McClain v. State

BARBERA, J.

Petitioner Elliott McClain was convicted by a jury in the Circuit Court for Baltimore City of first degree murder and related offenses. At trial, the State offered into evidence an audiotape of a prior statement by a State’s witness, Sheila Billings, without explicitly offering at that time a theory for its admission. The trial court admitted that audiotape, among other items of physical evidence, saying that it was admissible as either a prior consistent statement or a prior inconsistent statement.

Petitioner asks us to decide whether the court erred in admitting the audiotape statement of Ms. Billings, given that the State did not offer the grounds for admission and the court did not make explicit findings regarding admissibility. We are also asked to decide whether the trial court erred in sending to the jury room during deliberations, absent a specific request from the jury, the audiotape statement of Ms. *241Billings and other prior audiotape statements that were admitted into evidence. For the following reasons, we hold that the trial court did not err in either respect.

I.

This case arises out of the death of Tidell Harris, who was shot during the early morning hours of June 1, 2004. The next day, Kerwayne Stanton was arrested on drug related charges. He informed the arresting officer that he had witnessed the shooting the previous night. The police transported Stanton to the police station, where he spoke with Detective Ron Ciraolo. Based on information that Stanton supplied, Detective Ciraolo prepared two photographic arrays. Stanton identified the photographs of the Petitioner, Elliott McClain, also known as “Goo” or “Gooh,” and Kevin Fletcher, known as “Pooh,” as depicting the two gunmen who shot Harris, known as “Popcorn” (hereafter, “the victim”). Stanton then provided a recorded statement of his account of the incident.

During the days that followed, Detective Ciraolo separately questioned Fletcher and Petitioner at the police station. Fletcher gave a recorded statement in which he implicated himself and Petitioner in the shooting of the victim. Petitioner, at his interview, told Detective Ciraolo the following: he was at Sooner’s Bar on the night of the shooting; the victim came into the bar, remained there for a short time, then left; thereafter, Petitioner heard gunshots outside, looked out the window, and saw a man lying in the street; Petitioner then told Sheila Billings, a server at the bar, to call the police.

Several months later, Detective Ciraolo conducted an audio-taped interview of Sheila Billings. Billings told Detective Ciraolo that, on the night of the shooting, Petitioner and the victim were in the bar; the victim left about thirty minutes before Petitioner himself left the bar; then a girl ran into the bar and said that the victim had been shot, outside. The audiotape contains the following exchange between Detective Ciraolo and Billings:

*242[Ciraolo]: Um, Miss Billings, do you remember or can you remember after Gooh [Petitioner] left the bar about how much time went by before the girl came running back in saying that ah ...
[Billings]: Well, ah, when the girl ran in I believe that was before he left. Ah, it was about, now I might be wrong on this, it, it was either just right, right after she came in and said it or it was right before and I’m not real clear on that.
[Ciraolo]: Okay.
[Billings]: Okay, so I’m not so, I believe it was, no I’m . wrong. It was like thirty minutes. He left and it’s right before he was, that girl came in, when she ran in and said he was shot and he had left.
[Ciraolo]: So ...
[Billings]: And he never, he never came back.
[Ciraolo]: So he was already out of the bar ...
[Billings]: Right.
[Ciraolo]: when the girl came in ...
[Billings]: Right.
[Ciraolo]: and told you ...
[Billings]: That’s correct, yes.
[Ciraolo]: Okay, um, it’s a little confusion.
[Billings]: Right.
[Ciraolo]: Just to clarify, Popcorn [the victim] left ...
[Billings]: Yes.
[Ciraolo]: Gooh [Petitioner] left ...
[Billings]: Yes.
[Ciraolo]: Sometime after that the girl came in and said he was shot?
[Billings]: Right.

