*1 22 A.2d Grogrieo FIELDS
Saturio v. Maryland. STATE 311, Sept. Term, 2004. No. Appeals Maryland. Special Court March 2006. *4 Forster, Michael Malloy (Nancy Defender, R. S. Public brief), Baltimore, for appellant. 26 (J. Curran, Jr., Attorney Russell Joseph Patterson
Devy Baltimore, brief), General, appellee. for EYLER, SALMON, KENNEY and DEBORAH S. Panel: JJ. EYLER, S. J.
DEBORAH 25, 2005, a of May panel In filed on unreported opinion for judgments affirmed the of Circuit Court this Court Fields, Grogrieo Saturio George’s County convicting Prince of first- of murder and two counts first-degree the appellant, State, 2004, 162 Sept.Term assault. Fields v. No. degree J.).D., (Eyler, Md.App. for appeal. had raised five issues review on
The in one, trial court erred In he contended had issue nickname, Dogg,” pro- that his “Sat admitting evidence in television monitor where jected on a hearsay argued He the evidence was crimes occurred. to the any admissible under exception and that it was not that the argument, holding hearsay rejected rule. We rejected also non-hearsay. We evidence was admissible other four issues. appellant’s certiorari, for which petition filed writ State, 390 Appeals. Fields v. by the Court granted (2006). A.2d 1025
Md.
8, 2005,
its
Appeals
opinion
the Court of
filed
On December
(2005).
Then,
State, 390 Md.
FACTS PROCEEDINGS appellant’s The convictions from the of shootings stem three Clinton, young bowling men at a in alley Maryland, shortly after The midnight May 2003. three men among were group a a employees nearby about supermarket who night a out at the enjoying bowling alley. Tyneal were Bussey by killed a chest. gunshot Early was wound to the Eborn was in the shot abdomen and Rozier Davis shot in the was arm. was appellant charged numerous crimes arising with shootings, out of the including first-degree murder of Bussey. He was a in jury tried the Circuit Court for Prince George’s County. bowling State’s evidence showed while at the alley the night question, appellant became involved a
dispute Bussey and Bussey with asked to step outside. The appellant exited the went outside to the shoes, lot parking Bussey changed as out of his bowling took shirt, off his and headed for the doorway. Several other supermarket employees Bussey, followed there believing was going be a fight.
A gathered by crowd doorway bowling alley. Several witnesses testified that car a white out- parked side, and standing car, beside holding a rifle. When Bussey doorway, reached the fire, appellant opened killing Bussey and injuring Davis and Eborn. All three victims inside were still alley they were struck by gunfire.
Two members the supermarket group identified the appellant as the shooter from photographic array. They also identified him court. There was evidence that 1. The through discussion of issues two five is the same as which appeared unreported opinion, in our stylistic changes. with some minor jeans, that the t-shirt and wearing
shooter white the day of that wearing description had been clothes shooting. before *6 that the by introduced State
There also was evidence Dogg.” the nickname “Sat by appellant went he was theory of defense was that primary The appellant’s at bowling alley even present not the and was not shooter shootings happened. when the murder of first-degree of jury appellant convicted assault, each for of one
Bussey first-degree and two counts of imposed a sentence life prison and Eborn. The court Davis It for the murder conviction. possibility parole without sentences, to to the life run imposed 20-year consecutive sentence, conviction. for each assault n appeal, on following questions raised rephrased: we have which by admitting hearsay the trial court err
I. Did bowling at the alley committed? the crimes were by permit defense refusing the trial court err II. Did key prosecution a witness counsel cross-examine a inconsistent statement? prior about refusing err permit III. Did the trial court who would have testified call a witness defense against, a bias key prosecution witness’s about about, the appellant? motive to lie apply legal the trial an incorrect standard IV. Did court for trial? motion new deciding appellant’s the first- support the evidence insufficient V. Was murder conviction? degree necessary facts as to our discus- shall include additional We of the issues. sion
DISCUSSION I.
