistent statements as

substantive evidence.” While the Court said in Green

that “we do not read Bridges as declaring that the

constitution is necessarily violated by the admission “of

such statements,” the Court also said that “we may agree

that considerations of due process * * * might prevent

convictions where a reliable evidentiary basis is totally

lacking * * *.” 399 U.S. at 163 n.15 (emphasis

supplied).

In the years following Green, the lower courts have

addressed the two questions left open by that case: (1) in

what circumstances in a criminal case does the

admission of a prior inconsistent statement for the truth

of the matter asserted offend Due Process? and (2) in

what circumstances does a conviction resting largely (or

exclusively) on such statements offend Due Process?

Numerous lower courts have addressed these questions,

developing conflicting criteria and reaching conflicting

results.

A. Admissibility

One of the earliest and now leading cases addressing

the admissibility question is the Fifth Circuit’s decision

in United States v. Leslie, 542 F.2d 285 (1976).

Following the invitation of this Court in Green, the

Leslie Court developed a five-factor test for determining

when the receipt of a prior inconsistent statement

comports with Due Process: (1) the defendant was

available for cross-examination (2) the statement was

18

made shortly after the events related and was promptly

transcribed (3) the declarant knowingly and voluntarily

made the statement (4) the declarant admitted making

the statement and (5) there was independent

corroboration of the statement’s reliability. Jd. at

290-91. Significantly, the Seventh Circuit adopted the

Fifth Circuit’s five-factor guidelines in Vogel v. Percy,

691 F.2d 843 (1982), —— — that “the

application of these guidelines will safeguard due

process by ‘prevent[ing] convictions where a reliable

evidentiary basis is to ing.”” Jd. at 847 (quoting

Green, 399 U.S. at 163 n.15). central requirement

in these five guidelines, as a district court in the Seventh

Circuit recently noted, is that “[mJost im , there

must be some corroboration of the reliability of the

statement.” Stone-Bey v. Swihart, 898 F. Supp. 1287,

1299 (N.D. Ind. 1995).

Plainly, the guidelines developed in the Fifth and

Seventh Circuit are directly in conflict with those

applied by the Maryland court in Nance and in this case.

For unlike the Fifth and Seventh Circuits, Maryland has

no requirement that the prior statements be voluntarily

given and no requirement that there be any independent

corroboration for the statements. As a result, the tests

petitioner asked the courts to apply here to determine the

reliability and trustworthiness of the statements were

refused, even though those very tests have been held

central to Due Process in the Fifth and Seventh Circuits.

B. Sufficiency

The lower courts are also divided on the Due Process

requirements for the sufficiency of evidence in a

criminal case that turns solely or primarily on prior

inconsistent statements.

The leading lower court case addressing the issue is

United States v. Orrico, 599 F.2d 113 (6th Cir. 1979).

In that case, the defendant was convicted based on two

prior inconsistent statements admitted as substantive

19

evidence. In addressing the constitutionality of the

conviction, the Sixth Circuit began, as did the Fifth and

Seventh Circuits, with Green: “The opinion in

California v. Green ended with a strong hint that such

Statements, though constitutionally admissible,

nevertheless may not be sufficient, by themselves, to

sustain a conviction.” Jd. at 118. The referenced

“strong hint” came in the last footnote of Green.5 There

the Court remanded the case to the California Supreme

Court to determine whether the conviction should be

upheld even though certain prior inconsistent statements

of the key witness had a properly received in

evidence. This Court said that question was “not

insubstantial,” particularly since the “[c]onviction here

rests almost entirely on the evidence in [the witness’]

two prior statements * * *.” 399 U.S. at 170 n.9.

Based on Green, the Sixth Circuit held that even

assuming that prior inconsistent statements are

admissible in a criminal case, they may be used only to

corroborate, to fill in gaps, or to supply detail, but they

may not form “the sole evidence of a central element of

the crime charged.” Orrico, 599 F.2d at 119.

