Ball v. State

MOYLAN, Judge. The appellants, Sheldon Savior Ball, Joseph Melvin Wright, and Kenneth D. Coley were jointly tried by a Baltimore City jury, presided over by Judge Robert I.H. Hammerman, for murder, attempted armed robbery, and related offenses. The appellant Wright was convicted of 1) felony-murder, 2) the use of a handgun in the commission of ³⁴⁷ a felony, and 3) the unlawful carrying of a handgun. He was sentenced to life imprisonment.

The appellant Coley was found guilty of felony-murder and sentenced to life imprisonment, an indefinite fifteen years of which sentence were suspended. The appellant Ball was found guilty of 1) murder in the second degree, 2) the use of a handgun in the commission of a crime of violence, and 3) the possession of a handgun. He was sentenced to thirty years on the murder conviction and fifteen years on the use of the handgun in a crime of violence, the two sentences to be served consecutively. The appellants Wright and Ball both raise the following contention: 1.

That the trial judge committed reversible error when he refused to sever their trials from each other and from the trials of the appellant Coley and another codefendant, Dwight Gilmore; The appellants Wright and Coley both raise the following contention: 2. That the trial judge erred by refusing to instruct the jury that felony-murder is murder in the first degree; The appellant Ball alone raises three other contentions: 3. That the evidence was not legally sufficient to sustain his convictions; 4. That he was denied a fair trial by the prejudicial nature of the State’s closing argument; and 5.

That the trial judge erroneously admitted an excised statement given by codefendant Coley; subsequently admitted the same statement with the names disclosed; and refused to permit the appellant Ball to cross-examine his codefendant, Kenneth Coley. The appellant Coley alone raises six separate contentions: 6. That the evidence was not legally sufficient to sustain his conviction for felony murder; 7. That the trial judge erroneously refused to suppress his extrajudicial confessions; ³⁴⁸ 8.

That the trial judge erroneously refused to allow him to cross-examine Sergeant Brandner as to what the Assistant State’s Attorney told the appellant prior to the execution of the plea agreement; 9. That the trial judge erroneously refused to permit defense counsel in closing argument to read a principle of law from a Court of Appeals opinion; 10. That the trial judge erroneously instructed the jury that the appellant’s testimony was given freely and voluntarily; and 11. That he is entitled to be resentenced because the sentence imposed is vague and indefinite.

The appellant Wright alone raises two additional contentions: 12. That the trial court erred in accepting a verdict of guilty on the charge of using a handgun in the ' commission of a felony or a crime of violence, where the verdict sheet indicated that the jury had acquitted him of that offense; and 13. That his trial and conviction for felony-murder and for the use of a handgun in the commission of a felony were barred by the protection against double jeopardy. Contentions 3 and 6: Legal Sufficiency of the Evidence We will consider first the respective claims of the appellants Ball and Coley that the evidence was not legally sufficient to sustain their various convictions.

The contentions are literally absurd. The evidence established indisputably that, on the morning of February 19, 1982, Henderson Mclnnis, a security guard at the A & P Supermarket on Frederick Avenue, was shot and killed in the course of an attempted armed robbery. As to the corpus delicti of the crime, Charlotte Locklear, a clerk at the A & P, testified that, shortly after 9 A.M., “three guys were up by the guard and I guess they were talking, and then I heard a bang go ³⁴⁹ off ... and then I heard another one go off and then I hit the floor and then I heard two more go off.” The witness testified that the men were wearing masks and ran toward Frederick Avenue after the shots were fired. Another witness to the crime was a customer in the store, Cecilia Kasper.

She testified that “three boys came in and the guard walked towards them and they shot him.” She testified that the men wore masks and ran toward Frederick Avenue as soon as the shooting occurred. Dwight Woods also testified as to the corpus delicti. He stated that he was walking toward the A & P store in question, when he saw, for “just a second,” “two guys run across Frederick Avenue towards Catherine with dark blue clothing.” He made in-court identifications of the appellant Wright and the codefendant Gilmore as the two men he saw running. Another witness in the A & P store was Chico Young, who was in the store to talk to the security guard about repairing a television set.

Young described the shooting as follows: “And when the store opened at 9:00 o’clock ... while I was in there, I had to wait to see him because four black boys was there talking to him and before I get a chance to talk to the man, there was some shooting ... All I saw was the young man in a light trenchcoat take a revolver from his coat pocket and fire upon the security guard . .. They came running out.” He testified that two of the men ran in one direction and two, in another direction. Mary Wilson, the head cashier in the store, also testified that she heard four or five shots but saw nothing.