(a) Canales, Detective Ismael a member the homicide unit George’s County Department, among the Prince Police at the responded report shootings officers who to a inside, bowling alley. Once he observed that there was lane, monitor each bowling television at names and displayed scores of the bowlers lane were screen. alley one employees
The detective asked of the displayed whether information the television screens He could be out. was told that that could not be printed done because the did not have an operating printer. Upon learning Detective Canales to make proceeded *7 list, itemizing handwritten each the bowling lane and names on displayed the screen for that lane. 32 bowling
Detective Canales listed lanes. Lanes 1 through empty, were as lanes and 31. empty were The lanes were not use and no names on their monitors. appeared Detective Canales recorded the names on the screen above lane 22 as “Sat Dogg/Bleu/Vino.” trial,
Immediately before the start of the defense moved limine preclude the State from eliciting testimony from Canales Detective that the name “Sat Dogg” appeared on a television screen in the bowling alley introducing or into evidence the showing detective’s handwritten list that the name Dogg” “Sat on appeared the television at bowling screen lane 22. Defense argued counsel that evidence was hear- say. Specifically, she that maintained the name “Sat Dogg” on assertion, the screen implied was an by unknown declarant, court, made out of that the appellant was present bowling alley night; State offering implied assertion in evidence to show its truth. Because the evidence did not fall any exception within the rule against hearsay, it was inadmissible. motion, provisionally commenting court denied the
The person no to think the who typed there was reason bowling nickname onto the television screen above appellant’s act that the appellant 22 intended that as an assertion lane at that location. Canales, of Detective defense counsel direct examination On prosecutor questions when the asked foundational objected (which had handwritten list been marked about detective’s 23). she explained as Exhibit Defense counsel State’s re- hearsay objection.2 prosecutor again raising being offered to what sponded “this evidence is show by on the screens as observed Detective Canales names were when on scene.” objection ques-
The trial court overruled allowed objections, further Ca- proceed. Over Detective tioning that he saw the names that displayed nales testified were bowling at lanes and wrote the television screens State’s saw, as no document the names there was Exhibit over 23 was objection, available. Also State’s Exhibit printer into evidence. moved testified, objections, witnesses also over defense
Several lane particular and scores of the bowlers in a that the names that lane during on the television screen at projected were of the testified that a name game. manager particular be entered and television displayed could at keypad bowling it either on a located typing screen or keypad the monitor on a located lane below control desk. alley *8 Holmes, the at the time of
Melody dating appellant who was that, crimes, early morning in the hours soon the testified to her came house shootings, appellant after he called also phone person on his cell “Vino.” She talked wearing bowling was shoes. testified object list 2. defense the admission of Detective Canales’s did any ground hearsay. than on other closing argument, prosecutor In made two references to Dogg’s” displayed the evidence that name “Sat one of First, in recounting the television screens. Detective Ca- what he testimony arriving nales’s about did at the upon of the prosecutor night shootings, said: Canales, the And Detective lead investigator, was his it, to find job put together. out who did When he came there, there all that is no at he evidence introduced knew was, anything, Fields Dogg who Saturio who Sat was. No They evidence all. But what did he do? talked to They witnesses. collected items were front, weather, at the casings found scene. out Shell shoes, no video unfortunately. He that. checked
And what did He he do? was smart. He wrote down names from all the did just screens. And when he he instinct, it out of did but did it. this all He did with the hope, with the idea that he system could—the could bring justice, someone to hold them for accountable these acts, terrible these terrible shootings.
Second, the prosecutor included the name-on-the-screen evi- dence his of items found crime review at the scene that tended show that the was there. The prosecutor itemized that evidence for the jury: a sweater found at the bowling alley that later was determined to have the appellant’s it; DNA shell casings linked gun to a a witness testified was appellant’s bed; found under the and a car white decals with that met description of the car the appellant The prosecutor drove. then added:
What about the on the name monitor? television Connec- to the tion crime There testimony scene. about how it there, got get how the names And up there. we know Defendant has a nickname Sat it. Dogg. We know How do it? we know said [A witness] so. We have the tattoo on appellant’s] arm to show it. [the Where name Sat Dogg? Lane 22.
32
(b)
law,
common
an utterance or other
Maryland
Under
assertion,
if an
attenu
hearsay
act
be deemed
however
would
ated,
general
be
from the utterance or act. See
implied
could
(2001). See,
McLain,
§ 801:4
ly
Maryland
6A
Evidence
Lynn
(1872)
Waters,
531,
e.g.,
(adopting
v.
35 Md.
544-45
Waters
Tatham, 7
E.
by Wright
Adolphus
rule
v.
&
of law established
313,
1837),
F.
aff'd,
488
Bench
5 Cl. &
Eng. Rep.
