Wise v. State, 220 A.3d 341

Dec. 17, 2012: Edward Thomas was shot; Byron Harris was an on‑scene witness living at the house.
Jan. 22, 2013: Harris selected Eric Wise from a police photo array and wrote/signed a narrative on the back of the array describing events.
July 2015: Harris suffered a severe traumatic brain injury that impaired his memory; by trial he acknowledged frequent memory lapses and could not recall signing or writing the array though he recognized the handwriting and signature.
At trial (2017) Harris gave testimony that conflicted with his earlier written statement (e.g., saying he was at a bar when the shooting occurred, and denying seeing an argument), and the State sought admission of the photo array/written statement under Nance/Md. Rule 5‑802.1(a).
The trial court admitted the written statement and allowed Harris to read it to the jury; Wise was convicted of several firearm/assault counts (acquitted of first‑degree murder) and appealed.
On appeal the court affirmed: (1) the prior written statement was admissible because Harris’s trial testimony contained material positive contradictions with the prior statement, and (2) Wise failed to preserve a competency objection because the in limine challenge was not expressly renewed at trial.

Issue	Plaintiff's Argument (Wise)	Defendant's Argument (State)	Held
Whether the photo array and Harris’s written statement were admissible as a prior inconsistent statement under Nance when the witness suffered actual memory loss	Nance’s implied‑inconsistency theory applies only to feigned or deliberate memory lapses; Corbett bars admission when a witness testifies to actual memory loss	Even if Harris had memory problems, he nonetheless gave trial testimony that materially and positively contradicted his earlier written statement, so Nance/Md. Rule 5‑802.1(a) permits admission	Affirmed — admission proper: Harris’s trial testimony contained material positive contradictions with the prior written statement, so the prior statement was admissible as substantive evidence
Whether Harris was competent to testify given his memory impairment	Harris was incompetent because his memory deficits undermined capacity to observe, recollect, and recount pertinent facts	The State contends the competency issue was not preserved for appeal; if considered, the trial court did not abuse its discretion in finding sufficient memory to testify	Not reached on the merits — issue not preserved: Wise’s in limine competency objection was not expressly renewed at trial, so appellate review is barred

Nance v. State, 331 Md. 549 (1993) (adopted rule allowing certain prior inconsistent statements to be admitted substantively; inconsistency includes positive contradiction and claimed lapses of memory).
Corbett v. State, 130 Md. App. 408 (2000) (actual memory loss that results in honest inability to recall cannot be treated as implied inconsistency under Nance).
McClain v. State, 425 Md. 238 (2012) (when trial testimony positively contradicts a prior statement, the prior statement may be admitted regardless of why the inconsistency arose).
Klauenberg v. State, 355 Md. 528 (1999) (denial of a pretrial motion in limine is not preserved for appeal absent a contemporaneous objection when the evidence is later offered).
Walter v. State, 239 Md. App. 168 (2018) (explains narrow exception where a carefully specific oral reference at trial to pretrial objections can preserve the issue).
Gordon v. State, 431 Md. 527 (2013) (standard of review: hearsay admissibility is a legal question reviewed de novo; trial‑court factual findings reviewed for clear error).
Bernadyn v. State, 390 Md. 1 (2005) (hearsay is an out‑of‑court statement offered for its truth and is inadmissible unless an exception applies).
Perry v. State, 381 Md. 138 (2004) (competency standard: witness must have sufficient capacity to observe, recollect, and recount pertinent facts).