At trial, the State called Billings to testify about the events of June 1, 2004. Contrary to her audiotaped statement to Detective Ciraolo, in which she stated that Petitioner left the bar after the victim but before the report that the victim had *243been shot, Billings answered “yes,” when asked whether Petitioner was still in the bar when the girl ran in and said someone had been shot. The State then attempted to show Billings a transcript of her November 2004 interview with Detective Ciraolo, and, upon defense counsel’s request, the following bench conference took place:

[Defense]: Your Honor, I object to giving the witness anything to refresh her recollection. She testified to something, and she does not need the document to refresh her recollection for any purpose. She was asked a question, and she answered it.
[The Court]: Well, if she answered the question inconsistently or incorrectly with regard to her previous statement, the State can certainly put the statement in front of her, and see if that refreshes her recollection.
[Defense]: Very good. But there’s no foundation which would suggest that we needed that, Your Honor, so to allow her to review the document before that question is asked is problematic.
[The Court]: I disagree.
[Defense]: All right.
[The Court]: You all have had an opportunity to review the statement, I mean I assume — what’s your proffer, [State]? Why are you putting the statement in front of her?
[State]: She advised the police that Goo [Petitioner] left after Popcorn [the victim], and it was before the individual came in and said somebody had been shot.
[Defense]: The statement actually says that Goo [Petitioner] was in the bar. The statement says that Goo [Petitioner] was in the bar when the person came in, and then after police questioning she says, “Well, I don’t really recall which.” So it’s not a matter of whether or not she recalls as she is sitting here today; it’s a question of whether or not the State can show that the police managed to turn her statement around into something more ambiguous, and that’s inappropriate as a purpose for her *244reviewing this statement at this point in time, Your Honor.
[The Court]: Well what does the statement say, [State]?
[State]: Would you like a copy?
[The Court]: Sure.
(State hands document to the Court.)
[The Court]: And you direct me to what?
[State]: Well, really, the whole thing, but more towards the end, where they ask her—
[The Court]: Well, where?
[State]: On page 2, it said “Did somebody follow Popcorn out of the bar?” She said, “Goo.” As it goes on, there is one portion where she is unclear, however, she does ultimately say that Goo followed Popcorn out of the bar, and that Goo was not in the bar when the individual came in and said somebody had been shot.
[The Court]: Well this doesn’t say Goo followed Popcorn out of the bar. It says — thirty minutes afterwards?
[State]: That’s what she said initially, yes.
[The Court]: And your proffer is, that means that Goo followed Popcorn out of the bar because he left thirty minutes after Popcorn did?
[State]: My whole point in calling her is to show that you can’t hear the shots from the bar, and to show that the Defendant was not in the bar when the individual came in and said that Popcorn had been shot. Because as I’m sure Your Honor recalls from the Defendant’s statement, he said when the shots rang out, he heard them, and he was looking Ms. Sheila [Billings] in her face. However, in the statement to police, she stated that Goo was not in the bar when the individual came in and said somebody had been shot.
[The Court]: All right. I’m going to overrule the objection. She can look at her statement—

Billings reviewed the transcript of her statement to police and stated that it refreshed her recollection. She then testi*245fled that Petitioner left the bar before the woman came in and said Harris had been shot. The State asked Billings whether the police had told her what to say during the audiotaped interview. To that question, Billings answered, “Oh, no.”

Following Petitioner’s re-cross examination of Billings, the State moved to admit the taped statement into evidence, without specifying a basis for admission. Counsel for Petitioner entered a general objection, and the trial judge replied, simply, “Overruled. In it comes.” At that point, the audiotape was played for the jury.

After closing arguments, the trial court considered whether to send to the jury room the taped statements of Billings, Stanton (the arrestee who identified the photos of Petitioner and Fletcher as the men who were involved in the shooting), and Fletcher — the latter two of which also had been admitted into evidence.1 The State advocated for the audiotapes to be sent to the jury room, citing Maryland Rule 4-326(b).2 Counsel for Petitioner argued that sending the tapes to the jury room would be prejudicial insofar as it would allow the jury to listen repeatedly to them. The trial court, when describing the three taped statements, stated: “They were all admitted as either ... prior inconsistent statements or statements *246consistent that were admitted to rehabilitate after cross examination.” A bit later the court said, in reference to the taped statements of Billings and Stanton, that both “were offered into evidence by the State pursuant to Maryland Rule 5-802.1(a) and/or (b)....” The court then ordered the tapes sent to the jury room, explaining that the tapes are items of evidence that the jurors “are entitled to review and are required to consider in the course of their deliberations.”

