Preview:

In the Circuit Court for Wicomico County, a jury convicted appellant, Karen McCray, of first degree premeditated and felony murder, robbery, attempted robbery, assault with intent to murder, misdemeanor theft, and conspiracy to commit robbery.1 On appeal,

appellant presents the following questions for our review: I. Did the testimony of the accomplice's minor child sufficiently corroborate the testimony of the accomplice? Did the trial court err in admitting prior statements of the accomplice?

II.

III. Was appellant's statement to the police voluntary? We find that the trial court erred in admitting the accomplice's prior consistent statements and, accordingly, reverse and remand. FACTS Before being suffocated to death on September 12, 1996, Lucy Lyles lived on Booth Street in Salisbury, Maryland. About a month

prior to her murder, she had opened her home to Tawanna Howell and Howell's four children (ages eleven, eight, seven, and five), at the request of Ms. Howell's mother, Diane Burgess. While living

with Ms. Lyles, Howell met and began to socialize with Karen McCray, who lived a short distance away.

The court imposed a sentence of life imprisonment for the conviction of first degree premeditated murder, but did not impose a sentence for first degree felony murder. The court imposed a consecutive ten-year sentence for the robbery conviction, and imposed a ten-year sentence for the conspiracy to commit robbery conviction. The sentence for the conspiracy conviction was to run concurrent with the sentence for the robbery conviction, but consecutive to the sentence for the first degree murder conviction. The court merged the remaining convictions for sentencing purposes.

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At trial, Howell described the events of September 12, 1996 as follows: She and her four children were at McCray's home; the children were playing upstairs with McCray's son, while McCray, Howell, appellant's brother, Glen McCray, and some friends were downstairs smoking crack cocaine. Diane Burgess stopped by and While Howell was at McCray's, Howell that she had her

told

children's Social Security check.

Howell left McCray's house to

cash the check. When she returned to the McCray house, she gave McCray $20 so that McCray could purchase more crack cocaine. Howell waited for her children while McCray and the others

continued to smoke. Then, at about 10:00 p.m., Howell, her four children, and McCray left the McCray house and went to the Lyles home. Before leaving, McCray inquired of Howell whether Ms. Lyles McCray

had any money and Howell told her that she probably did.

told Howell that they were going to go to Ms. Lyles's house "and scare her and try and get some money out of her." Howell told

McCray that she did not need to hurt Ms. Lyles because, if she asked, Ms. Lyles would give her the money. Howell and the children entered the apartment by the back door, while McCray waited outside. At McCray's request, Howell put

her children in the bathroom and then returned to the back door to let McCray in. When she opened the door, Howell found that McCray

had put a black net stocking over her face and that her brother, Glen, had also come over. Howell let both of them enter and Howell

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began to walk toward Ms. Lyles's bedroom door.

McCray opened the Ms. Lyles

bedroom door and flicked the light switch on and off. called out, asking, "Who is that?"

No one answered, but all three

entered the bedroom, and McCray jumped on top of Ms. Lyles's head, "straddling her with her legs sitting on top of her face." McCray

repeatedly demanded money while Ms. Lyles said, "Oh, my God, they [sic] trying to kill me." Howell stood at Ms. Lyles's feet and

McCray told her to grab them because Ms. Lyles was flailing her legs and arms. Howell grabbed the victim's feet while McCray tried Ms. Lyles

to tie Ms. Lyles's hands with the cord of an iron.

continued to struggle, so McCray hit her on the side of the head with the iron. Meanwhile, Glen McCray rummaged through Ms. Lyles's

belongings, looking for money. After being struck with the iron, Ms. Lyles stopped struggling and lay on the ground mumbling, "Oh, my God, why, why?" McCray

then took a large pillow and put it over Ms. Lyles's face and sat on top of the pillow. After minutes passed, Ms. Lyles stopped

moving completely and McCray got up and started going through the victim's belongings. McCray found Ms. Lyles's work bag with a After she

black wallet, from which McCray removed fifty dollars.

