Opposition Brief — Edwards v. Maryland

No. 96-245 rem S

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

STEPHEN DANIEL EDWARDS.

Petitioner,

V.

STATE OF MARYLAND,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS OF MARYLAND

BRIEF IN OPPOSITION

J. JOSEPH CURRAN, JR

Attorney General of Maryland

GaRY E. BAIR*

ANNABELLE L. LIsic

Assistant Attorneys General

Office of the Attorney General

200 Saint Paul Place

Baltimore, Maryland 21202

(410) 576-6422

Counsel for Respondent

*Counsel of Record

2

4

4

QUESTIONS PRESENTED

1. Is the issue of 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 properly before the Court?

2. Is the issue of 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 properly before the Court?

QUESTIONS PRESENTED

OPINIONS BELOW

STATEMENT OF JURISDICTION

ii

TABLE OF CONTENTS

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

I.

Il.

If.

THE TWO QUESTIONS PRESENTED

ARE NOT PROPERLY BEFORE THE

COURT BECAUSE THEY WERE NOT

PRESENTED IN THE STATE COURT

PRIN SP 6 Seas io 1S Ob NO

THE PETITION SHOULD BE DENIED

BECAUSE THE MARYLAND

APPELLATE COURT BASED ITS

DECISION ON INDEPENDENT STATE

CSA 0 Fk awe RE ae eae es

THERE IS NO ISSUE "LEFT OPEN" BY

THIS COURT'S HOLDING IN

CALIFORNIA V. GREEN AND NO

CONFLICT AMONG LOWER COURTS

CONCERNING USE OF PRIOR

INCONSISTENT GRAND JURY

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APPENDIX A: EXCERPT FROM APPELLANT'S

BRIEF IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

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iii

Page

APPENDIX B: EXCERPT FROM APPELLANT'S

PETITION FOR WRIT OF CERTIORARI TO

TRE COURT OF APPEALS OF MARYLAND .. 6a

iV

TABLE OF AUTHORITIES

Page

Cases:

Arizona v. Evans, 115 S. Ct. 1185 (1995) ......... 11

Ashwander v. TVA, 297 U.S. 288 (1936) .......... 11

Beck v. Washington, 369 U.S. 541 (1962) ........ 7,8

Brower v. State, 728 P.2d 645

fo Eee ree oy eee ore 21

California v. Green, 399 U.S. 149 (1970) 11, 12, 15, 16

Cardinale v. Louisiana, 394 U.S. 437 (1969) ....... 7

Commonwealth v. Daye, 469 N.E.2d 483

NE SEENED. GL Chk by ces Soe bw eae eons 17

Commonwealth v. Hayes, 596 A.2d 874

4&0) eo ere a Per ee 17

Dorsey v. State, 620 P.2d 1261 (Nev. 1980) ....... 17

Employment Security Administration v.

Baltimore Lutheran High School Assoc.,

Ce Be ee Pa a bo eb eee ea ees 1]

Hill v. California, 401 U.S. 797 (1971) ............ 7

Illinois v. Gates, 462 U.S. 213 (1983) ............. 7

Michigan v. Long, 463 U.S. 1032 (1983) ......... 1]

Moore v. State, 452 So. 2d 559 (Fla. 1984) ........ 17

Nance v. State, 629 A.2d 633

CE SE ods sy A ee ee oe 7, 9, 10, 17, 22

PCR VCE, 256 UG. ZZZCIGZE) on. oie ce ewes 8

Pennsylvania R. Co. v. Illinois Brick Co.,

SE ee kd occa ts 8 noob ee es 8

People v. Coleman, 543 N.E.2d 555

Ge RIE as Snead ere anne 17

Vv

Page

State v. Calamity, 735 P.2d 39 (Utah 1987)........ 17

State v. Charlo, 735 P.2d 278 (Mont. 1987) ....... 17

State v. Gommenginger, 790 P.2d 455

(OOM, THD es BO6 F FST, SIE No RE 21

State v. Hacker, 427 A.2d 109 (N.J. 1981) ........ 17

State v. Horenberger, 349 N.W.2d 692

COR: SEE 4 08 baled ees Bela ie cue 17

State v. Jackson, 348 N.W.2d 876 (Neb. 1984) ..... 17

State v. Maestes, 584 P.2d 182

De Nak SUS DOE yt ae bie ok wc ae 17

State v. Mancine, 590 A.2d 1107 (N.J. 1991) ...... 21

State v. Miller, 502 A.2d 832 (Vt. 1985) .......... 17

State v. Moore, 485 So. 2d 1279 (Fla. 1986) ....... 21

State v. Moran, 728 P.2d 248 (Ariz. 1986) ........ 17

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

State v. Skionsby, 319 N.W.2d 764 (N.D. 1982) .... 17

State v. Smith, 651 P.2d 207 (Wash. 1982) ........ 17

State v. Webb, 779 P.2d 1108 (Utah 1989) ........ 21

Stephen Daniel Edwards v. State of Maryland,

No. 99, September Term, 1995

(filed November 24, 1995) . 2.6. .06 6.6 ken l

Street v. New York, 394 U.S. 576 (1969) ........... 8

United States v. Champion Int'l Corp.,

557 F.2d 1270 (9th Cir.), cert. denied,

CIE VAAN PORTER 04553 Bae cer bien as 16

United States v. DiCaro, 772 F.2d 1314

(7th Cir. 1985), cert. denied,

Soe ths NE CUED hk be ak ry aes 16

United States v. Dominquez, 573 F.2d 366

CON: ROTOR vo de CRRA ee ees 16

Page

United States v. Grandison, 780 F.2d 525

(4th Cir. 1985), vacated on other grounds,

S79 US. 1676 Cost Pa iO ae ae 16

United States v. Hemmer, 729 F.2d 10

(1st Cir.), cert. denied,

467 US. IS5R CRS? oP eo 16

United States v. Leslie, 542 F.2d 285

(SUR Re BRP ec FE wat DS 20

United States v. Marchand, 564 F.2d 983

CARS AR. SPP ER kes cb e's Lee eee ee 16

United States v. Orr, 864 F.2d 1505

(GGG ORR re eee 16

United States v. Orrico, 599 F.2d 113

COGS CPOE 5's CARS os bd ee a 20

United States v. Wilson, 806 F.2d 171

(8th Cir. 1986), modified and remanded

on other grounds, 815 F.2d 52 (8th Cir. 1987) .... 16

United States v. Woods, 613 F.2d 629

(6th Cir.), cert. denied, 446 U.S. 920 (1980) ..... 16

Van Hatten v. State, 666 P.2d 1047

(Ajosea CA. Ape. TSGR) se S SO ie eS 17

Yee v. City of Escondido, 503 U.S. 519 (1992) ...... 7

Constitutional Provisions:

Statutes:

ee ae en 6 hice ab aso Se cc ee l

Be a RD os oi ek or bee ee

Rules:

AIRES te SUS ook sev dacw COA 1,7

DRARVE ANE MIRE B-ES 1). 5 oo. ook ok cax. 2

FEDERAL RULE OF EVIDENCE 801(d) ............. 19

Miscellaneous:

J. Weinstein & M. Berger, Evidence,

i RIG eT COPE fb hk kh oe eee Sak 15,17

BRIEF IN OPPOSITION

Respondent, State of Maryland, respectfully requests

that this Court deny the petition for writ of certiorari of

Petitioner Stephen Daniel Edwards.

OPINIONS BELOW

The unreported opinion of the Court of Special Appeals

of Maryland, Stephen Daniel Edwards v. State of

Maryland, No. 99, September Term, 1995 (filed

November 24, 1995), affirming the Petitioner's

convictions, is reproduced as an appendix to the petition

for writ of certiorari. (Pet. for Cert. App. 2a-13a). The

April 15, 1996 order of the Court of Appeals of Maryland

denying Petitioner's petition for writ of certiorari is also

reproduced as an appendix to the petition for writ of

certiorari. (Pet. for Cert. App. 1a).

STATEMENT OF JURISDICTION

Petitioner has erroneously invoked the jurisdiction of

this Court pursuant to 28 U.S.C. § 1254(1)." Jurisdiction

of this Court is predicated on 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The pertinent constitutional provision is reproduced in

the petition for wnt of certiorari. (Pet. for Cert. 2). In

Section 1254(1) is applicable in cases where a party is

asking for review by this Court of a judgment in a federal court

of appeals.

2

addition, Maryland Rule 5-802.1 provides as follows:

The following statemenis previously made by a

witness who testifies at the tral or hearing and

who is subject to cross-examination concerning

the statement are not excluded by the hearsay

rule:

(a) A statement that is inconsistent with the

declarant's testimony, if the statement was (1)

given under oath subject to the penalty of perjury

at a trial, hearing, or other proceeding or in a

deposition; (2) reduced to writing and signed by

the declarant; or (3) recorded in substantially

verbatim fashion by stenographic or electronic

means contemporaneously with the making of the

statement,

Maryland Rule 8-131(a), also pertinent to this case,

provides:

(a) Generally. -- The issues of jurisdiction of

the trial court over the subject matter and, unless

waived under Rule 2-322, over a person may be

raised in and decided by the appellate court

whether or not raised in and decided by the trial

court. Ordinarily, the appellate court will not

decided any other issue unless it plainly appears

by the record to have been raised in or decided by

the trial court, but the Court may decide such an

issue if necessary or desirable to guide the mal

court or to avoid the expense and delay of another

appeal.

3

STATEMENT OF THE CASE

Petitioner Edwards was charged with the murder of

Charles Rogers, use of a handgun in the commission of a

crime of violence, and transporting a handgun. Edwards

was tried by a jury in the Circuit Court for Montgomery

County, Maryland from November 28 through December

6, 1994.

At trial, two witnesses, then members of the Takoma

Park, Maryland, Police Department, testified that in the

very early morning hours of October 3, 1993, they

responded to a call from their dispatcher reporting shots

fired in the vicinity of 7600 Maple Avenue. (T4. 63-66,

72-74).* After checking the area and finding nothing

amiss, they departed. (T4. 67, 76-78). Takoma Park

Police Officer Baxter Rich testified that at approximately

1:00 a.m. on October 3, 1993, he was in the lobby of his

apartment building at 7600 Maple Avenue checking his

mail when two different groups of neighborhood boys ran

in. (T4. 18-24). Observing their appearance and behavior.

Rich thought something was wrong but stated that none of

the boys, most of whom he knew at least by sight, would

talk to him. (T4. 24). A few seconds later a police car

pulled up and Rich accompanied one of the officers to one

of the apartments to see if anyone had information

* Record references are as follows: "T1." refers to trial

proceedings of November 28, 1994; "T2." to proceedings of

November 29, 1994; "T3." to proceedings of November 30.

1994; "T4." to proceedings of December 1, 1994: "T5." to

proceedings of December 2, 1994; "T6." to proceedings of

December 5, 1994; and, "T7." to proceedings of December 6,

1994.

4

regarding a report of shots being fired. (T4. 29-31).

Later that morning, Emanuel Ave, who lived at 7520

Maple Avenue, discovered a body along a footpath

between his apartment and a nearby woods. (T4. 87-88).

He returned to his apartment building, informed the

resident manager, and went to the police station located a

short distance away. (T4. 89). The resident manager's

husband testified that, in the early morning hours of

October 3, 1993, he had heard five shots fired and called

the police. (T4. 96-97). After he and his wife spoke with

Mr. Ave, they walked up the path, saw the body, and

called the police. (T4. 98-100). Officers responding to

that location discovered the body of Charles Rogers. (T4.

108-09, 115-16, 124).

According to the Assistant Medical Examiner, Charles

Rogers had sustained multiple gunshot wounds, including

wounds to his forehead, the back of his head, his neck,

right shoulder, and left thigh. (TS. 7-28). The forehead

ani neck wounds were likely from the same bullet, with

the bullet entering and exiting the head and, in a

downward trajectory, lodging finally in the chest area.

