Blair v. State

Citations: 747 A.2d 702; 130 Md. App. 571; 2000 Md. App. LEXIS 37Docket: 5645, Sept. Term, 1998

Court: Court of Special Appeals of Maryland; March 6, 2000; Maryland; State Appellate Court

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Timothy Edward Blair was convicted of second-degree murder and related offenses for the shooting death of Edward Fissell outside Fissell's home in Baltimore County on January 27, 1997. Alongside Blair, John Fleig and James Fitzpatrick were also charged; Fleig pleaded guilty to accessory after the fact and agreed to testify against the other two defendants. During Blair's trial, he was acquitted of first-degree murder but faced convictions for second-degree murder, use of a handgun in a felony, and use of a handgun in a crime of violence, resulting in a total sentence of thirty-eight years.

On appeal, Blair raised three primary issues regarding the admissibility of evidence related to Fleig's statements and cross-examination of Fleig's attorney. The appellate court, presided over by Judge Hollander, ultimately decided to vacate Blair's convictions and remand the case for further proceedings, indicating that the trial court had made errors in allowing testimony and evidence that impacted the fairness of the trial. The case also highlighted familial tensions and a background of animosity that preceded the murder, including prior arguments and harassment between Fissell and some younger family members, including Blair. Witness testimony described the moments leading up to the shooting, including the sound of arguing and gunshots.

Dr. David Fowler, a deputy chief medical examiner, determined that Fissell was shot twice—once in the head and once in the neck—with the neck wound showing stippling, indicating close-range fire. Fissell also had multiple blunt force injuries prior to his death. Fleig's testimony is crucial to the case, stating that on January 26, 1997, he picked up Blair at his cousin Rose Perry's house, and they went to a Super Bowl party at Fitzpatrick's home. An argument broke out between Blair and Edwin Schwinn, leading to a physical altercation. Afterward, Blair became agitated, expressing anger about his uncle Fissell and discussing derogatory remarks about him. 

Fleig recounted a conversation where Blair, upset over his uncle's comments about his behavior, insisted on "getting even." A plan was formed where Fitzpatrick would lure Fissell outside, and Blair would attack him with a shovel, followed by Fitzpatrick decapitating him. Fleig agreed to drive them, initially believing they were not serious. During the drive, Fleig remarked on the inappropriateness of their plan, suggesting more respect for Fissell, and during this time, Blair inquired about Fleig's gun. Fleig produced his .380 Davis Semi-Automatic handgun, which was passed between Blair and Fitzpatrick, with Fitzpatrick eventually attempting to fire it from the car.

The plan to murder Fissell involved Fleig's gun. After parking a block from the Shore Property, Fleig and two accomplices, Blair and Fitzpatrick, prepared to execute the plan. Following a brief period of silence, Blair prompted action, and both he and Fitzpatrick exited the car with Fitzpatrick carrying the gun. Fleig lost sight of them until he heard gunshots. Upon their return, Blair was animated and recounting details of the act, while Fitzpatrick remained silent. Fleig later hid the gun and discarded it off a highway overpass, and Blair disposed of his sneakers to eliminate potential evidence.

Upon returning to Fitzpatrick's home, they washed their hands in vinegar to remove gunpowder residue and agreed to lie about their whereabouts. Fleig was questioned by police shortly after the murder and lied about his involvement due to fear of Fitzpatrick's threats. Both he and Blair were arrested and faced murder charges together. After a motion to sever their trials was denied, Fleig accepted a plea deal to testify against Blair in exchange for a lesser charge of accessory after the fact. The agreement included cooperating with police, wearing a wire, and attempting to locate the gun and sneakers, which were ultimately not recovered. After negotiating the plea deal, Fleig visited Blair in jail, suggesting he also cut a deal, but Blair refused, insisting on maintaining their alibi.

On October 15, 1997, Fleig pleaded guilty to a reduced charge under a plea agreement with the State, which required him to testify. The State agreed to drop murder and handgun charges, deferring Fleig's sentencing until after Blair's trial. The agreement stipulated a five-year sentence with eighteen months suspended if Fleig complied. Fleig confirmed his understanding that the State had to find his testimony helpful for the murder charges to be dropped. He acknowledged that cooperation was crucial for potential leniency, such as eligibility for home detention.