The jury found Petitioner guilty of first degree murder, conspiracy to commit murder, and related handgun offenses. Petitioner appealed and the Court of Special Appeals affirmed the convictions in an unreported opinion. He then petitioned this Court for a writ of certiorari, which we granted, to answer the following questions:

1. Where a witness’s taped statement to police is offered and used for the purpose of refreshing recollection, may an appellate court affirm the admission of the tape into evidence under the theory that the statement was admissible as both a prior inconsistent statement and a prior consistent statement, where the prosecutor did not offer the statement under these hearsay exceptions, and where the trial court did not make the requisite findings of fact?
2. May a trial court, over defense counsel’s objection, send testimonial exhibits to the jury room at the beginning of deliberation where the jury did not ask to review those exhibits?

II.

Petitioner claims that the trial court erred in admitting Billings’s taped statement into evidence. He contends that the statement was used only to refresh Billings’s recollection, pursuant to Maryland Rule 5-612, and was inadmissible under that Rule. The State, however, does not argue that Billings’s statement was admissible under Rule 5-612. The State instead argues that Billings’s statement was admissible under *247Maryland Rule 5-802.1,3 as either a prior inconsistent, or prior consistent, statement. In so arguing, the State acknowledges that the prosecution did not give a theory of admission when offering the statement into evidence. Petitioner counters that the prior statement does not satisfy the requirements of Rule 5-802.1, and the trial court failed to make requisite findings of fact necessary to admit evidence under that Rule. We conclude, for the reasons that follow, that the court admitted the audiotape as a prior inconsistent statement, under Rule 5-802.1(a), and the court did not err in doing so.

The State first produced the transcript of Billings’s prior statement, at trial, after Billings testified that Petitioner was in the bar when the woman entered and said the victim had been shot. During the ensuing bench conference, counsel for Petitioner objected “to giving the witness anything to refresh her recollection.” The court responded: “Well, if she answered the question inconsistently or incorrectly with regard to her previous statement, the State can certainly put the statement in front of her, and see if that refreshes her recollection.” (Emphasis added.) The State explained that it called Billings as a witness “to show that the Defendant was not in the bar when the individual came in and said that Popcorn had been shot ... [and] in the statement to police, [Billings] stated that Goo [Petitioner] was not in the bar when the individual came in and said somebody had been shot.” The court then overruled Petitioner’s objection, allowing Billings to review her prior statement. In short, the bench *248conference included references both to refreshing Billings’s recollection, and to the inconsistency between her initial testimony at trial and her statement to Detective Ciraolo.

When the State later offered Billings’s audiotaped statement into evidence, the court admitted the statement without articulating the basis for doing so. We reject the possibility that the court admitted the taped statement as a statement used to refresh recollection. Indeed, given the absence of any express ruling to the contrary, we readily can — and do— indulge the presumption that the trial court knew full well that the audiotaped statement was not admissible under a theory of refreshed recollection. See Germain v. State, 363 Md. 511, 534, 769 A.2d 931, 944 (2001) (“When a party uses an earlier statement of his own witness to refresh the witness’ memory, the only evidence recognized as such is the testimony so refreshed; and the party may not put the statement in evidence ....”) (quoting United States v. Rappy, 157 F.2d 964, 967 (2d Cir.1946)). Removing any doubt in that regard is that the trial court, when deciding whether to send to the jury room the taped statements of Billings and Stanton, said the statements of those two witnesses “were offered into evidence by the State pursuant to Maryland Rule 5-802.1(a) and/or (b)....”

Petitioner seizes upon the statement we have just quoted to argue that the court incorrectly “lumped” together the audio-taped statements of Billings and Stanton by characterizing both as having been admitted into evidence as prior inconsistent and/or prior consistent statements. That mis-characterization, Petitioner claims, is the result of the State’s failure to provide a ground for admission of Billings’s taped statement. Petitioner, however, does not point to any evidence clearly suggesting that Billings’s statement was admitted under any Rule other than 5-802.1. In the absence of any such evidence proving otherwise, we take the trial court at its word.