The establishment of the criminal agency of Ball and Coley began with the testimony of Marcus Taylor. He testified that he “grew up” with all four of the defendants, Wright, Ball, Coley, and Gilmore. On the day of the robbery, Taylor stated that he saw all four of them run by him, put masks on, and enter the A & P store. Shortly after ³⁵⁰ that, he heard “a couple of shots.” He then saw the same four run out of the store toward Frederick Avenue.

With respect to the criminal agency of the appellant Ball specifically, Angelo Frazier testified that he was incarcerated for a time in close proximity to both Ball and the codefendant Gilmore. On March 23,1982, while in a Central District lockup, Frazier heard Gilmore say to Ball, “This is probably the A & P lineup. I can’t worry because they can’t identify any of us, we had masks on.” To that observation, Ball replied, “I know, I ain’t worried about it.” With regard to the criminal agency of Coley specifically, Sergeant Gerard Brandner testified as to a statement he took from Coley in which Coley acknowledged that he and his three coconspirators planned to rob the A & P store; that he and one of the codefendants entered the store first; that Ball shot the security guard before the other two codefendants were able to enter the store; that all four men fled immediately; and that all four wore ski masks while in the store. The appellant Coley, moreover, actually took the stand in his own defense.

His trial testimony, in contrast to his earlier statement, shifted the identity of his three co-conspirators from his three codefendants to State’s witnesses Marcus Taylor and Dwight Woods and a third individual named Leroy. Although the characters had changed, the plot had not. From his own lips, both extrajudicially and judicially, Coley’s guilt was indisputably established. A. As to Coley: The Corroboration Requirement The appellant Coley advances the ingenious, albeit strained, argument that the evidence is not legally sufficient to sustain his conviction because it is based upon his own uncorroborated confession.

He does not go so far as to argue that there was no corroboration generally, but does argue that the only evidence that the killing was in furtherance of an attempted robbery was evidence that he himself supplied. He reads too much into the requirement that a ³⁵¹ defendant cannot be convicted upon his confession alone but that there must be some independent evidence, although it need only be slight, tending to establish the corpus delicti of the crime. The salutary purpose of this particular corroboration requirement is to prevent a mentally unstable person from confessing to, and thereby being convicted of, a crime that never occurred. Lemons v. State, 49 Md.App. 467, 469 , 433 A.2d 1179 (1981).

The requirement that there be some corroborating evidence tending to establish the corpus delicti generally, does not establish an independent corroboration requirement as to each component element of the corpus delicti. The appellant Coley was, in the last analysis, convicted of murder. There was undisputed independent evidence that the victim, Henderson Mclnnis, had died of gunshot wounds. Society was amply reassured that the appellant Coley was no mere mental incompetent who had wandered in off the streets to confess to some totally nonexistent crime.

Bagley v. State, 232 Md. 86, 96 , 192 A.2d 53 (1963); Pierce v. State, 227 Md. 221 , 175 A.2d 743 (1961). Our disposition of the contention on this ground by no means intimates that there was not also independent corroboration, if it were needed, to establish the underlying felonious purpose. When four men enter a commercial establishment, armed and wearing ski masks, a reasonably permitted inference is that their business was robbery. Miller v. State, 251 Md. 362 , 247 A.2d 530 (1968) vacated in part on other grounds, 408 U.S. 934 , 92 S.Ct. 2851 , 33 L.Ed.2d 747 (1972); Foster v. State, 230 Md. 256 , 186 A.2d 619 (1962); Smith v. State, 20 Md.App. 577, 597 , 318 A.2d 568 (1974), cert. den. 420 U.S. 909 , 95 S.Ct. 828 , 42 L.Ed.2d 839 (1975), reh. den. 420 U.S. 984 , 95 S.Ct. 1416 , 43 L.Ed.2d 666 (1975); Fulford v. State, 8 Md.App. 270, 273 , 259 A.2d 551 (1969).

Our decision, moreover, to treat the contention in this fashion because of the abundance of corroboration does not intimate that we necessarily feel that this corroboration requirement is even applicable when we are dealing, as here, ³⁵² with in-court testimony acknowledging full guilt rather than with a mere extrajudicial confession. B. As to Ball: Evidence of Criminal Agency The appellant Ball rests his insufficiency argument on a very different predicate, as he urges that the evidence was not legally sufficient to establish his criminal agency. His contention must also fail. We have the confession of Coley that was admitted in evidence without a limiting instruction, giving the name of one of his co-conspirators as “Sheldon.” Ball’s first name is Sheldon.

