In Nance v. State,
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 а 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 aрpellant’s photograph and identified him as the person who shot “Man.”
During an interview conducted after the photographic arrаy 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 а “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 appellаnt 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,
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 triаl 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.
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.
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.
We hold that the factual portion of an inconsistent out-of-court statement is sufficiently trustworthy to be offered as*278 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. (Footnote omitted.)
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.
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____
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. (Citation omitted.)
In scrambling to ward off the blows unleashed by Nance, the appellant crouches behind the now rusty shield of Spence v. State,
In pure theory, the only legitimate purpose of impeachment is to avoid registering negative points, not to score affirmative points. 6 Lynn McLain, Maryland Evidence § 607.1(b), at 37 (1987) (“Evidence which is admitted to impeach a witness comes in only to detract from the witness’s credibility and not as substantive proof of the facts being litigated.”). In that sense, there is generally no need to impeach what can more readily be avoided. When the maximum legitimate score that the sponsor of an inconstant witness can аchieve, through impeachment, is zero, a sponsor, forewarned of the inconstancy, can most easily, and with no troublesome side effects, achieve that maximum score by not putting the witness on the stand. “Impeachment ... protects a party from unfavorable testimony by neutralizing that testimony.” Bradley v. State,
In that simple pre-Nance world, the prior inconsistent statements were never received for their substantive content. There always lurked in the evidentiary shadows, however, the fear that the impeaсhing words, though not ostensibly offered for their truth, might nonetheless work, consciously or subconsciously, some spill-over substantive impact on the ears of the jurors. Wily trial advocates leaped eagerly on every such opportunity. It was to forestall just such exploitation and abuse of the impeachment device that the limiting strictures of Spence were imposed. The Court of Appeals described the evil it sought to ward off:
It is obvious that the prosecutor’s sole reason for prevailing on the court to call Cole as a court’s witness wаs to get before the jury Cole’s extrajudicial hearsay statement impli*280 eating Spence. The prosecutor knew that Cole’s testimony would be exculpatory as to Spence. The inescapable conclusion is that the State, over objection, prevailed on the court to call a witness who would contribute nothing to the State’s case, for the sole purpose of “impeaching” the witness with otherwise inadmissible hearsay.
The State concedes, as it must, that Detective Naylor’s testimony about Cole’s statements regarding Spence’s participation did not fall within the hearsay exception and was inadmissible as substantive evidence against Sрence ... The State cannot, over objection, have a witness called who it knows will contribute nothing to its case, as a subterfuge to admit, as impeaching evidence, otherwise inadmissible hearsay evidence. (Emphasis supplied.)
Under the pre-Nance regime, and even today when the prior inconsistent statement is offered only as an impeachment device, Bradley v. State,
In such an antiseptic world, this appellant would have had an unassailably valid complaint. When the State called Booth as its second witness on the first day of trial, it was not at all surprised that he had by that time become, in the words of Nance, a “turncoat witness.” Booth had already unfurled his new colors a full twenty-four hours earlier, when testifying, under oath, at a pretrial hearing on the appеllant’s motion to suppress an identification of him made by Booth. At that hearing, Booth testified that the appellant was not the shooter and that Booth had been coerced by the police into selecting
For whatever solace it affords the appellant, we agree with him that if Spence applied, Spence would have been violated. If the only value at trial of Booth’s written statement to the police and his grand jury testimony had been to impeach Booth’s trial testimony, the State would have been as guilty of subterfuge in calling Booth as it was guilty of subterfuge, in the Spence case, in calling the witness Cole. Were the State today still chargeable with such indirection, the deliberate use of a ploy to get before the jurors substantive evidence that they should not cоnsider, the State would call down on its head the full fury of Spence’s condemnation:
The sole value to the State from Cole’s testimony was that it opened the door for the “impeaching” testimony of Cole’s prior inconsistent statement. The statement was one which the State knew Cole would not acknowledge making. The obvious purpose of calling Cole was not because Cole would contribute anything to the State’s case, but because Cole’s testimony would enable the State to place Cole’s prior statement before the jury and to call Detective Naylor to “impeach” Cole. The improper prejudicial effect is obvious. We must conclude that Cole’s statement and Naylor’s testimony abоut Cole’s hearsay statement implicating Spence was not offered because the State needed to impeach a witness it insisted be called—the hearsay was really being offered as evidence of Spence’s guilt. (Emphasis supplied.)
