Tyler v. State

SALMON, Judge,

dissenting in which BLOOM, J., joins.

I dissent from that portion of this Court’s opinion holding that the testimony given at Eiland’s December 1993 trial was admissible against Tyler. I would reverse and remand for a new trial.

Tyler had the right, guaranteed by the Sixth Amendment to the United States Constitution,1 to confront Eiland regarding his previous trial testimony. The right to confront a witness includes the opportunity for full and effective cross-examination, meaning that Tyler’s attorney had the right to put questions to Eiland and obtain “immediate answers” to those questions. Tyler was denied his right to confront Eiland. Moreover, Eiland’s prior sworn testimony did not fit within the Nance rule. It was hearsay “bare and unredeemed.” United States v. Allied Stevedoring Corp., 241 F.2d 925, 933 (2d Cir.), cert. denied, 353 U.S. 984, 77 S.Ct. 1282, 1 L.Ed.2d 1143 (1957).

On March 3, 1994, in front of the jury, Eiland was sworn and proceeded to give the legal equivalent of his name, rank, and serial number. He was then asked five questions relating to Jay Bias’s murder. Those questions were:

1. Did you shoot Jay Bias?
*6002. Are you the same Mr. Eiland that testified in a previous proceeding?
3. Were you in the car when Jay Bias was shot?
4. Were you in the Prince George’s Plaza mall on December 4, 1990?
5. Were you in a green Mercedes that was occupied with Jerry Tyler at the Prince George’s Plaza mall on December 4, 1990?

To each of those questions Eiland responded, “I can’t answer the question.” At the request of the State, Judge Ahalt ordered Tyler to answer the questions. Tyler remained adamant. His retort to every additional substantive question was, “I can’t answer the question.” Counsel for the State, Tyler, and Eiland then had a bench conference. At the bench conference, Judge Ahalt interpreted Eiland’s answers as a refusal to testify.2 It is important to note that the words “I can’t answer that question” were not interpreted by Judge Ahalt or counsel as meaning “I am unable to answer that question.” The trial judge next held Eiland in contempt and recessed court for eighteen days. Prior to the recess, Eiland was not cross-examined by counsel for Tyler.3

*601On March 21, 1994, Eiland took the stand again, this time out of the jury’s presence. He was asked only two questions concerning the Bias murder, viz:

1. Did you shoot Jay Bias?
2. Were you at the Prince George’s Plaza mall on December 4, 1990?

To both questions, Mr. Eiland again answered, “I can’t answer that question.” The trial judge asked, “Can you tell me any reason why you continue to refuse to testify?” Eiland answered, “No.” Judge Ahalt ruled that Eiland had “puiposefully and intentionally violated” an order of court by his refusal. Eiland was thereupon again held in contempt and remanded to the custody of the sheriff. Over appellant’s objection, the State was then allowed to read into evidence what Eiland had testified to at his December 1993 trial.

RIGHT TO CONFRONTATION

It is crystal clear that Eiland would have refused to answer any substantive question regarding the murder of Jay Bias if additional questions had been asked of him by either the court or counsel. This was the reason Judge Ahalt held that Eiland was “unavailable” as a witness. If Eiland had a legally justified reason to remain silent, Eiland’s prior trial testimony would unquestionably have been inadmissible under Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), and Nance v. State, 331 Md. 549, 572, 629 A.2d 633 (1993). In Douglas, the Supreme Court held that a defendant’s rights under the Confrontation Clause were violated when the prosecution was allowed to read into evidence prior testimony of a witness implicating the defendant, after the ■witness had invoked his Fifth Amendment privilege against self-incrimination. In Nance, the Court said: “Witnesses who are not actually available for cross-examination despite their presence in the court are, for example, those who refuse to testify by asserting the spousal privilege or the privilege against self-incrimination.” Id. at 572, 629 A.2d 633 (citing People v. Redd, 135 Ill.2d 252, 142 Ill.Dec. 802, 837, 553 N.E.2d 316, 351 (1990)). See also, 4 Weinstein & Berger, *602Weinstein’s Evidence United States Rules, ¶ 801(d)(l)(A)(01) at 801-144 (1988); McClain, Maryland Rules of Evidence, p. 225 (1994 ed.). Here, Eiland’s refusal was without justification. The question then becomes: For purposes of the implementation of the right to confrontation as guaranteed by the Sixth Amendment, does it matter whether Eiland’s refusal was justified? The answer to that question should determine the outcome of this case. Impliedly, the majority - answers, “yes” to that question. In my view, with one exception discussed infra, it does not matter why Eiland refused to testify. Because he would not answer substantive questions, he was not available for cross-examination.-