We have the testimony of Marcus Taylor placing the appellant Ball at the crime scene with his three codefendants, donning ski masks, entering the A & P, and running from the scene immediately after Taylor heard “a couple of shots.” We have, moreover, the testimony of Angelo Frazier in the lockup, where he heard Gilmore and the appellant Ball expressing confidence that they would not be identified because they had had masks on. The evidence of Ball’s guilt was abundantly sufficient. Metz v. State, 9 Md.App. 15, 23 , 262 A.2d 331 (1970); Williams v. State, 5 Md.App. 450, 459 , 247 A.2d 731 (1968). Contention 1: Trial Severance We turn our attention to the claim of the appellants Wright and Ball that the trial judge committed reversible error when he refused to sever their trials from each other and from the trials of the appellant Coley and the codefendant Dwight Gilmore.

The claim rests upon two items of evidence: 1) the confession of Coley and 2) the conversation between Gilmore and Ball overheard by Angelo Frazier. With respect to the confession of Coley, what might have been a problem under Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968), disappeared when Coley took the stand and became available for cross-examination. Nelson v. O’Neil, 402 U.S. 622 , 91 S.Ct. 1723 , 29 L.Ed.2d 222 (1971); Lipscomb v. State, 5 Md.App. 500, 506 , 248 A.2d 491 (1968). There is no constitutional confrontation problem when one’s accuser is ultimately available for confrontation. ³⁵³ As was explained in R. Gilbert and C. Moylan, Maryland Criminal Law: Practice and Procedure (1983) at 584-585: “In 1971, the case of Nelson v. O’Neil dealt with a situation, like that in Bruton , where two codefendants were on trial.

A codefendant’s statement was introduced against O’Neil. In contrast to the Bruton situation, however, the codefendant took the stand and was therefore available for cross-examination by O’Neil. The Supreme Court held that this fully satisfied O’Neil’s right to confront the witness against him. It held this, notwithstanding the fact that O’Neil’s lawyer did not exercise the right to cross-examine and notwithstanding the fact that the codefendant denied ever having made the statement in question.” There was simply nothing in this regard remotely calling for a trial severance.

A severance is called for only when a defendant will be significantly prejudiced by evidence admissible against a codefendant but not admissible against him. As Judge Liss fully explained for this Court in Sye and Bates v. State, 56 Md.App. 583 , 468 A.2d 641 (1983): “In pointing out that prejudice consists not of being damaged or incriminated by the evidence in issue but only of being damaged or incriminated by evidence that is inadmissible, we observed that what was involved was the classic problem dealt with by the Supreme Court in Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968). At a joint trial of two codefendants, one codefendant may indeed be prejudiced by the admission into evidence of a confession given by the other codefendant. The prejudice consists of hearsay evidence being heard by the jury which would not be admissible if the objecting defendant were to be tried alone.

Where the codefendant who gives the damaging version actually takes the stand and testifies, however, there is no problem. The testimony, though damaging to be sure, is competent and, therefore, admissible. Prejudice as a term of art means damage from inadmissible evidence, not damage from admissible evidence.” ³⁵⁴ The other item of evidence under scrutiny within the context of this contention was the overheard station house conversation between Gilmore and Ball and testified to by Angelo Frazier. The appellant Ball is simply off base when he refers to this as a damaging admission by Gilmore which should not have rubbed off on Ball.

It was clear that both Ball and Gilmore were in full agreement with the remarks made by each other and that Ball adopted Gilmore’s initial statement and affirmed that it was his position as well. If Ball had been tried alone, the testimony of Angelo Frazier would have come in just as it did at the consolidated trial. The appellant Ball had no remote entitlement to a trial severance. The appellant Wright, on the other hand, was not a party to the station house conversation and that conversation might well not have been admissible in a trial of Wright alone.

In weighing the significance and impact of the testimony, however, we note initially that the conversation did not implicate the appellant Wright and did him no damage in any direct sense. The direct evidence of the appellant Wright’s guilt, on the other hand, was overwhelming, and we are persuaded beyond a reasonable doubt that even if the overheard conversation was erroneously admitted at his trial, the effect was de minimis and the error harmless. Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 B.Ed.2d 705 (1967); Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976). Contention 2: The Jury Instruction on the Various ■ Forms of Murder Both the appellants Wright and Coley raise the contention that Judge Hammerman committed error by refusing to give a supplemental instruction to the jury, after the jury had returned to the courtroom to ask a question on another subject, informing the jury that felony-murder is murder in the first degree.

