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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1816

SEPTEMBER TERM, 1996

ARTHUR MAURICE HARDISON v.

STATE OF MARYLAND

Murphy, C.J., Kenney, Byrnes, JJ.

Opinion by Byrnes, J.

Filed: November 6, 1997

HEADNOTE: Arthur Maurice Hardison v. State of Maryland No. 1816, September Term 1996

EVIDENCE-PRIOR INCONSISTENT STATEMENT-IMPEACHMENT-EXTRINSIC EVIDENCE-MARYLAND RULE 5-613(b): Prior oral inconsistent statement offered for impeachment is not hearsay; use of extrinsic evidence of prior oral inconsistent statement for impeachment requires that statement be established as inconsistent with declarant's trial testimony; statement may be inconsistent by virtue of omission; if criteria spelled out in Rule 5-613(b) for use of prior inconsistent statement for impeachment are satisfied, fact that oral statement was reduced to writing by another is irrelevant; requirement that declarant acknowledge prior written inconsistent statement before it may be used for impeachment has no application to use of prior oral inconsistent statement for impeachment.

Appellant Arthur Maurice Hardison was tried and convicted by a jury in the Circuit Court for Baltimore City of two counts each of assault with intent to murder, assault and battery, use of a handgun in the commission of a crime of violence, and carrying a handgun. assault After merging the lesser included offenses into the with intent to murder convictions, the trial court

sentenced appellant to five years for both of the assault with intent to murder convictions and a mandatory five years on both of the handgun violations. Appellant presents for review two

questions, which we have rephrased: I. Did the trial court err in ruling inadmissible evidence offered for the purpose of impeachment of a key prosecution witness? Did the trial court err in denying appellant's request for a missing witness instruction?

II.

We find that the trial court erred when it excluded extrinsic impeachment evidence of a prior inconsistent oral statement made by an important prosecution witness. As the court's error was not

harmless, we shall reverse appellant's convictions. We do not reach the second issue presented.1

Whether a missing witness instruction is proper or necessary is an issue that is fact and time specific. At this point, we cannot anticipate whether the witness who was missing from the first trial will be missing from a second trial and, if so, why. Thus, any comment we would make on that issue would be in the nature of speculation, not guidance.

1

FACTS The Shooting Incident Ronald Copeland and Leonard White were injured in a shooting incident on May 7, 1995. That afternoon, Copeland went to his mother's house in east Baltimore to do his wash. As he was hanging

wet laundry on a clothesline, several young boys began to pester him. Copeland took it upon himself to punish one of them by hitting him in the eye. a The

nine year old named Dougie, Jr.

child ran to his mother's home on Bethel Court.

There he found

appellant, who was his mother's boyfriend, and enlisted his aid. Copeland and appellant had known each other for years, having grown up in the same neighborhood. Appellant walked across the

playground to Copeland's mother's house and suggested to Copeland that he explain his actions to Dougie Jr.'s mother, Tanya.

Copeland, appellant, and Dougie, Jr. then walked to Bethel Court, where they encountered Tanya. Tanya burst into tears. At the sight of her son's injury,

A decision was made to call the police.

Copeland returned to his mother's house to await their arrival. The police came and spoke to Copeland, Tanya, and Dougie, Jr., at Copeland's mother's house. The officer told Tanya that she

would have to appear before a commissioner to swear out a complaint against Copeland. Tanya had expected the police to take Copeland

into custody on the spot and became angry upon being informed that they could not do so. After the police departed, Tanya and Dougie,

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Jr. returned to Bethel Court, where Tanya contacted Dougie, Sr. and told him what had happened to his son. She then arranged for a

friend with a car to give her a ride to the police station. Presently, Dougie, Sr. and a friend arrived. When they saw

the damage to Dougie, Jr.'s eye, they ran to Copeland's mother's house and confronted Copeland, who had been joined by his cousins Leonard White and Eric White. armed with a bat and a knife. Dougie, Sr. and his friend were A scuffle ensued and Copeland and Copeland testified

his cousins managed to disarm their visitors.

that he did not recall seeing the bat and knife again after that. In any event, Dougie, Sr. and his friend turned and ran up Fayette Street, toward Bethel Court, with Copeland and his cousins in pursuit. In the meantime, appellant was standing in Bethel Court talking to his friend Darnell. awaiting her ride. Tanya was in the court too,

The participants' versions of events diverge According to Copeland, as he ran The

dramatically from that point.

into the court, Tanya exclaimed, "Oh, you are not dead yet!"

realization that Tanya had despatched Dougie, Sr. and his friend to kill him prompted Copeland to lash out, punching Tanya in the face several times with his closed fist. Appellant reacted to this

attack on his girlfriend by drawing a gun and shooting Copeland in the thigh, hip, and chest. As Copeland turned to escape, he saw

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appellant and Leonard White grapple for the gun and appellant White.2

talking to Darnell,

Dougie, Sr. came running toward the cour When Copeland reache

Copeland, bat in hand, running after him.