(King’s
112
(House
1838),
to
670
of Lords
letters
decedent were
in suit
decedent’s testamen
hearsay
challenging
inadmissible
tary
implied
because letters contained
assertion
capacity
State,
v.
Eiland
competent
respond);
decedent was
to
(1992)
56, 79-82,
that shoot
(explaining
In of Appeals Court Evidence, Rule Chapter “Hearsay.” entitled including It chapter. forth apply 5-801 sets the definitions provides:
(a) (1) A is an oral or Statement. “statement” written (2) if it is person, or conduct of a assertion nonverbal as assertion. by person intended an (b) is a makes a A “declarant” who person Declarant. statement.
(c) Hearsay. statement, one “Hearsay” is a other than or the trial testifying made the declarant while of matter the truth hearing, prove offered evidence asserted. points Note to Rule 5-801 out: Committee “assertion,” concept define Rule does not attempt
This fact that development left to case law. The best something or is in the form of proffered question statement, however, neces- than a does not other narrative its preclude being an assertion. also does sarily Rule assertion, attempt to define such as a verbal act, for other its something offered than truth. *10 State, (2005),
In Stoddard v.
389 Md.
We conclude that out-of-court offered for words of truth unintentional implications are not different substan- from out-of-court tially words offered for the truth of inten- tional communications. The lack declarant’s of intent communicate implied proposition does not increase the reliability of the declarant’s words in a degree sufficient to from justify exemption the hearsay rule. Said another way, we conclude that a declarant’s lack intent to communicate a belief the truth of a particular proposition is irrelevant to the determination of whether the words are hearsay when offered prove the truth of proposition. that words, as probative value
We hold where offered, having on the declarant communicated depends an “assertion” of the words constitute proposition, factual intent non commu- The declarant’s vel proposition. If the are ut- is irrelevant. words proposition nicate the court, in court truth prove then offered tered out are asserted”—they of the “matter proposition—i.e. hearsay our rules. under 703-04, A.2d 564. Md. Bernadyn, its supra, filed Appeals opinion
The Court of opinion Bernadyn its Stoddard. same filed day after a drug offenses search warrant convicted of various trial, he maintained that on a residence. At executed To that Berna- targeted prove at the residence. did live there, into evidence live offered did in fact State dyn seized at the Bayview Physicians bill from medical *11 Berna- of the search warrant. during execution residence written on the address the residence were name and dyn’s Bernadyn’s objec- over evidence was admitted bill. The assertion implied out-of-court hearsay—an that it was tion residence, its offered for truth— targeted at the that he lived rule against exception did not fall within that hearsay. reversed, holding that the bill indeed Appeals
The Court reasoned that evidence. Court hearsay inadmissible that the bill into evidence show offering the State was on the bill. The bill thus was at the address Bernadyn lived at the Bernadyn assertion that lived implied as an being used (The bill, hearsay. parties therefore on the address admissible.) that, it not hearsay, if the bill was agreed explained: The Court Jr., 2024 Bernadyn, accept
In the words “Michael order Street, proof as 21040” Edgewood, Maryland Morgan address, needed to reach jury at that Bernadyn lived conclude, first, Bayview It needed conclusions. two Bernadyn words because believed wrote those Physicians address, second, Bayview Physicians to live at that
35 used, was accurate that belief. As probative value depended Bayview words Physicians having commu- nicated proposition that Michael Bernadyn lived at 2024 Morgan Street. The words therefore constituted a “written hence, assertion”—and (a), under Md. Rule 5-801 a “state- ment”—that Michael Bernadyn lived at 2024 Morgan Street. prove When used to the truth assertion, of that the bill was hearsay 5-801(c), under Md. Rule because it contained “a ... statement offered prove the truth of the matter asserted.”
Bernadyn,
(footnotes
supra,
the bill merely as an item of circumstantial evidence:
The bill contained significant two name, items: Bernadyn’s and his address. The State did not argue that an simply item bearing Bernadyn’s name was found in the house and that Bernadyn probably Rather, resided at the house. State argued that the bill itself was “a piece of evidence that shows who lives there.” In particular, the suggested State Bayview Physicians had correct Bernadyn’s address because “any institution going to make they sure have the right they address when get paid.” want to atMd. In footnote, A.2d 602. added, the Court “The words [on would not be probative bill] as if offered it could be established that Bayview Physicians did not believe Bernadyn to Morgan Street, live if it e.g., believed that Bernadyn received his mail there but lived elsewhere.” Id. at n. 4 (emphasis in original).