With respect to the appellant Coley, we shall address the merits of the contention; with respect to the appellant Wright, we shall not. ³⁵⁵ A. As to Coley: On the Merits During closing argument, the prosecuting attorney told the jury that felony-murder is first-degree murder. There was no apparent problem in that regard. There was no real issue in the case as to varying gradations of blameworthiness and the whole matter of definition was not a subject of particular concern in the minds of any of the parties. Judge Hammerman defined first-degree murder of the deliberate and premeditated variety, denominating it as first-degree murder.

By way of contrast, he defined murder in the second degree as involving the same elements, save only the deliberation and/or premeditation. He then gave a perfectly proper definition of felony murder, spelling out all the necessary elements that had to be proved by the State. The only thing he did not do was to give this crime its label as “first-degree murder.” After his jury instructions were given, all counsel came to the bench and various exceptions were noted. No one took exception to the fact that the court did not explicitly explain to the jury that felony murder is first-degree murder.

As of that stage, therefore, there is nothing before us preserved for appellate review. Md.Rule 757 f. At one point in its deliberations, however, the jury came in and asked the following question, “Should all four men be found guilty of the same offense or can we charge each one differently?” There was no objection to the response the judge proposed to make to that question. It was at that point that counsel for Coley made the additional request, “I would also request that you explain to the jury that felony murder is first-degree murder.” At that point, the codefendants Ball and Wright strenuously objected to this request by Coley.

In view of these objections and because of the fact that the additional instruction was not responsive to the jury’s question, the trial judge exercised his discretion by failing to give the supplemental instruction. We see no abuse of discretion. ³⁵⁶ Although it is common knowledge that juries sometimes do more than they are charged with doing, it is not ordinarily the function of the jury to adjust or compromise verdicts in order to influence sentencing. The jury’s mission is fact finding, pure and simple. The judge accurately instructed the jury as to all elements that would have to be proved to permit a finding of felony-murder.

The jury found that those elements had been proved, and they accordingly rendered a verdict of guilty as to felony-murder. What “sticks in the craw” of the appellant Coley is obvious and his concern is understandable. The triggerman was apparently his codefendant Ball. The sequence in which the three forms of murder were explained may have led to an inference that they were in descending order of blameworthiness.

The jury may well, intending to punish the codefendant Ball even more severely, have unwittingly given him the benefit of a mere second-degree conviction. Every legitimate “gripe,” however, is not necessarily an occasion for legal relief. The nub of Coley’s complaint is not that he did not richly deserve the verdict he received but rather that his codefendant Ball did not deserve the unintended leniency he received. That, even if true, does not entitle the appellant Coley to relief.

The jury was fully informed as to all of the elements constituting the crime of which it found the appellant Coley guilty. No other knowledge was necessary to its literal fact-finding mission. What clearly is involved is an inconsistency in the verdicts that redounded to the undeserved benefit of the codefendant Ball. The Supreme Court recently addressed the subject of inconsistent verdicts in Harris v. Rivera, 454 U.S. 339, 345 , 102 S.Ct. 460, 464 , 70 L.Ed.2d 530, 535-536 (1981): “Inconsistency in a verdict is not a sufficient reason for setting it aside.

We have so held with respect to inconsistency between verdicts on separate charges against one defendant, Dunn v. United States, 284 U.S. 390 , 52 S.Ct. 189 , 76 L.Ed. 356 , 80 ALR 161 (1932), and also with respect to verdicts that treat codefendants in a joint trial incon ³⁵⁷ sistently, United States v. Dotterweich, 320 U.S. 277, 279 , 64 S.Ct. 134 , 88 L.Ed. 48 (1943).” In Harris v. Rivera, supra, the beneficiary of the apparent error did not receive merely a lighter verdict but an actual acquittal. In holding that a bizarre and eccentric result acquitting one defendant will not erode the validity of the otherwise proper convictions of other defendants, the Supreme Court held, at 454 U.S. 344 , 102 S.Ct. at 463 : “[E]ven if the acquittal rests on an improper ground, that error would not create a constitutional defect in a guilty verdict that is supported by sufficient evidence and is the product of a fair trial.” The appellant Ball got an unintended and undeserved “lucky break.” The aggrieved party in that respect is the State; the State, however, may not appeal. That does not entitle everyone else to a similar “lucky break.” That even erroneous leniency for one does not compel erroneous leniency for all was the unmistakable conclusion of the Supreme Court, at 454 U.S. 347 , 102 S.Ct. at 465 : “It is also possible that the judge may have made an error of law and erroneously assumed, for example, that Robinson should not be found guilty without evidence that he was to share in the proceeds of the larceny. There is no reason — and surely no constitutional requirement — that such an error pertaining to the case against Robinson should redound to the benefit of respondent.” We address the legitimacy of the verdicts as to each co-defendant in a vacuum.