(TS. 13-14, 16-21).

Alex Gordon, who lived with his mother in an apartment

at the Park Ritchie at 7600 Maple Avenue, saw Edwards

in front of a deli on Maple Avenue with a number of

friends on the evening of October 2, 1993, at one point

talking with Charles Rogers. (T1. 123-37). Edwards did

not appear to be in a good mood. (T1. 135). At around

midnight, Ray and Pierre Wilson and John Wims came to

Gordon's apartment. (T1. 137). Gordon looked out the

window and saw Edwards and his brother; later, Edwards

telephoned the apartment and spoke with Ray Wilson.

(Tl. 139-43). Approximately two weeks after the

5

shooting, Gordon saw Edwards and heard him explain to

several people how he had shot Rogers. (T1. 147).

Gordon saw Edwards a second time and Edwards again

explained to him and others how he had shot Rogers. (T1.

149-50). After reading a prior statement to refresh his

recollection, (T1. 156-58), Gordon stated that Edwards

said that he ran through the woods, shot Rogers in the

head, chest, and back, and kept on shooting. (T1. 159-60).

Harold Wilson testified that, on the evening of October

2, 1993, he met with fnends outside a deli on Maple

Avenue sometime around midnight. (T2. 84-87).

Edwards was there and appeared upset. (T2. 88). At one

point, Edwards and Rogers were talking and then walked

away from the group. (T2. 91-93). A short while later,

Wilson heard four or five gunshots, and then saw Edwards

coming from the direction of the woods near the Park

Ritchie. (T2. 95-97).

Lonell Britt, David Davis, Ramon Wilson, and John

Wims all testified to circumstances surrounding the

shooting on October 2-3, 1993. (T2. 156-99; T3. 35-61,

132-51, 208-23). Each claimed to either not remember

prior statements made to the police or the grand jury or to

having been coerced in some fashion to make statements

inculpating Edwards, including remarks by Edwards

claiming responsibility for the shooung of Rogers over a

money debt. (T2. 200-02; T3. 63-64, 151, 225-29). The

earlier inconsistent statements were introduced into

evidence through each of these witnesses. (T2. 254-64;

T3. 64-90, 151-62, 230-48).

Harlan Wilson testified that at one time he socialized

with friends on Maple Avenue, and that, on the night of

October 2, 1993, while in front of a deli there, he heard

gunshots. (T5. 50-52). Although Edwards and Rogers

6

were together ten or fifteen minutes before the shots were

fired, at the time the shots were heard, neither Edwards

nor Rogers was with the group. (T5. 53). While in his

cousin, Alex Gordon's apartment, Wilson spoke with

Edwards on the telephone. (T5. 70). When Wilson asked,

"Did you bust him?", Edwards replied that "[e]verything's

cool." (T5. 70). Later, Edwards told Wilson that “the

gun" was gone. (T5. 72). After refreshing Wilson's

recollection with a written statement he made in November

1993, Wilson testified that, when he spoke to Edwards on

the telephone on October 3, 1993, Edwards said that he

shot Rogers in the head, back, and chest. (TS. 84).

Defense witnesses denied that there was any reason for

Edwards to shoot Rogers and indicated that Harlan Wilson

was the shooter. (T6. 7-29, 42-55). Edwards testified in

his own defense and denied shooting Rogers or telling

anyone that he had shot Rogers. (T6. 63-85).

On December 6, 1994, the jury found Edwards guilty on

all counts. On January 19, 1995, the trial court sentenced

Edwards to incarceration for life plus five years.

Petitioner noted a timely appeal to the Court of Special

Appeals of Maryland, which affirmed Edwards's

convictions on November 24, 1995. The Court of Appeals

of Maryland denied Edwards's petition for wnt of

certiorari on April 15, 1996.

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REASONS FOR DENYING THE WRIT

I.

THE TWO QUESTIONS PRESENTED ARE

NOT PROPERLY BEFORE THE COURT

BECAUSE THEY WERE NOT PRESENTED

IN THE STATE COURT PROCEEDINGS.

Edwards asks this Court to review on due process

grounds a Maryland rule of evidence espoused in Nance v.

State, 629 A.2d 633 (Md. 1993), and subsequently

codified in Maryland Rule 5-802.1. However, contrary to

Edwards's contentions, no due process argument was made

throughout his state appellate proceedings and no

argument ever made that the evidence was insufficient to

sustain his convictions because of unreliable prior

inconsistent statements.

To invoke the jurisdiction of this Court under Section

1257, a petitioner must have properly raised a substantial

federal question in the state court proceedings. Yee v. City

of Escondido, 503 U.S. 519, 533 (1992); Illinois v. Gates,

462 U.S. 213, 218-20 (1983); Cardinale v. Louisiana, 394

U.S. 437, 439 (1969). Assuming a federal question has

been properly framed, it is essential that it be presented in

a timely and proper manner at the appropriate point in the

state court proceedings. Beck v. Washington, 369 U.S.

541, 550-54 (1962). A federal claim cannot be

considered by this Court unless it has been either raised in

the state court or considered and resolved by the state

court. Hill v. California, 401 U.S. 797, 805 (1971). When

the highest state court fails or refuses to pass expressly

upon a federal question, the party invoking this Court's

8

jurisdiction has a high burden of showing that the federal

question was in fact properly raised, so that the state

court's failure to deal with it was not for lack of proper

presentation. Thus, when "the highest state court has

failed to pass upon a federal question, it will be assumed

that the omission was due to want of proper presentation

in the state courts, unless the aggrieved party in this Court

can affirmatively show the contrary." Street v. New York,

394 U.S. 576, 582 (1969).

If reasonable state procedural requirements were not

observed, this Court will decline to exercise jurisdiction

where the highest state court expressly refuses to decide

the federal question for this procedural reason.

Pennsylvania R. Co. v. Illinois Brick Co., 297 U.S. 447,

462-63 (1936). The fact that the federal question was

properly raised before the trial court may not be enough.