Tanya, he came to a halt and started to beat her in the face with his . Leonard White arrived and took the bat from Copeland.

n appellant yelled out at Copeland in anger, Copeland reache into his b Fearing carrie y a gun in his "dip," appellant grabbed Darnell's gun, Leonard White then came after appellant

urned, and shot Copeland. the bat.

Appellant blocked the bat with his arm and he and

ite began to fight for the gun. During the struggle, the gu accidently fired, hitting White the gun in the parking lot of a chicken restaurant. Tanya afte Copeland hit her on the face, she ran into her house. , She

Leonard White was not present for the trial.

The onl

eyewitness to the shooting to testify, other than Copeland an appellant, was Earnest Hollis, who was called by the State.

Amazingly, neither man suffered serious injury. Two of the gunshot wounds sustained y L ere treated and released from the hospital on the day of the shooting.

did not know any of the people involved in the incident.

On the

afternoon of the shooting, he was working his shift as a supervisor at Church Home Hospital. As he stood outside of the hospital

smoking a cigarette, he noticed five or six black males running up Fayette Street, toward Bethel Court, yelling and "waiving sticks." One of the men was wearing a white tee-shirt. Bethel Court, sweatshirt. where they met up with a The group arrived at man wearing a red

The man in the white shirt approached the man in the The man in red grabbed the man in

red shirt and pulled out a gun.

white's right arm, which was holding the gun, and a shot went off. Everyone in the court dispersed except the two men, who kept struggling, at times holding their arms and the gun up in the air as they did so. Finally, the man in white re-gained control, The

stepped back, and shot the man in red, who stumbled backward. man in white shot the man in red again, and he fell.

The man in

white then walked away, in the direction of a chicken restaurant. The uncontradicted testimony of several witnesses established that, at the time of the incident, appellant was wearing a white tee-shirt, Leonard White was wearing a red shirt, and Copeland was wearing a black shirt. In addition, after the shooting, the police

retrieved a bat and a knife from the area of Bethel Court where the altercation had occurred. Appellant identified the knife as being

the one that Copeland had used against him.

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Out-Of-Court Statement Ap fifteen to twenty minutes after the shooting,

est Hollis was interviewed by Baltimore City Police Office Thomas Schmidt. Hollis sat in the patrol car while Officer S Hollis d Office

asked him questions and took notes as he responded.

write out a statement or give a recorded statement. Schmidt did not show Hollis his notes. O

or appellant questioned Hollis

about what he had told Officer Schmidt he had seen: Did you tell the police that a fist figh started o males? No sir, I don't remember. will be specific and say, "A fist fight arted and four black males were beating u the two black males." Did you tell the police that? No sir, I don't remember. Did yo a black shirt, a black tee-shirt? It is possible, I don't remembe one e that was running up Fayette Street. Well, let me ask you this. D ile the gun was being -- while there was a struggle going on MR. HOLLIS: No, sir. Specifically, did you tell the male with the red sweatshirt grabbed th shooter's hand and they started wrestling When two shots were fired, one of these shots struck the male with the black shirt? No s a black shirt.

MR. CARDIN:

MR. CARDIN:

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MR. CARDIN: MR. HOLLIS: Officer

Okay. And that the person in the black shirt who was struck at that time then ran from the scene, did you tell the police that? No, sir. testified for the State. On cross-

Schmidt

examination, he acknowledged that, soon after arriving on the scene, he interviewed Hollis. Later that day, he wrote his police The State

report and incorporated Hollis's statements into it.

