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Jerry S. Tyler v. State of Maryland - No. 108, 1995 Term CRIMINAL LAW - Evidence -- State may not introduce as a prior inconsistent statement the prior statement of a witness who takes the stand but refuses to testify.

IN THE COURT OF APPEALS OF MARYLAND No. 108 September Term, 1995 ___________________________________

JERRY S. TYLER v. STATE OF MARYLAND

___________________________________

Murphy, C.J. Eldridge Rodowsky Chasanow Karwacki Bell Raker JJ. ___________________________________ Opinion by Chasanow, J. ___________________________________

Filed:

July 30, 1996

This case presents the question of whether in a criminal trial the State may introduce, as a "prior inconsistent statement," the prior testimony of a witness who takes the stand but refuses to testify. We hold that the prior testimony was not admissible as a

prior inconsistent statement in this case because a refusal to testify is not "inconsistent" with prior testimony. Hence, the

prior testimony was inadmissible hearsay evidence not within any exception. trial. We reverse Petitioner's conviction and remand for a new

I. Jerry S. Tyler, Petitioner, was charged with first degree murder and related offenses stemming from the shooting death of James "Jay" S. Bias, III. lot of the Prince Bias was shot and killed in the parking Plaza Mall on December 4, 1990.

George's

According to testimony, Bias and Tyler got into a dispute inside the mall, apparently because Tyler believed that Bias was

romantically involved with Tyler's wife. and two friends left the mall.

After the argument, Bias

As Bias and his friends were

driving from the mall parking lot in a Toyota truck, a green Mercedes came speeding across the parking lot and pulled up

alongside the truck at a stop sign. by Gerald Eiland.

The green Mercedes was driven

Tyler was in the passenger's seat.

Andre Campbell, who was riding in the Toyota with Bias, testified that after the Mercedes pulled up next to the truck, he

-2saw Tyler point at Bias and then "reach[] down towards his leg on the right side...." Campbell stated "as I saw him reaching, I

[thought] he had a gun" but that "[b]efore I could get the word gun out ... the shooting began." two of them hitting Bias. died of the gunshot wounds. A total of eight shots hit the truck, Bias was rushed to the hospital, but Although he testified at trial that he

never actually saw the gun, on the day of the shooting Campbell identified Campbell's evidence. This case is before us for the second time. In their first Tyler photo as the shooter from of a police was photo admitted array. into

identification

Tyler

trial in the Circuit Court for Prince George's County, Tyler and Eiland were tried together as co-defendants. Tyler was convicted

of first degree murder and use of a handgun in the commission of a felony, and Eiland was convicted of second degree murder and use of a handgun in the commission of a felony. After affirmance in the

Court of Special Appeals, this Court reversed the convictions of both Tyler and Eiland because of the State's use of peremptory challenges at trial to exclude women from the jury based solely on their gender.1 Tyler v. State, 330 Md. 261, 623 A.2d 648 (1993).

On remand, Tyler and Eiland succeeded in having their cases

Less than a year after we decided Tyler v. State, 330 Md. 261, 623 A.2d 648 (1993), the Supreme Court similarly held that gender-based use of peremptory challenges was impermissible. J.E.B. v. Alabama Ex Rel. T.B., 511 U.S. ___, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

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-3severed.2 Eiland was tried first. At his trial, Eiland took the

