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Wise v. State

Court of Special Appeals of Maryland

November 20, 2019

ERIC WISE
v.
STATE OF MARYLAND

          Circuit Court for Baltimore City Case No. 113158001, 03.

          Gould, [*] Wright, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Harrell, J.

"Re-mem-mem Re-mem-mem-mem-ber
Re-mem-mem Re-mem-mem-mem-ber
Re-mem-mem Re-mem-mem-mem-ber
Then, then, remember then."

         Refrain from the classic Doo-Wop song "Remember Then" by The Earls (1962).

         Appellant, 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.

         A jury 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.

         Wise 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 at trial.

         We shall affirm the judgment of the circuit court.

         FACTUAL BACKGROUND

         On 17 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 Bunk[1] 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[2]) 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.

         In July 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."

         Prior 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.[3] Nonetheless, the court ruled that Wise failed to meet his burden to establish that Harris was incompetent to testify at trial.

         The 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 heard shots.
[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 forget things.
[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 things.
[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.

         Yet, 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 ...


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