Circuit Court for Baltimore City Case No. 113158001, 03.
Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned),
Then, then, remember then."
from the classic Doo-Wop song "Remember Then" by
The Earls (1962).
Eric Wise, aims his arguments essentially at the State's
key witness, Byron Harris, who saw reputedly Wise fleeing the
scene of the murder of Edward Bruce Thomas in Baltimore on 17
December 2012. Harris selected Wise's picture from a
photo array shown to him by the police on 22 January 2013 as
part of their investigation of the murder. On the back of the
array, he wrote and signed a narrative of the events he
claimed to have witnessed a month earlier. Between then and
Wise's trial in 2017, Harris suffered a traumatic brain
injury. That injury, it is conceded by the parties, impaired
Harris' contemporaneous recall abilities. At an in
limine hearing, the trial judge found Harris competent
to testify, over Wise's objection. At trial, Harris
testified, among other things, that he could not recall
picking Wise's photo from the array or writing and
signing the statement on the back of the array on 22 January
2013, although he identified the signature and handwriting to
be his. Harris testified, at another point in the trial, to a
contemporaneous recollection of the events leading to
Thomas' murder that differed from the written statement
on the photo array, conflating apparently the events leading
to his July 2015 brain trauma with the previously written
narrative of the December 2012 murder of Thomas. Over
Wise's objection, the trial judge allowed the written
statement to be read to the jury by Harris under Md. Rule
5-802.1(a) as a prior inconsistent statement from, at least
part of, his trial testimony.
in the Circuit Court for Baltimore City convicted Wise of
assault in the first degree, use of a firearm in the
commission of a crime of violence, and wearing, carrying or
transporting a handgun. He was acquitted by the jury of
charges of first degree murder, conspiracy to commit murder
in the second degree, and assault in the second degree. He
was sentenced to 45 years of imprisonment, with all but 10
years suspended, with the first five years to be served
without the possibility of parole. The court ordered also
three years of probation upon his release from incarceration
and recommended commitment to the Patuxent Institution. This
timely appeal followed.
complains here that the circuit court erred in admitting the
photo array and the written statement (and principally
allowing Harris to read aloud the statement) under Nance
v. State, 331 Md. 549 (1993), later codified as Md. Rule
5-802.1(a), as a prior inconsistent statement because it was
established at trial that Harris had actual, rather than
feigned, memory loss or difficulty. Further, Wise argues that
the court erred in permitting Harris to testify at all,
claiming he was incompetent as a result of his memory
problems, which problems the court acknowledged initially
during the pretrial in limine hearing on competency.
The State responds that the Nance doctrine was
applicable because Harris contradicted his earlier written
statement in a portion of his trial testimony and that his
memory problems are irrelevant. Regarding competency, the
State contends that Wise failed to preserve properly a
competency objection, as one was made only during the
in limine hearing and not renewed properly
shall affirm the judgment of the circuit court.
December 2012, Thomas was shot and killed in a vestibule off
the front porch of a dwelling at 1709 Gwynns Falls Parkway in
Baltimore. Harris was living there at the time. A few weeks
later, on 22 January 2013, Harris, as a witness to the events
surrounding Thomas' murder, went to the police station to
aid in the investigation. Apparently, Harris identified a
picture of Wise from a photo array and, on the backside of
the photo array, wrote and signed a statement detailing his
memory of the December 17 incident. That statement read, as
Harris narrated it to the jury at trial:
I came on the front of my porch at 1709 Gwynns Falls and saw
and the defendant talking. I heard Bunk replied to the
defendant "all summer you and your boys riding back and
forth up Gwynns Falls with yall chests stuck out trying to be
someone you're not. What's up with that?" I
turned to go back in the vestibule when Bunk ran up on the
porch, pushing me to get in the vestibule hallway, and I
turned to see the def. and his friend brandishing their guns.
The one def. (with the Rick Ross look) had a nine millimeter and
the other one I could not see what brand it was but clearly
it was a gun in his hand.
Later I was in my room watching Blade 2 when I heard the
gunshots. I ran through my living room to the front window
and saw from the back two individuals running off of my
porch, grabbed their bicycles, riding up Gwynns Falls,
turning onto Woodbrook. The def was one of the guys involved
in the shooting of Bunkhouse.
of 2015, in an incident not shown to have been related to the
murder of Thomas, Harris was the victim of a robbery attempt,
during which he sustained a blow to the back of the head. The
blow resulted in a severe brain injury and required that
Harris undergo surgery. A sequela of the injury was that
Harris suffered thereafter from problems with his memory.
According to his own words at trial, "[a] lot of things
I'm supposed to remember, I don't remember."
to Wise's trial, the court held a hearing on 13 September
2017 to consider whether Harris was competent to testify as a
State's witness. Wise moved to preclude Harris from
testifying, claiming the brain injury inhibited his ability
to remember accurately the incident, thus rendering him
incompetent. Medical records were provided expressing a
conclusion that Harris had "moderate difficulty with
memory." Harris' testimony at the hearing was all
over the place, to put it mildly. As a beta-test of his
mental inhibitions, Harris was asked what the current date
was; he misidentified both the exact date and the
year. Nonetheless, the court ruled that Wise
failed to meet his burden to establish that Harris was
incompetent to testify at trial.
problem with Harris' recall faculties had not dissipated
by the time he took the witness stand at the September 2017
trial. Under questioning by the State, Harris continued to
struggle to remember the day of Thomas' shooting:
[State]: Was there a shooting at your house?
[Harris]: I couldn't really tell you.
[State]: Now I believe you said a little while ago that you
[Harris]: I don't know. You got to understand something.
[State]: Yes, sir.
[Harris]: I been having blackouts. I have been, I have been
operated on my skull where as though at times I tend to
[State]: Tell me what kind of memory problems you have.
[Harris]: It get to the point where as though I just be
forgetting things. Since my injury, I just forget a lot of
[State]: So you don't remember hearing shots at some
point on the block? [Harris]: I couldn't tell you. Even
if I did I couldn't tell you. I be forgetting a lot of
things since, like I said, since I had this surgery done to
my head I been forgetting a lot of things.
crucially, when asked elsewhere (again by the State) to
describe the events of the day of Thomas' murder, Harris
provided a narrative of what he claimed to remember. His
testimony conflated apparently the day he was robbed and
beaten and the day of Thomas' murder, incidents that
occurred nearly three years apart; nonetheless, he did
testify to a scenario of the murder that ...