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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No.2399

September Term, 2009

WARREN JEROME YATES v. STATE OF MARYLAND

Graeff, Kehoe, Rubin, Ronald B. (Specially Assigned), JJ.

Opinion by Graeff, J.

Filed: December 22, 2011

A

jury

sitting

in

the

Circuit

Court

for

Baltimore

County

convicted

Warren Jerome Yates, appellant, of second degree felony murder, use of a handgun in the commission of a crime of violence, use of a handgun in the commission of a felony, drug trafficking with a firearm, distribution of marijuana, and other offenses arising from the shooting of Sherry Worcester. The sentencing court imposed consecutive sentences totaling 95 years. On appeal, appellant raises four questions for review, which we have rephrased and reordered as follows: 1. Did the circuit court err in admitting hearsay evidence as a prior inconsistent statement? Was the evidence sufficient to support appellant's conviction of felony murder where the conduct resulting in the victim's death did not occur during the commission of the underlying felony? Did the circuit court plainly err in failing to instruct the jury that, in order to convict Mr. Yates of felony murder, the State had to prove that the conduct resulting in the victim's death occurred during the commission of the underlying felony? Was the evidence sufficient to support appellant's use of a handgun convictions in the absence of evidence that the gun used was a handgun?

2.

3.

4.

For the reasons set forth below, we shall affirm the judgments of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On January 7, 2009, Ms. Worcester was shot and killed outside of her home in Middle River, Maryland. She had gone outside to remove the trash and was talking with relatives

when the group heard gunshots. Ms. Worcester said: "I've been hit." She died of a single gunshot wound. On October 6, 2009, trial commenced against appellant and his co-defendant, Donald Kohler. The State presented testimony from nineteen witnesses. Four of these witnesses, Stephanie Foltz, William Griffin, Chris Jagd, and Justin Wimbush, testified that they were present at a home in Middle River, Maryland on January 7, 2009, when Mr. Kohler purchased four pounds of marijuana. Although details of the transaction varied, the

testimony was consistent that the drugs ultimately were given to Mr. Kohler in exchange for money, which was wrapped in a bag. Mr. Jagd testified that, after Mr. Kohler took the drugs and left the house, appellant "opened the bag and noticed that the money was fake." Appellant ran out of the house after Mr. Kohler. Three witnesses testified regarding the events that took place after the fake money was discovered. Mr. Wimbush testified that he saw appellant run after Mr. Kohler into an alley. He heard gunshots, and then he saw appellant running back toward the house from the top of the alley. Mr. Wimbush saw appellant get into a car with Mr. Griffin and leave. Mr. Jagd also saw appellant chase Mr. Kohler. Mr. Jagd initially testified that he did not see appellant shoot a gun, but he saw a gun in appellant's hand when appellant ran out the front door after Mr. Kohler. Counsel for Mr. Kohler then questioned Mr. Jagd about his statement to Detective Sekou Hinton that he saw appellant "aim the pistol, pause, aim like

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he was trying to hit him, pause, and then move the gun to the side and then fire." Mr. Jagd then stated that he "just remembered" that he did see Mr. Yates fire six shots with a "revolver." When questioned about his statement to the police that the gun was a "semiautomatic" handgun, he admitted that he did not "know the difference between an automatic and a revolver." Mr. Jagd testified that he spoke with appellant after the shooting. As discussed in more detail infra , he could not recall exactly what appellant said, but he testified that he thought appellant said: "I don't know if I got him" or "I think I got him." Mr. Griffin testified that he saw appellant run out the front door, and he then heard two gunshots. He met appellant at appellant's car, and as they were leaving, he asked

appellant: "[W]hat happened with the gunshots." Appellant replied that "he fired the gun." At the conclusion of the State's case, counsel for both appellant and Mr. Kohler moved for judgment of acquittal on all counts. The court denied the motions. Appellant then rested without introducing any evidence. Mr. Kohler introduced some evidence on his behalf, but he did not testify.1 The defendants renewed their motions for judgment of acquittal, which the court denied. As indicated, the jury convicted appellant of second degree felony murder, use of a handgun in the commission of a crime of violence, use of a handgun in the commission of
1

