Stewart v. State

655 A.2d 1345, 104 Md. App. 273, 1995 Md. App. LEXIS 68
CourtCourt of Special Appeals of Maryland
DecidedMarch 31, 1995
DocketNo. 1006
StatusPublished
Cited by8 cases

This text of 655 A.2d 1345 (Stewart v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stewart v. State, 655 A.2d 1345, 104 Md. App. 273, 1995 Md. App. LEXIS 68 (Md. Ct. App. 1995).

Opinion

MOYLAN, Judge.

In Nance v. State, 331 Md. 549, 629 A.2d 633 (1993), the Court of Appeals changed dramatically the evidentiary landscape of Maryland. In this case, we are positioned to fill in, by way of a square holding, a part of the new map, and to do so in the way anticipated by prescient dicta in Bradley v. State, 333 Md. 593, 607, 636 A.2d 999 (1994).

The appellant, Michael Stewart, was convicted by a Baltimore City jury, presided over by Judge Elsbeth Levy Bothe, of murder in the first degree and the use of a handgun in the commission of a crime of violence. On this appeal, the appellant raises three contentions:

1) The State’s use of a witness’s prior out-of-court statement, ostensibly under the authority of Nance, violated the dictates of Spence v. State, 321 Md. 526, 583 A.2d 715 (1991).
2) The State unconstitutionally failed to provide the defense with exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
3) The prosecutor’s improper remarks during closing argument prejudiced the appellant.

On July 9, 1993, at 2872 West Lanvale Street in Baltimore, James “Man” Brandon was shot twice and killed. A key witness was George Booth. Approximately one month after the shooting, Booth was presented with a photographic array by Detective Corey Belt. Booth chose the appellant’s photograph and identified him as the person who shot “Man.” [276]*276Booth wrote in his own words, “I’m positive that he was the one who shot ‘Man,’ ” and then placed his initials and signed his name next to the appellant’s photograph. In a second photo array presented to him, Booth again identified the appellant as the shooter. Booth wrote in his own words that before the shooting, the appellant “came around the corner and said “What’s .up?’ ” and then left.

During an interview conducted after the photographic array procedure, Booth told Detective Belt that he knew the shooter as “Mike.” En route to the grand jury, Booth further indicated that Mike’s nickname was “Honky Tonk.” After his arrest, the appellant himself indicated that his nickname was, indeed, “Honky Tonk.” Although Detective Belt characterized Booth as not very cooperative, Booth’s statement to the police was reduced to writing and both initialled and signed by him.

When called as a State’s witness at trial, Booth turned out to be a classic example of what the Nance opinion refers to as a “turncoat witness.” Booth testified that, notwithstanding his earlier statements to the police, he did not recognize Brandon’s murderer as someone from the neighborhood. He further asserted that the shooter was someone he had never seen before. He explained away his earlier photographic identification as something that the police had “hounded him” into doing. He similarly explained away his comment on the photograph, the fact of which he acknowledged, that he was “positive” that it was the appellant who had shot Brandon.

Booth acknowledged that he had gone before the grand jury and there testified that Mike, better known as “Honky Tonk,” had displayed a gun to him prior to the shooting and then told him to “take a walk.” Booth acknowledged having testified before the grand jury that the appellant was the shooter. He also testified, inexplicably, that he had told the truth before the grand jury but then, on cross-examination, testified that the appellant was not the shooter.

The deployment was opportune for the State, through Detective Belt, to unlimber every piece of ordnance in the Nance arsenal: 1) Booth’s extrajudicial identification of the appellant, [277]*2772) Booth’s written and signed statement to the police, and 3) Booth’s testimony before the grand jury. All three salvos were then fired in rapid succession. The appellant accepts, under Bedford v. State, 293 Md. 172, 176-79, 443 A.2d 78 (1982), the first “hit,” but takes aggrieved umbrage at the second and third.

For the admission of both 1) Booth’s written and signed statement to the police and 2) Booth’s testimony before the grand jury, Nance’s threshold conditions were met. Booth was present at the trial as an available witness and Booth was subject to cross-examination by the appellant. With respect to the statements to the police, Nance’s requirement is that the

statement was reduced to a writing signed or adopted by the declarant, and the declarant is a witness at trial and subject to cross-examination.

331 Md. at 567-68, 629 A.2d 633. Nance established that a prior inconsistent statement is admissible as substantive evidence if the declarant “is subject to cross-examination at the trial where the prior statement is introduced.” 331 Md. at 569, 629 A.2d 633.

With respect to the admissibility of Booth’s grand jury testimony, Nance similarly held:

The declarant must also, of course, be present as a witness at trial to be tested and be cross-examined in regard to the former grand jury appearance and its contents.

331 Md. at 571, 629 A.2d 633.

In turning to the particular requirements for the admissibility of a prior statement to the police, as an exception to the hearsay rule, Nance was satisfied. 331 Md. at 564-69, 629 A.2d 633. The statement to the police was based on Booth’s own knowledge of the facts. It was reduced to writing by Booth himself in his own words. It was adopted by him, initialled by him, and signed by him. In terms of its trustworthiness under those circumstances, Nance held squarely:

We hold that the factual portion of an inconsistent out-of-court statement is sufficiently trustworthy to be offered as [278]*278substantive 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. (Footnote omitted.)

331 Md. at 569, 629 A.2d 633.

In terms of the particular requirements for the admissibility of Booth’s grand jury testimony, as an exception to the hearsay rule, Nance was again satisfied. 331 Md. at 569-71, 629 A.2d 633. Booth testified under oath and subject to the penalty of perjury. His grand jury testimony was meticulously recorded and transcribed. In terms of the trustworthiness of the hearsay under those circumstances, Nance reasoned:

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Bluebook (online)
655 A.2d 1345, 104 Md. App. 273, 1995 Md. App. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-state-mdctspecapp-1995.