* The same “strong hint” appears in the legislative history

accompanying the 1975 amendments to the Federal Rules of

Evidence. Those amendments, in Rule 801, removed the hearsay

bar to sworn, prior inconsistent statements being offered for the

truth of the matter asserted. However, as the Senate Committee

noted:

It would appear that some of the ition to this Rule is

based on a concern that a person could be convicted solely upon

evidence admissible under this Rule. The Rule, however, is not

addressed to the question of the suffici of evidence to send

a case to the jury, but merely as to its issibility. Factual

circumstances could well arise where, if this were the sole

evidence, dismissal would be appropriate.

S. Rep. No. 1277, 93rd Cong. 2d Sess. at 16 n.21 (emphasis

supplied).

20

By contrast, the Seventh Circuit has rejected the notion

that prior inconsistent statements alone may never serve

as the basis for a conviction. In Ticey v. Peters, 8 F.3d

498 (7th Cir. 1993), the majority of the court employed

the Vogel five-factor test to determine whether prior

inconsistent statements were sufficiently reliable to

justify a conviction. In that case, the defendant was

convicted based on a witness’ prior statement to police

identifying the defendant, even though the witness

recanted identification at trial. The court rejected

the defendant’s contention that the prior inconsistent

statement was insufficiently reliable to “comport with

the guarantees of due process.” Jd. at 501. Implicitly

rejecting the Sixth Circuit’s per se rule that a conviction

“may not be based solely on such statements, the Jicey

court applied the Vogel admissibility guidelines in order

to weigh the quality and sufficiency of the evidence.®

Several state courts follow the Sixth Circuit’s per se

Orrico rule. See State v. Gommenginger, 790 P.2d 455

(Mont. 1990) (unreliable extrajudicial statement cannot

serve as basis for guilt); State v. Webb, 779 P.2d 1108

(Utah. 1989) (uncorroborated prior statement cannot

support conviction); Brower v. State, 728 P.2d 645

(Alaska App. 1986) (uncorroborated grand jury

testimony held insufficient); State v. Moore, 485 So.2d

1279 (Fla. 1986) (reliance on testimony introduced as

prior inconsistent grand jury testimony violated Due

Process).

Still other state courts, although not expressly

adopting the five-pronged Ticey approach, have

6 In dissent, Judge Cudahy agreed that the five-factor Vogel rule

should be used to determine the constitutional sufficiency of the

evidence, but held that the guidelines were not met because the only

corroboration for the prior inconsistent statement was another prior

statement from the same witness. This, said J Cudahy, simp

ly

not

piles one unverified statement on another is

corroboration. 8 F.3d at 502.

Pk Tote, Cab ee aor te Eat 6,

SANE AD BN: Rn AG: pe. cine 4 Ls

21

followed a rule that turns on the reliability of the

extrajudicial statement as the lodestar of the Due Process

inquiry. See State v. Mancine, 590 A.2d 1107 (N.J.

1991) (prior inconsistent statements as the sole

substantive evidence is sufficient to convict if reliable

and defendant can cross-examine the declarant); State v.

Robar, 601 A.2d 1376 (Vt. 1991) (reliable past

recollection recorded and prior inconsistent statements

sufficient to support conviction).

Other state courts have adopted a third approach.

These courts have held that a conviction may be

predicated on uncorroborated extrajudicial statements

without any independent examination of the reliability

of the statements. See, e.g., Acosta v. State, 417 A.2d

373 (Del. 1980) (special jury instruction cures problems

associated with prior inconsistent statements). The

Maryland courts followed that approach in this case.

Rejecting Edwards’ ents, the Court of Special

Appeals sustained wards’ conviction without

engaging in any analysis of the reliability, voluntariness,

trustworthiness, or corroboration affecting the prior

inconsistent statements upon which that conviction rests.