objected when appellant asked Officer Schmidt whether Hollis had told him that he had seen four black males beating up two black males. At the bench, appellant's counsel stated that he had posed

the question to elicit evidence of a prior inconsistent statement by Hollis. The trial court sustained the objection, explaining that the basis for the ruling was that the statement was oral hearsay, that it "ha[d] not been identified by Mr. Hollis as his statement," that it had not been "tie[d] back to the witness," and that the requirements of Maryland Rule 5-613 had not been met. Appellant's

counsel proffered the following question of Officer Schmidt: "Did Mr. Hollis tell you that `a male with the red sweatshirt grabbed the shooter's hand and they started wrestling when two shots were fired. One of these shots struck the male with the black shirt, who then fled the scene.'?" The trial court reiterated its ruling during the ensuing colloquy: THE COURT: MR. CARDIN: THE COURT: Okay. Sustain the objection as to that. Okay. On the basis that it is hearsay. That it hasn't been independently shown to the witness, and that the witness is not a party.

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MR. CARDIN: THE COURT:

I

uld make it clear, though, that this is

And e State, when the State was asking what Mr. ollis said, and I sustained those objections. Your honor, I understand. Only e admissible for purposes of impeachment. I understand, but you have to g who is being impeached, to acknowledge tha this was a statement. You've g prior e is just an oral assertion -- Mr. - - By a third party that a witness made a T he statement to the officer. That Mr. Hollis denied it. It read to Mr. Hollis, and he denied makin it, and it's contrary to what he testified to this jury as to how he was shot. I'm e basis that it's hearsay.

THE COURT: MR. CARDIN:

THE COURT: MR. CARDIN:

A Purpose Of Impeachment Is Not Hearsay H while prove the truth of the matter asserted." Ali v. State def h a t except makes plain, s this s ffered offered substantively, to prove the ay, and is not admissible unless an to the rule against hearsay applies or admission into than one made by the declarant o

evidence is

constitutionally

required

or

statutorily

allowed.

Maryland Rule 5-802;

Stewart v. State, 342 Md. 230, 236, n.1, 674 By contrast, a statement that is

A.2d 944, 947, n.1 (1996).

offered for a purpose other than to prove its truth is not hearsay at all. Ali v. State, at 304.

These general principles guide the analysis of admissibility of a witness's prior inconsistent statement. If a statement made before trial by a witness who testifies to the contrary at trial is offered as substantive evidence, it is inadmissible hearsay; it may be substantively admissible, nevertheless, under the hearsay

exception for prior inconsistent statements set forth in Maryland Rule 5-802.1. That rule provides, in pertinent part:

The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (a) A statement that is inconsistent with the declarant's testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement. Cf., Nance v. State, 331 Md. 549, 629 A.2d 633 (1993)(where special indicia of trustworthiness and reliability exist prior inconsistent statements may be admissible substantively).3
3 In 1994, Maryland Rule 5-802.1(a) codified, with some variation, the trustworthiness and reliability criteria for substantive admissibility of prior

(continued...) -9-

I of impeachment, it is not being offered as substantiv evi for The objective in using a prior inconsistent statemen impeachment is to his attack the declarant's version credibility of events b i

e

demons inconsistent When

that

testimonial

o used as a technique to undercut a witness'

credibility, the statement is offered to prove its existence, not ts truth, and is not hearsay. ranscome Company, (1956).4 Stewart v. State 8 A.2d 455, 461-462 (1968); , 209 Md. 354, 361-362, 121 A.2d 188, 19 Smith v. State t Smith v.

of earsay, since only the fact th is being offered, not the truth of the statement.

, h made to him shortly after the shooting. The essence of th s

(...continued)
inconsistent statements that were articulated by the Court of Appeals in Nance v. . The Court of Appeals has observed since then that, even if a prio i le 5-802.1(a), it will not be t learly intend to adopt th Stewart v. State at 948, n.3.
4

do not affect the admissibility impeachment purposes. . ."

of

prior

inconsistent

statements

e fo

statement was that, as Leonard White (red shirt) and appellant (white shirt) struggled for the gun, a shot was fired accidentally, hitting Copeland (black shirt). Appellant was attempting to use Hollis was an available

the oral statement to impeach Hollis.

declarant who, during his direct examination, denied making such a statement to the police. Had Officer Schmidt been permitted to answer the question posed, his testimony would have revealed that Hollis's rendition of events to the jury differed from the

observations that he had made within minutes of the shooting.5 Thus, Hollis's out-of-court statement to Officer Schmidt was not being offered to prove the truth of the assertion that Copeland had been shot accidentally by appellant during a struggle for the gun; rather, it was being offered to cast doubt on Hollis's credibility as an eyewitness. In ruling on the admissibility of Hollis's out-of-court

statement, the trial court erred, from the outset, in assessing the statement as hearsay. At no time did appellant seek to offer the

statement as substantive evidence; indeed, there was an express proffer of admissibility for the sole purpose of impeachment. Nevertheless, the trial court treated the statement as if it had