The question must also be pursued on appeal to higher

state courts and must be pursued in the manner and with

the degree of specificity required by the state rules of

practice. Beck v. Washington, 369 U.S. at 549-54. Thus

each state may prescribe the jurisdiction of its appellate

courts, and the state law and practice in this regard must

be applied unless they serve as a pretense to avoid a

federal constitutional issue or are applied in a manner that

discriminates against the assertion of federal claims.

Nickel v. Cole, 256 U.S. 222, 225 (1921).

At trial, Edwards's counsel objected to the admission of

3 In this case, the Maryland Court of Appeals, the

highest state court, denied a petition for writ of certiorari with

respect to an unreported decision by Maryland's intermediate

appellate court.

9

various State witnesses’ prior inconsistent grand jury

testimony, referring to “constitutional rights of

confrontation of witnesses, a violation of due process of

law." (T2. 4-7). In overruling the objection, the trial court

concluded that, pursuant to Maryland evidentiary rules, the

jurors would hear, through cross-examination, any and all

of the circumstances surrounding the making of the prior

Statements and the factors accounting for any

inconsistencies at trial. (T2. 7-8, 21-22). In so holding,

the trial court observed that grand jury testimony, by its

very nature, "is one of the highest forms of reliability."

(T2. 21). In his motions for judgment of acquittal at the

conclusion of the State's case and after reception of all

evidence, defense counsel never referred to the

unreliability of the prior inconsistent statements or any

constitutional issue. (T5. 158-60; T6. 122). Inthe Court

of Special Appeals of Maryland, Edwards argued that the

trial court erred in admitting into evidence unreliable grand

jury testimony or, alternatively, in failing to inquire into

the reliability of the grand jury testimony. (Apx. la-5a).

Specifically, Edwards posited before Maryland's

intermediate appellate court that prior grand jury testimony

was not automatically admissible under Nance, but, as is

the case under the residual hearsay exception, further

indicia of reliability are a necessary predicate to

admissibility.‘

Relying on the holding of the Court of Appeals in

* In making his argument, Edwards relied on federal

cases addressing the admissibility of grand jury testimony where

the witness is nor available at trial, and the prior grand jury

testimony was under consideration for admissibility pursuant to

the federal residual hearsay exception.

10

Nance, the Court of Special Appeals disagreed with

Edwards's contention that grand jury testimony was

unreliable and necessitated further screening by a trial

court. “Where a ‘turncoat’ witness 1s available for cross-

examination, as these four [witnesses] were, grand jury

testimony is admissible as substantive evidence." (Pet. for

Cert. App. lla). Accordingly, the Court of Special

Appeals held that "[t]he 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." (App. 13a).

Edwards's petition for wit of certiorari to the Court of

Appeals of Maryland contained two questions, each

addressing the contours of the Nance holding. One dealt

with the admissibility of prior consistent statements and

the other the admissibility of grand jury testimony. In the

latter case, Edwards did nothing more than reiterate his

argument that grand jury testimony "should be judged

under the admissibility requirement applicable in the

residual exception to the hearsay rule." (Apx. 6a-8a).

As this record makes abundantly clear, no Maryland

appellate court was presented with either a due process or

sufficiency of the evidence issue with respect to prior

grand jury testimony. Accordingly, the questions Edwards

attempts to place before the Court are not appropriate for

this Court's review.

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Il.

THE PETITION SHOULD BE DENIED

BECAUSE THE MARYLAND APPELLATE

COURT BASED ITS DECISION ON

INDEPENDENT STATE GROUNDS.

Under the standard established by Michigan v. Long,

463 U.S. 1032, 1037-44 (1983), this Court will not review

a state court judgment if it rests on an adequate and

independent state ground. This Court has pointed out that

it is especially important that state courts be left free and

unfettered in interpreting their constitutions, as well as

their rules of evidence. Michigan v. Long, 463 U.S. at

1041; Arizona v. Evans, 115 S. Ct. 1185, 1189-90 (1995);

California v. Green, 399 U.S. 149, 171-72 (1970) (Burger,

C.J., concurring), 185-86 (Harlan, J., concurring).

As discussed above, the decision of the Maryland Court

of Special Appeals rested entirely on a reading of state

evidentiary rules. Having never been presented with a

constitutional argument, it did not base its decision on the

federal constitution or federal law. Further, the Maryland

appellate courts adhere to the rule that "[o]rdinarily, courts

do not pass upon a constitutional question, although

properly presented by the record, if there is also present

some other ground upon which to dispose of the case, and

do not decide questions of a constitutional nature unless

absolutely necessary to a decision of the case.”

Employment Security Administration v. Baltimore

Lutheran High School Assoc.,-436 A.2d 481, 484 n2

(1981) (citing Ashwander v. TVA, 297 U.S. 288, 346-48

(1936) (Brandeis, J., concurring)). Clearly, the holding in

Edwards's case was decided on independent and adequate

12

state grounds that preclude review by this Court.

Il.

THERE IS NO ISSUE "LEFT OPEN" BY

THIS COURT'S HOLDING IN CALIFORNIA

V. GREEN AND NO CONFLICT AMONG

LOWER COURTS CONCERNING USE OF

PRIOR INCONSISTENT GRAND JURY

TESTIMONY.

Petitioner relies on language in California v. Green to

create what is essentially a straw man that he then

proceeds to attack. Reliance on Green is misplaced, as is

reliance on any of the other cases cited in Edwards's

petition for certiorari.

In Green, this Court addressed Confrontation Clause

implications in the admission of prior inconsistent

statements where the witness-declarant claimed not to

remember making the earlier statement. The Court

ultimately found no confrontation problem with

California's decision to alter its evidentiary rules to admit

inconsistent statements as substantive evidence. 399 U.S.

at 158-61. As long as the declarant is available as a

witness and subject to cross-examuination, the

Confrontation Clause is not violated. /d. The Court

observed as follows:

If the witness admits the prior statement is his,

or if there is other evidence to show the statement

is his, the danger of faulty reproduction is

negligible and the jury can be confident that it has

before it two conflicting statements by the same

witness. Thus, as far as the oath is concerned, the

13

witness must now affirm, deny, or qualify the

truth of the prior statement under the penalty of

perjury; indeed, the very fact that the prior

Statement was not given under a similar

circumstance may become the witness’

explanation for its inaccuracy--an explanation a

jury may be expected to understand and take into

account in deciding which, if either, of the

statements represents the truth.