(c) Returning case, to the instant the reason the trial judge gave for that concluding the evidence that the appel lant’s nickname on a was television screen in the bowling alley incorrect, was non-hearsay was under Stoddard. The trial judge determined person that the who entered the name “Sat Dogg” on the screen did not intend to assert that appellant alley. bowling Dogg” in the If the words “Sat present
was
proposition
of the factual
that
implied
were an
assertion
alley
in the
at the time of the
appellant
present
bowling
was
it
no difference
the “declar-
shootings, would make
whether
factual
convey
proposition.
ant” of the
intended
that
words
Stoddard,
703-04,
That error does for consider hearsay. was not We question reason evidence pure is that is a hearsay, de novo evidence because whether at Bernadyn, supra, 390 Md. 887 A.2d question law. “a court has no hear (stating that circuit discretion admit for its say provision providing in the absence of a admissibili an hearsay is issue of law ty,” and that evidence “[w]hether novo”). de reviewed here is whether the evidence that question
The core
appellant’s
bowling
nickname
screen at
was
television
lane
assertion that the
implied
22 constituted an
was
in the
that
and
present
night,
was offered
item of
his
or
it was an
presence;
State
show
whether
evidence from
reasonable
circumstantial crime scene
which
in the
jurors
infer that
could
was
that
alley
night.
distinction,
supra,
In
and
Bernadyn,
Court drew
focused on
and for what
doing
purpose
proponent
so
how
(the State)
it. The
using
empha
the evidence
Court
that case
not offer the
bill
that the State in
did
medical
sized
thing
that it
found at the crime scene—a
merely to show
Bernadyn
fact
could infer that
jurors
probably
from which
Rather,
proof
item as
that Berna
lived there.
offered
dyn
by showing
Bayview Hospital,
at the
lived
residence
there,
outsider,
accurate in that
believed that
lived
Bemadyn
belief,
prosecutor
acted
that belief. The
piece
‘a
that shows
“argued that the bill itself was
”
“suggested
Bayview
who
the residence
live[d]’
insti
‘any
correct address because
Physicians
Bernadyn’s
had
address
they
right
tution is
make sure
have
going
”
In the case at we conclude that the that the evidence appellant’s nickname was found on screen in the television bowling alley night on the of the falls into the shootings circumstantial category of non-assertive crime scene evidence. The State called Detective questioned Canales and him about he the bowling what found at alley he responded of shooting the call and what evidence he collected at the scene. Detective Canales testified that names on the saw screens at lanes bowling and wrote all of on a them down piece prosecutor argued paper. that the appellant’s nickname, “Sat on the Dogg,” screen at lane was one several items of the crime that scene linked the appellant the scene—including a sweater his with DNA on it, casings bed, from a that gun was under his and a car that looked like his car.
The prosecutor attempt did use the evidence of the Dogg” words the screen “Sat at the bowling alley to show that a known declarant present believed was there, reason to accurately belief, had hold that and therefore asserting was that impliedly factual proposition by entering his nickname the screen. the probative Unlike value in Bernadyn, medical bill supra, probative value of the evidence that the appellant’s name on the was television screen not depend upon did the belief of the who person typed screen, the name on or upon the accuracy person’s belief. The prosecutor argue did not person who Dogg” entered name “Sat on the only screen would have done so if he or she believed that the appellant present Indeed, alley. there was no evidence about that belief, person’s the person because was not identified. The prosecutor argued that the only crime scene included a bowl- ing lane the name “Sat Dogg” with written it. above sure, of the name-on-the-screen probative
To be value to show that the tendency had a evidence was and therefore night, a bowler at shootings. item at the Any at the location of the *14 to the in some appellant scene that could be connected crime source, also have veracity of its would regardless the way, jurors could drawn the same value. The have probative that alley at appellant bowling that the was the present inference DNA on it that the sweater with his was from evidence there. found bowling in the name on the screen appellant’s television an assertion of the factual implied proposition not
alley was at bowling alley, although was appellant that the that could be of that probative circumstantial evidence was “assertion,” not an under fact. Because 5-801(a), a that it was not “statement” under subsection Rule 5—801(c). not Rule It was hearsay hence under and Accordingly, trial court’s non-hearsay admissible evidence. evidentiary was not error. ruling
II. State, a as her key Holmes was witness for Melody testimony appellant shootings. implicated the trial court committed argues appeal appellant from cross- by precluding error defense counsel reversible prior a inconsistent statement examining Holmes about made a for a local television news allegedly reporter she program. that, May at 3:00 a.m.