Here, the State knew exactly what [the witness’s] testimony would be. Prior to trial [the witness] had repeatedly told the State he would testify ... that he did not see appellant running with a gun from the scene of the shooting. The*282 Court of Appeals did not accept this “subterfuge” in Spence, and we will not accept it here.
According to the pre-Nance ethos, the State’s sin was in creating a risk, without any necessity for such risk or any countervailing purpose to be served, that something given to the jurors only in its non-hearsay capacity might be considered by them, in their laymen’s innocence, in its hearsay capacity. Failing to appreciate the limited purpose of impeachment, they might, in untutored confusion, actually consider the prior statements as substantive evidence of guilt.
In Spence v. State, the prosecutor candidly expected the .witness to testify adversely to the State, notwithstanding earlier helрful statements to the police. The prosecutor, to avoid the then-prevailing Voucher Rule, asked that the witness be called as a court’s witness for the express purpose of permitting the State to introduce the prior inconsistent statements for the ostensible purpose of impeaching the witness’s testimonial credibility:
The prosecutor indicated Cole would testify that Spence was not involved, but that his purpose for calling Cole was to get before the jury prior out-of-court statements Cole had made to рolice officers that, in fact, Spence was one of the perpetrators of the burglary and robbery of Mrs. Rowe.... The State then requested that the court call Cole as a court’s witness since Cole was going to state that Spence was not with him when the crime was committed, and the*283 prosecutor wanted to impeach that testimony. (Footnote omitted.) (Emphasis supplied.)
This blatant attempt to circumvent the hearsay rule and parade inadmissible evidence before the jury is not permissible.
The heart of the thing we condemned in Wright v. State was the potential misuse of impeaching evidence as substantive evidence of guilt. “[W]e are faced with an attempt, by calling Day as a court’s witness, to admit an inconsistent hearsay statement as substantive evidence of appellant’s guilt.”
All of this, however, is quite beside the point when, a la Nance, the prior statements are openly offered and received as flat-out substantive evidence of guilt. There is no danger that something offered for one purpose will be misused for another and ulterior purpose. By definition, there can be no indirection or subterfuge, for the worst that could happen to a defendant is already officially authorized.
The change wrought by Nance was far more than the functional shift frоm the Hearsay Rule Inapplicable to the Hearsay Rule Satisfied. It was more than a change from the use of out-of-court utterances as evidence of inconsistency to the use of out-of-court declarations as the substantive equivalent of in-court testimony. Nance also eliminated the element of surprise as the required trigger for the admissibility of the out-of-court statements, for the requirement of surprise is but an attribute of the impeachment function.
The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are nоt 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.
The Rule of Nance does not incorporate the requirement of surprise spelled out by Spence and Wright. The requirement of surprise is, to be sure, still very much alivе, even postNance, when the out-of-court statements are received in their non-hearsay capacity for the exclusive purpose of impeaching testimonial credibility. (We stress the adjective “exclusive,” because even a TVcroce-qualified use of a prior inconsistent statement as substantive evidence still retains, of course, a coincidental and residual capacity to impeach testimonial credibility. Sheppard v. State,
Post-Nance, it is no longer true that a party, anticipating that a prospective witness has already turned coat, will, thereby, be guilty of impermissibly calling a witness “who it knows will contribute nothing to its case.” Spence v. State,
Bradley v. State,
By the time of trial, however, Adrian Bradley had had a change of heart and denied ever having made such statements to the police. The State “was not surprised by Adrian Bradley’s denial.”
Judge Chasanow then very carefully pointed out,
Had Adrian Bradley’s prior statement been reduced to writing and signed, thus making it admissible as substantive evidence rather than solely impeachment evidence, it would have been admissible. In the instant case, however, the prior statement by Adrian Bradley was not reduced to a writing and signed or adopted by him and, thus, it was not admissible as substantive еvidence. Detective Sizemore simply made notes summarizing his conversation with Adrian Bradley. Thus, the only possible purpose in admitting the prior inconsistent statement was to impeach and thereby neutralize Adrian Bradley’s testimony ... (Emphasis supplied.)