Second, the inability to cross-examine the

witness at the time he made his prior statement

cannot easily be be shown to be of crucial

significance as long as the defendant is assured of

full and effective cross-examination at the time of

trial. The most successful cross-examination at

the time the prior statement was made could

hardly hope to accomplish more than has already

been accomplished by the fact that the witness is

now telling a different, inconsistent story, and--in

this case--one that is favorable to the defendant.

We cannot share the California Supreme Court's

view that belated cross-examination can never

serve as a constitutionally adequate substitute for

cross-examination contemporaneous with the

original statement.

* * *

Similar reasons lead us to discount as a

constitutional matter the fact that the jury at trial

is foreclosed from viewing the declarant's

demeanor when he first made his out-of-court

statement. . . . The jury is alerted by the

inconsistency in the stories, and its attention is

sharply focused on determining either that one of

Sr

14

the stories reflects the truth or that the witness

who has apparently lied once, is simply too

lacking in credibility to warrant its believing

either story.

* * *

It may be true that a jury would be in a better

position to evaluate the truth of the prior

statement if it could somehow be whisked

magically back in time to witness a gruelling

cross-examination of the declarant as he first

gives his statement. But the question as we see it

must be not whether one can somehow imagine

the jury in "a better position,’ but whether

subsequent cross-examination at the defendant's

trial will still afford the trier of fact a satisfactory

basis for evaluating the truth of the prior

statement. On that issue, neither evidence nor

reason convinces us that contemporaneous cross-

examination before the ultimate trier of fact is so

much more effective than subsequent examination

that it must be made the touchstone of the

Confrontation Clause.

Id. at 158-61 (footnote omitted).

In distinguishing those cases where the Court held that

the Confrontation Clause required exclusion of a prior

statement, the Court noted that those cases involved absent

declarants. Jd. at 161-64. It was in this context that the

Court referred obliquely in a footnote to instances where

“due process apart from the Confrontation Clause might

prevent convictions where a reliable evidentiary basis is

totally lacking[.]" Jd. at 163 n.15. This footnote reference

in no way "left open" due process questions regarding the

use of all prior inconsistent statements, as Petitioner

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asserts.° The question explicitly undecided in Green

concemed the effect of a declarami's lapse of memory on

* In fact, due process concerns were dispensed with by

then Chief Justice Burger in his concurring opinion wherein he

stated:

The California statute meets the tests of the Sixth

and Fourteenth Amendments, and accordingly, the

wisdom of the statute is properly left to the State of

California; other jurisdictions will undoubtedly watch

the experiment with interest. The circumstances of

this case demonstrate again that neither the

Constitution as originally drafted, nor any amendment,

nor indeed any neéd, dictates that we must have

absolute uniformity in the criminal law in all the States.

Federal authority was never intended to be a "ramrod"

to compel conformity to nonconstitutional standards.

Id. at 171-72 (Burger, C.J., concurring).

In a second concurring opinion, Justice Harlan, before

discussing at some length the distinctions between the

Confrontation Clause and cross-examination, stated:

[E]ven were this conclusion deemed untenable as a

matter of Sixth Amendment law, it is surely agreeable

to Fourteenth Amendment "due process," which, in

my view, is the constitutional framework in which

state cases of this kind should be judged. For it could

scarcely be suggested that the Fourteenth Amendment

takes under its umbrella all common-law hearsay rules

and their exceptions.

Id. at 174 (Harlan, J., concurring).

One authority reads the Court's footnote as "dispell[ing] any

suggestion that the substantive use of prior statements would be

an unconstitutional violation of due process." J. Weinstein &

M. Berger, Evidence, § 801(d)(1)[01] at 133 ( 1996).

16 °

the right of confrontation, not any due process issue.*

The relevant question--whether prior grand jury

testimony, inconsistent with a witness's trial testimony, is

admissible as substantive evidence so that there could be

sufficient evidence to support a conviction--has been

answered in the affirmative by the federal courts and by a

majority of state courts. Federal Rule of Evidence

801(d)(1)(A) permits the use of inconsistent grand jury

testimony, in addition to other categories of inconsistent

statements given under oath, when "[t}he declarant testifies

at trial . . . and is subject to cross-examination concerning

the statement." United States v. Hemmer, 729 F.2d 10, 17

(ist Cir.), cert. denied, 467 U.S. 1218 (1984); United

States v. Marchand, 564 F.2d 983, 997-99 (2d Cir. 1977);

United States v. Grandison, 780 F.2d 525, 531 (4th Cir.

1985), vacated on other grounds, 479 U.S. 1076 (1987);

United States v. Dominquez, 573 F.2d 366, 367 (Sth Cir.

1978); United States v. Woods, 613 F.2d 629, 637 (6th

Cir.), cert. denied, 446 U.S. 920 (1980); United States v.

DiCaro, 772 F.2d 1314, 1322 (7th Cir. 1985), cert. denied,

475 U.S. 1081 (1986); United States v. Wilson, 806 F.2d

171, 175-76 (8th Cir. 1986), modified and remanded on

other grounds, 815 F.2d 52 (8th Cir. 1987); United States

v. Champion Int'l Corp., 557 F.2d 1270, 1274 (9th Cir.),

cert. denied, 434 U.S. 938 (1977); United States v. Orr,

864 F.2d 1505, 1509 (10th Cir. 1988).

The majority of states have adopted the federal rule, or

* Any issue regarding the sufficiency of the evidence

was likewise not left open, but merely referred to by the Court

as an additional ground on which the California courts could

dispose of the case. California v. Green, 399 U.S. 149, 170

(1970)

17

a more lenient version of it, through enactment of similar

statutes or through common law. &£.g., Van Hatten vy.