The purpose of the Confrontation Clause was explained one hundred years ago in Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895):

The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits * * * being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

(Emphasis added).

More recently, in California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970), the Court said:

Viewed historically, then, there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.
This conclusion is supported by comparing the purposes of confrontation with the alleged dangers in admitting an out-of-court statement. Confrontation: (1) insures that the witness will give his statements under oath—thus impressing him with the seriousness of the matter and guarding *603against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the “greatest legal engine ever invented for the discovery of truth”; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.

(Emphasis added).

In Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974), the Supreme Court explained further:

The Sixth Amendment to the Constitution guarantees the right to an accused in a criminal prosecution “to be confronted with the witnesses against him.” This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Confrontation means more than being allowed to confront the witness physically. “Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.” Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). Professor Wigmore stated:
“The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.” (Emphasis in original.) 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940).

Because, as stated in Davis, supra, cross-examination cannot be had “except by the direct and personal putting of questions and obtaining immediate answers,” Tyler had no opportunity to cross-examine Eiland fully and effectively. The fact that Eiland’s refusal to answer questions was unjustified cannot change this reality.

The majority says, at 522:

*604In the case of Eiland, there was nothing to prevent the fact finders from looking upon him, listening to him, observing his demeanor as he answered or refused to answer, and assessing him in some meaningful fashion. None of this occurred in Simmons v. State.

By analogy: If a prisoner of war gives his interrogator his name, rank, and serial number but refuses to answer any other questions, the questioner may very well assess him in some meaningful fashion (prisoner is brave, clean, alert, fidgety, etc.), but the questioner will not gain any insight into the prisoner’s credibility. Likewise, the jury could gaze upon Eiland while he was on the stand. Because he refused to answer every question regarding Jay Bias’s murder, however, the jury could not possibly accurately judge his credibility on that subject.

The rule that is here applicable was set forth in Mayes v. Sowders, 621 F.2d 850, 856 (6th Cir.), cert. denied, 449 U.S. 922, 101 S.Ct. 324, 66 L.Ed.2d 151 (1980):

A witness is not available for full and effective cross-examination when he or she refused to testify. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971). This is equally true whether the refusal to testify is predicated on privilege or is punishable as contempt, so long as the refusal to testify is not procured by the defendant. Douglas v. Alabama, supra, 380 U.S. at 420, 85 S.Ct. at 1077; Motes v. United States, 178 U.S. 458, 471, 20 S.Ct. 993, 998, 44 L.Ed. 1150 (1900); United States v. Mayes, 512 F.2d 637, 650-52 (6th Cir.), cert. den., 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975).

(Footnote omitted; emphasis added).

In this case, there was no finding that Eiland’s unavailability was procured by the defendant. Thus, the exception mentioned in Mayes is inapplicable.

*605In Mayes the defendant was charged with the robbery of a service station. A witness was called by the prosecution who answered two substantive questions. One of the questions was whether he was at the scene of the robbery for which defendant was charged. The witness answered, “No.” Thereafter, the witness refused to testify further despite a conference in the judge’s chambers and ultimately a contempt citation. The prosecutor called an investigating police officer who contradicted the witness’s testimony that he was not at the scene of the robbery. The officer proceeded to testify, inter alia, that the witness had told him that he and the defendant were at the service station, that he and the defendant robbed it, and that in the course of the robbery defendant shot the service station attendant. The Mayes Court held that the defendant’s right to confrontation was violated by the admission of the witness’s prior statement to the police officer. Id. at 856.