found the money, McCray told Howell to get her children out of the bathroom. McCray and her brother left first and then Howell

brought her children out and they left Ms. Lyles's home and went to McCray's home. Howell and the children went inside and, while Glen

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watched the children, McCray and Howell went away and bought some beer and crack cocaine. the crack cocaine. At approximately 1:00 a.m., McCray, Howell, and Howell's children returned to Ms. Lyles's house. Howell straightened up Ms. They returned to McCray's house and smoked

Lyles's bedroom, while the children and McCray sat in the living room. Howell then returned to the living room and McCray left. The

children went to sleep and, at approximately 7:00 a.m., Howell woke the children and took them to her mother's house, told her mother what had happened, and left for Pocomoke in the evening, where the police later arrested her. Howell made detailed statements,

describing the killing to the police, and, subsequently, pleaded guilty to second degree murder for her involvement. Shantanna Howell, Tawanna's twelve-year-old daughter,

testified at trial.

Shantanna recalled that on September 12, 1996,

she, her siblings, and her mother went to McCray's home and, later that night, they walked back to Ms. Lyles's house and entered the apartment through the back door. Once inside, her mother told her

and her brothers and sister to go into the bathroom and remain quiet. After they entered the bathroom, Howell closed the door.

Shantanna did not see anyone else in the apartment, but, while she was in the bathroom, she heard a knock on the door and she heard Ms. Lyles ask, "who was it," but no one answered. Ms. Lyles scream and cry, while asking for help. She then heard Shantanna also

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heard McCray tell Ms. Lyles to "shut up," and heard "some banging and stuff moving around." After some time passed, Shantanna heard

someone leave and then Howell allowed them to come out of the bathroom. Shantanna said that Howell's hair was messy, as if "she Shantanna indicated that her mother then told Early the next morning, they went to her

had been working."

them to go to sleep.

grandmother's house, where she overheard Howell tell her mother what had happened. ANALYSIS I. Appellant's first argument on appeal alleges that the

testimony of Shantanna Howell, the accomplice's minor child, did not sufficiently corroborate the testimony of the accomplice, Tawanna Howell. Her claim is based on two theories: first, the

corroboration came from the accomplice's child and therefore cannot constitute an independent source; second, the testimony of

Shantanna and her mother was so "riddled with inconsistencies" that it did not provide corroboration with some "degree of cogency," as required. (1977). See Brown v. State, 281 Md. 241, 244, 378 A.2d 1104

We find no merit in this claim.

It has been firmly established that a "person accused of a crime may not be convicted on the uncorroborated testimony of an accomplice." (1982). Turner v. State, 294 Md. 640, 641-42, 452 A.2d 416

We have expressed two reasons for requiring corroboration.

First, the accomplice who is offering the testimony "is admittedly 5

contaminated with guilt," (citation omitted), and, second, the accomplice may have an ulterior motive for testifying, such as seeking a reduced sentence or charge. Id. at 642. We do not

require the State to produce corroboration of all of the evidence. Rather, only slight corroboration is required. As former Chief

Judge Murphy said for the Court of Appeals in Brown, [T]he corroborative evidence . . . must relate to material facts tending either (1) to identify the accused with the perpetrators of the crime or (2) to show the participation of the accused in the crime itself. . . .If with some degree of cogency the corroborative evidence tends to establish either of these matters, the trier of fact may credit the accomplice's testimony even with respect to matters as to which no corroboration was adduced. McDowell v. State, 231 Md. 205, 189 A.2d 611 (1963). That corroboration need not extend to every detail . . . is also settled by our cases. Brown, 281 Md. at 244. reasoning of Brown, The Court in Turner, agreeing with the added that "the evidence offered as

corroboration must be independent of the accomplice's testimony." Turner, 294 Md. at 646. consist of something That is, "the proffered evidence must substantial than the extrajudicial

more

comments of the accomplice. . . ." In this case, appellant

Id. at 647. that the testimony of

asserts

Shantanna cannot be considered an independent source because she is the minor child of the accomplice, with a strong interest in protecting her mother, and, as a minor child, she was under the influence and control of her mother. 6 We find that this argument

does not, in any way, detract from the fact that Shantanna's testimony was "independent of the accomplice's testimony." 646. more Id. at

All we require of the testimony is that it must be "something substantial than the extrajudicial comments of the

accomplice."

