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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2078 SEPTEMBER TERM, 2002

TYLANCE BELTON v. STATE OF MARYLAND

Davis, Hollander, Kenney, JJ.

Opinion by Kenney, J.

Filed: October 6, 2003

A jury sitting in the Circuit Court for Baltimore City convicted Tylance Belton, appellant, of various offenses arising out of a shooting and robbery with a dangerous weapon. Appellant

noted a timely appeal and presents three questions for our review, which we have slightly re-worded: I. Did the trial court err in admitting into evidence an audiotape statement, given by Thomas to police, as a prior inconsistent statement or as an extrajudicial identification? II. Did the trial court err in finding that appellant's counsel properly informed appellant of his right against selfincrimination? III. Was the evidence legally sufficient to establish appellant's criminal agency? For the reasons stated below, we answer "no" to the first two questions and "yes" to the third question. FACTUAL AND PROCEDURAL BACKGROUND On March 3, 2002, at about 11:30 p.m., Howard Thomas drove with his girlfriend to the 700 block of Carey Street to buy marijuana from appellant. After purchasing the marijuana and while returning to his car, Thomas was robbed at gunpoint and shot in the chest. Thomas returned to his car and drove to the University of

Maryland Hospital, where he was transferred to the Shock Trauma Unit. The hospital reported the incident to the police, who arrived in the early morning of March 4, 2002, to investigate. Thomas, who

was being treated for his injuries, could not be interviewed at

-2that time, but the police interviewed his girlfriend and learned the location of the crime. Officers were dispatched to Carey

Street, but no evidence was recovered and no witnesses were found. The next morning, Detective Donald Bauer recovered one nine

millimeter shell casing on the corner of Lanvale and Carey Streets. No other evidence was found at the site. On March 5, 2002, the police interviewed Thomas at the

hospital.

Detective Bauer asked Thomas if he knew who shot him.

Thomas replied that the shooter was a "person he used to hang out with on the block," nicknamed "Ty or Tray." Thomas explained that

"he had known [Tray] for approximately two years" and that his cousin had gone to school with "Tray." Thomas could not remember

"Tray's" full name but promised to get in contact with his cousin and inform the detective. On March 7, 2003, when Detective Bauer

again visited the hospital, Thomas told him that Tylance Belton was the name of the man who shot him. Soon thereafter, the officers compiled a photo array of "six black males similar to the suspect," and presented it to Thomas. Thomas immediately identified appellant from the photo array as the person who had shot him. Thomas signed the photo array above

appellant's picture, indicating he was his assailant, and wrote on the back: "I know Tre by a family member and on 3/3/02 at 11:30 p.m. he shot me in my chest and took 300 dollars from me." Appellant was arrested on March 27, 2002. A search and

-3seizure warrant was executed for appellant's home, but no weapon or other evidence was recovered. On April of 2, his 2002, Thomas was asked In to provide statement, a taped Thomas

statement

identification.

the

identified appellant as his shooter, and when presented with a copy of the original photo array he again identified appellant. On April 18, 2002, a grand jury indicted appellant for

attempted first and second degree murder; first and second degree assault; reckless endangerment; robbery with a dangerous weapon; robbery; two counts of use of a handgun in the commission of a felony or crime of violence; wearing, carrying, and transporting a handgun; and possession of a handgun after a predicate felony. On October 7, 2002, a jury trial was held. testified that, on March 3, 2002, he was At trial, Thomas while buying

shot

marijuana in the 700 block of Carey Street.

He recanted, however,

his original identification of appellant, stating that now he believed Mark Bates was the shooter. Thomas explained that he had

originally identified appellant "[b]ecause, at that time, I'm thinking it was Tylance that shot me. . . ." Thomas stated that he

had known Bates for "two years, at the most," and that he was "another guy that was around in our neighborhood." Thomas

testified why he had changed his mind as to the identity of his shooter: Because by then, by listening to everybody on the streets that was, you know

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