During cross-examination, Fleig was questioned about various matters, including his awareness of legal violations, the consistency of his statements to police regarding the murder, and his truthfulness during interviews. Notably, he struggled to recall specific details from a September 1997 interview when asked about suggesting Blair and Fitzpatrick not to commit the crime, admitting he was upset and didn't remember the situation clearly at the time. The exchange highlighted inconsistencies and his understanding of the plea agreement's conditions.

The appellant's counsel questioned Fleig about his failure to disclose all relevant information to the police, referencing his fear of James Fitzpatrick as a reason for withholding details. Fleig acknowledged that he had been in shock during his initial police interview and could not recall everything said, although he confirmed that he had previously mentioned Fitzpatrick's threats against him. The counsel played a tape of Fleig's prior statements to highlight inconsistencies, particularly regarding his expressed fears and the specifics of his situation.

Fleig testified about a "Statement of Facts" he reviewed and signed in connection with his guilty plea on October 15, 1997. He confirmed that both Fitzpatrick and another individual, Mr. Blair, discussed beating Edward Fissell with a shovel, although he initially attributed the suggestion to Fitzpatrick during the questioning. The counsel pointed out discrepancies in Fleig's accounts between his testimony and the written statement, particularly concerning the sequence of events and the location of the discussion about using a shovel. Fleig maintained that the conversation about the shovel occurred during their travel to the shore property and reiterated that the discussions had similarities both during the drive and at the house.

A bench conference addressed the admissibility of evidence related to a witness's (Fleig's) testimony and his prior statement. The prosecution expressed intent to introduce a tape of a September interview, arguing it would clarify Fleig's testimony, which indicated actions taken based on counsel's advice. Appellant's counsel contended that only portions consistent with Fleig's current testimony should be introduced, not the entire recording. The court confirmed that the summary was intended to support Fleig's plea agreement, emphasizing that the prosecution needed to establish Fleig's role as an accessory in a murder. The court noted that omissions from the statement do not automatically lead to impeachment unless they reveal inconsistencies, and allowed for cross-examination regarding specific actions Fleig did not disclose in his statement. On redirect, the prosecution clarified that Fleig did not write the statement and confirmed its purpose was related to his guilty plea, which he signed on his attorney’s advice. The court instructed the jury that the testimony of Fleig's attorney, Gunning, who waived attorney-client privilege to testify, was intended to rehabilitate Fleig's credibility rather than provide factual evidence.

Gunning testified about his representation of Fleig, stating that he was retained in February 1997 and that they discussed the incident multiple times. After the circuit court denied a severance motion on July 7, 1997, Gunning began plea negotiations, leading to an agreement with the State on September 4, 1997. During a September interview, the State aimed to demonstrate that Fleig's statements were consistent with his earlier comments to Gunning and his testimony in the trial of Fitzpatrick, a co-defendant. Questions posed to Gunning sought to affirm this consistency. Gunning confirmed, despite defense objections, that Fleig's statements during the September interview were consistent with what he had conveyed when retaining Gunning and with his testimony at Fitzpatrick's trial. The appellant contended that the court wrongly allowed this "consistency" testimony, arguing that Gunning did not specify what Fleig had said and that the testimony encroached on the jury's role. The State countered that Gunning's testimony was appropriate to rehabilitate Fleig’s credibility after the defense's impeachment attempts. Both parties cited Md. Rule 5-616(c)(2), which allows for the rehabilitation of a witness whose credibility has been challenged through prior consistent statements that counter the impeachment.

The trial court has broad discretion in determining the admissibility of evidence, a principle upheld by various Maryland cases. Absent clear error or abuse of discretion, appellate courts will not overturn these rulings. The Maryland Rules of Evidence, effective July 1, 1994, are largely modeled after the Federal Rules, except for Rule 5-616, which pertains to impeachment and rehabilitation of witnesses. A key case, Holmes v. State, clarified that under Maryland Rule 5-802.1(b), a witness's prior consistent statement can be admitted to counter claims of fabrication if the statement was made before the motive to fabricate arose. This mirrors the interpretation of a similar federal rule established in Tome v. United States.