Id. at 647.

The record demonstrates that Shantanna's

testimony was based on her independent recollection of the events on the night of the murder and not on statements by her mother to her grandmother. Thus, it satisfied the requirement of testimony

independent of the accomplice's testimony. We also find no support for appellant's claim that the

testimony of Shantanna and Tawanna Howell was so inconsistent that it did not provide corroboration with any "degree of cogency." As

the Court of Appeals indicated in Brown, the corroborative evidence proffered must, with some degree of cogency, either identify appellant as a perpetrator of the crime or show that appellant participated in the crime. 281 Md. at 244. In this case, She

Shantanna's testimony satisfied both of these elements.

identified appellant as a perpetrator and a participant when she told the jury that, while she was in the bathroom on the night of the murder, she heard someone knock on the door, she heard Ms. Lyles screaming for help, and she recognized appellant's voice as the one telling Ms. Lyles to "shut up." Shantanna also testified

that it was at this time that she also heard "some banging and stuff moving around" and that she then heard someone leave. Thus,

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Shantanna provided some corroboration of her mother's testimony and, even if the remainder of her testimony differed from that of her mother, no more is required for the trier of fact to credit her testimony in toto, should it choose to do so. See Turner, 294 Md. at 642 (evidence establishing material facts with some degree of cogency are facts providing only slight corroboration); Grant v. State, 65 Md. App. 547, 552-553, n. 1, 501 A.2d 475 (1985) (citing numerous Maryland Court of Appeals and Court of Special Appeals cases supporting the proposition that only slight corroboration is required). II. Appellant also argues that the court erred on two occasions by admitting prior statements made by her accomplice, Howell, once by

admitting a prior consistent statement and once by allowing the admission of a prior inconsistent statement. The trial court admitted the prior consistent statement during the testimony of Howell's mother, Ms. Burgess. The State questioned Ms. Burgess

about Howell's description to her of the robbery and murder. Defense counsel objected on the grounds that the answer would be hearsay. The following colloquy then took place: THE COURT: Wouldn't this be admissible under Rule 5-802.1(c)? Maybe you better approach the bench. (Whereupon counsel approached the bench, and the following ensued.)

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THE COURT: Excuse me, not (c). 5-802.1(b), "A statement that is consistent with the declarant's testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive." Did you not try to bring out improper motive of the declarant and, if so, and if this is a consistent statement, I don't know if it is, but that's what is proffered to be? . . . Would it not be admissible under that section? [DEFENSE COUNSEL]: That's for the Court to decide. THE COURT: objection. Okay. Well, I overrule your

After the court overruled defense counsel's objection, Ms. Burgess testified as to what Howell told her about the murder. Appellant

argues that the court erred by allowing Ms. Burgess's testimony under Rule 5-802.1(b), because Howell's statement was made after her motive to lie arose and because Howell admitted to fabrication when she admitted that, initially, she had deliberately omitted any reference to her children or Glen McCray.2 We hold that the court

did err in allowing Ms. Burgess to testify about Howell's prior consistent statements, and that the Court of Appeals's recent decision in Holmes v. State, ___ Md. ___, No. 95, Sept. 1997 Term (filed July 2, 1998), is dispositive on this issue.

The State does not address this claim. Instead, it argues that appellant abandoned her objection because defense counsel acquiesced to the court's ruling. We find that the State's claim is without merit. Our review of the discussion between counsel and the trial judge regarding the objection does not indicate to us that defense counsel abandoned the objection. Rather, he awaited the court's ruling on his objection. Were we to follow the State's reasoning, we would place an undue burden on appellant to restate continuously the objection while asking for a ruling. 9