We are equally convinced that the trial court admitted the audiotaped statement as a prior inconsistent statement under Rule 5-802.1(a). Indeed, the discussion among the court and *249counsel that preceded the court’s admission of Billing’s audio-taped statement reflects the court’s acceptance of the State’s proffer that the audiotaped statement would be inconsistent with Billings’s initial testimony. The next question, then, is whether the court correctly admitted Billings’s audiotaped statement under Rule 5-802.1(a).4

In order to be admissible under section (a) of the Rule, the prior statement must be “inconsistent with the declarant’s testimony” and either: (1) made under oath at a qualifying proceeding; (2) made in writing and signed by the declarant; or, pertinent to the facts of this case (3) “recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement....” As for the former requirement, Billings told Detective Ciraolo that Petitioner had left the bar before the woman entered and said the victim had been shot. That is inconsistent with her initial testimony at trial that Petitioner was in the bar when the woman entered. As for the pertinent latter requirement, Billings’s prior statement was audiotape-recorded by the police during an interview with her; therefore, the audiotape offered by the State is “substantially verbatim,” recorded by “electronic means,” and “contemporaneous! ] with the making of the statement.” The prior statement, therefore, satisfies the requirements of Rule 5-802.1(a).

Petitioner argues that the statement was not inconsistent because, after being shown the statement to refresh her recollection, Billings amended her testimony to say that Petitioner left the bar before the woman entered; therefore, at the time the statement was admitted into evidence after recross examination, it was not inconsistent with the amended testimony. Petitioner’s argument incorrectly discounts Billings’s initial, unequivocal testimony that Petitioner did not leave the bar after the victim left but before the woman *250entered. That initial testimony, though subsequently amended, could have influenced the jurors.

When a jury is presented with such conflicting testimony from a single witness, courts cannot speculate as to which side of the contradiction the jury will assign greater credibility. See Bellamy v. State, 403 Md. 308, 332, 941 A.2d 1107, 1121 (2008) (explaining that “what evidence to believe, what weight to be given it, and what facts flow from that evidence are for the jury ... to determine”) (quoting Dykes v. State, 319 Md. 206, 224, 571 A.2d 1251, 1260-61 (1990)). In this case, the trial court’s allowing the prior statement into evidence provided an additional source from which the credibility of the inconsistent portions of Billings’s testimony could be considered. See 6 Lynn McLain, Maryland Practice: Maryland Evidence State and Federal § 613:l(a) (2d ed. 2001) (stating that, when a witness’s testimony is inconsistent with a prior statement of the witness, “[t]he inference may then be made that the witness could not have been correct both times and may be wrong at trial, either because of faulty memory or deliberate prevarication”). When determining whether inconsistency exists between testimony and prior statements, “in case of doubt the courts should lean toward receiving such statements to aid in evaluating the testimony.” Kenneth S. Broun, McCormick on Evidence § 34, p. 153 (6th ed. 2006). Cf. Joseph F. Murphy, Jr., Maryland Evidence Handbook § 1302[F] (4th ed. 2010) (“Flat contradiction ... is not the only test of inconsistency.... [CJontrast 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.” (quoting Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957))). For purposes of Rule 5-802.1(a), Billings’s prior statement to Detective Ciraolo was inconsistent with her initial testimony at trial.

Petitioner further argues that, even if the prior statement of Billings otherwise satisfied the requirements of Rule 5-802.1(a), the trial court erred by not making express findings, on the record, that those requirements were met. Spe*251eifically, Petitioner interprets Rule 5-104(a) as demanding that such findings be made expressly before a prior statement may be admitted into evidence. The State disagrees, asserting that the language of Rule 5-104(a) contains no such requirement and pointing out that this Court in Davis v. State, 344 Md. 331, 339, 686 A.2d 1083, 1086 (1996), held that no explicit finding of inconsistency is required for admission of evidence under Rule 5-802.1(a).

Rule 5-104(a) provides: “Preliminary questions concerning ... the admissibility of evidence shall be determined by the court....”5 In support of his interpretation of the Rule, Petitioner cites Corbett v. State, 130 Md.App. 408, 746 A.2d 954 (2000). In Corbett, the Court of Special Appeals was asked to determine if, when a witness testifies that he or she does not remember a particular event, that testimony is, for purposes of Rule 5-802.1(a), “inconsistent” with an earlier written statement by the witness about the event. Id. at 421, 746 A.2d at 960. The Court of Special Appeals held that the inability to remember is “inconsistent” with the prior statement if such memory loss is falsely professed in order to avoid testifying on the matter at issue. Id. at 425-26, 746 A.2d at 963. The Court of Special Appeals explained that it was “confronted with an absence of any finding on the issue” of whether the witness’s memory loss was feigned or genuine. Id. at 426, 746 A.2d at 963. As a result, the Court of Special Appeals concluded: “The court erred in permitting [the witness’s] statement to come into evidence as a prior inconsistent statement without first making a finding on that preliminary, predicate issue.” Id. at 426-27, 746 A.2d at 963 (citing Rule *2525-104). Nowhere, however, does the Corbett Court require that such a finding be made on the record.