Holmes testified about gun, a apartment carrying arrived at her which appellant her He on a cell talking phone under bed. placed he arrived, and heard him tell the with whom person she when at that he had been involved in altercation speaking he was in the throat. alley punched and had someone police reported Holmes called the and what day, The next her police permission search gave had heard. She she apartment, they gun recovered from under the bed.3 Holmes added that told the pólice she she was afraid of the for so her appellant, they paid stay hotel for four Nevertheless, Holmes nights. telephoned appellant multi- ple times from the hotel. Holmes met admitted she with appellant left the him stayed she hotel and with for days. Eventually, she appellant several went with the to the station police when he turned himself in. cross-examination,
On Holmes admitted that she visited two with the lawyers appellant. attempted, Defense counsel with success, limited to question Holmes as to she told the whether lawyers that two she did overhear the saying him anything would link to the shootings fact, he did not come to home her after the shootings place. took Defense also questioned counsel as to made Holmes whether she a statement exculpating the to a a local reporter for television news program, but *15 objection the court sustained the that State’s to line of ques- tioning. examination, re-direct the
On clarified prosecutor some of sought what defense counsel had to elicit Holmes during from cross-examination. the Upon questioning by prosecutor, explained that, direction, Holmes at the appellant’s she told lawyers house, the that the appellant “was never in [her] at his mother’s on the house night everything hap- that and that he pened, don’t know nothing about what had hap- pened.” Holmes that indicated the had exhorted events, three her times to that relate version of and that she so because did she was afraid of him. 5—616(a)(1),
Under Rule of a witness credibility may “[t]he witness, be attacked through questions asked of including the questions that are at ... directed Rule [p]roving under 5-613 the witness has made are statements that inconsistent County 3. A firearms George's examiner for Prince Police testified casings two shell alley recovered from the after the shootings were the rifle fired from beneath recovered from Holmes’s bed. turn, 5-613, in testimony.” Rule with the witness’s provides: A
(a) Examining concerning prior statement. witness oral about a written or examining prior witness party show to the by the need not it statement made witness time, provided its at that or disclose contents witness (1) statement, if before end of examination written, or if the parties, is to the and the disclosed witness oral, is the contents of the and circum- statement statement made, including persons it was stances under which (2) made, are disclosed witness whom or deny it. given opportunity explain witness (b) prior Extrinsic evidence of inconsistent statement of re- justice interests otherwise witness. Unless of a inconsistent statement prior extrinsic evidence quire, (1) Rule is not admissible under this until a witness (a) been met and the requirements of section have -witness (2) made having has failed to admit the statement concerns a non-collateral matter. unless statement rules, that, in of these defense appellant posits light Holmes permitted been cross-examine counsel should have and, in the reporter about her statement to the television news statement, Holmes should have been making event denied other witnesses who had seen the news permitted call report. summarized, a Appeals
As the has Court determining scope court discretion in trial has broad cross-examination, and we not disturb the exercise will Nonetheless, clear discretion in the absence of abuse. unlimited, and cross-examiner must the discretion is not “a *16 attempting latitude in to establish a witness’ given be wide falsely.” appropriate or to test testify bias motivation in limiting of discretion cross-examina to determine abuse circumstances of the under the particular tion whether to case, of the defendant ability the limitation inhibited In the trial court assessing a fair trial. whether receive its of limiting discretion cross-examination abused motive fabri- attorney to show bias or who wished [an]
41 cate, to see we look whether the sufficient informa- jury had tion to a discriminating make assessment of the particular possible testifying falsely witness’s for of motives favor the State. State, (2001) 692, 698, 364
Martin v.
Md.
A.2d 385
775
(internal
omitted).
citations
wide latitude to
“Judges have
establish
on
reasonable limits
cross-examination
on
based
about,
harassment,
concerns
other
among
things,
prejudice,
issues,
confusion of the
safety,
interrogation
or
witnesses]
that is
or
repetitive
only marginally relevant.” Pantazes v.