The Court of Appeals ruled that for a prior consistent statement to be admissible under Md. Rule 5-802.1(b), it must be made before any alleged fabrication or motive to fabricate arises. In Holmes's appeal, Thompson's prior consistent statement was deemed inadmissible under this rule because it was intended to counter her prior inconsistent statement rather than rebut a motive to fabricate. However, the Court found that the prior consistent statement was admissible under Md. Rule 5-616(c)(2), which allows such statements to rehabilitate a witness whose credibility is attacked, provided that the consistent statement diminishes the impact of the impeachment. The Court clarified that these consistent statements are relevant not for their truth but for the context in which they were made, which counters the attack on credibility, thereby not subjecting them to the hearsay rules applicable under Md. Rule 5-802.1(b).

In Thompson's case, her consistent statement was relevant as it rehabilitated her credibility by explaining her initial reluctance to provide a statement to police due to fear of the petitioner. Thompson initially stated she did not see the murderer but later identified the petitioner after a visit from him. The defense attempted to impeach her credibility by referencing her inconsistent statement, but her consistent statement was found to counter this impeachment effectively. The Court emphasized that even under Md. Rule 5-616(c)(2), the party admitting a statement must still demonstrate its relevance. Relevant evidence, as defined by Md. Rule 5-401, must make a consequential fact more or less probable.

Under Rule 5-616(c)(2), a witness's prior consistent statement is relevant if it counters an attack on the witness's credibility. The court found that Gunning's testimony regarding Fleig's consistency was not relevant for this purpose. Fleig had been impeached with specific parts of his Statement and his testimony from Fitzpatrick's trial. In a similar case (Holmes), the State rehabilitated its witness by using a consistent statement made after an inconsistent one. However, in this instance, the State attempted to rehabilitate Fleig by challenging his allegedly inconsistent pre-trial statements with vague, conclusive testimony from Gunning, who claimed that Fleig's statements were consistent across different contexts. This attempt to establish a "consistency chain" was deemed ineffective because it relied on Gunning's opinion rather than actual statements, failing to address specific attacks on Fleig's credibility. The court concluded that the jury was not provided with sufficient evidence to evaluate the consistency of Fleig's statements, leading to the determination that the trial court erred in admitting Gunning's testimony.

Additionally, during the direct examination of Gunning, the State sought to admit a transcript of an audio recording from a September interview, which the court initially reserved ruling on. After some discussion, the court prompted the defense to specify which parts of the transcript should be excluded, emphasizing the need for specific objections. The defense argued that rehabilitation should not allow for a revisitation of witness testimony, referencing Maryland Rule 5-616(c) and the Holmes case regarding the purpose of rehabilitation.

The court addressed a cross-examination issue concerning the credibility of a witness, Mr. Fleig, particularly focusing on a September interview. The appellant's counsel was criticized for not cross-examining Fleig directly on the interview itself but rather on a summary of it. The prosecutor argued that the counsel's approach opened the door for the state to introduce prior consistent statements to rehabilitate Fleig's credibility, as the defense had attacked his reliability. The court decided to admit the transcript of the September interview with redactions, clarifying that its purpose was not substantive evidence but to restore credibility. The defense objected, claiming that the introduction of the transcript violated multiple legal principles, including hearsay and the right to confront witnesses, as protected under the 6th and 14th Amendments and Maryland law. Additionally, the appellant argued on appeal that the state misused the transcript to rehabilitate Fleig contrary to Rule 5-802.1(b) and contended that the prejudicial impact of the transcript outweighed its relevance under Rule 5-403.