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In Holmes, the Court of Appeals determined whether a witness's prior consistent statement was admissible under Rule 5-802.1(b) to rebut a charge of fabrication, when the statement was made after a motive to fabricate arose. Judge Chasanow, writing for the Court,

adopting the reasoning and holding of Tome v. United States, 513 U.S. 150, 152, 115 S.Ct. 696, 699, 130 L.Ed.2d 574 (1995), held that "a prior consistent statement [that] is offered pursuant to Md. Rule 5-802.1(b) for the purpose or rebutting a charge of fabrication or improper influence or motive, . . . is admissible only if it precedes the alleged fabrication, improper influence, or motive." However, the Court found that Rule 5-802.1(b) was not the sole basis for admitting prior consistent statements in our courts. Maryland Rule 5-616(c) is directly on point and governs the rehabilitation of a witness whose credibility has been attacked. . . . Under Md. Rule 5-616(c)(2), a prior consistent statement is admissible to rehabilitate a witness as long as the fact that the witness has made a consistent statement detracts from the impeachment. Prior consistent statements used for rehabilitation of a witness whose credibility is attacked are relevant not for their truth since they are repetitions of the witness's trial testimony. They are relevant because the circumstances under which they are made rebut an attack on the witness's credibility. (Footnote omitted.) The Court went on to hold that the State "is not required to assert the purpose for which it is seeking admission of a prior consistent statement unless asked by the court," even though a statement admissible under Md. Rule 5-802.1(b) is admissible as substantive

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evidence, and a prior consistent statement admissible under Md. Rule 5-616(c)(2) is for rehabilitative purposes only and not as substantive evidence. Because Holmes does not require the State to articulate whether it is seeking to admit the prior consistent statement for substantive or rehabilitative purposes, it places two burdens on the defendant. First, it is incumbent on the defendant to inquire

about the basis upon which the State intends to introduce the prior consistent statement. Second, the defendant must request a jury

instruction limiting the use of the prior consistent statement for rehabilitative purposes only. In Holmes, the Court found that Md. Rule 5-802.1(b) did not apply because the State offered the witness's prior consistent statement, not to rebut a motive to fabricate, but, rather, to rebut a prior inconsistent statement, and found the prior statement admissible under Md. Rule 5-616(c)(2). Here, although Md. Rule 5-

802.1(b) does apply, under the reasoning of Holmes, it cannot be a basis for admitting Howell's prior consistent statements. Chasanow articulated in Holmes, a prior consistent As Judge statement

offered pursuant to Md. Rule 5-802.1(b) "is admissible only if it precedes the alleged fabrication, improper influence, or motive." Clearly, in this case, Howell's prior consistent statement does not precede her motive to fabricate. motive to fabricate As appellant points out, Howell's

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existed from the moment that [the] robbery murder, in which she was admitted[ly] involved, took place. Further, given her mother's friendship with Ms. Lyles . . . Ms. Howell's motive to fabricate at the time she gave the statement to her mother was as strong as it would ever be -- she had a motive to shift blame to [appellant] both to mollify her mother and to minimize her exposure to criminal prosecution. Accordingly, the testimony was not admissible under Md. Rule 5802.1(b) to attack an implication of fabrication or improper influence or motive because Howell made the statements after the motive to fabricate existed. Although, under Holmes, the State "is not required to assert the purpose for which it is seeking admission" of the statements,

here, the trial judge asked the State for its basis for offering the statements and specifically asked if the basis was Md. Rule 5802.1(b). The State told the court that it was offering the As such, it does not and cannot, on

statements under that rule.

appeal, claim that the statements should be admitted under Md. Rule 5-616(c). The State claims that, even if these statements were

improperly admitted, the error was harmless beyond a reasonable doubt because the same evidence had been placed before the jury during Howell's own testimony. that Howell testified to Specifically, the State points out same facts that appellant now

the

challenges, and therefore any error in allowing Ms. Burgess to testify was cumulative and not prejudicial. 12 We disagree.

As appellant points out, these statements, because they are prior consistent statements, are cumulative, but that does not make them harmless because it is their consistency that is the very nature of the harm. Howell's prior By allowing Ms. Burgess to testify about statements, the State impermissibly

consistent

bolstered Howell's credibility.