5 While the proffer made by appellant's counsel did not specify the response that Officer Schmidt would have given to the question, the question itself was framed using words quoted from Officer Schmidt's report. Thus, the context of the question to Officer Schmidt made plain that he would have answered it by stating that Hollis had told him that "a male with the red sweatshirt grabbed the shooter's hand and they started wrestling when two shots were fired. One of these shots struck the male with the black shirt, who then fled the scene." This was a satisfactory offer of proof under Md. Rule 5-103(a)(2).

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been offered to prove the truth of the matter asserted and, on that basis, analyzed its admissibility by applying the rule against hearsay and the prior inconsistent statement exception to it. Having taken that wrong turn, the court found itself on a path lined with issues that were not relevant to the evidentiary

question before it: for example, whether the statement had been reduced to writing and signed by Hollis and whether the statement had been given under oath. These issues, pertinent to the Rule 5802.1(a) hearsay exception, had no bearing on the admissibility of Hollis's statement for the purpose of impeachment.6 Admissibility Of Extrinsic Evidence of A Prior Inconsistent Statement For The Purpose Of Impeachment Maryland Rule 5-616 permits extrinsic evidence of prior

inconsistent statements to be used for the purpose of impeachment, in accordance with Maryland Rule 5-613(b). Under Rule 5-613(b),

for extrinsic evidence of a witness's prior inconsistent oral statement to be admissible for impeachment, the following

During Officer Schmidt's testimony, the trial judge stated that he wanted to rule consistently on the objections to questions posed by the State and the objections to questions posed by the defense. The different purposes for the questions required that the rulings on objections to them not be the same, however, even though the questions were the same. The State's sole purpose in asking Officer Schmidt what Earnest Hollis had told him during the patrol car interview was to elicit Hollis's words for use as substantive proof. While the Maryland Rules permit impeachment of one's own witness, see Rule 5-607, the State presented Hollis throughout the trial as an impeccably truthful and accurate independent witness. The questions that it posed were not designed to attack Hollis's credibility. As such, the out-of-court statement of Hollis sought by the State through Officer Schmidt was hearsay that did not satisfy the criteria for substantive admissibility under Maryland Rule 5-802.1(a). The trial court properly ruled it inadmissible. When the defense asked Officer Schmidt about Hollis's statement, the objective was impeachment, however, and an altogether different analysis was required.

6

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foundation must be laid: 1) the contents of the statement and the circumstances under which it was made, including the person to whom it was made, must have been disclosed to the witness during his trial testimony; 2) the witness must have been given the

opportunity to explain or deny the statement; 3) the witness must have failed to admit concern having a made the statement; matter. and 4) the the

statement

must

non-collateral

Before

requirements of Rule 5-613(b) come into play, however, the prior statement of the witness must be established as inconsistent with his trial testimony. See Stevenson v. State, 94 Md. App. 715, 721, 619 A.2d 155, 158 (1993). The statement that Hollis made to the police differed from his subsequent trial testimony by virtue of omission. In the version

of events that Hollis recounted to Officer Schmidt, a shot was fired accidentally, hitting Copeland, as appellant and Leonard White were struggling for control of the gun. events that Hollis recited to the jury, In the version of no one was shot In

accidentally and Copeland was not among the cast of characters. Jencks v. United States, the Supreme Court held

that

"inconsistency" exists between the trial testimony of a witness and the witness's prior statement when the trial testimony includes facts that were omitted from the first statement. reasoned: Flat contradiction between the witness's testimony and the version of events given in -13The Court

his reports is not the only test of inconsistency. The omission from the report of facts related at trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness' trial testimony. 353 U.S. 657, 667, 77 S. Ct. 1007, 1013 (1957). Likewise, omission

from trial testimony of facts recited earlier is an inconsistency. As explained in Joseph F. Murphy, Jr., Maryland Evidence Handbook, Section 1302(F), at 676 (2d ed. 1993): The test is one of logic: "Does the omission make the statement inconsistent?" If the answer is "yes," the omission may be fully explored; if the answer is "no," you cannot treat the omission as an inconsistency. The absence from Hollis's trial testimony of his observation that a man in a black shirt was at the scene and that a person on the scene was shot accidentally by during at the melee made the

eyewitness

account

supplied

Hollis

trial

significantly

different than the eyewitness account that he reported to Officer Schmidt on the day of the shooting. Without those central facts,