State,
661, 680,
(2003).
376 Md.
We detect abuse of no discretion in the instant case. As we indicated, have Holmes testified to the effect that appel- her lant had on three he urged deny occasions to had implicated himself shootings deny had visited her after the took apartment shootings place. Holmes readily repeated admitted that she the false information sup- plied by By way of appellant. explanation, she made clear dating she had been of the time incident, and also that she afraid of him.
In light of Holmes’s admission that she lied at
appel
direction,
lant’s
of
identities
persons whom
lied
she
consequence.
little discernible
trial
court properly
State,
curtailed
cross-examination
the subject.
Ali v.
Cf.
295, 307,
(1988) (trial
314 Md.
A.2d
court properly
exercised its discretion by excluding police report containing
prior inconsistent
statement
witness where police officer
had already recounted witness’s
report
statement and written
cumulative),
unnecessary
would have been
abrogated
State,
grounds by
other
Nance v.
331 Md.
III. Holmes, On cross-examination Melody defense coun inquired sel as whether she ever romantically involved *17 any Holmes denied Terry name of Brock. a man with if defense asserts involvement. such potential to call witness Carlos permitted had been counsel that, at the stand, have testified Butler would to Butler Holmes, Brock was interested shootings, Terry time of shortly after romantically involved the two became and testimony Butler’s maintains that shootings. to had “a motive powerful Holmes have established would is, rid him so get That she “wanted to accuse” him. falsely Brock.” could with Mr. up that she take is somewhat appellant’s argument regarding The record clear on the record deficient, ruling there is no Butler. After calling counsel from prohibiting defense counsel against appellant, defense its case presented State one the witnesses she that Butler the court told proffered: to call. intended Counsel the 5- testimony to to get pursuant to call him I want falsely 616(b), testify other to evidence of motive extrinsic bias. to Now, going Butler is say, he is Carlos going what Holmes, Brock, Terry Melody Satu- knows say Melody hots for Brock had the Terry rio Fields and back, romantic blos- relationship but that their way from shooting.... the time of the somed about lunch, then the jury counsel send interrupted The court them off the that it discuss with to counsel would indicated witnesses. scheduling the defense record recess, counsel the lunch defense court resumed after When Later, after call Brock to stand. no attempt made deliberate, addressed the court defense counsel retired jury as follows: I Honor, proffer? I may address Court with
Your I lunch time. I was object hoping the record at did now. put could record Go ahead. THE COURT:
[DEFENSE COUNSEL]: We had a witness named Carlos Butler who was here in court testimony whose I argue would 5-616(b), admissible under extrinsic evidence and bias.
Mr. Butler is a Fields, friend of both Saturio Terry Brock Melody Holmes. He testify Terry would Brock Melody Holmes are in a romantic relationship. That prior to the shooting, Mr. Brock had a romantic interest in Melody Holmes. After the shooting, the romantic relation- fruition, ship came to and those are the reasons Iwhy would call Carlos Butler.
Defense counsel proffer went on to the content of testimony she would have elicited from several other witnesses had she been permitted to call them. The prosecutor responded: made, “Rulings have been arguments have been made on issues, these Your I Honor. don’t have anything more to add.... It’s all earlier, extrinsic. Just whatever we said Your Honor.” The court then decisions, reaffirmed its earlier ap- record, parently made off the denying the defense’s request to call various proposed so, witnesses. In doing the court did not specifically mention Butler.
Although there is no specific ruling on the record regarding
Butler’s testimony, we shall assume without
deciding
court ruled that Butler’s testimony was inadmissible. See
generally
State,
Prout v.