The Court of Special Appeals pointed out in its opinion that Eiland and Tyler probably did not qualify for a trial severance. Tyler v. State, 105 Md. App. 495, 504-05, 660 A.2d 986, 990-91 (1995). The intermediate appellate court had expressly held in Eiland and Tyler's first appeal that the trial judge had not erred in denying Eiland and Tyler's motion for severance, Eiland v. State, 92 Md. App. 56, 72-79, 607 A.2d 42, 50-54 (1992), and we did not disturb this holding in our opinion overturning the convictions, Tyler v. State, 330 Md. 261, 271, 623 A.2d 648, 653 (1993). Nonetheless, a severance was granted before Eiland and Tyler were retried. The effect of granting the severance was forcefully explained by Judge Moylan in Tyler's second appeal: "Notwithstanding the seal of approval that we had placed on the denial of severance, Eiland and Tyler, on their second try, succeeded ... in having their trials severed. The ground was thereby laid for each to point the finger at the other, not simply through the mouths of counsel but from the witness stand without fear of contradiction by the other." Tyler, 105 Md. App. at 505, 660 A.2d at 991. The Supreme Court has indicated that, in the federal courts, two or more defendants may be charged together if "`they are alleged to have participated in the same act or transaction ... constituting an offense....'" Zafiro v. United States, 506 U.S. ___, ___, 113 S.Ct. 933, 937, 122 L.Ed.2d 317, 324 (1993)(quoting FED. R. CRIM. P. 8(b)). The Court explained: "There is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials `play a vital role in the criminal justice system.' They promote efficiency and `serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.' For these reasons we repeatedly have approved of joint trials." (Citations omitted). Zafiro, 506 U.S. at ___, 113 S.Ct. at 937, 122 L.Ed.2d at 324. Cf.

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-4witness stand and blamed the entire shooting on Tyler. Eiland

testified that he had no idea that Tyler intended to shoot Bias. He stated that he was driving out of the mall parking lot when he noticed the Toyota truck at a stop sign. Suddenly, Tyler noticed

that Bias was in the truck and he started yelling out the window. Eiland testified that Tyler leaned over the driver's seat and "[n]ext thing I know he just started shooting out the window." jury acquitted Eiland. Predictably, at Tyler's second trial, Tyler took the stand and blamed the shooting entirely on Eiland. He testified that it was Tyler stated that he The

Eiland who had fired the shots at the Toyota.

was seated in the passenger seat of the Mercedes as it was stopped next to the truck. with Bias and the He testified that he was "having a few words" others in the truck, when suddenly and

unexpectedly Eiland fired the shots out the window. Before Tyler's trial, the State subpoenaed Eiland to appear as a witness at Tyler's trial. Eiland moved to quash the subpoena on

the ground that compelling him to testify would violate his Fifth Amendment privilege against self-incrimination. After hearing

argument, the trial judge ruled that, given his acquittal, Eiland was in no danger of incriminating himself, and therefore he could be compelled to appear. After the court's ruling, counsel for

Zafiro, 506 U.S. at ___-___, 113 S.Ct at 939-41, 122 L.Ed.2d at 327-29 (Stevens, J., concurring)(refraining from adopting a general preference for joint trials).

-5Eiland informed the court that Eiland might still refuse to testify because some threatening conduct had been directed at him the day before by some unknown person in a brown car. Counsel explained

that Eiland felt "that his safety cannot be guaranteed and that he is in great danger if he testifies in this case" and that he may "take the position that he is unable to answer questions put to him by either side." At Tyler's trial, the State called Eiland as a witness. After

giving his name and address, he gave the following testimony: "[STATE'S ATTORNEY]: shoot Jay Bias? [EILAND]: Mr. Eiland, did you

I can't answer that question. * * *

[STATE'S ATTORNEY]: Mr. Eiland, are you the same Mr. Eiland that testified in a previous proceeding? [EILAND]: I can't answer that question.

[STATE'S ATTORNEY]: Your Honor, I would ask the Court to direct the witness to answer the question. THE COURT: Mr. Eiland, I'm going to order you to answer the questions that have been directed to you.... [EILAND]: I can't answer that question. Mr. Eiland, did you shoot

[STATE'S ATTORNEY]: Jay Bias? [EILAND]:

I can't answer that question. Why can't you answer that

[STATE'S ATTORNEY]: question?

-6[EILAND]: I can't. Were you in the car when

[STATE'S ATTORNEY]: Jay Bias was shot? [EILAND]:

I can't answer that question. * * *

[STATE'S ATTORNEY]: Were you in the Prince George's Mall on December 4, 1990? [EILAND]: I can't answer that question. And why can't you answer

[STATE'S ATTORNEY]: that question? [EILAND]:

Because, I can't.