As we said in Newman v. State, 65

Md. App. 85, 98, 499 A.2d 492 (1985), when the State's case depends virtually exclusively on the credibility of a witness, as in this case, the bolstering of the witness's credibility by prior

consistent statements cannot be harmless error.3 298 Md. 173, 468 A.2d 319 (1983). to reverse.

See Cox v. State,

Accordingly, we are constrained

Appellant also claims that the court erred by allowing the State to admit evidence of a prior inconsistent statement by Howell through Detective Wagner's testimony. At trial, during the State's

case-in-chief, Howell admitted during cross-examination that she had not told the police that her children and Glen McCray were present during the murder. On redirect, Howell indicated that she

had not told this to the police until later because she was scared and shocked and because she did not want to put her children "through answering questions and all that." This answer was

The accomplice's credibility vitally affected the State's case because the only other evidence of appellant's involvement in the crimes came from Shantanna's testimony, which placed appellant at the scene as a participant and perpetrator, but which could not detail the extent of appellant's involvement. 13

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inconsistent with Howell's pretrial statement that she did not tell the police about her children's presence because Glen McCray had threatened her and she feared for her children. The State brought Appellant

this inconsistency to light during the defense's case.

called Detective Wagner and asked him about the various statements given to him by Howell and when Howell had finally admitted that her children and Glen McCray were present at the murder. On cross-

examination, the State asked the detective what reason Howell had given for her failure to tell the police that her children and Glen McCray were present. Appellant concedes that the statement might have been

admissible under Md. Rules 5-613, 5-616, or 5-802.1, had the State followed the proper procedure for admitting it. Because the State

failed to follow the proper procedure, however, appellant argues that the statement was not admissible as a prior inconsistent statement under the applicable rules, and was not admissible under any other hearsay exception. The State does not address appellant's claim that it failed to follow the proper procedure in introducing Howell's prior

inconsistent statements through Md. Rules 5-613, 5-616, or 5-802.1, but, instead, asserts that the testimony was properly admitted because appellant "opened the door" to such testimony by eliciting from Detective Wagner the alleged discrepancies in Howell's

statements.

We agree.

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The "opening the door" doctrine allows a party to respond to evidence introduced by the opposing party during direct examination that was admissible evidence or inadmissible evidence that was admitted over objection. The doctrine does not permit the

admission of incompetent evidence. 545-46, 693 A.2d 781 (1997).

Conyers v. State, 345 Md. 525,

In Clark v. State, 332 Md. 77, 87 n.

2, 629 A.2d 1239 (1993), the Court of Appeals defined incompetent evidence as evidence "that is inadmissible for reasons other than relevancy. . . .[such as] evidence that is inadmissible because of the hearsay prohibition, for lack of authentication, or because of the best evidence rule." In this case, appellant argues that the prior inconsistent statement admitted through Detective Wagner was not admissible, not on the ground that it was irrelevant, but because it was

incompetent in that the State had failed to follow the appropriate procedure for admitting it as an exception to the hearsay rule. disagree. We

Although appellant claims that the detective's testimony

does not meet the prerequisites of Md. Rule 5-802.1 as a hearsay exception, we find that it does. Md. Rule 5-802.1 states that a

statement "previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement [is] not excluded by the hearsay rule" if the statement "that is inconsistent with the declarant's testimony . . . was . . . (3) recorded in substantially verbatim fashion by stenographic or

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electronic statement."

means

contemporaneously

with

the

making

of

the

Howell testified at trial and was subject to cross-examination and recall concerning the inconsistent statement.4 In introducing the evidence through the detective, the State did not fail to meet the prerequisites of Md. Rule 5-802.1, because Howell had been available for cross-examination of her recorded statement.

