# Petition for Writ of Certiorari — Edwards v. Maryland

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 964

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1300%3A1. Public record. Not legal advice.