Mr. Kohler called the victim's sister -in-law as a witness, questioning her regarding potential inconsistent statements she made regarding the appearance of a man she saw immediately before the shooting, including her statement to the police that the man was between 17 and 20 years old. Counsel for Mr. Kohler then advised the jury that the parties stipulated that Mr. Kohler was born in 1980, which meant that Mr. Kohler was 29 years old at the time of the trial. -3-

a felony, drug trafficking with a firearm, distribution of marijuana, and other offenses.2 This timely appeal followed. DISCUSSION I. Hearsay Appellant's first contention involves Detective Hinton's testimony regarding his interview with Mr. Jagd after the murder. Detective Hinton testified, over objection, about a statement Mr. Jagd made to him after the murder. Mr. Jagd advised that, as appellant was leaving the scene, appellant stated: "I popped that [N. . .]." Appellant argues that this testimony was inadmissible hearsay, which severely prejudiced him. The State does not argue that the evidence was properly admitted. Rather, it asserts that, "[e]ven assuming that the trial court erred, reversal is not warranted because the essential content of Jagd's statement," that appellant admitted that he shot the gun, "was elsewhere properly admitted without objection, thereby obviating any unfair prejudice." The testimony at issue was elicited by counsel for Mr. Kohler, appellant's codefendant. During the State's direct examination of Mr. Jagd, he testified that he could not remember what appellant said to him after the shooting. On cross-examination, Mr. Kohler's attorney followed up on this questioning, asking again if Mr. Jagd remembered what appellant said to him when appellant was running back to the house after the shooting.
2

The jury convicted Mr. Kohler of second degree felony murder, conspiracy to distribute marijuana, and possession with intent to distribute marijuana. -4-

Mr. Jagd replied: "Nah. I said something to him. I said, did you shoot him? I don't remember exactly what he said. I think he said, I don't know if I got him, or something around that, or I think I got him. I'm not sure." Mr. Jagd testified that he could not remember appellant's exact words. When counsel for Mr. Kohler questioned Mr. Jagd about his statement to Detective Hinton, Mr. Jagd denied that appellant made the above-referenced statement, reiterating that he asked appellant, "did you shoot him," and appellant said: "I think so, or something around that." Counsel for Mr. Kohler subsequently revisited the issue with Detective Hinton. Detective Hinton testified that Mr. Jagd told him, during an interview shortly after the shooting, that appellant, while running back to the house, said: "I popped that [N. . .]." The court permitted the testimony as a "prior inconsistent statement." A prior statement by a witness that is inconsistent with the witness's testimony in court generally is admissible to impeach the credibility of the witness. Stewart v. State , 342 Md. 230, 236 (1996). Here, however, counsel for Mr. Kohler did not use the statement to show that Mr. Jagd was an incredible witness, but rather, he used the evidence as substantive evidence. Counsel for Mr. Kohler stated in closing argument that this statement showed that Mr. Kohler, who is white, was not the purported buyer in the drug deal. When prior inconsistent statements are offered to prove the truth of the matter asserted, the statements are hearsay. inadmissible. Md. Rule 5-802. Stewart , 342 Md. at 236. Generally, hearsay is

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Pursuant to Md. Rule 5-802.1(a), however, prior inconsistent statements are admissible as substantive evidence if certain requirements are met. The rule provides: 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 was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement. Md. Rule 5-802.1(a). Here, as appellant notes, there was no evidence that Mr. Jagd's statement to Det. Hinton was given under oath, reduced to writing and signed by the declarant, or recorded in a substantially verbatim fashion. Thus, the prior inconsistent statement was not admissible as substantive evidence. The trial court, however, never limited its use to impeachment, either at the time the statement was admitted or during jury instructions, and counsel for Mr. Kohler used the statement as substantive evidence. As indicated, however, the State asserts that, even if the admission of the statement was error, it was not reversible error because there was no unfair prejudice. The Maryland appellate courts have set forth the standard for assessing harmless error as follows: [W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed "harmless" and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable

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possibility that the evidence complained of

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