Hollis's trial testimony was just as "inconsistent" with his original statement as it would have been had he contradicted specific facts. The two versions of events were logically

inconsistent. At the conclusion of the State's direct examination of Hollis, appellant sought to capitalize on the inconsistencies in Hollis's renditions of events by impeaching him on cross-examination. In so

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doing, appellant satisfied three of the four criteria that must be met to lay a proper foundation for use of extrinsic impeachment evidence under Rule 5-613(b). First, the questions posed by

appellant to Hollis disclosed to him the precise language of the prior oral statement the defense was contending he had made and that the statement had been made to Officer Schmidt during the interview that took place soon after the shooting. Second, Hollis

was given the opportunity to explain or deny the prior statement. Third, Hollis failed to admit that he had made the statement. The extrinsic last Rule 5-613(b) of a criterion for admissibility statement of for

evidence

prior

inconsistent

impeachment - that the statement concern a non-collateral matter codifies a long-standing requirement under Maryland case law. The

test for materiality is "whether the fact, as to which error is predicated, could have been shown in evidence for any purpose independently of the self-contradiction." Smith v. State, 273 Md.

152, 160, 328 A.2d 274, 280 (1974); Kantor v. Ash, 215 Md. 285, 290, 137 A.2d 661, 664 (1958); Stevenson v. State, supra, at 722. In other words, a fact that is material to the issues in a case so as to be admissible irrespective of its use to counter contrary evidence is a non-collateral fact. The facts stated orally by Hollis to Officer Schmidt were not tangential or marginal. the case. They directly concerned the main event in

In deciding appellant's fate, the jury's primary task

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was to determine how the shooting had occurred: did appellant shoot one victim in self-defense and the other by accident or did appellant gun down both victims as revenge for the attacks on Tanya and her son? It is difficult to imagine testimony that could be

less collateral and more material to the question how the shooting occurred than Hollis's eyewitness account to Officer Schmidt of that event. Even though appellant satisfied the criteria spelled out in Rule 5-613(b)for extrinsic use of a prior oral inconsistent

statement for impeachment, the trial court concluded that his proffered statement cross-examination was not of Officer under Schmidt about Hollis's the

permitted,

Rule

5-613,

because

statement had not been shown to Hollis, Hollis had not acknowledged or identified the statement as his own, and the statement had not been "tied back" to Hollis. error resulting from the We explain why, in addition to the treatment of Hollis's statement as

hearsay, the trial court erred in its interpretation of Rule 5-613. When a witness's prior inconsistent written statement is being used to impeach him, whether intrinsically or extrinsically, Rule 5-613 requires that, at some point during his examination, the witness be shown the statement. was oral, not written. In this case, Hollis's statement

The fact that Officer Schmidt took notes

about the statement and incorporated them into his police report did not make Hollis's statement a written statement. Appellant was

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not required to show Hollis Officer Schmidt's written report, as that did not constitute the prior inconsistent statement at issue. Rather, because Hollis's statement was oral, appellant was required to inform Hollis of its contents and the circumstances under which it was made, which he did. A witness who is being impeached with a prior inconsistent statement through the testimony of another need not acknowledge or identify the statement as his own. Indeed, such a requirement

would defeat the purpose of Rule 5-613. Extrinsic evidence of a prior inconsistent statement is not needed to impeach a witness unless the witness has denied or claims not to recall making the prior statement. For that reason, Rule 5-613(b) requires the

opposite of acknowledgment: before extrinsic evidence may be used to impeach a witness about his prior inconsistent statement, he must refuse to admit that the statement was made by him. The line of Maryland cases holding that a witness must

acknowledge or approve a written statement before it may be used to impeach him does not limit, or even apply to, impeachment by use of an oral statement. When a person other than the witness reduces

the witness's spoken words to writing, and the witness ratifies the writing by signing, adopting, or approving it, the writing will be treated as if it had been prepared by the witness himself. Collins

v. State, 318 Md. 269, 568 A.2d 1,10, n.10, cert. denied, 497 U.S. 1031, 110 S. Ct. 3296, 111 L.Ed. 2d 805 (1990). See also Henry v.