Appellant seems to suggest that the statement could have been admitted only through Howell, but she provides no authority to support that assertion. Since we find that the State followed the

proper procedure for admitting the statement under Md. Rule 5802.1, that is, that Howell testified and was subject to crossexamination regarding a prior inconsistent statement that the police had recorded, the court did not err in admitting the prior inconsistent statement. III. Finally, appellant argues that a statement taken from her at the Wicomico County Sheriff's Office was not voluntary. At the

During the State's case-in-chief, after admitting on cross-examination that she had not immediately told the police that her children and Glen McCray were present at the murder, she testified that she revealed this information to the police during her third statement, one that was taped at the Worcester County Jail. On redirect, Howell was asked to explain why she did not initially tell the police about Glen McCray's and her children's presence. At that time, defense counsel could have subjected Howell to questioning about the inconsistency between the reason she gave at trial and the reason she gave to the police in her taped statement. The defense could have also recalled Howell as a witness after the detective's testimony and questioned her about the inconsistency of her trial statement and her statement to the police. 16

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pretrial hearing on appellant's motion to suppress, Detective Mark Wagner testified that, at 3:00 a.m. on September 14, 1996,

appellant had been picked up for questioning and brought to the sheriff's office by Deputy Jeff Hickman and another deputy.

Detective Wagner and Detective Martin A. Fisher interviewed her approximately one-and-one-half hours later, at 5:20 a.m. They

advised her of her Miranda5 rights by reading to her from a standard Miranda form, and then they allowed her to read the form on her own. request an Appellant did not ask any questions, nor did she attorney, but indicated that she understood the

questions on the form and signed it.

The detectives noticed that

appellant wore a yellow, long-sleeved shirt, and that one sleeve had a dark-colored stain that "appeared to [them] to be possible blood." The detectives asked appellant about the stain and

informed her that, at some point, they would need the shirt for testing. At that point, appellant removed the shirt and gave it to

the detectives, even though they told her she could wait until they gave her something else to wear. Detective Wagner admitted that,

during the interview, appellant appeared to be under the influence of alcohol, but he did not know if she was intoxicated. He noted

that, prior to her questioning, appellant urinated on herself. The detective testified that appellant slurred her speech, but that she could stand up and walk and that she was oriented as to her

5

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 17

location and understood the questions asked of her.

Detective

Fisher's testimony corroborated that of Detective Wagner, and he added that appellant's eyes were bloodshot and that there was a smell of alcohol on her breath, but that this was consistent with his prior contacts with appellant. Detective Fisher also testified

that, although appellant paused before answering the questions posed to her, he believed that appellant understood the questions, but admitted that "there were times that her answers . . . [were] off base. . . ." Deputy Hickman testified that, when he picked appellant up at 3:00 a.m., she appeared intoxicated, she slurred her speech, and she had trouble keeping her balance. Sharon McCray, appellant's

sister, testified that she and appellant had been drinking for several hours prior to her arrest and that appellant was

intoxicated at the time of her arrest.

The trial court denied

appellant's motion to suppress, finding that her statement was voluntary because, there despite was no evidence evidence suggesting that that she "did was not

intoxicated,

appellant

understand what was going on, that she wasn't completely aware of everything that was going on around her." The judge believed that

appellant "understood her rights and voluntarily waived them." On appeal, appellant concedes that mere evidence of

intoxication does not render statements involuntary, but contends that, in this case, the evidence of gross intoxication was

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overwhelming. Appellant cites the detectives' testimony that she was under the influence of alcohol, that she slurred her speech and paused before answering the detectives' questions, that some of her answers were "off base," that she urinated on herself, and that she disrobed in front of the male detectives. She argues that these

were not actions of a person with a "rational intellect and a free will such that [her] responses to interrogation [were] voluntary." In reviewing the denial of a motion to suppress, we review only the record of the suppression hearing and view that evidence in the light most favorable to the prevailing party, in this case, the State. Gamble v. State, 318 Md. 120, 125, 567 A.2d 95, 98

(1989); McMillian v. State, 325 Md. 272, 281, 600 A.2d 430 (1992) (citations omitted); Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990). We also accept the court's findings of the disputed

facts, unless clearly erroneous, by giving due regard to that court's opportunity to assess the credibility of witnesses; we then make our own constitutional appraisal as to the effect of those facts. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996); McMillian, 325 Md. at 281-82;

Riddick, 319 Md. at 183. It is well established that, in order for a statement to be admitted into evidence, the State must prove that it was voluntary. "In Maryland, a defendant's [statement] is only admissible if it is (1) voluntary under Maryland nonconstitutional law, (2) voluntary

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under the Due Process Clause of the Fourteenth Amendment of the United States Constitution . . . , and (3) elicited in conformance with the mandates of Miranda." 536 A.2d 622 (1988). Here, appellant asks us to decide only whether, under Maryland nonconstitutional law, she was mentally capable of making a Hoey v. State, 311 Md. 473, 480,

statement in light of her "gross intoxication."