348, 357,
311 Md.
(1988)
The appellant contends that the trial court erred refus- ing permit defense counsel to extrinsic evidence in order to impeach the testimony of Melody Holmes. 5-616(b)(3)
Rule provides: bias, Extrinsic evidence of prejudice, interest, or other motive to testify falsely may be admitted whether or not the
44 fact and impeaching has been examined about
witness has failed to admit it. however, if not be Impeachment permitted, evidence will “ matters which will obscure issue
pertains to ‘collateral ” Pantazes, supra, to the fact finder’s confusion.’ and lead (citation omitted) (regarding 432 376 Md. at A.2d cross-examination). A through seeking impeachment party evidence is estab impeachment obligated the admission State, Blair of the evidence. v. lish relevance Cf. (2000) 571, 596, Md.App. (regarding admissibility A.2d 702 5-616(c)(2) Md. Rule to rehabili of statement offered under witness). tate before the deciding question
Assuming without court, defense properly trial conclude that court barred we to the The record reflects calling counsel from Butler stand. the court at the close of the State’s that defense counsel told *19 testimony Butler that case wanted to elicit from that she back, but “Terry Melody way had the hots for from that Brock time of their blossomed at about the the relationship romantic deliberate, After to counsel re- shooting.” jury the retired had shooting, to the Mr. Brock a “prior minded the court that shooting, After the Melody interest Holmes. the romantic Obviously, Butler’s relationship romantic came fruition[.]” that she impeached testimony have Holmes’s testimony would Holmes’s Brock. Neither nor had never been involved with however, any appar- life after the had shootings, Brock’s love charges against to the murder assault the ent relevance only a testimony appeared Butler’s thus address appellant. collateral matter. suggests that defense counsel ever record
Nothing testimony court that Butler’s establish informed the would argu- falsify. appellant’s that Holmes had motive that establish Holmes “wanted testimony ment that the would could Brock”— up of him so she take with Mr. get rid best, at appeal—is, the first time on made for apparently farfetched.
IV. More than a month after the verdicts were returned appellant, he moved for trial on against ground new 4-331(c). newly discovered evidence. See Md. Rule motion start hearing. was heard at of the sentencing that,
At the hearing, presented defense evidence after trial, the met a Ivan at the prisoner named Rollins George’s County Prince Detention Rollins Center. was await- ing trial for murder. He had been at alley the shootings occurred but had informed the investigating that he had not officers seen Rollins at the anything. testified however, that hearing, he had seen the shooter. He stated that meeting after wrong realized man had been convicted and “didn’t to see want an innocent person” rap. take Rollins then came forward what with he knew.
Defense counsel argued that testimony newly Rollins’s discovered evidence “may well produced have a different result” had it been presented trial. The State pointed out himself discovered, Rollins was not newly in that he had been questioned by police at the scene of crime and had having any denied knowledge regarding identify of the shooter. The State contended that the “new story” Rollins either, telling newly discovered that defense counsel could have attempted Rollins prior interview to trial and discovered the by doing so. The State concluded evidence, even if Rollins’s story was newly discovered credibility Rollins’s suspect was so there any “wasn’t significant substantial or possibility that verdict would *20 have been by affected his testimony.”
The court denied the motion for new trial. The appellant argues that, so, in doing the court applied wrong standard. points He a that, to comment made judge the trial in order trial, to newly warrant a new discovered evidence of must be such a nature that it probably “will produce acquittal.” Appeals Court of has stated: ... that falls “probable,” favor a standard between
We
doubt,”
demanding
“beyond
less
than
a reasonable
which
than
We
“might”
stringent
probable.
is less
and
which
newly
a
is: The
standard
discovered
think
workable
is,
result,
a
may
produced
have
different
well
a
significant possibility
there was
substantial or
tact
trier of
have been affected.
verdict
would
(1989).
State,
578, 588,
Its [sic] initially ... lied to the obviously police this witness after the fact. ... didn’t come forward until interviewed and his ... be about questioned And called at would [if trial] case, which have been in murder would involvement ... it been at the time of this trial so would have pending inquire. And even if took for open [Rollins] State they bring on that in the same Fifth Amendment issue will investigating one of the today that I heard who was witness story. ... on the testify flip flopped how officers who will But, strong ... an overwhelmingly more importantly, have testimony This wouldn’t against case the defendant. I’m bit as I’m concerned. So made a as difference far deny motion. going added.) may misspo- the trial court Although have
(Emphasis trial it commented in order to warrant a new ken when that it must be such nature discovered evidence newly
47 an it probably produce acquittal,” subsequently “will made standard, clear believed no matter how lenient the testimony Rollins’s would not affected the verdicts. have
V. Finally, appellant contends that the evidence was to support first-degree insufficient murder conviction it failed to establish that shooting Bussey was premeditated. He asserts that evidence State’s estab only lished shooting “the was the rash and impetuous an argument.” result of
“A person may be convicted of first degree pre
meditated murder
upon
legally
evidence
sufficient
establish
willful, deliberate,
person
a
perpetrated
and premedi
killing.”