There is thus a clear and direct conflict in the lower

courts concerning both the admissibility and sufficiency

requirements imposed by the Due Process Clause on

prior inconsistent statements in criminal trials. Indeed,

had petitioner been tried in the Sixth Circuit, or in a state

that follows the Sixth Circuit’s approach, his conviction

could not stand because there was no sufficiently

reliable evidence corroborating the extrajudicial

statements.’ Had Edwards been tried in the Fifth or

7 The only evidence arguably corroborating the substance of the

extrajudicial statements of the recanting witnesses was the

testimony of Alex Gordon that he overheard Edwards make certain

statements about the shooting. It is well-settled, however, that an

accused’s admissions of essential facts or elements of the crime

cannot be the basis of a conviction without further corroborating

[Footnote continued]

22

Seventh Circuits, or in states following the lead of either

of those circuits, the prior inconsistent statements at

issue in this case would not have been received or, at the

least, would have been subjected to far more rigorous

scrutiny to determine their constitutional sufficiency.

Il. THE NATURE OF THE DUE PROCESS

LIMITATIONS ON THE USE OF PRIOR

INCONSISTENT STATEMENTS PRESENTS

QUESTIONS ESSENTIAL TO THE FAIR

ADMINISTRATION OF CRIMINAL JUSTICE

The questions presented by this case are both

important and recurring. For it is inevitable that

statements gathered by police or prosecutors or given

before grand juries will not — be reliable; it is also

inevitable that witnesses often recant those

statements; and it was therefore inevitable that the

circumstances presented in this case—witnesses

departing from their prior statements—would be

commonplace in the nation’s criminal courts.

In fact, as the previously cited cases demonstrate, this

situation is a constantly recurring one in those courts. It

is respectfully submitted that the requirements of Due

Process in those courts should not vary from jurisdiction

to jurisdiction, as they plainly do now. The Court

should therefore make those Due Process requirements

uniform, just as it did with regard to the Confrontation

Clause requirements in Green and just as it has done in

other comparable circumstances. See, e.g., Tome v.

United States, 115 S.Ct 696, 699 (1995) "(certiorari

granted to resolve important evidentiary question

[Footnote continued]

evidence. See Opper v. United States, 348 U.S. at 89. Thus, it is

doubtful that Gordon’s testimony, by itself, could corroborate the

otherwise insufficient j Statements of the other

witnesses. had wan 0s eee ate es i was

otherwise unreliable for the numerous reasons stated above.

23

concerning admissibility of prior consistent statements);

Stone v. Powell, 428 U.S. 465, 469 (1976) (certiorari

granted because “[t]he issue is of considerable

importance to the administration of criminal justice”);

Chambers v. Mississippi, 410 U.S. 284 (1973) (certiorari

granted to consider whether petitioner’s trial was

conducted in accord with principles of Due Process);

Rochin v. California, 342 U.S. 165, 168 (1952)

(certiorari granted “because a serious question is raised

as to the limitations which the Due Process Clause of the

Fourteenth Amendment imposes on the conduct of

criminal proceedings by the States”).

iif. THE PRESENT CASE IS A COMPELLING

ONE FOR RESOLVING THE QUESTIONS

PRESENTED

For several reasons, the present case is an especially

compelling vehicle for addressing the questions left open

in Green and for resolving the differences among the

lower courts concerning those questions. First, this is a

first-degree murder case in which a 16-year-old has been

sentenced to life in prison on the basis of the prior

inconsistent statements at issue. Second, those prior

statements were made by young witnesses, all of whom

told different stories at different times, and all of whom

were put under pressure by the State and by the State’s

immunized witness. Third, the pressure tactics used by

the State in producing the statements were at the very

least questionable, as the trial judge himself recognized.

Fourth, by any fair measure the State’s proof in this

case is marginal at best, for it lacks any physical

evidence, any eye-witness evidence, indeed, any direct

evidence at all—virtually nothing other than the prior

statements claiming that petitioner admitted culpability.

Fifth, the Maryland courts’ refusal to apply any

requirements of reliability or corroboration to the prior

inconsistent statements plainly puts that jurisdiction in a

distinct minority and led it to uphold a conviction that

24

would likely have been overturned in most other

jurisdictions.

And finally, the Maryland courts’ refusal to require

corroboration appears to be doubly wrong: for not only

should Due Process require such corroboration for prior

inconsistent statements in general, but it should

particularly do so when the subject of those statements is

alleged extrajudicial admissions of the accused, which,

as noted, must themselves be corroborated under the

Court’s decision in Opper v. United States, 348 U.S. at

91 (“statements of the accused out of court that show

essential elements of the crime * * * have the same

possibilities for errors as confessions [and] * * * must be

corroborated”).