In this case, Nance is controlling. Its express prerequisites having been satisfied, Booth’s prior statement to the police and Booth’s grand jury testimony were properly admitted as substantive evidence of the appellant’s guilt. Spence is inapposite. The State’s lack of surprise at Booth’s change of heart was immaterial.
The appellant’s remaining contentions will not detain us long. He charges the State with the failure to provide the defense with exculpatory evidence in violation of Brady v. Maryland,
Specifically at issue was a second occasion when Kevin Black was called in for a photographic identification procedure several mоnths later. Kevin Black failed to pick anyone out of that second photographic array even though the appellant’s photograph was included therein. The appellant now claims that the failure on the part of the State to reveal to him the fact of that non-identification was a Brady violation. The point is utterly without merit.
Kevin Black was called as a defense witness. He was as fully able to apprise the defense of what happened at any of the identification procedures as was the State. On direct examination, he alluded to a second identification procedure but the defense failed to follow up by asking him to describe it in detail. The fact of the non-identification, moreover, was fully revealed to the jury. This was not remotely a case involving ultimate suppression, which was the body blow that engaged the concern of Brady.
The appellant offers, by way of showing prejudice, the argument that had he known of this ostensible weakness of the State’s case, he might, as a matter of trial tactics, have declined to rely on an “unattractive” alibi defense, which probably “backfired” on him. Without anguishing further over something that is demonstrably not a Brady problem, we shall simply note the distinction between ultimate suppression and tactical surprise made by DeLuca v. State,
Brady and its progeny deal not, as here, with discovery sufficiently timely to enable the defense team to calibrate more finely its trial tactics but with the very different issue*288 of withholding from the knowledge of the jury, right through the close of the trial, exculpatory evidence which, had the jury known of it, might well have produced a different verdict. Suppression contemplates the ultimate concealment of evidence from the jury, not the tactical surprise of opposing counsel. The Brady sin is hiding something and keeping it hidden, not hiding something temporarily in order to surprise someone with a sudden revelation. Even if the latter were just as sinful, it would be a different sin with a different name. The appellant seems to be giving us a discovery issue—arguably necessary to discovery to assure proper trial preparation—cloaked as a suppression issue. (Footnote omitted.) (Emphasis supplied.)
We are not suggesting that there was a discovery violation in this case. We are simply pointing out that that is not the issue that is before us. The aрpellant urges a Brady violation. There was no Brady violation.
The appellant’s final contention is that the prosecutor’s closing argument improperly and insensitively impugned his honor. He cites five instances. With respect to the first four of those, however, there was no objection. There is, therefore, nothing preserved for appellate review. Stevenson v. State,
The appellant was not arrested until Octobеr 27, 1994, three-and-one-half months after the day of the shooting. Notwithstanding that three-and-one-half-month passage of time, the appellant, immediately after his arrest, told the police, with certain assurance and phenomenal power of recall, that at the time of the shooting he had been with Sandra Watkins, the mother of one of his children. Sandra Watkins, however, testified that the appellant had not been with her at the time of the shooting. “La dame est mobile.” She observed further
At trial, the appellant was forced to switch tactics and, with even more phenomenal power of recall, take refuge in having been at the time of the shooting in the alternative company of Donyette McCray, the mother of his other child. On the stand and under oath, he glibly excused his earlier “lie” to the police by explaining that he had had to fabricate that alibi because he “did not want to draw unnecessary attention to Ms. McCray’s house, where he had held drugs.” It did suggest a willingness to bend the truth.
He is now sorely aggrieved that the State would suggest to the jury that he would be willing to manipulate his consorts and their powers of memory for self-serving purposes and that he would deign to “concoct” an alibi defense. It is dispositive to note that we cannot conceive of any rational closing argument by the State that would have done anything less. Wilhelm v. State,
JUDGMENTS AFFIRMED;
COSTS TO BE PAID BY APPELLANT.
Notes
. See, e.g., United States v. Morlang,