Robinson v. State

730 A.2d 181

354 Md. 287

Ramone Marcasean ROBINSON v. STATE of Maryland.

No. 89, Sept. Term, 1997.

Court of Appeals of Maryland.

May 25, 1999.

Daniel H. Weiss, Asst. Public Defender (Stephen E. Harris, Public Defender, and Denise Oakes Shaffer, Asst. Public Defender, on brief), Baltimore, for Petitioner.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER, and MARVIN H. SMITH (Retired, Specially Assigned), JJ.

BELL, Chief Judge.

We granted certiorari in this case to address two issues: whether the trial court's refusal to order disclosure, in connection with the cross examination, of the prior statements, made by two police officers to the Internal Affairs Division (IAD) of the Prince George's County Police Department, was error, in that it violated the right of Ramone Marcasean Robinson, the petitioner, to a fair trial, and whether the trial court properly instructed the jury concerning the IAD investigation. The Court of Special Appeals discerned no error. See Robinson v. State, 117 Md.App. 253, 275, 277-78, 699 A.2d 570, 581, 583-84 (1997). Accordingly, that court affirmed the judgment of the Circuit Court for

Prince George's County. We shall reverse.

I.

The petitioner was convicted by a jury of, inter alia, assault with the intent to murder, robbery with a dangerous weapon, assault with the intent to rob, conspiracy to commit robbery with a dangerous weapon, three counts of use of a handgun in the commission of a crime of violence, two counts of false imprisonment, and battery,¹ all in relation to the robbery of a 7-11 store in Forestville, Maryland, on January 18, 1996. The petitioner was sentenced to 50 years imprisonment.

The State and the petitioner differed sharply as to the facts of the robbery, as well as on the petitioner's involvement in it. Civilian witnesses, i.e., the victims, established that two men, both masked, were involved in the robbery. One of the men, clad in blue jeans, black sneakers, and a "plaid" shirt,² accosted one of the victims while she was emptying trash, put a gun to her head and took money from her purse. The other man forced the other two victims to lie on the floor and demanded the store's money. The testimony was that the store's safe, to which the victims did not have the key, was taken from the store by the robbers.³ Also presented was testimony concerning the post arrest search of the scene, which resulted in the recovery of the safe and some U.S. currency and coins in wrapping tubes from the parking lot. In addition, the State offered evidence that it recovered $139.00 in coins, which were contained in "the same kind of tube" used by 7-11, and ninety-six Maryland lottery tickets from the front seat of the Nissan Pathfinder the petitioner was driving.

The State also offered, in its case, evidence directly linking the petitioner to the robbery and detailing his participation in the assaults on the two police officers. Officer Smith and Corporal Hooper, who responded to the call that the 7-11 was being robbed, testified that, upon their arrival, they saw two men in ski masks come out of the store and enter a Nissan Pathfinder. Officer Smith stated that when that vehicle accelerated straight toward him, he fired at it and it skidded to a stop in a snowbank. Corporal Hooper testified that, at that point, prior to slipping on the ice and sliding to the passenger side of the Pathfinder, he yelled at the occupants to place their hands out of the vehicle and that one of the gunmen fired at Officer Smith. Corporal Hooper also testified that after he slipped and fell, shots were fired at him from the passenger side window. Both officers returned the gunfire. According to the officers, Tyrone Glover surrendered without further incident, but the petitioner got out of the vehicle with a gun in his hand. Rather than heed Corporal Hooper's command to drop the gun, they continued, the petitioner pointed it and started to scream and pull the trigger, prompting them to fire at him, striking him four times. The gun the petitioner used was recovered from the scene, having fallen near the petitioner's right hand. The testimony also was that a gun holster was found in the petitioner's pants.

By contrast, the petitioner, the lone defense witness, testified that he played no role in the 7-11 robbery. While he admitted that he was driving the Pathfinder, he said that he was driving Tyrone Glover home and that he stopped at the 7-11 because Glover asked him to stop there. The petitioner claimed to have waited for Glover in the Pathfinder until he received a page and went to use the pay phone. He testified that Glover returned to the vehicle, and fumbled around in it before going back into the store. When Glover returned the second time, the petitioner stated that he was waiting in the Pathfinder, and that when he started to drive out of the parking lot, several shots were fired at his truck from behind a snowbank. One of the shots struck one of the Pathfinder's tires, causing the petitioner to lose control and the Pathfinder to skid into a snowbank. The petitioner maintains that he got out of the Pathfinder with his hands raised, but that he nevertheless was shot several times. He denied being armed or having any knowledge of the gun holster.