She concedes,

however, that "mental impairment from drugs or alcohol does not per se render a [statement] involuntary, and that a court may admit a [statement] into evidence if it concludes that it was freely and voluntarily made despite the evidence of mental impairment." It is

Dempsey v. State, 277 Md. 134, 151, 355 A.2d 455 (1976).

only when defendants are so mentally impaired that they do not know or understand what they are saying that statements become

involuntary.

Hoey, 311 Md. at 481.

During the suppression hearing, the testimony was undisputed that appellant appeared to be under the influence of alcohol but that she understood the questions asked of her. The trial judge

determined that appellant was intoxicated but that she understood "what was going on around her" and that she "understood her rights and voluntarily waived them." We hold that the testimony presented

at the suppression hearing was sufficient to allow the court to conclude that appellant was mentally capable of understanding what she was saying. We therefore conclude that her intoxication,

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standing alone, was insufficient to make her statement involuntary.

JUDGMENT OF THE CIRCUIT COURT FOR WICOMICO COUNTY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS. COSTS TO BE PAID ONEHALF BY APPELLANT AND ONE-HALF BY WICOMICO COUNTY.

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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 1036 September Term, 1997 ___________________________________

KAREN McCRAY

v.

STATE OF MARYLAND

___________________________________

Wenner, Sonner, Bell, Rosalyn B., (Retired, specially assigned) JJ. ___________________________________ Opinion by Sonner, J.

___________________________________ Filed: August 26, 1998

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HEADNOTE: Karen McCray v. State of Maryland, No. 1036, September Term, 1997 _________________________________________________________________ ACCOMPLICE TESTIMONY - CORROBORATION BY MINOR CHILD OF ACCOMPLICE -- Corroboration of accomplice's testimony by her minor child is an independent source. Even if minor child has motive to protect the accomplice or is under the influence of the accomplice, those factors may affect the weight and credibility of the testimony, a matter in the purview of the trier of fact. Corroboration need not address every fact testified to by accomplice, only slight corroboration is required. EVIDENCE - HEARSAY - PRIOR CONSISTENT STATEMENT - SUBSTANTIVE EVIDENCE - REHABILITATION - HARMLESS ERROR -- Under Md. Rule 5802.1(b), a prior consistent statement may be admitted as substantive evidence only if the statement is made prior to any motive to fabricate. A prior consistent statement may also be admitted for rehabilitative purposes only under Md. Rule 5616(c), even after a motive to fabricate exists. The State is not required to inform the court or defense counsel, unless asked, whether it seeks to admit the prior consistent statement for substantive or rehabilitative purposes and therefore the defendant must bear two burdens. First, the defendant must inquire about the basis for the introduction of the prior consistent statement and, second, the defendant must request a limiting jury instruction if the State seeks to introduce the statement for rehabilitative purposes only. The improper admission of the prior consistent statement cannot be harmless error when the State's case depends virtually exclusively on the credibility of that witness, because its consistency allows the improper bolstering of the credibility of that witness. EVIDENCE - HEARSAY - PRIOR INCONSISTENT STATEMENT - Prior inconsistent statement is properly admitted through a witness, who is not the declarant, when defendant opens the door to the testimony and the evidence is relevant and competent. Evidence is competent if it meets an exception to the hearsay rule; in this case, the State met the requirements of Md. Rule 5-802.1 since the declarant had made a prior inconsistent statement that had been recorded by tape, she testified at trial, and was subject to cross-examination. MOTION TO SUPPRESS - STATEMENT - VOLUNTARY - Mere evidence of intoxication does not render statement involuntary. It is only when defendants are so mentally impaired that they do not know or understand what they are saying that statements become involuntary.



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