Bell, C.J., [*] Harrell Battaglia Greene Adkins Barbera McDonald, JJ.
This case involves a shooting in Baltimore, Maryland that left one man dead and two other individuals wounded. Petitioners, Darnell "Pooh" Fields and Clayton "Coco" Colkley, were tried jointly and convicted of numerous crimes arising from the shootings. The judgments against both men later were reversed by the Court of Special Appeals and the case was remanded for a new trial. Petitioners were re-tried jointly before a jury and again were convicted. The Court of Special Appeals affirmed the more serious of the judgments of conviction.
Petitioners separately sought this Court's review of the judgments. We granted review of several questions common to the two petitions:
1. Where an internal affairs investigator for the police found "facts sustained" against officers, did the trial court err in refusing to permit the defense to inspect internal investigation division files concerning misconduct by the officers and, at trial, in refusing to allow the defense to cross-examine the officers about the misconduct?
2. Does the former testimony exception to the hearsay rule bar the admission of prior testimony by a witness who, subsequent to providing the testimony, was convicted of perjury?
3. Did the Court of Special Appeals err in holding that trial counsel was not ineffective for failing to move for the admission of prior testimony under the former testimony exception or, in the alternative, that the trial court did not abuse its discretion in refusing to propound a missing witness instruction?
See Fields v. State, 427 Md. 606 (2012); Colkley v. State, 429 Md. 81 (2012).
For the reasons that follow, we reverse the judgment of the Court of Special Appeals on the first question, with instructions to vacate the judgments of conviction and remand the case for retrial. Given our disposition of the case on the basis of the first question, we do not reach the remaining questions.
The crimes giving rise to this appeal occurred on May 28, 2003. On that day, in what fairly can be described as a "revenge-type shooting spree, " James "Buck" Bowens was killed by a single gunshot wound and William Courts was shot ten times, but survived. In the spring of 2005, a jury found Petitioners guilty of numerous crimes related to that incident. In 2007, for reasons unrelated to the present appeal, the Court of Special Appeals reversed Petitioners' convictions and remanded the cases for a new trial. Fields v. State, 172 Md.App. 496 (2007), cert. denied, 399 Md. 33 (2007).
Petitioners were retried jointly in February 2010, again before a jury, and were again convicted of multiple crimes in connection with the May 28, 2003, shooting spree. It is unnecessary, for present purposes, to undertake a detailed summary of the facts as they developed at the 11-day retrial. It suffices to provide the following general overview of what the jury, hearing all the evidence, would have been entitled to believe.
William Courts and his brother David Courts, together with their confederates, ran a drug-dealing operation based in the Lafayette Avenue and Port Street area of East Baltimore. Evidently, there had been tension between the Courts brothers and a rival drug-distribution organization led by Eric Horsey. Horsey, a leading witness for the State at Petitioners' trial, and others were standing outside Teamsters Hall in Baltimore in January 2003, when a car driven by one of the Courts brothers pulled up. Horsey observed the ensuing argument between the occupants of the vehicle and his own companions. What was initially a verbal altercation led to gunfire that left Horsey's best friend dead and Horsey's brother wounded. Horsey made several attempts at retaliation against those he believed to be responsible for the January 2003 shooting, namely, the Courts brothers.
In March 2003, Petitioner Colkley contacted Horsey and offered to kill the Courts brothers for money. Horsey eventually agreed to Colkley's proposal but told Colkley that, if the killings were not done by the upcoming Monday, the deal was off. Horsey returned from out-of-town that Monday to find the Courts brothers still alive. At that time, and evidently for some time thereafter, Horsey and Colkley did not revisit the subject of their earlier agreement.
Two months later, William Courts, his cousin Jermaine Lee, and Bowens, all of whom were part of what was described at trial as the "Lafayette and Port" drug-distribution group, were sitting on the steps of a residence in the 1700 block of Port Street when a car drove up the street toward them. Bowens approached the car saying something like, "[T]hat car's cool. That's Pooh's car, " referring to Petitioner Fields, the driver of the car. As Bowens came within a few feet of the vehicle, Petitioner Colkley opened a passenger door and shot Bowens in the chest, killing him. Then, according to Lee, the occupants of the car continued shooting at William Courts. Courts sustained ten gunshot wounds that day but survived. Yvette Hollie, a bystander, was also shot once in the arm during the May 28, 2003, incident.
According to Horsey, Petitioner Colkley, wrongly believing that William Courts had died from his wounds, renewed contact with Horsey within several days of the shooting to report that he had killed William Courts and another individual on Port Street. Colkley demanded payment from Horsey for those efforts, pursuant to the agreement the two men had struck in March. Horsey, who had learned that William Courts survived the shooting, refused to compensate Colkley.
In a separate incident, William's brother, David Courts, was killed, evidently having been shot while driving a vehicle. In connection with that shooting, Horsey testified that, sometime after Petitioner Colkley called him and misreported the death of William Courts, Colkley again contacted Horsey, this time claiming responsibility for the death of David Courts. Horsey, upon verifying that David Courts was dead, paid Petitioner Colkley $10, 000 in connection with that killing. Horsey testified that Colkley revealed his plan to split the money with one Brian "Bee" Smith, who had participated in the shooting of Bowens and William Courts, and give $500 of the remaining funds to Edwin "E Money Bags" Boyd, who had been shot in the eye during the Port Street incident.
Detective Sergeant Darryl Massey, the supervisor of a homicide unit team of the Baltimore City Police Department, and Detective Kerry Snead, the primary investigator of the Port Street shootings, testified about the investigation of the shootings. Our analysis of the first, two-part question presented by Petitioners relates to the testimony of the two detectives. We therefore defer, for now, the procedural and evidentiary facts related to that question.
The jury found Petitioner Colkley guilty of the second-degree murder of Bowens, attempted murder of William Courts and conspiracy to commit his murder, and related handgun offenses. The jury found Petitioner Fields guilty of conspiracy to murder William Courts, second-degree assault on Courts, and related handgun offenses. The Court of Special Appeals affirmed, for the most part, the judgments of conviction of both Petitioners. See Colkley v. State, 204 Md.App. 593 (2012).
As noted at the outset, we granted certiorari on three questions presented, only one of which we need answer. That question, once again, reads:
Where an internal affairs investigator for the police found "facts sustained" against officers, did the trial court err in refusing to permit the defense to inspect internal investigation division files concerning misconduct by the officers and, at trial, in refusing to allow the defense to cross-examine the officers about the misconduct?
By its text, the question challenges two rulings, by different judges of the Circuit Court. The two rulings—one pre-trial, the other, following commencement of trial—are factually and, as ultimately considered by the trial judge, procedurally intertwined. We therefore ...