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

WALTER A. SMITH, JR.*

STEPHANIE ROBINSON

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004-1109

(202) 637-5728

* Counsel of Record Counsel for Petitioner

:

Z

2

la

APPENDIX A

STEPHEN DANIEL * In the

EDWARDS

* Court of Appeals

v. * of Maryland

* Petition Docket No. 646

STATE OF MARYLAND * September Term, 1995

(No. 99, September

Term 1995, Court of

Special Appeals)

ORDER

Upon consideration of the petition for a writ of

certiorari to the Court of Special Appeals, and the

answer filed thereto in the above entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that

the petition be, and it is hereby, denied as there has been

no showing that review by certiorari is desirable and in

the public interest.

Date: April 15, 1996 /s/ Robert C. Murphy

Chief Judge

2a

APPENDIX B

UNREPORTED

IN OURT OF IAL APPEALS

OF MARYLAND

No. 99

SEPTEMBER TERM, 1995

STEPHEN DANIEL EDWARDS,

Vv.

STATE OF MARYLAND,

Bloom,

Davis,

Harrell,

JJ.

Per Curiam

Filed: November 24, 1995

3a

Appellant, Stephen Daniel Edwards, was convicted by

a jury in the Circuit Court for Montgomery County of

first degree murder, use of a handgun in the commission

of a felony or crime of violence, and possession of a

handgun. He was sentenced to life imprisonment for

murder and to a consecutive five year term of

imprisonment for the use of a handgun in the

commission of murder. The conviction for possession of

a handgun was merged for sentencing.

On appeal, he raises three issues:

I __ Did the trial court err in excluding from evidence

the testimony of key prosecution witnesses at an earlier

trial of the same offenses?

I._ Did the trial court err in admitting an extra-

judicial statement?

Il Did the trial court err in admitting into evidence

unreliable grand jury testimony of key prosecution

witnesses, or, alternatively, in failing to inquire into the

reliability of the grand jury testimony prior to its

admission?

Appellant, a sixteen-year old high school student, was

a frequent visitor to a neighborhood in Takoma Park,

where he socialized with a group known as “The Maple

Avenue Crew.” The young men of the Crew often hung

out in an area consisting of a shopping strip, a wooded

area, and two apartment buildings—the Park Ritchie and

the Deauville. On 2 October 1993, appellant, whose

nickname was “Hot Man,” spent parts of the evening

with the Crew.

Takoma Park police officer Baxter Rich lived in the

Park Ritchie apartment building. At about 1:00 a.m. on

3 October 1993, he checked his mailbox and stopped to

chat with the building’s security guard. Suddenly, a

group of approximately ten young men rushed

frantically into the lobby. Recognizing them, Officer

Rich asked what was going on, but they did not reply.

4a

Within seconds, another group ran = oe. llant and

Lonnell Britt were in this group. cer Rich observed

that appellant handed —- ape into

the hs with another yject into

his belt and it as yok pone pegs lobby.

Officer Rich noticed that appellant looked

Shortly afterwards, pot Emest Prevost arrived in

neighbor found the body of Charles I in athe

wooded area near the two buildi

body had gunshot wounds in the forehead, back or head

neck, right shoulder, and left thigh.

Police questioned the members of the Maple Avenue

Crew, and several of the youths testified before the

Grand Jury. On the basis of their statements and

testimony, appellant was arrested and tried for the

murder of Charles Rogers. At trial, several of the youths

recanted those portions of their police statements and

Grand Jury testimony that implicated appellant.

Appellant was convicted, but a motion for a new trial

was granted. It is the retrial that generates the instant

appeal. Thus, the record before us includes a number of

contradictory statements and testimony by the various

members of the Maple Avenue Crew.