State, 666 P.2d 1047, 1049-54 (Alaska Ct. App. 1983):

State v. Moran, 728 P.2d 248, 250 (Ariz. 1986); Moore v.

State, 452 So. 2d 559, 562 (Fla. 1984); People v. Coleman,

543 N.E.2d 555, 560-61 (Ill. App. 1989); Commonwealth

v. Daye, 469 N.E.2d 483, 490-96 (Mass. 1984); State v.

Charlo, 735 P.2d 278, 279-81 (Mont. 1987); State v.

Skionsby, 319 N.W.2d 764, 791-92 (N.D. 1982); Dorsey

v. State, 620 P.2d 1261, 1262 (Nev. 1980); State v.

Jackson, 348 N.W.2d 876, 878-79 (Neb. 1984); State v.

Hacker, 427 A.2d 109, 111-13 (NJ. 1981); State v.

Maestes, 584 P.2d 182, 190-92 (N.M. Ct. App. 1978);

Commonwealth v. Hayes, 596 A.2d 874, 875-76 (Pa.

Super. 1991); State v. Calamity, 735 P.2d 39, 42 (Utah

1987); State v. Miller, 502 A.2d 832, 836 (Vt. 1985); State

v. Smith, 651 P.2d 207, 209-10 (Wash. 1982)(en banc);

State v. Horenberger, 349 N.W.2d 692, 697 (Wis. 1984).’

The Maryland Court of Appeals first addressed the issue

of prior inconsistent statements in Nance when it

considered several trial witnesses’ extrajudicial

identifications, signed statements to the police, and grand

jury testimony, which the witnesses later repudiated in one

” In the Court of Appeals’ decision in Nance, the court

observed that sixteen states adhered to the "modern rule," by

which prior inconsistent statements are admissible as substantive

evidence provided the declarant is available at trial and subject

to cross-examination, and that an additional twenty states have

adopted the federal rule. 629 A.2d at 641, 643. Fora

thorough review of state statutes and case law relative to prior

inconsistent statements, see J. Weinstein & M. Berger,

Evidence, § 801(d)(1)(A)[09] at 165-83.

18

form or another at tnal. The court affirmed the long-

accepted evidentiary rule allowing a prior extrajudicial

identification to be admitted through the testimony of a

third party if the eyewitness is present at trial and subject

to cross-examination. 629 A.2d at 639. Finding ample

authority to support the admissibility of recanted

extrajudicial identifications, the court held that such

identifications were, likewise, admissible under Maryland

law. Id. at 639-40.

The Court of Appeals then considered prior inconsistent

statements as a whole and ultimately chose to align

Maryland with those states that have selected an

intermediate posture in regard to admissibility. Rather

than maintaining the orthodox rule barring the admission

of prior inconsistent statements as substantive evidence or

adopting the modern rule permitting the use of such

statements as substantive evidence when the declarant

testifies and is subject to cross-examination, the Court of

Appeals adopted a middle position. Jd. at 641-43. It held

"that the factual portion of an inconsistent out-of-court

statement is sufficiently trustworthy to be offered as

substantive evidence of guilt when the statement is based

on the declarant's own knowledge of the facts, is reduced

to writing and signed or otherwise adopted by him, and he

is subject to cross-examination at the trial where the prior

statement is introduced." /d. at 643.

And, finally, the Court of Appeals found adequate

indicia of reliability in statements made before a grand

jury to permit their use as substantive evidence. /d. at

643-44. Again, the declarant must be a witness at trial and

19

Subject to cross-examination. /d. at 644.* In doing so, the

Court of Appeals stated as follows:

The rationales underlying Fed.R.Evid.

801(d)(1)(A) are clear. The requirement of a

formal context such as a 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. 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. The declarant must also, of

course, be present as a witness at trial to be tested

* Maryland Rule 5-802. 1(a) added, as a third category

of prior inconsistent statement admissible as substantive

evidence, one which is “recorded in substantially verbatim

fashion by stenographic or electronic means contemporaneously

with the making of the statement”.

20

by cross-examination in regard to the former

grand jury appearance and its contents. When all ;

of these conditions have been met, due process of

law is satisfied.

Id

The Court of Special Appeals of Maryland applied this

holding to pmor grand jury testimony of several

recalcitrant witnesses at Edwards's tnal. Those federal and

state cases relied on by Petitioner to attack his self-

generated strawman are inapposite to the issue decided by

the Maryland intermediate appellate court. United States

v. Leslie, 542 F.2d 285, 289 (Sth Cir. 1970), concerns

determinations of reliability in evidence--not grand jury

testimony--being offered under the federal residual

hearsay exception. Its applicability is, therefore, severely

limited.

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

and the remainder of cases cited in Edwards's petition,

address the sufficiency of the evidence when prior

inconsistent statements are part of the prosecution's

evidence. As stated previously, Edwards never raised a

claim on appeal regarding the sufficiency of the evidence

on any basis, much less on the basis of prior inconsistent

grand jury testimony, thus precluding this Court's review

of the sufficiency issue.

In any event, five of the seven cases cited by Edwards

on the evidentiary sufficiency issue concern prior

inconsistent statements other than grand jury testimony.

See United States v. Orrico, 599 F.2d at 116-19 (only

evidence of defendant's involvement was one sentence in

statement taken one year after commission of crime and

admitted as prior recollection recorded barely meeting

minimal requirements of exception); State v.

21

_

Gommenginger, 790 P.2d 455, 463 (Mont. 1990) (only

substantive evidence consisting of co-conspirator

statement to informant); State v. Webb, 779 P.2d 1108.

1109-16 (Utah 1989) (hearsay was statement of

unavailable 18-month-old sex abuse victim admitted

erroneously through testimony by mother); State vy.

