Woodward, Graeff, Kenney, James A., III (Retired, Specially Assigned), JJ.
Appellant, Charles Thomas, was convicted by a jury in the Circuit Court for Baltimore City, of first degree murder, use of a handgun in the commission of a felony or crime of violence, and wearing, carrying, or transporting a handgun. The court sentenced appellant to life imprisonment, all but 50 years suspended, for first degree murder and 20 years, consecutive, for the use of a handgun in the commission of a felony or crime of violence.
On appeal, appellant presents four questions for our review, which we have revised slightly as follows:
1. Did the trial court err in granting the State's motion to compel recordings of two witness statements, which were made by State's witnesses to a defense investigator?
2. Did the trial court abuse its discretion in admitting prior inconsistent statements?
3. Did the court err in admitting other crimes evidence?
4. Did the motions court err in denying the defense motion to suppress two out-of-court identifications made based on a photo array?
For the following reasons, we shall affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Alvin Alston was shot on September 13, 2009, at approximately 12:00 p.m. near the corner of Coldspring Lane and Reisterstown Road, in Baltimore City, Maryland. Mr. Alston later died at a local hospital of gunshot wounds to the head. The manner of death was determined to be homicide.
Eyewitnesses to the murder were interviewed by the Baltimore City Police Department. Detective Aaron Cruz, the primary investigator in this case, spoke with Anthony Jordan on September 30, 2009, and Mr. Jordan informed him that appellant was the shooter. Mr. Jordan was nervous and concerned for his safety. Mr. Jordan was shown a photo array, and he identified appellant in about "30, 40 seconds. It was relatively quick." Mr. Jordan also gave a statement at that time.
On November 23, 2009, Detective Cruz spoke with Latrice Wilson. Ms. Wilson arrived at the police station with her children, and her children waited in a witness waiting room. Ms. Wilson was then shown a photo array and identified appellant as the shooter.
On October 15, 2009, appellant was arrested. He provided police with two addresses; one was the home of his sister, and the other was the home of his girlfriend. Both addresses were located within blocks of the murder scene. Detective Cruz also testified that the location where appellant and the victim, Mr. Alston, previously had been arrested in an unrelated case was located less than a mile away.
On cross-examination, Detective Cruz agreed that he received information that the victim, Mr. Alston, was selling drugs on the day of the murder. Six bags of heroin were recovered from Mr. Alston's person.
Detective Daniel Nicholson was present with Detective Cruz when Mr. Jordan was shown a photographic array. The array initially was face down, and Mr. Jordan was read a set of instructions informing him that the array may or may not contain a picture of a subject in connection with the investigation. After this, Mr. Jordan turned the array over, and within seconds, Mr. Jordan selected a photograph of appellant. Mr. Jordan also wrote a statement on the back of the array; the police did not tell Mr. Jordan what to write in making that identification.
Detective Marvin Sydnor was present during Ms. Wilson's viewing of the photographic array on November 23, 2009. Ms. Wilson also made an identification within seconds and wrote on the back of the array why she made the identification. Detective Sydnor testified that Ms. Wilson identified only one person from the array; she did not identify anyone else as the shooter or indicate that she knew anyone in the array.
Mr. Jordan testified that he was selling newspapers at the pertinent intersection, located near a Burger King, when he observed a young man shoot Mr. Alston. Mr. Jordan testified that Mr. Alston was known to him as a "hustler, " a "drug dealer." Mr. Jordan heard Mr. Alston say: "Oh, no, " and then he heard two gunshots. Thereafter, Mr. Jordan saw a "young man in a black hoodie" get into a Jeep. Mr. Jordan maintained that he did not "see no facial" of the shooter, and he did not know if the man in the hoodie was the shooter.
The day of the shooting, Mr. Jordan went to the police station and gave a statement.Mr. Jordan testified that he did not identify the shooter to the police because he had not seen anyone's "facial."
A couple months later, according to Mr. Jordan, Detective Cruz asked him to come back to the police station. Mr. Jordan testified that the police detained him for several hours. At some point, Detective Nicholson told him: "If I even thought you had something, mm-mm to do with it I will lock you up." Afterwards, Mr. Jordan was asked to make an identification. Mr. Jordan claimed he needed to pick someone or be detained. He testified that the police used a piece of paper to highlight certain photographs during the process.
Mr. Jordan then testified that, on two occasions, he had spoken to a defense investigator, Mr. Donald Jacobs. He recalled telling Mr. Jacobs that he had been treated unfairly by police, but he was not sure if he told Mr. Jacobs that the police told him who to pick out in the array.
Mr. Jordan was presented with a copy of the photo array. He agreed that his signature appeared on both the front and the back of the document. His statement on the back of the array read: "On the corner of Reisterstown and Coldspring I witnessed that a young man shot Alvin two times."
Over objection, Mr. Jordan's prior statement to police, taken on the day of the shooting, was played into evidence for the jury. In this statement, Mr. Jordan states that a person wearing a black hoodie got out of a Jeep, approached the victim, and said something to Mr. Alston, to which Mr. Alston replied: "Oh, no." The person in the hoodie then shot Mr. Alston two times in the head, got back into the Jeep, and fled the scene. Mr. Jordan denied that he had ever seen the shooter before.
Mr. Jordan also was presented at trial with a transcript of the recorded statement taken on September 30, 2009, when he was interviewed by Detective Cruz and shown a photo array. Mr. Jordan agreed that the police asked him at the end of that interview if he had been threatened, and Mr. Jordan denied that he had been. He also agreed that he told police that he came to the station that day freely and voluntarily, and that he had not been promised anything in exchange for his statement.
