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Two hearsay challenges, two different results

Maryland’s top court has upheld a man’s first-degree murder conviction and double-life sentence in a 2004 Baltimore slaying, rejecting his argument that a prosecution witness’s recorded pretrial statement to police should not have been played for the jury.

But in a second case it decided the same day, the Court of Appeals overturned the conviction of a man who helped rob a Baltimore video-game store, saying pretrial testimony linking the defendant to the crime was improperly read to jurors.

The decisions, both written by Judge Mary Ellen Barbera, concerned the recurring issue of when hearsay can be admitted at trial.

Under Maryland Rules of Evidence, hearsay is an out-of-court statement that is offered to prove the truth of the matter stated. The rules generally forbid the introduction of such testimony because it has not been subjected to cross-examination — but there are exceptions, such as the one for a witness’s prior inconsistent statements at issue in Elliott McClain’s case.

The high court, in upholding McClain’s murder conviction, said the trial judge had properly admitted witness Sheila Billings’ recorded statement to police that she had seen McClain leave Sooner’s Bar after Tidell Harris on June 1, 2004.

Baltimore City Circuit Judge Robert Kershaw allowed the out-of-court statement into evidence after Billings testified at trial that — contrary to what she had told police — McClain did not leave the bar until after Harris had been shot.

The prosecution then used a transcript of her statement to the police to refresh Billings’ recollection.

Billings, a server at the bar, then changed her trial testimony to match what she had told police.

After Billings was re-cross-examined by defense counsel, the prosecution was allowed to admit her statement to police as substantive evidence.

McClain appealed his conviction on that ground.

The intermediate Court of Appeals upheld the conviction and sentence, as did the Court of Appeals.

Under Maryland Rule of Evidence Rule 5-802, a witness’s “prior inconsistent statement” can be admitted at trial.

Though the recorded statement was not subjected to cross-examination, its admission was valid because the jurors could weigh the statement’s credibility against Billings’ in-court testimony, the court said.

“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…,” Barbera wrote for the 5-1 majority last Wednesday. “[A]llowing the prior statement into evidence provided an additional source from which the credibility of the inconsistent portions of Billings’ testimony could be considered.”

Former Judge Joseph F. Murphy Jr., who retired Sept. 30, heard arguments in the case but did not participate in the court’s decision.

Chief Judge Robert M. Bell, the court’s sole dissenter, said the recorded statement should not have been admitted under the prior inconsistent statement exception because it was fully consistent with Billings’ ultimate, “refreshed” testimony that McClain had followed Harris out of the bar.

The majority “overlooks an incontrovertible fact, that, at the end of the day, when all is said and done, there was no inconsistency between Ms. Billings’ trial testimony and her audiotaped statement,” Bell wrote.

University of Baltimore School of Law professor Lynn McLain said the ruling was in keeping with the court’s previous decisions on the admissibility of prior inconsistent statements, particularly by reluctant witnesses who contradict their earlier statements.

“This exception was created because of turncoat witnesses,” said McLain, who has authored a treatise on evidence.

Conviction reversed

By contrast, the high court unanimously overturned Leon Dulyx’s conviction for aiding and abetting an armed robbery of a GameStop store in the 2400 block of North Charles Street in the May 2008.

At trial, Baltimore City Circuit Judge John Carroll Byrnes admitted DeAndre McIntyre’s statement at a preliminary suppression hearing that he had identified Dulyx from a photo array as one of three men involved in the robbery.

McIntyre, the store’s only customer, said he was abducted and briefly held by the three men as they drove away after taking $150, a cell phone and two wallets.

The Court of Special Appeals had upheld Dulyx’s conviction.

But the Court of Appeals reversed, saying the testimony from the pretrial hearing was inadmissible hearsay.

Defense counsel was not given a sufficient opportunity under Maryland Rule 5-804 to question McIntyre’s credibility at the hearing because the judge had limited the questioning to the coerciveness of the police’s photo-identification procedure, the high court said.

“At trial, petitioner’s counsel may have wished to cross-examine McIntyre not just on the reliability of his extrajudicial identification … but also on his reliability as a witness, generally,” Barbera wrote. “For example, [Dulyx’s] counsel may have wished to probe whether McIntyre possessed any potential bias or prejudice or explore McIntyre’s character for untruthfulness.”

Brian S. Kleinbord, who heads the Maryland attorney general’s criminal appeals division, said the decision does not prevent the state from ever introducing suppression hearing testimony at trial.

“The court is not saying that there might not be another case where a suppression hearing affords a full opportunity” for cross-examination, Kleinbord said. “The court found [in this case] that there was not that full opportunity.”

McLain, the law professor, said the decision and the facts of Dulyx’s case provide the makings of a good test question for would-be Maryland lawyers.

“This … is a good one about opportunity to cross-examine,” she said. “I wouldn’t be surprised if this showed up on a bar exam in a few years.”



McClain v. Maryland, CA No. 17, Sept. Term 2010. Reported. Opinion by Barbera, J. Dissent by Bell, C.J. Argued Oct. 8, 2010. Filed March 21, 2012.


Did the judge err in admitting into evidence a pre-trial, audiotaped statement from a prosecution witness that contradicted her initial testimony at trial?


No; the statement is admissible under the prior-inconsistent-statement exception to the hearsay rule.


Kellie M. Black for petitioner; Gary E. O’Connor for respondent.

RecordFax # 12-0321-20 (41 pages).



Dulyx v. Maryland, CA No. 34, Sept. Term 2011. Reported. Opinion by Barbera, J. Argued Dec. 5, 2011. Filed March 21, 2012.


Did the trial judge err in admitting into evidence a prosecution witness’ testimony from a pre-trial suppression hearing?


Yes; Defense counsel did not have a full opportunity to cross examine the witness at the suppression hearing, rendering that testimony inadmissible hearsay.


Brian M. Stanford for petitioner; Todd W. Hesel for respondent.

RecordFax # 12-0321-21 (23 pages).