Mancine, 590 A.2d 1107, 1117 (N.J. 1991) (recanted prior

inconsistent statement to police admissible if "generally

corroborated and its reliability is supported by the

circumstances under which it is given."); State v. Robar,

601 A.2d 1376, 1377-81 (Vt. 1991) (unreliable inquest

testimony admitted as past recollection recorded and given

six months after event with only perfunctory cross-

examination at trial insufficient to establish guilt). The

remaining two cases addressing grand jury testimony are

readily distinguishable. See Brower v. State, 728 P.2d

645, 647-48 (Alaska App. 1986) (single live-in, victim-

witness's brief recanted grand jury testimony insufficient

to support conviction of attempted second degree sexual

assault); State v. Moore, 485 So. 2d 1279, 1280-82 (Fla.

1986) (State acknowledges that only substantive evidence

of guilt consisted of recanted grand jury testimony).

Unlike any of these cases, at Edwards's trial, some of

the seven State witnesses present at the time of the

underlying events testified consistently with their prior

incriminating statements to the police and the grand jury,

while others simply equivocated in some respects, while

remaining consistent in others. Defense counsel was

given, and took, the opportunity to cross-examine each of

the witnesses who had testified inconsistently before the

grand jury, and to point out circumstances which he

believed would call into question the reliability of the

testimony. (T2. 42-45, 292-98, 314-15; T3. 193, 257: TS.

22

95-117). These circumstances included alleged promises

of immunity, fear on the part of the witnesses, or allegedly

coercive efforts by the police or prosecutors. With all of

this evidence before it, it was then entirely up to the jury

to decided what to believe and what to disbelieve.

Petitioner is simply wrong when he asserts that the

Maryland courts, including the Court of Special Appeals

here, do not adhere to an approach to prior inconsistent

statements that ignores any issue of reliability. (Pet. for

Cert. 21). To the contrary, the Maryland Rule of Evidence

with respect to prior inconsistent grand jury testimony,

adopted subsequent to Nance, is that there are normally

sufficient indicia of reliability in the grand jury process to

ensure reliability. With the declarant available as a

witness at trial and subject to cross-examination, the

circumstances surrounding the earlier testimony and those

affecting present trial testimony are placed before the

factfinder. This approach is held by the overwhelming

majority of lower federal and state courts, subject to

extremely limited exceptions on a case-by-case basis.

23

CONCLUSION

For the foregoing reasons, the State of Maryland

respectfully requests that the petition for writ of certiorari

filed herein be denied.

*Counsel of Record

October 3, 1996

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

Gary E. BAIR*

ANNABELLE L. LISIC

Assistant Attorneys General

Counsel for Respondent

APPENDICES

la

APPENDIX A

[Excerpt from Appellant's Brief in Stephen Daniel

Edwards v. State of Maryland, No. 99, September Term,

1995 (filed November 24, 1995)]

* * *

In sum, the Wilson link in this highly prejudicial

hearsay chain did not fall within any exception to the

general prohibition upon such evidence. The trial court's

ruling was accordingly erroneous.

Il. THE TRIAL COURT ERRED IN

ADMITTING INTC EVIDENCE

UNRELIABLE GRAND JURY

TESTIMONY OF KEY PROSECUTION

WITNESSES OR, ALTERATIVELY, IN

FAILING TO INQUIRE INTO THE

RELIABILITY OF THE GRAND JURY

TESTIMONY PRIOR’ TO _ ITS

ADMISSION.

As noted in the Statement of Facts, defense counsel

sought and was granted a series of continuing objections

to admission of the grand jury testimony of key

prosecution witnesses who inculpated Appellant before the

grand jury, but exculpated him at trial.

Moving for a new trial, defense counsel reiterated and

expanded upon his objections. It was the defense position

(T. 1/19/95, 13 seq.) that the Court of Appeals in Nance

based its analysis of the admissibility of grand jury

testimony upon federal law (see 331 Md. at 569-571); that

2a

under federal law grand jury testimony is not

automatically inadmissible, but must instead be tested for

reliability; and that the grand jury testimony in the present

case was not obtained under reliable circumstances. Thus,

for example, Lonell Britt testified that he was constantly

under the influence of marijuana, including at the time of

the grarid jury testimony, and Pierre Wilson testified that

he had been offered immunity. Further, Ray Wilson

provided information favorable to the defense until the

State arranged for Pierre Wilson to speak to him at great

length in semi-custodial circumstances. Thereafter, Ray

Wilson suddenly and suspiciously changed his story.

Appellant in moving for a new trial filed a detailed

memorandum setting forth the applicable law. That

memorandum provided the following arguments, which

Appellant now reiterates:

Since the Court has in effect adopted the Federal Rule,

it must be pointed out that the Federal Rule encompasses

not only the rule cited in Nance, but also Federal Rule

804(b)(5), which applies when the declarant is unavailable

to testify at trial. First of all, it must be pointed out that

the Federal Courts in United States v. Dent, 984 F.2d

1453, 1462 (7th Cir. 1993), has already stated that:

"We have already held that Grand Jury testimony

(when the declarant is unavailable for cross-

examination at trial) does not come within one of

the specific hearsay exceptions in Rule 804;

namely, the former testimony exception of Rule

804(b)(1) and is properly considered under the

residual hearsay exception."

The Court then went onto say that such Grand Jury

testimony is admissible under the residual hearsay

exception only if it meets the stringent criteria of Rule

SN tS me *

3a

804(b)(4). The court also held that it must be evaluated

under the Sixth Amendment Confrontation Clause and

there must be a showing of "particularized guarantees of

trustworthiness" to satisfy the Confrontation Clause, citing

Ohio v. Roberts, 448 U.S. 56 (1980). This must be drawn

from the totality of the circumstances. Such careful

scrutiny of grand jury testimony under Rule 804(b)(5)

demonstrates the Court's concerns about admitting such

evidence. The federal courts have indicated that the court

should view very carefully the facts and circumstances

surrounding the taking of grand jury testimony, as to

whether or not it meets the requirements of trustworthiness

and reliability.

In United States v. Fernandez, 892 F.2d 976 (11th Cir.