On cross-examination, Mr. Jordan maintained that he never saw the shooter's face. When asked by defense counsel if he told police that he "glanced at the person, " Mr. Jordan testified that he "did not see no one."
On redirect, Mr. Jordan was presented with an audio tape cassette recording of his statement to Detective Cruz on September 30, 2009, and he agreed that he signed the cassette. Over defense objection, the State then played the tape for the jury. During that interview, Mr. Jordan stated that he "glanced" at the shooter. When asked by the officer whether he "recognized who he was, " Mr. Jordan replied: "Right."
Ms. Wilson testified that she was in the area of the shooting. Her car had stalled, and she was sitting inside her vehicle when she saw a van arrive. After the van left, four men were standing nearby. One man was standing on the corner "fiddling with some papers." Moments later, a man wearing a hoodie pulled out a gun and shot the man with the papers twice in the back of the head. Ms. Wilson described the shooter as being a tall, African American male, wearing a black pullover hoodie, jeans, and white "tenners." Ms. Wilson saw the gun and described it as a "silver, revolver."
Ms. Wilson saw the shooter's face. She had seen him before in the neighborhood, but she did not know this man's name. Ms. Wilson saw the shooter put the gun back in his waistband, then run away from the area.
After the police arrived on the scene, Ms. Wilson was able to restart her car, and she went to the police station. After waiting in the police waiting room, Ms. Wilson spoke with Detective Cruz and gave a statement consistent with her testimony.
On November 23, 2009, the day of her daughter's birthday, police officers arrived at Ms. Wilson's residence and demanded that she accompany them to the police station to make an identification. They threatened to arrest her if she did not come with them at that time.
At the station, Ms. Wilson was presented with a photo array, which she signed on the front and back, indicating that she picked out a photograph of the shooter. Ms. Wilson wrote on the back: "I saw the man in the photo shoot another man in the back of the head. I was on west Coldspring." Ms. Wilson testified that none of the detectives told her who to pick or what to write. Ms. Wilson initially identified appellant at trial as the person she saw at the time of the shooting. Subsequently, however, she stated that she saw appellant at the scene, but she did not see appellant shoot the victim.
On cross-examination, Ms. Wilson agreed that she previously had testified that she initially picked out a photo other than appellant's from the array, and Detective Cruz told her "stop playing, " "come on, you know who the guy is." She also testified that the shooter was "definitely taller than the victim because the way he was standing over top of him."
On redirect examination, Ms. Wilson testified that she told Detective Cruz that appellant was there, but he was not the shooter. She testified at trial that appellant was not the shooter in this case, stating: "[N]o, he did not shoot the victim."
Over defense objection, the jury then heard a recorded statement Ms. Wilson gave to a defense investigator, Mr. Jacobs. Ms. Wilson told Mr. Jacobs that she did not remember anything about the shooting. When asked about the photo array, Ms. Wilson told Mr. Jacobs she did not remember what the shooter looked like, but she did remember making an identification from a photo array. She then told Mr. Jacobs that she did remember some details of the shooting, including that four men got out of the van, that the shooter shot the victim in the head, and that, afterwards, the shooter ran toward her stalled car while the other two men ran in the opposite direction. Ms. Wilson also told Mr. Jacobs that she hesitated in picking out a photo from the array because she believed she saw a photo of a man she had seen on prior occasions in the company of her father-in-law. She concluded by again telling Mr. Jacobs that she could not remember details from the shooting.
On recross-examination, defense counsel asked about conflicts between her cross-examination, stating that the shooter walked away, and her interview with Mr. Jacobs, stating that the shooter ran. Ms. Wilson testified that the shooter walked toward her location and did not run from the scene.
A gun was not found in connection with this case, but several pieces of ballistic evidence were recovered. A live round recovered near the scene of the shooting was a Winchester nine millimeter Luger. Two shell casings recovered near the body were also nine millimeter Lugers. These shell casings were determined to have been fired from the same firearm. A DNA test was performed on the bullet, and the results were inconclusive.
Regarding motive, the jury learned that, after Mr. Alston was pronounced dead, Detective Cruz went to the hospital and spoke with Randolph Alston, the victim's brother. After this conversation, and after reviewing witness statements, Detective Cruz learned that the victim previously had been arrested, with appellant and another individual, for conspiracy to distribute heroin and related charges that carried a potential sentence of 40 years incarceration.
Three days prior to the murder, a court date relating to that charge was postponed. By the time of what would have been the ninth scheduled trial date, because Mr. Alston, the person the State alleged to have been actually selling the drugs, was deceased, the prosecutor offered plea agreements to appellant and Marvin Brown, who then pleaded guilty and received sentences of time served. Appellant was not in jail the day Mr. Alston was shot, but the third individual, Mr. Brown, was incarcerated at the time of the murder.
We shall include additional details in the following discussion.
Appellant contends that the trial court erred in granting the State's motion to compel production of statements that two State's witnesses made to a defense investigator. He asserts that the statements were not discoverable because the defense did not intend to use the statements at trial, and the statements were protected under the work product doctrine.
The State disagrees. It asserts that "the trial court properly determined that two audio recordings of State's witnesses made by a defense investigator were subject to discovery by the State, and the trial court properly exercised its discretion to compel disclosure after conducting an in camera review of the recordings."
Prior to trial, the State filed, pursuant to Maryland Rule 4-263(e)(6), a motion to compel disclosure of recorded statements the defense obtained from Mr. Jordan and Ms. Wilson. Defense counsel argued that the recordings of these State's witnesses, obtained by the defense investigator, Mr. Jacobs, were not discoverable because they were attorney work product, and he did not intend to use the recordings at trial. After further inquiry, however, defense counsel confirmed that, if these witnesses ...