Unlike in Corbett, the facts of this case demonstrate that the trial court made a finding, albeit implicitly, on the admissibility of Billings’s audiotaped statement as a prior inconsistent statement. During the bench conference that preceded the court’s allowing the statement into evidence, the court itself inquired whether Billings testified “inconsistently or incorrectly” when compared with her prior statement, and evidently, based on the State’s proffer, found that the two were inconsistent. Later, the court announced that the audiotaped statement was admitted under Rule 5-802.1. The court’s comments certainly indicate, even if not expressly, that the court admitted the statement as a prior inconsistent statement under the Rule. We presume, moreover, that the court recognized its obligations to satisfy itself of the existence of the two prerequisites for admission of the statement under that Rule. See Davis, 344 Md. at 339, 686 A.2d at 1086 (stating that the trial court’s determination of inconsistency in witness statements was implied, when supported by the record, because “judges are presumed to know and, properly to have applied, the law”).

The Court of Special Appeals in Corbett emphasized that “the decision whether a witness’s lack of memory is feigned or actual is a demeanor-based credibility finding that is within the sound discretion of the trial court to make,” and such a decision cannot be made “from the cold record.” 130 Md.App. at 426, 746 A.2d at 963. In the instant case, however, there is no need for the trial court to have made a “demeanor-based credibility finding.” Unlike the witness in Corbett, Billings did not assert an inability to remember the events surrounding the shooting; moreover, the “cold record” itself demonstrates the inconsistency between Billings’s initial testimony and her prior audiotaped statement.

Finally, Rule 5-802.1, unlike some other Rules, does not require explicitly that findings be placed on the record, and we decline to read into the Rule such a requirement. See Powell *253v. State, 394 Md. 632, 641 n. 7, 907 A.2d 242, 247 n. 7 (2006) (citing Maryland Rules 4-222(c), 4-314(a)(3) and 4-342(g) — the language of each of which explicitly requires the court to make findings on the record — as support for holding that a Rule will not be interpreted to include such a requirement when it contains no explicit language mandating that findings be placed on the record).

We hold that the trial court committed no error by admitting into evidence the taped recording of Billings’s prior statement to Detective Ciraolo.

III.

Next, Petitioner argues that the trial court erred when, at the beginning of the jury’s deliberations, the court sent to the jury room the audiotaped statements of Billings, Stanton, and Fletcher. Petitioner’s argument is two-fold: (1) sending the audiotapes violated Rule 4-326(b)’s prohibition on sending “depositions” to the jury room because the taped statements were, for all relevant intents and purposes, depositions; and (2) Rule 4-326(c)6 allows evidence to be sent to the jury only upon request, and in this case the jury made no such request to have the audiotapes. For the reasons discussed below, we hold that the court did not err in sending the audiotaped statements to the jury room.

Rule 4-326(b) provides that, “[ujnless the court for good cause orders otherwise,” jurors may take to the jury room “the charging document and exhibits that have been admitted in evidence, except that a deposition may not be taken into the jury room without the agreement of all parties and the consent of the court.” Section (c) of Rule 4-326 states that a court “may make available to the jury testimony or other *254evidence requested by it.” Recently, in Adams v. State, we explained the scope of sections (b) and (e):

We construe Rule 4-326(b) as meaning precisely what it says: that, “unless the court for good cause orders otherwise,” exhibits admitted into evidence may be taken to the jury room by the jury while it deliberates. For the Rule to have meaning apart from section (c), the “good cause” order must relate to specific exhibits and be made as to it or them prior to the jury being excused to deliberate.
Section (c) applies only where the request by the jury is for “testimony” or “other evidence,” not admitted as an exhibit, and not therefore permitted to accompany the jury to the jury room.

415 Md. 585, 599-600, 4 A.3d 499, 507-08 (2010). In other words, section (b) of Rule 4-326 presumes all exhibits in evidence, except for depositions, may go to the jury room unless “good cause” exists to withhold them from the jury. Here, the audiotapes in question had been admitted into evidence as exhibits, and, therefore, section (b) guides our inquiry.