1989), the court stated -that only extraordinarily

trustworthy grand jury testimony can be admissihle under

the residual exception of the hearsay rule as proof of the

matter asserted. Although there is no per se rule, the court

should look at all of the facts and circumstances. One fact

that all courts seem to stress is whether or not the witness

was granted immunity. In Fernandez, the general

credibility assessment of the witness was questioned, not

only in view of the fact that he was immunized, but also

because he admitted to being under the influence of

medications during his grand jury appearance. In the

present case, as noted above, similar indicia of

unreliability were present.

In analyzing circumstances showing the unreliability of

grand jury testimony, the First Circuit has looked at

whether the witness was testifying under immunity or the

extrinsic evidence undermined her vision of the relevant

facts. United States v. Donlon, 909 F.2d 650, 654 (1st Cir.

1990). At the trial of the instant case, the State introduced

4a

the grand jury testimony of Lonnell Britt three times -- it

was read by the Assistant State's Attorney, the tape of the

grand jury testimony was played, and the jury was given

a transcript in order to read along. Britt told the grand jury

that Appellant had confessed to the shooting when Britt

visited him in jail, an assertion which he recanted at trial

and which was disproved by extrinsic evidence of the

visitor's log at the jail, showing that Lonnell Britt never

visited Appellant.

Accordingly, inherent in the law adopted by the Court

of Appeals is a requirement that grand jury testimony be

particularly trustworthy. Clearly, the record here shows

only the opposite.

The Court's attention is also called to the case of United

States v. Gomez-Lemos, 939 F.3d 326 (6th Cir. 1991). In

that case, two government witnesses who had testified

before the grand jury refused to testify at trial, claiming

privilege against self-incnmination. The Court in that case

wrote that there was a basic untrusthworthiness in the

grand jury testimony of witnesses who had been given a

plea agreement and immunity by the government which

would certainly be motivation to lie.

It should also be pointed out that a certain degree of

untrustworthiness is inherent in the grand jury process

itself. While witnesses are under oath, there is of course

no cross-examination or adversary testing of any kind. For

this reason, a tnal jury should only be exposed to

particularly reliable grand jury testimony. See United

States v. Fernandez, 892 F.2d 976 (11th Cir. 1989).

In sum, it 1s Appellant's position that prior grand jury

testimony is not automatically admissible under Nance.

Instead, indicia of reliability are required. Here, the grand

jury testimony was tainted by offers of immunity, drug

Sa

usage, and pressure brought to bear against witnesses.

Under these circumstances, the trial court should at the

very least have made a determination of reliability prior to

admitting the evidence as substantive proof. Alteratively,

and better, the court should have excluded the evidence in

accordance with the defense objections. The court's

failure to do so was prejudicial error.

* * *

6a

APPENDIX B

{Excerpt from Appellant's Petition for Writ of Certiorari to

the Court of Appeals of Maryland, Stephen Daniel

Edwards v. State of Maryland, Petition Docket No. 646

(filed January 8, 1996).].

* * *

inconsistent ....". Both the Mackell and Sheppard cases

indicate that under the circumstances as presented to them,

the jury should have heard all of the statements including

the testimony at the first trial and then determined from

them where the truth lay rather than just that testimony

that the State sought to elicit. It was wrong, based upon

judicial economy, to deny the Petitioner the nght to show

prior consistent statements under oath to the jury. This

was prejudicial error.

Il. DID THE TRIAL COURT COMMIT

ERROR BY ADMITTING’ INTO

EVIDENCE UNRELIABLE GRAND

JURY TESTIMONY OF _ KEY

PROSECUTION WITNESSES - AS

SUBSTANTIVE EVIDENCE WITHOUT

AT LEAST INQUIRING AS TO THE

RELIABILITY OF SAID GRAND JURY

TESTIMONY BEFORE ITS

ADMISSION?

In considering this issue, the Court must also make a

determination as to when a declarant is or is not available

at the trial. The Court's attention is called to the case of

DRA ioseiock eames nee

ns Se

ee eee ee

Ta

United States vs. Gomez-Lemos, 939 F.2d 326. In that

case, the two government witnesses who testified before

the Grand Jury refused to testify at tnal by claiming their

privilege against self-incrimination. Is this not the same

as, if not similar to, a witness who is put on the witness

stand and instead of refusing to testify because of self-

incrimination claims he never testified truthfully before the

Grand Jury in the first place? Or has no recollection of

ever testifying? The federal court in the above case

specifically held that there was a basic untrustworthiness

in the Grand Jury testimony of witnesses who have been

given a plea agreement and immunity by the government

(which would certainly be a motivation to lie). Is this not

the same as Pierre Wilson's testimony? It is respectfully

suggested that Grand Jury testimony should be judged

under the admissibility requirements applicable in the

residual exception to the hearsay rule. Although the

witnesses at issue in the instant case were present at tral

for cross-examination, all but one recanted the Grand Jury

testimony which was then brought in as substantive

evidence and the opportunity for cross-examination on that

testimony was lost. By analyzing the Grand Jury

testimony under the prior exception, the Court should

examine the totality of circumstances surrounding the

testimony which in this case showed a strong indicia of

untrustworthiness. How can the trial court allow the same

Grand Jury testimony to be given three times to the tnal

jury verbatim while excluding prior consistent testimony

given under oath on the grounds of judicial economy?

There is an inherent requirement that Grand Jury

testimony, as well as signed statements, must bear

sufficient indicia of trustworthiness to justify their

admission. The new Maryland Rules of Evidence outlines

8a

the residual exception to the ban on hearsay as allowing

statements with "circumstantial guarantees of

trustworthiness" equivalent to the specific hearsay

exceptions. The implication is that it must be shown in all

cases where hearsay is admitted. "The oath taken by the

Declarant is the only attribute possessed by Grand Jury

testimony, as a class of information, that could raise its

trustworthiness above the level of ordinary inadmissible

hearsay ... Only extraordinary trustworthy Grand Jury

testimony could possibly be admissible as truth in the

matter asserted." The United States vs. Fernandez, 829

F.2d 976 (11th Cir. 1989). Although it is true that

Fernandez dealt with the admissibility of Grand Jury

testmony when the Declarant was unavailable, it provides

an example of circumstantial evidence of reliability to be

used by courts in allowing such testimony under either

case.