Evidence may be excluded if its probative value is significantly outweighed by potential unfair prejudice, confusion, misleading the jury, or concerns about undue delay and cumulative evidence. The State argues that the transcript was properly admitted under Rule 5-616(c)(2), while the appellant claims prejudice which is deemed preserved for review. However, neither Rule 5-802.1(b) nor Rule 5-616(c)(2) justifies the admission of the entire transcript. The case of Holmes, 350 Md. 412, 712 A.2d 554, is referenced to clarify that prior consistent statements must predate any motive to fabricate, which in this case arose at or before the crime. Consequently, the September interview was inadmissible under Rule 5-802.1(b) because Fleig's motive to fabricate existed from the time of the crime. Furthermore, the interview was not admissible under Rule 5-616(c)(2) as it did not effectively rebut the attack on Fleig's credibility, which focused on specific omissions and inconsistencies. The transcript included irrelevant material that did not pertain to the impeachment or rehabilitation of Fleig's credibility, and allowed the jury access to a document that essentially mirrored Fleig's trial testimony, thus unfairly benefiting the State. Additionally, the appellant contested the court's refusal to allow inspection of Gunning's notes from his interviews with Fleig, as Gunning's testimony centered on those statements. The trial judge did not review these notes nor allow them as a sealed exhibit, leaving their contents unknown, which could impact the defense's case.

Defense counsel requested access to notes from Mr. Gunning regarding conversations with Mr. Fleig, arguing that these notes were necessary to identify inconsistencies in Fleig's statements made before September 4, 1997, which were relevant to the State's attempt to rehabilitate Fleig through Gunning's testimony. The prosecutor objected, asserting that the defense was not entitled to Gunning's notes just because Fleig had waived attorney-client privilege. The court agreed with the prosecutor's concern about the defense's entitlement to the notes but allowed questioning of Gunning about the consistency of Fleig's statements. Ultimately, the court denied the request to seal Gunning's notes as part of the record. On appeal, the appellant reiterated the argument for access to Gunning's notes, focusing on the implications of the attorney-client privilege and work product doctrine after Fleig's waiver. The appellant also cited Maryland Rule 5-612, asserting that if a witness uses a writing to refresh memory, other parties have the right to inspect it, suggesting that Gunning's ability to protect his notes was contingent on not using them during testimony. However, the appellant did not explicitly claim that Rule 5-612 granted access to Gunning's notes.

Blair argues for access to certain notes based on Fed.R.Evid. 612 but provides no supporting authority for Md. Rule 5-612. The State counters each of Blair's points except regarding the work product doctrine, failing to cite any law explicitly barring Blair's access to the notes. Under C.J. 9-108, individuals cannot be compelled to testify against attorney-client privilege, which prevents disclosure of confidential communications made for legal advice, as established in Levitsky v. Prince George's County. The attorney-client privilege was waived in this case, allowing the State to call Gunning as a witness. Notably, the work product doctrine, while related to confidentiality, is distinct from attorney-client privilege; it protects materials from discovery that lack other privileges. The attorney-client privilege belongs to the client, while the work product protections belong to the attorney. Fleig shared information about Fissell's murder with Gunning seeking legal advice, intending for that communication to remain confidential. However, Fleig ultimately waived his privilege, as depicted in a colloquy with the prosecutor, where Fleig acknowledged the implications of his attorney's potential testimony concerning statements made before a plea agreement.

Mr. Fleig consented to Mr. Gunning testifying about their communications before the plea agreement, waiving his attorney-client privilege. As a result, Gunning's notes are not protected under this privilege. The discussion then shifts to the work product doctrine, which safeguards materials prepared in anticipation of litigation. This doctrine is broader than attorney-client privilege and encompasses two types of work product: fact and opinion. Fact work product includes materials gathered by counsel for trial preparation, while opinion work product reflects the attorney's mental processes and is generally more protected from disclosure. Attorney notes from witness interviews typically fall under opinion work product due to their subjective nature. The work product doctrine aims to protect legal strategies and thoughts, but it is not absolute; relevant non-privileged facts may be discoverable if essential for case preparation. The Supreme Court has indicated that if critical evidence is concealed in an attorney's files, discovery may be warranted, especially in situations where witnesses are unavailable or difficult to reach.