We decline to endorse Petitioner’s argument that the audio-taped statements are “depositions” for purposes of section (b). When interpreting the Maryland Rules, “if the language of a rule is clear and unambiguous, it will be applied thusly in a common-sense manner.” Brown v. Daniel Realty Co., 409 Md. 565, 585, 976 A.2d 300, 311 (2009). The term “deposition” in Rule 4-326(b) is clear and specific, as evidenced by the detailed descriptions in Rule 4-261 of when a “deposition” may be taken in a criminal case, the manner in which it shall be taken, and the circumstances under which it may be used at trial. Specifically, Rule 4-261 (d) instructs that “[t]he procedure for taking a deposition shall be as provided by Rules 2-401(f), 2-414, 2-415, 2-416, and 2447(b) and (c).” The audio-taped statements in this case do not meet those procedural requirements.

*255Under Rule 2-414(a), a “deposition” conducted in Maryland “shall be taken before any person authorized to administer an oath.” In addition, under Rule 2-415(a), “[t]he deponent shall be put on oath by the officer before whom a deposition is taken....” In none of the three taped statements at issue was the witness placed under oath by anyone, let alone by a “person authorized to administer an oath.” Accordingly, the statements are not “depositions” for purposes of Rule 4-326(b).

Under Rule 4-326(b), “[ejxhibits admitted into evidence may go to the jury room absent some specific reason, i.e., good cause, to exclude them.” Adams, 415 Md. at 601, 4 A.3d at 508. Whether “good cause” exists to withhold admitted evidence from the jury is a determination left to the discretion of the trial court and will only be overturned on appeal if the trial court abused that discretion. Id. at 589, 4 A.3d at 501.

In the present case, the trial court heard arguments from both sides before sending the audiotapes to the jury room. Defense counsel asserted that “it prejudices my client with the tapes being played repeatedly in the jury room without benefit of testimony.... They do not have that to deliberate with in the jury room and this tape that’s being pounded on these jurors over and over and over, it becomes problematic.” In subsequently ruling that the tapes would be provided to the jury, the court explained that “we’re not forcing the jurors to listen to the tapes. It’s as any other piece of evidence. It’s up there for their review should they choose to review it.” The court then highlighted other evidence that would be sent to the jury room along with the audiotapes, including exhibits submitted by the defense.

From this record, it is clear to us that the trial court considered and reasonably rejected the Defense’s argument concerning potential “good cause” for withholding the tapes from the jury. We therefore hold that the trial court did not abuse its discretion in sending to the jury room the taped statements of Billings, Stanton, and Fletcher.

*256JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PAID BY PETITIONER.

. The taped statement by Stanton to the police was admitted as both a prior inconsistent statement and a prior consistent statement. Fletcher’s taped statement to police was admitted as a prior inconsistent statement. Petitioner does not challenge in this Court the admission of those two statements.

. Maryland Rule 4-326(b) provides:

(b) Items taken to jury room. Sworn jurors may take their notes with them when they retire for deliberation. Unless the court for good cause orders otherwise, the jury may also take the charging document and exhibits that have been admitted in evidence, except that a deposition may not be taken into the jury room without the agreement of all parties and the consent of the court. Electronically recorded instructions or oral instructions reduced to writing may be taken into the jury room only with the permission of the court. On request of a party or on the court’s own initiative, the charging documents shall reflect only those charges on which the jury is to deliberate. The court may impose safeguards for the preservation of the exhibits and the safety of the jury.

. Maryland Rule 5-802.1 provides, in relevant 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 was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement;
(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.

. Because, as we shall discuss, the court committed no error in admitting the statement as a prior inconsistent statement under Rule 5-802.1(a), we do not address whether it also was admissible as a prior consistent statement under Rule 5-802.1(b).

. Maryland Rule 5-104(a) reads, in full:

(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination, the court may, in the interest of justice, decline to require strict application of the rules of evidence, except those relating to privilege and competency of witnesses.

. Maryland Rule 4-326(c) reads:

(c) Jury request to review evidence. The court, after notice to the parties, may make available to the jury testimony or other evidence requested by it. In order that undue prominence not be given to the evidence requested, the court may also make available additional evidence relating to the same factual issue.