In general, the statements and testimony are in accord

that ap Pe ett pe ee he

Crew, ST ya

by appellant in a craps game the crew gath hand

— ing strip to socialize, and Rogers

sat taaniae, theanl he

—s

Sa

Neither appellant nor Rogers was with the ge om rong

the youths heard a rapid succession 0

Appellant aarived at the Fark Rische afer the shat of the

Crew and left after returning a borrowed hat to Britt. He

did not go to the Francis apartment.

Some of the youths saw and appellant’s

tecther hem the window of tis rancis apartment. They

heard appellant yell that was all right.

Within an hour, appellant called on telephone. In

their Grand Jury appearance, some of the witnesses

testified that in that telephone conversation Ilant

admitted killing Rogers and described how he shot

Rogers in the head, chest, and back. Those Bs nr

recanted that testimony at trial.

Several of the youths statements that, in the

weeks following the Taling lant claimed

responsibility. Some, but not all of them, recanted that

testimony at trial.

I

As appellant points out, the evidence in this case

included the testimony and statements of individuals

who were not consistent on the point of his culpability.

Two of these witnesses, Lonnell Britt and David Davis,

gave statements to the grand onl ey implicating Ilant.

At appellant’s first those

statements and gave Pond pen AY to appellant.

appellant’s second trial, the one under

consideration in_ this Britt and Davis also

testified in appellant’s favor. On cross-examination,

pellant sought to question both of these witnesses to

establish that “at a prior proceeding” their testimony was

exculpatory.

The trial court permitted appellant to elicit that each

man had testified in a prior proceeding and that the prior

testimony was consistent with his testimony at trial.

With regard to Britt, the trial court ruled:

6a

[I}f [the defendant] wanted to just elicit just a general

par ssc hong gave testimony that was just

cane ao Oa vr he het given today, that I would

permit ut I wasn’t going to permit you to go

9 by piece through it ... I will let you do that, but

am not going to let you pick out each and every

piece and go through it.

With regard to Davis, the court said:

They can use prior inconsistent statements to

impeach, but I am not going to let you go through

piece by piece his pnor testimony at Ban ened

proceeding and show those toelllige

consistent. But I will, obviously, let you ask hee if

his testimony at the earlier proceeding is, you know,

essentially the same as his testimony was here

Appellant complains that the jury was deprived of the

opportunity to consider all of the statements made by

Britt and Davis and that the trial court erred in limiting

his cross-examination to eliciting the fact that their

testimonies were consistent. We disagree.

Trial judges are vested with broad discretion in the

conduct of trials in areas such as the reception of

evidence. McCray v. State, 305 Md. 126, 133 (1985).

Once a party has “fairly and substantially exercised the

right to cross-examine, the court, in its discretion and in

the interests of judicial economy, may preclude further

cross.” McLain, Maryland Evidence, § 611.1, quoted in

Brogden v. State, 102 Md. App. 423, 438 (1994).

Lonnell Britt’s testimony at appellant’s first trial spans

two days and comprises over 200 pages of transcript.

The transcript of David Davis’s ven md bk B the nea

trial also exceeds 200 pages. By

elicit the fact that the testamon ) ieee a witnesses at yesh

first trial was consistent with their testimony at the

7a

second trial, the trial court avoided unnecessary

repetition of testimony while oe appellant to make

his point to the jury. The scope of cross-examination

lies within the sound discretion of the trial court and

there was no abuse of that discretion in this case.

Robinson v. State, 298 Md. 193, 201 (1983).

Appellant claims that the limitation upon cross-

examination violates the principles of Nance v. Siate,

331 Md. 549 (1993). Nance is inapplicable to the

instant case. Nance and the cases subsequently decided

under Nance concern only prior inconsistent statements,

not prior consistent statements. The law applicable to

prior consistent statements, such as those at issue in the

instant case, is found in Rule 5-802.1(b), which permits

introduction of a

statement that is consistent with the declarant’s

testimony, if the statement is offered to rebut an

express or implied charge against the declarant of

fabrication, or improper influence or motive

and in Rule 5-616(c)(2), which allows rehabilitation by

evidence of the witness’s prior statements that are

consistent with the witness’s present testimony,

when their having been made detracts from the

impeachment.