State,
531,
tated
v.
Wagner
564,
160 Md.App.
864
(2005).
A.2d 1037
be ‘premeditated’ the design
“[T]o
to kill
preceded
must
the killing by
have
an
appreciable length
is,
time, that
time
enough
unnecessary
be deliberate. It is
that the deliberation or premeditation shall have existed for
”
(citation omitted).
any
Id.
particular length
time.’
“If
killing
results
from choice made as a consequence of
thought, no matter
short
how
period between
intention
act,
and the
the crime is characterized as deliberate and
565,
premeditated.” Id. at
As facts, indicated in our we recitation of the the State presented evidence that the appellant became involved an Bussey altercation with alley inside the bowling and asked Bussey step outside. The left the building first parking went lot. He retrieved a from gun his car and, Bussey reached the of the doorway building, fire, opened striking Bussey bystanders. and two While the did suggest indeed that “the shooting was the rash result of an impetuous argument,” it also established to satisfaction that jury’s made a conscious kill, choice preceded by length of time. appreciable “ ‘The for standard appellate evidentiary review whether, sufficiency after viewing the evidence the light 48 trier of fact any favorable to the rational prosecution,
most beyond elements of the crime could have found essential ” Suddith, 425, 429, 842 v. 379 Md. reasonable doubt.’ State omitted). (2004) (citation generally v. See Jackson A.2d 716 319, *22 443 U.S. S.Ct. L.Ed.2d Virginia, (1979). us, a we are satisfied that On the record before beyond a reasonable doubt jury reasonable could have found premeditated. the of was Bussey that murder AFFIRMED; BY BE PAID COSTS TO JUDGMENTS THE APPELLANT. KENNEY, J.
Dissenting Opinion by
hearsay
light
the
issue in this case in
Having reconsidered
State,
Bernadyn
Md.
of the Court of
in
v.
390
Appeals decision
1,
(2005),
has
Detec
majority
Evidence must evaluated what Here, prove that proved. to be the State seeks Davis, at a person Bussey, shot and Eborn was who denies that bowling alley night question. Appellant on on at the he did and that was even determination, heavily relies on night. majority that In its “this response objection that prosecutor’s appellant’s names being is offered show what were by as Detective when on the scene.” screens observed Canales any any Clearly, only name on screens
49
in the context of this trial
is the name “Sat
consequence
nickname.
Its
Dogg,” appellant’s
presence
somewhat unusual
little,
any,
except
if
as an
on the lane
screen has
relevance
Dogg”
assertion that someone
“Sat
implied
known as
But,
22 on the
even
bowling
night
question.
lane
assuming
might
be
introduced for
properly
the evidence
limited
names Detective
purpose
demonstrating
what
screen,
on the
there is no indication that
Canales observed
limited
or that the trial court
purpose
admission was
need
do so.
That the crime scene “prosecutor argued Dogg’ lane the name ‘Sat written included with *23 it,” 37, 348, Majority Opinion by 895 A.2d at is belied above evidence, of the prosecutor’s argument. purpose relevance, I in the suggest only apparent would State’s argument. After Detective closing acknowledging anything at the scene he about Canales arrived did know was, was,” Fields Sat Dogg prosecutor “who Saturio who argued: “What about the name on the television monitor? to the crime scene. There about testimony Connection there, it got got up how how the names there. And we know has a it. Dogg. the Defendant nickname Sat We know do it? said so. We have the tattoo [a witness] How we know appellant’s] on arm to show it. the name Sat Where was [the Lane Dogg? 22.” Bernadyn
Stoddard and lead me to conclude that the evi dence at issue cannot be as circumstantial merely treated might evidence from which a fact finder conclude that appel lant at the on of the present night incident, a fact that The shell appellant casings, denies. (but sweater, vehicle, point possibly and the which could have been at the scene actions as a result evidentiary
of a third are dots that person), were connected hand, other the other the name Dogg” evidence. On “Sat monitor, alone, standing purpose the television has no except obviously present assert in question. Lane 22 on the Its night probative value is on an unknown belief that dependent scribe’s one of the Dogg,” accuracy bowlers on lane was “Sat and the of that belief.
895A.2d 355 STORETRAX.COM, INC. v. Joshua GURLAND. Term, Sept. Nos. 2004. Special Appeals Maryland.
Court of
March 2006.