It is true that the mere fact that a hearsay declarant cannot be cross-examined does not necessarily mean that admission of the hearsay violates the Confrontation Clause. Simmons v. State, 333 Md. 547, 556, 636 A.2d 463 (1994). The proponent of the hearsay, however, must prove: 1) the necessity of introducing the out-of-court statement, and 2) the out-of-court statement bears adequate indicia of reliability. Id. Necessity was shown here because Eiland was unavailable as a witness. A hearsay statement bears adequate indicia of reliability if it is based upon a “firmly rooted” hearsay exception. Id. at 556-557, 636 A.2d 463. No firmly rooted hearsay exception is here applicable.

Even if the hearsay exception is not “firmly rooted,” the statement may still be admissible if the proponent makes a showing that the statement has “particularized guarantees of trustworthiness.” Nance, 331 Md. at 560, 629 A.2d 633. There is a presumption, however, which the State must overcome, that the out-of-court statement is unreliable. Id. at 564, 629 A.2d 633. The mere fact that the statement is made under oath is not enough to guarantee trustworthiness. United States v. Lang, 904 F.2d 618, 623 (11th Cir.), cert. denied, *606498 U.S. 924, 111 S.Ct. 805, 112 L.Ed.2d 258 (1990). The “particular guarantee of trustworthiness” must be shown by relevant circumstances that “surround the making of the statement and that render the declarant particularly worthy of belief.” Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3148, 111 L.Ed.2d 638 (1990). Such circumstances may not include other evidence that would corroborate the veracity of the declarant’s out-of-court statement. Simmons, supra, 333 Md. at 561-62, 636 A.2d 463. Eiland’s testimony given at his own trial in December 1993 before Judge Ahalt and a jury was completely self-serving. If convicted at the December 1993 trial, Eiland would have been eligible to receive a prison sentence of thirty years—the same sentence he received from Judge Ahalt after his first conviction. Eiland had the strongest of motives to testify falsely in order to absolve himself of blame and to cast it entirely .on Tyler. The State failed to overcome the presumption that Eiland’s December 1993 trial testimony was unreliable. The admission of Eiland’s prior testimony violated Tyler’s Sixth Amendment right to confront his accuser.

THE NANCE EXCEPTION

I do not agree that Eiland’s testimony fits within the Nance exception to the rule against hearsay. The State failed to prove two necessary predicates for the application of that rule, .viz: 1) that Eiland’s testimony presented to the jury on March 3, 1994 was inconsistent with the testimony Eiland gave at his own trial in December 1993 and 2) that Eiland was available at Tyler’s trial for cross-examination regarding his prior testimony-

In order for a statement to be admissible under the Nance rule, there must be an inconsistency between the prior testimony and the witness’s trial testimony. Nance, supra, 331 Md. at 568, 629 A.2d 633. I read the term “inconsistency” as used in the Nance exception to mean self-contradiction. In support of the modern rule allowing use of a prior inconsistent statement as substantive evidence, the Nance Court did not define the term “inconsistent.” It did, however, justify the *607modern rule by quoting two authorities—McCormick and Learned Hand. Both of those authorities stress the element of self-contradiction in the witness’s testimony, ie., the fact-finder compares the story the witness told earlier with the story he now tells. The Nance Court said:

The modern rule is widely supported by the commentators. McCormick asserts that the availability of cross-examining the declarant satisfied the aim of the hearsay rule to exclude untrustworthy evidence:
[T]he witness who had told one story aforetime and another today has opened the gates to all the vistas of truth which the common law practice of cross-examination and re-examination was invented to explore. It will go hard, but the two questioners will lay bare the sources of the change of face, in forgetfulness, carelessness, pity, terror or greed, and thus reveal which is the true story and which the false. It is hard to escape the view that evidence of a previous inconsistent statement, when the declarant is on the stand to explain it if he can, has in high degree the safeguards of examined testimony.
C. McCormick, The Turncoat Witness: Previous Statements as Substantive Evidence, 25 Tex.L.Rev. 573. 577 (1947). Accord 3A Wigmore, supra, § 1018(b) (because purpose of hearsay rule is satisfied when witness is present and subject to cross-examination, former extrajudicial statement should be granted substantive value).
Supporters of the modern rule have long rejected the notion that the trier of fact must observe contemporaneously the declarant’s demeanor when making the out-of-court statement. Judge Learned Hand aptly observed that when a jury decides that what a witness says now is not the truth, but what he said before was truthful, they nonetheless are deciding from what they see and hear of that person in court. Di Carlo v. United States, 6 F.2d 364, 368 (2d Cir.1925). Some 30 years later Judge Hand returned to this theme:
*608It is one thing to put in a statement of a person not before the jury: that is indeed hearsay bare and unredeemed. But it is quite a different matter to use them when the witness is before the jury, as part of the evidence derived from him of what is the truth, for it may be highly probative to observe and mark the manner of his denial---- Again and again in all sorts of situations we become satisfied, even without earlier contradiction, not only that a denial is false, but that the truth is the opposite.
United States v. Allied Stevedoring Corp., 241 F.2d 925, 933 (2d Cir.), cert. denied, 353 U.S. 984, 77 S.Ct. 1282, 1 L.Ed.2d 1143 (1957).

331 Md. at 565-66, 629 A.2d 633 (emphasis added).

The majority holds, at 540, that Tyler’s refusal to answer the questions “Did you shoot Jay Bias?” and “Were you in the car when Jay Bias was shot?” is just as inconsistent with his prior testimony as if he had answered “I can’t remember” to both questions.

At its core, nearly all testimony at any trial is memory testimony.4 When a witness says, “I saw Jeffrey Tyler shoot Jay Bias,” that testimony means, “I remember seeing Jeffrey Tyler shoot Jay Bias.” Therefore, if a witness says at a second trial, “I can’t remember who shot Jay Bias,” the two answers are inconsistent. The Nance Court recognized this in note 5:

Inconsistency includes both positive contradictions and claimed lapses of memory. State v. Devlin, 251 Mont. 278, 825 P.2d 185, 187 (1991). When a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. People v. Johnson, 3 Cal. 4th 1183, 14 Cal.Rptr.2d 702, 719, 842 P.2d 1, 18 (1992).

331 Md. at 564, 629 A.2d 633.

*609Eiland did not testify5 inconsistently at Tyler’s trial. He told one story at his own (second) trial and no story whatsoever at Tyler’s second trial.6 Eiland’s trial performance subjected him to a charge of contempt7 but not to a charge of perjury.

*610 AVAILABILITY FOR CROSS-EXAMINATION

To be “available for cross-examination” within the meaning of Nance, the witness must respond willingly to questions.

In Nance, the Court explained this by quoting from United States v. Owens, 484 U.S. 554, 561-562, 108 S.Ct. 838, 844, 98 L.Ed.2d 951 (1988), as follows:

The Supreme Court added with respect to Fed.R.Evid. '801:
Ordinarily a witness is regarded as ‘subject to cross-examination’ when he is placed on the stand, under oath, and responds willingly to questions. Just as with the constitutional prohibition, limitations on the scope of examination by the trial court or assertions of privilege by the witness may undermine the process to such a degree that meaningful cross-examination within the intent of the Rule no longer exists....

331 Md. at 573, 629 A.2d 633 (emphasis added).

“[T]he greatest legal engine ever invented for the discovery of truth” (California v. Green, supra) cannot possibly operate if a witness refuses to answer questions. Because Eiland refused to answer all substantive questions, he was not available for cross-examination within the meaning of Nance.

Judge BLOOM authorizes me to state that he concurs with this dissent.

. The Confrontation Clause of the Sixth Amendment to the United States Constitution declares: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” The Confrontation Clause of Art. 21 of the Maryland Declaration of Rights proclaims: "That in all criminal prosecutions, every man hath a right ... to be confronted with the witnesses against him....” The Confrontation Clause of the Sixth Amendment and Art. 21 of the Maryland Declaration of Rights are in pari materia. Craig v. State, 322 Md. 418, 430, 588 A.2d 328 (1991).