At trial, during his counsel's cross-examination of Officer Smith and Corporal Hooper, the petitioner learned that both officers had given statements to the IAD concerning the events surrounding the robbery and the arrest of the petitioner and his alleged co-conspirator, Tyrone Glover. The petitioner did not ask to review Officer Smith's IAD statement at any time during Officer Smith's cross-examination; however, when Corporal Hooper also testified that he had provided a statement to the IAD, the petitioner requested a bench conference, at which he requested both officers' IAD statements, prompting the following exchange:

DEFENSE COUNSEL: "Your Honor, it appears there is no—I'm looking at Rule 4-263, discovery in circuit court. And it talks about disclosure upon request and we made a request in this case. Witnesses, statements of the defendant, statements of codefendants, reports or statements of experts, evidence for use at trial and property of the defendant. But it does not talk about witness' statements. It has been my understanding—had been my understanding, Your Honor, that the witness' statements were discoverable, but they didn't have to hand them over until that witness was on the witness stand or had finished direct examination.

THE COURT: "I think that refers to witness' statements that are statements taken by investigating officers of witnesses, not statements given to Internal Affairs. My question to you is what authority do you have that in the discovery in a criminal case, statements taken under the police officers' Bill of Rights by Internal Affairs are discoverable?

* * * *

DEFENSE COUNSEL: "These two officers, Officer Smith and Officer Hooper, are obviously the two stars of this particular show so to speak. And they both have made extensive arguments or at least Officer—Corporal Smith has. He gave a 30 page written statement to Internal Affairs. And this other Officer, Officer Hooper, gave a two page typewritten statement to Internal Affairs....[A]nd I have no way of knowing if there's anything exculpatory."

Although at the conclusion of this colloquy, the prosecutor expressed her belief that the statements were not discoverable and the court noted, "I spent five years in [the State's Attorney's] office and I never saw a statement made to Internal Affairs," the court asked the prosecutor to "inquire of the availability of those statements only to determine whether there is anything exculpatory within them and for no other purpose at this point" and, recessing for the day, told counsel to be in its chambers the next day.

When the petitioner resumed cross examination of Corporal Hooper on the next day, he established that a Fraternal Order of Police attorney had spoken with both officers. His attempt to show that the attorney actually represented Corporal Hooper in the Internal Affairs investigation was met by an objection by the State. At the bench conference convened to consider the objection, the following occurred:

THE COURT: "I'm going to sustain the objection. But more than that, if this area is gone into by further interrogation or in final argument, I intend on my own to instruct this jury that I have viewed the statements, that these police officers were exonerated and that I have found the statement to be totally consistent with their testimony here today.

DEFENSE COUNSEL: "Your Honor, my last question to him was based solely on his answer to my previous question.

THE COURT: "I'm just telling you what I'm going to do.

DEFENSE COUNSEL: "Right."

THE COURT: "You're free to do whatever you would like to do.

DEFENSE COUNSEL: "What I'm saying, Your Honor, is that I asked him if he talked with him. He's the one who brought up talking to the lawyer. I wanted to make sure which lawyer he was talking to and for what purpose. I was not trying to get into the Internal Affairs Investigation, and he was the one that brought that up and not me.

THE COURT: "We're all on the same page. The ball is in your court."

Counsel had appeared in the court's chambers, as instructed, along with an attorney from the County Attorney's office and, as reported by the court,⁴ the following occurred:

"Based upon [defense counsel's] request at the close of our trial day yesterday, I requested that counsel appear in chambers at 8:30, and that the statements made by Officer Smith and Hooper to Internal Affairs be available to us at that time. Both counsel and Mr. Aurich from the County Attorney's Office representing the plaintiff and defendant appeared and we informally discussed procedurally how we would proceed...