We do not read these rules as precluding the exercise

of discretion by trial courts in a situation such as the

instant case, where the transcripts of the “statements”

offered exceeded 400 pages. Appellant was permitted to

present evidence of prior consistent statements by both

Britt and Davis. The jury was told that those witnesses

had previously given exculpatory testimony consistent

with their testimony at trial.

— provides an additional argument with regard

to the testimony of Lonnell Britt. When llant asked

Britt if his previous testimony was “exactly” the same as

that given at trial, the State’s objection to the word

“exactly” was sustained.

8a

Therefore, appellant argues, the —— of

consistency” was called into question S

making it essential eae eee

the witness testified to at the

As noted above, the transcript of Britt’s testimony at

the first trial exceeds 200 pages. The trial court

correctly recognized that the probative value to appellant

arose from the fact that his testimony at both trials was

consistent, not from whether it was verbatim:

The purpose of [Rule 5-616(c)(2)] is to permit—I

mean, assuming that we are into a rehabilitation

situation here, which things get a little twisted

around, but I certainly follow your logic in saying

that we ought to look at the rationale of the rule no

matter who started what or whose witness it was, and

that where a witness has been impeached and the

other side seeks to rehabilitate, anything that would

really tend to rehabilitate, such as prior consistent

statements, the Court may and where appropriate

should allow.

Here, the fact is that he recanted after he gave his

Grand Jury testimony. Now, he can recant once,

twice or three times. It doesn’t do much to say that

he is consistent in his recanting. If he had made a

statement prior to his Grand Jury iestimony that was

consistent with what he is now saying, that would be

very germane and I most certainly would permit that.

To say that when we last attempted a trial of this

case that he did the same thing that he is doing now,

whether it be last week or month or several

months ago, has very, very little probative effect.

While I said that in an abundance of caution I am

going to allow you to bring that fact out and to show

that at a prior proceeding under oath in court he

——s consistently with the — Bow gave ya

y, you were permitted to bring out, an

because of no objection by the State, indeed you

were permitted to go into several specific instances, I

9a

said we were not going to go back and take every

single item of his testimony and say, did you say this

gag with this? [B]Jecause there was no need to

o that.

We agree with the trial court’s assessments of

relevance and judicial economy and find no abuse of

discretion in the decision to limit cross-examination.

Il

Approximately six weeks after Charles an was

killed, appellant’s friend Harland (Pierre) Wilson was

interviewed by police. He drafted a statement in his

own handwriting and signed a typewritten account

followed by questions and answers. The last question to

Wilson was, “Is this statement true and correct to the

best of your knowledge and belief.” Wilson answered,

“{C]orrect yes.”

At trial, Wilson was questioned about a telephone

conversation with appellant. His testimony was less

incriminating than his statements to police, and the State

asked him to look at the statements to refresh his

recollection. Wilson claimed a lack of memory. The

trial court overruled appellant’s objection and permitted

the State to ask Wilson if he had written or said the

— contained in the statements. He admitted that he

ad.

On appeal, appellant contends that the trial court’s

ruing was erroneous because the State did not lay a

sufficient foundation to qualify this evidence for the past

recollection recorded exception to the hearsay rule, Rule

5-802. 1(e):

A statement that is in the form of a memorandum

or record concerning a matter about which the

witness once had knowledge but now has insufficient

recollection to enable the witness to testify fully and

accurately, if the statement was made or adopted by

the witness when the matter was fresh in the

10a

witness’s memory and reflects that knowledge

correctly. If admitted, the statement may be read into

evidence but the memorandum or record not

itself be received as an exhibit unless offered by an

adverse party.

Appellant points to two sources of error. First, he

asserts that the witness never claimed that he

remembered some but not all of “the conversation.”

Assuming that “the conversation” refers to the telephone

call between appellant and Wilson, we find that the

testimony of the witness effectively established loss of

memory.

At trial, Wilson testified:

I was, like, “What’s up?” Then I said, “Did you

bust him?” He said, “Everything cool.” He said,

“Everything’s cool.” And I said, “You all right?”

He said, “Yeah.”