. The court found:

I am persuaded by the proceedings that occurred in my presence on the record before all parties concerned, that the witness fully knows and understands what he’s doing here in Court, is of sufficient age and knowledge to comprehend the nature of the proceedings; that he is not under any medication or anything that would interfere with his ability to understand what is occurring here in the proceedings.
I further conclude that he has been asked relevant questions of inquiry in the trial that we are presently in the process of conducting; that he has no justified reason for not testifying.

. Eiland was at no time, in the jury's presence, turned over to the defense for cross-examination. The reason for this, evidently, was that everyone at trial assumed that Eiland’s refusal to testify made him unavailable for either direct or cross-examination. After the 18 day recess, out of the presence of the jury, Tyler’s attorney asked Eiland two questions regarding whether he had been threatened. Eiland refused to answer those questions.

. Opinion testimony is one major exception.

. When counsel or the Judge asked a question of Eiland and he refused to answer, it is doubtful whether this constituted testimony. In Douglas, supra, the prosecutor read to the witness several portions of a statement that the witness [Loyd] had given to the police. After reading a portion of the statement, the prosecutor would then ask Loyd, "Did you say that?” In regard to this procedure, Justice Brennan, for the Court, said,

Although the solicitor’s reading of Loyd’s alleged statement, and Loyd's refusal to answer, were not technically testimony, the solicitor’s reading may well have been the equivalent in the jury’s mind of testimony that Loyd in fact made the statement; and Loyd's reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true. Since the solicitor was not a witness, the inference from this reading that Loyd made the statement could not be tested by cross-examination. Similarly, Loyd could not be cross-examined on a statement imputed to him but not admitted by him....

Douglas, 380 U.S. at 419, 85 S.Ct. at 1077.

. Other states agree that a refusal to testify is not inconsistent with prior testimony or statements. People v. Rios, 163 Cal.App.3d 852, 210 Cal.Rptr. 271, 279 (1985) (recognizing that, where a “stonewalling” witness refuses to answer any questions at trial, "there is simply no ‘statement’ in the record that is inconsistent ... with prior statements; there is no ‘express testimony' at all from which to infer or deduce implied inconsistency”); Barksdale v. State, 265 Ga. 9, 453 S.E.2d 2, 4 (1995) (holding that a witness’s prior videotaped statement was inadmissible because the witness “refused to answer any questions [at trial] and thus gave no testimony in court with which the prior statement could be judged to be inconsistent”); State v. Williams, 182 N.J.Super. 427, 442 A.2d 620, 623 (App.Div.1982) (holding that the witness’s refusal "to answer any questions about the crimes he had detailed in an earlier statement” was not “testimony” and thus could not “create an inconsistency between trial testimony and an out-of-court statement”); Davis v. State, 773 S.W.2d 592, 593 (Tex.Ct.App.1989) (recognizing that a refusal to testify is not an inconsistent statement); see also Commonwealth v. Brown, 619 S.W.2d 699, 703-04 (Ky.1981), overruled on other grounds, 652 S.W.2d 69 (Ky.1983); State v. Platt, 85 N.C.App. 220, 354 S.E.2d 332, 335 (1987), rev. denied, 320 N.C. 516, 358 S.E.2d 529 (1987).

. A criminal information was filed naming Eiland as a defendant in the Circuit Court for Prince George’s County, Maryland (CT 94-07724). *610The criminal information charged that Eiland, between March 3, 1994 and March 21, 1994, "did willfully disobey a lawful order of the Honorable Judge Arthur M. Ahalt ... ”' in violation of the common law (contempt). Eiland pleaded guilty to the contempt charge on March 31, 1995. He was sentenced by the Honorable William Missouri to a two-year term of imprisonment, with all but twenty-two days suspended. One of the terms of his probation is that Eiland "testify truthfully as to a co-defendant previously tried, if there is a new trial.”