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State, 324 Md. 204, 596 A.2d 1024, cert. denied, 503 U.S. 972, 112 S. Ct. 1590, 118 L. Ed.2d 307 (1991); Bruce v. State, 318 Md. 706, 569 A.2d 1254, appeal after remand, 328 Md. 594, cert. denied, 508 U.S. 963, 113 S. Ct. 2936, 124 L. Ed.2d 686 (1990). Jones v. State, 310 Md. 569, 530 A.2d 743, cert. granted, vacated 486 U.S. 1050, 108 S. Ct. 2815, 100 L. Ed. 2d 916, on remand, 314 Md. 111 (1987). Thus, if Hollis had ratified Officer Schmidt's report, it could have been treated as if it had been written by Hollis and used to impeach him, under Rule 5-613. That principle has no bearing,

however, on the use of Hollis's oral statement for impeachment. The fact that Hollis did not read, approve, or adopt Officer Schmidt's written report did not insulate him from being impeached with his own oral statement. Indeed, if that were the case, a

witness whose remarks to the police were not included in a police report could be impeached by his own words while a witness whose remarks to the police were included in a police report could immunize himself from impeachment by refusing to adopt or approve the report. Finally, Rule 5-613 does not require that an oral statement that is being used to impeach a witness extrinsically be "tied back" to the witness before examination of the person to whom the statement was made. By the time that extrinsic evidence is being

used for impeachment, the witness who made the prior inconsistent statement will have denied making it. The very purpose of

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examining the person to whom the statement supposedly was made is to connect the statement to its maker. In this case, that would

have been accomplished by allowing appellant to proceed with his cross-examination of Officer Schmidt. The trial court erred in ruling inadmissible extrinsic

impeachment evidence of a prior inconsistent statement by Earnest Hollis. The question remains whether that error was harmless. Harmless Error In a criminal case, the test for determining whether error by the trial court was harmless is whether, upon an independent review of the record, we are able to "declare a belief, beyond a

reasonable doubt, that the error in no way influenced the verdict." Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678(1976). We

must assess whether the properly admitted evidence in this case so far outweighs the prejudice caused by the exclusion of the Hollis impeachment evidence that there was no reasonable possibility that the verdict would have been different had the impeachment evidence come in. (1976). For reasons akin to our finding that Hollis's oral statement to Officer Schmidt concerned a non-collateral matter, our Ross v. State, 276 Md. 664, 674, 350 A.2d 680, 687

independent review of the record does not persuade us, beyond a reasonable evidence doubt, not that the exclusion to the of that statement from

did

contribute

guilty

verdicts

against

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appellant. shooting.

Hollis was the only independent eyewitness to the The competing versions of events presented by the

prosecution and the defense were diametrically opposed and the testifying victim and appellant each had a strong interest in having his own version of events prevail. Under the circumstances,

the jury was certain to place great weight on the direct evidence that Hollis's testimony supplied. Moreover, there was a dearth of

physical or circumstantial evidence on which to base a finding of guilt independent of the testimony of Copeland, appellant, and Hollis. Without a meaningful amount of evidence to consider beyond

the testimony of those three men, two of whom were biased, it was inevitable that Hollis's testimony witness - and his credibility as a

- would be key to the jury's deliberations.

Impeachment by use of a prior inconsistent statement is a valuable and frequently used method for challenging the credibility of a witness, not only in terms of whether the witness is biased or prone to fabrication but also with respect to the accuracy of his observations and his strength or weakness of memory. In this

case, the jury had nothing before it to indicate that Hollis's ability to observe of the by events had been impaired or that other his than prior

recollection consistent

incident inference,

had

been

anything Had

and,

accurate.

Hollis's

inconsistent statement come into evidence through Officer Schmidt, however, the jury's perception of Hollis as a witness and the consequent weight that it assigned his testimony might have changed -20-

significantly, to appellant's advantage. Members of the jury might have thought that Hollis had forgotten the details of the day; that he had not observed the events with a level of attention necessary to provide a reliable report; that he had become confused about the events in the interim; or that he had become vested in cooperating as a State's witness to the point of editing from his testimony events that he had seen but that he did not think were helpful to the prosecution. Any such thought might have diminished the value

of the key prosecution witness's testimony in the eyes of the jury and brought about a different verdict. The trial court's error in this case was not harmless beyond a reasonable doubt. JUDGMENTS REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY; COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.

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