Wilson’s handwritten statement read:

I asked him did you bust him. He said “every-

thing is cool” then I said where did you get him

at. He said the head the back and the chest.

The typewritten account said:

Hotman told me on the phone that he shot him in

the head, chest and back.

Thus, the witness represented at trial that he

remembered only some details of the conversation. The

statements themselves showed that he had forgotten

others.

Next, appellant argues that Wilson did not testify that

he made the statements when the matter was fresh in his

mind and accurately reflected the knowledge that he

then possessed. Again, the record shows otherwise.

Harland Wilson testified that the date of his statements

to police was approximately six weeks after the

Lla

shooting. In Oken v. State, 327 Md. 628, 672 (1992),

cert. denied 113 S. Ct. 1312 (1993), the Court of

Appeals committed questions of admissibility of past

recollection recorded to the sound discretion of the trial

court. It is not an abuse of discretion to decide that six

weeks is sufficiently close in time for the matter to have

been fresh in the witness’s mind when he gave his

statement to police.

Wilson also testified that he signed both the written

statement and the typed one, that he was given a

chance to review the typed statement for accuracy. He

answered positively that the typed statement was true

and correct to the best of his knowledge and belief at the

time it was prepared. This satisfies the requirement of

Rule 5-802.1(e) that the statement reflect the witness’s

knowledge correctly.

Oken gives trial court’s the discretion to admit a

writing to refresh a witness’s recollection without a

foundation, depending upon the particular circumstances

present in each case. Oken, supra, at 672. The trial

court correctly exercised its discretion in determining

that Wilson’s statements were sufficient for that

purpose.

Four of the State’s witnesses implicated appellant in

their grand jury testimony but changed their testimony at

trial. Appellant asks us to find error in the admission

into evidence of their grand jury testimony. He argues

that grand jury testimony is unreliable and must be

scrutinized carefully for trustworthiness.

That is not the law in Maryland. Where a “turncoat”

witness is available at trial for cross-examination, as the

these four were, grand jury testimony is admissible as

substantive evidence. Nance v. State, supra. Far from

being inherently unreliable, grand jury testimony

contains numerous indicia of trustworthiness.

The rationales underlying Fed. R. Evid. 801(d)(1)(A)

are clear. The requirement of a formal context such

12a

as judicial hearing or grand jury proceeding assures

that the declarant did indeed make the prior

statement. There will be no doubt that it was

accurately recorded and _ transcribed. The

requirements of an oath and testimony given under

penalty of perjury discourage lying, reminding the

declarant of punishment by both supernatural and

temporal powers. See United States v. De Sisto, 329

F.2d 929, 934 (2d Cir.), cert. denied, 377 U.S. 979,

84 S. Ct. 1885, 12 L. Ed. 2d 747 (1964). The formal

setting, oath, and the reminder of perjury all convey

to the declarant the dignity and seriousness of the

proceeding, and the need to tell the truth. Congress’s

decision to abandon the requirement of

contemporaneous cross-examination harmonized the

rule with the consensus prevailing among

commentators and jurists that was discussed above.

In sum, a statement given before a grand jury is made

in an atmosphere of formality impressing upon the

declarant the need for accuracy; and it will be

memorialized in a manner that eliminates concerns

about whether the statement was actually made.

Com. v. Daye, 393 Mass. 55, 469 N.E. 2d 483, 494

(1984). The declarant must also, of course, be

present as a witness at trial to be tested by cross-

examination in regard to the former grand jury

appearance and its contents. When all of these

conditions have been made, due process of law is

satisfied. The _— jury testimony of Harris and

McCormick in instant case properly could have

been considered by the jury as substantive evidence.

Nance, at 571.

13a

All of these conditions were met at appellant’s trial.

The trial court properly admitted the witness’s grand

jury testimony as substantive evidence, subject to

appellant’s extensive cross-examination, thus leaving to

the jury decisions as to credibility and weight of that

evidence. Binnie v. State, 321 Md. 572 (1991).

JUDGMENTS AFFIRMED.

COSTS TO BE PAID BY APPELLANT.