[STATE'S ATTORNEY]: Were you driving a green Mercedes that was occupied with Jerry Tyler at the Prince George's Mall on December 4th, 1990? [EILAND]: I can't answer that question. * * * [STATE'S ATTORNEY]: Your Honor, at this time I would request the Court to direct the witness that he must answer the questions. THE COURT: questions? [EILAND]: Mr. Eiland, you understood the Yes.

THE COURT: You understood that you have previously testified under oath in this courthouse concerning the issues and the facts to which the questions the State has asked are directed. Do you understand that? [EILAND]: Yes.

THE COURT: Is there some reason that you want to articulate or express as to why you do not want to answer those questions?

-7[EILAND]: I can't answer that question."

Despite a second order from the court to answer the questions put to him by the State, Eiland refused to answer. After questioning

Eiland about his ability to understand the questions, and procuring additional information regarding the incident with the brown car that apparently frightened Eiland, the trial judge found Eiland in contempt of court. The trial was then recessed for eighteen days When recalled as a witness eighteen days

and Eiland was jailed.

later, Eiland again refused to answer questions concerning the events the day of the shooting. Because of Eiland's refusal to testify, the State sought to admit as evidence the transcript of Eiland's testimony from his own trial, in which he had testified that Tyler shot Bias. Tyler

objected to the admission of the prior testimony on the ground that it was hearsay, and that it did not fall within any exception to the hearsay rule. After hearing argument, the trial judge ruled

that Eiland's prior testimony incriminating Tyler was admissible under the "former testimony" exception to the hearsay rule, and a transcript of the testimony was read to the jury. Tyler was

convicted of first degree murder and use of a handgun and sentenced to imprisonment for life for the murder conviction, and 20 years for the handgun conviction. Tyler appealed to the Court of Special Appeals, arguing, among other things, that the trial judge erred in admitting Eiland's prior testimony at trial. A divided intermediate appellate court

-8concluded that the trial judge had not erred in admitting the prior testimony, and affirmed Tyler's conviction. Md. App. 495, 660 A.2d 986 (1995). Tyler v. State, 105

We granted certiorari to

consider Tyler's contention that Eiland's prior testimony was improperly admitted.

II. There hearsay. is no question that Eiland's prior testimony was

It was a "statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ali v. State, 314 Md. Hence, the

295, 304, 550 A.2d 925, 929 (1988)(footnote omitted).3

question before us is whether the testimony was admissible under an exception to the general rule barring the admission of hearsay evidence.

A. We agree with Tyler and with the Court of Special Appeals that Eiland's prior testimony was not admissible under the "former testimony" exception to the hearsay rule. concedes this point in its brief. In fact, the State

As this Court made clear in

Maryland Rule 5-801(c) provides the same definition hearsay. The Maryland Rules of Evidence, including Md. Rule 801(c), however, took effect July 1, 1994 and hence were not effect at the time of the shooting in this case. Our holding the instant case would be the same under the rules.

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of 5in in

-9Huffington v. State, 304 Md. 559, 500 A.2d 272 (1985), recon. denied, 305 Md. 306, 503 A.2d 1326, cert. denied, 478 U.S. 1023, 106 S.Ct. 3315, 92 L.Ed.2d 745 (1986), the former testimony

exception applies in a criminal trial only when (1) the witness has given testimony under oath; (2) the witness who gave the prior testimony is unavailable to testify; and (3) the accused had an opportunity to cross-examine the witness at the prior trial or hearing where the testimony was elicited. at 275. 304 Md. at 566, 500 A.2d

See also Grandison v. State, 305 Md. 685, 744, 506 A.2d

580, 609, cert. denied, 479 U.S. 873, 107 S.Ct. 38, 93 L.Ed.2d 174 (1986). The purpose of the cross-examination requirement is to

protect the accused's constitutional rights under the Confrontation Clause of the Sixth Amendment.4 See Huffington, 304 Md. at 566-67,

In a civil case, there is no need to protect the defendant's right of confrontation. Hence, in a civil action, prior testimony may be admissible if either the party against whom the former testimony is offered or a predecessor in interest had an opportunity and similar motive to develop the testimony at the time it was originally given. The former testimony exception is now codified in Md. Rule 5804(b)(1), which provides: "(b) Hearsay Exceptions. -- The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former Testimony. -- Testimony given as a witness in any action or proceeding or in a deposition taken in compliance with law in the course of any action or proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity

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-10500 A.2d at 275-76. In the instant case, the trial judge properly concluded that Eiland was "unavailable" because he refused to testify. See

Simmons v. State, 333 Md. 547, 559, 636 A.2d 463, 469 (witness who refused to testify was "unavailable" for purposes of hearsay exception), cert. denied, ___ U.S. ___, 115 S.Ct. 70, 130 L.Ed.2d 26 (1994). The Court of Special Appeals and the State recognized,

however, that Eiland's testimony was not admissible as former testimony in Tyler's criminal trial because Tyler had no

opportunity to cross-examine Eiland when the prior testimony was elicited at Eiland's separate trial in 1993. Thus, the 1993

testimony did not fall within the former testimony exception.

B. The Court of Special Appeals held that Eiland's testimony was admissible as a prior inconsistent statement under the holding of Nance v. State, 331 Md. 549, 629 A.2d 633 (1993). In Nance, we

held that a witness's prior testimony is admissible as substantive evidence when the prior testimony is inconsistent with the

witness's in-court testimony, and the witness is subject to crossexamination concerning the statement at the trial where the

and similar motive to develop the testimony by direct, cross or redirect examination." Our holding in the instant case would be the same under this rule.

-11statement is admitted. 44. Nance, 331 Md. at 570-71, 629 A.2d at 643-

This holding has since been codified in Maryland Rule 5-802.1,

which provides in pertinent part: "The following statements previously made by a witness who testifies at the trial or hearing and who is subject to crossexamination 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...." In the instant case, Eiland's prior testimony cannot be deemed "inconsistent" with his refusal to testify at Tyler's trial. At

Tyler's trial, Eiland flatly refused to answer any questions regarding the shooting of Jay Bias or the events that occurred at the Prince George's Plaza Mall on December 4, 1990. In fact, aside

from giving his name and address and stating that he understood the questions being put to him, Eiland gave no testimony at all. He

made clear that he would not answer any questions about the shooting. The effect was virtually the same as if Eiland had not Clearly, if Eiland had not could not be deemed

physically taken the witness stand. taken the stand, his prior

testimony

"inconsistent."

Similarly, we hold that Eiland's refusal to

testify was not inconsistent with his prior testimony, in which he

-12blamed the shooting on Tyler. See Barksdale v. State, 453 S.E.2d

2, 4 (Ga. 1995)(holding that a prior statement was not admissible because the witness refused to testify and hence "gave no testimony in court with which the prior statement could be judged to be inconsistent"); State v. Williams, 442 A.2d 620, 623 (N.J. Super. Ct. App. Div. 1982)(witness's refusal to answer questions was not "testimony" and thus could not be inconsistent with previous, outof-court statement); Davis v. State, 773 S.W.2d 592, 593 (Tex. Ct. App. 1989)("A refusal to testify is not an inconsistent

statement."). The Court of Special Appeals analogized the instant case to a case where a witness claims a loss of memory. We have noted that

a witness's testimony that he or she cannot remember events about which the witness testified earlier may be inconsistent with the earlier testimony, and hence the earlier testimony may be In

admissible under Nance as a prior inconsistent statement.

Nance, we held to be admissible prior statements by witnesses who testified that they remembered some parts of the events described in their earlier statements, but did not remember other parts: "Harris, McCormick and Brown did not uniformly testify that they had no memory of their sessions with police or the grand jury in which they made the identifications or statements. Instead, they remembered some parts of these earlier events, did not remember others, and outright denied or repudiated other parts. Their lapses of memory conspicuously occurred whenever the questions at trial approached matters

-13potentially implicating Nance and Hardy in the murder." 331 Md. at 572, 629 A.2d at 644-45. We explained:

"Inconsistency includes both positive contradictions and claimed lapses of memory. When a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied." (Citations omitted). Nance, 331 Md. 564 n.5, 629 A.2d at 640-41 n.5. MCCORMICK
ON

See also 2

EVIDENCE

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