The legal excerpt addresses the Supreme Court's interpretation of the work product doctrine, particularly in the case of Nobles v. State. In this case, Robert Nobles was convicted of bank robbery, with the prosecution's case heavily relying on eyewitness identifications. The defense investigator interviewed these eyewitnesses and documented their statements in a report. During the trial, Nobles's counsel sought to use this report to impeach the eyewitnesses' credibility; however, the prosecution requested access to it. The district court ruled that the report's disclosure was only necessary if the investigator testified about the witnesses' statements.

When the defense later called the investigator to testify but chose not to produce the report, the court barred the investigator from discussing his interviews. The Supreme Court upheld this decision, emphasizing that the report was crucial for assessing the credibility of the eyewitnesses. Nobles argued that the report was protected under the work product doctrine, which safeguards an attorney's mental processes and analysis. However, the Court determined that this protection was not absolute and could be waived. By presenting the investigator as a witness, Nobles effectively waived any privilege concerning the report's contents. The Court concluded that the necessity of the report for revealing the truth in the trial context outweighed the claim of privilege. Overall, the excerpt highlights the conditions under which the work product doctrine applies and the implications of waiving that protection in a trial.

Counsel utilizes notes, documents, and internal materials during trial to effectively present their client's case, typically without waiving confidentiality. However, when these materials are used for testimonial purposes, standard evidentiary rules apply, including cross-examination and document production requirements. The Fourth Circuit has indicated that disclosing work product to an expert witness can lead to a waiver of its protection, especially if the disclosure occurs under conditions where the attorney cannot limit future use. The concept of "subject matter waiver" applies when any privileged communication is disclosed outside its confidential context, waiving privilege for all related information. In this case, the appellant sought specific notes from Gunning that were vital for cross-examination and impeachment, arguing that the State could not present Gunning's testimony about Fleig's statements while withholding relevant notes. The court found that the protection of the work product doctrine was waived when Gunning testified about the consistency of Fleig's statements. Consequently, the trial court erred in denying access to Gunning's notes regarding Fleig's statements. Additionally, the appellant referenced due process principles from Carr v. State, which align with the Supreme Court's ruling in Jencks v. United States, supporting the claim for access to Gunning's notes.

The excerpt addresses the principles of cross-examination and the rights of an accused regarding access to a witness's prior statements. It establishes that defense counsel must be allowed to inspect prior statements of State witnesses for cross-examination purposes, as ruled in *Carr*. This right is not limited by pretrial discovery rules or restricted to exculpatory statements. Access to these statements under the Jencks-Carr principles depends on whether the prosecution has possession of them. The State argued that notes from defense attorney Gunning were not in its possession, but the court did not need to resolve this issue due to the work product doctrine.

The State contended that any errors in the case were harmless beyond a reasonable doubt, following the standard established in *Dorsey*. This standard necessitates that a reviewing court must be convinced that errors did not influence the verdict to deem them harmless. However, the court concluded that cumulative errors were not harmless, particularly noting that Gunning’s testimony improperly reinforced Fleig's testimony and that the transcript allowed the jury to see prior consistent statements. The court also highlighted the inability to assess the harm from not reviewing Gunning's notes, as the trial court denied the request to include them in the record. Consequently, the judgment of conviction was vacated, and the case was remanded for further proceedings, with costs to be borne by Baltimore County.

Gunning testified that the State's Statement did not fully capture all facts provided by Fleig to the prosecutor. Under Maryland law (Md.Code 1974, 1998 Repl. Vol. 9-117 of the Courts. Judicial Proceedings Article C.J.), a party cannot corroborate their testimony if it has been impeached by their own prior statements made outside the presence of the opposing party. Federal Rule of Evidence 801(d)(1)(B) states that a witness's prior statement is not considered hearsay if the witness testifies at trial, is subject to cross-examination, and the statement is consistent with their testimony, offered to counter allegations of recent fabrication or improper motive. The Supreme Court, in United States v. Nobles, emphasized that while the work-product doctrine is primarily used in civil cases, its importance in criminal justice is crucial for ensuring fair trials and accurate determinations of guilt or innocence, necessitating safeguards for proper case preparation and presentation.