We ask only that the instructions have been proper and that the evidence have been legally sufficient. This was so in the case of the appellant Coley. We hold, therefore, even as the Supreme Court held in Harris v. Rivera, supra, at 454 U.S. 348 , 102 S.Ct. at 465 : “Apart from the acquittal of Robinson, this record discloses no constitutional error. Even assuming that this acquittal was logically inconsistent with the conviction of respondent, respondent, who was found guilty beyond a ³⁵⁸ reasonable doubt after a fair trial, has no constitutional ground to complain that Robinson was acquitted.” B. As to Wright: Waiver The same contention as raised by the appellant Wright will receive far shorter shrift.

As we pointed out above, there were no objections to the definitions of the various varieties of murder when the jury was originally instructed. It was only when the jury returned to the courtroom with a question on another subject, that counsel for Coley made the request that the jury be given the supplemental instruction that felony-murder is murder in the first degree. It was at that point that the appellant Wright leaped up to protest strenuously against the giving of the requested supplemental instruction. At least in part because of the strong objection by Wright, Judge Hammer-man in his discretion declined to give the supplemental instruction.

It is with exceeding ill grace that the appellant Wright now complains about the very treatment which he then insisted upon. Deeming him to have waived utterly any objection in this regard, we decline even to consider the merits of the contention as raised by him. Contention 4: The Closing Argument of the State We next turn to the appellant Ball’s contention that he was denied a fair trial by the nature of the State’s closing argument. While on the merits we would have no difficulty in finding no prejudicial error, Wilhelm v. State, 272 Md. 404, 412-413 , 326 A.2d 707 (1974), a more direct answer to the contention is procedural.

When the appellant Ball objected to the State’s argument that the appellant Coley was afraid of his three codefendants, the court sustained the objection. Nothing more was requested. The appellant Ball did not ask for a curative instruction. The appellant Ball did not move for a mistrial.

It would certainly have been the height of irresponsibility for the trial judge to have declared a mistrial sua sponte, whether the appellant wanted one or not. United States v. Jorn, 400 U.S. 470 , 91 S.Ct. 547 , ³⁵⁹ 27 L.Ed.2d 543 (1971). The same thing occurred when the appellant Ball objected to what he deemed to be an oblique reference to the fact that he had not taken the stand. The objection was sustained.

In a nutshell, the appellant Ball got everything he asked for. This is not error. The very framing of this contention illustrates for the thousandth time the epidemic fuzziness of so much recent appellate rhetoric. “Error” is a precise term of art in the appellate context. No matter how reprehensible their conduct, trial attorneys, civil or criminal, for the State or for the defense, cannot, by definition, commit error; their conduct can do no more than serve as the predicate for possible judicial error.

As Judge Powers carefully and thoughtfully analyzed for this Court in Braun v. Ford Motor Company, 32 Md.App. 545, 548 , 363 A.2d 562 (1976): “We know of no principle or practice under which a judgment of a trial court may be reversed or modified on appeal except for prejudicial error committed by the trial judge. It is a misuse of language to label as error any act or failure to act by a party, an attorney, a witness, a juror, or by anyone else other than the judge. In other words, error in a trial court may be committed only by a judge, and only when he rules, or, in rare instances, fails to rule, on a question raised before him in the course of a trial, or in pre-trial or post-trial proceedings. Appellate courts look only to the rulings made by a trial judge, or to his failure to act when action was required, to find reversible error.” (Emphasis supplied).

Aside from his undifferentiated anguishing, the appellant Ball gives little guidance as to what precisely he wanted the judge to do. He, of course, never requested that the judge do anything. Even now, he does not suggest that the judge, sua sponte, should have given curative instructions. The final sentence of this vague and blurred complaint simply suggests, without citation of authority, that the comments of the prosecutor were such as to have “created the manifest necessity for the trial court to grant a ³⁶⁰ mistrial and the failure to do so constituted an abuse of discretion mandating reversal.” Several observations must be made.

In the first place, a judge cannot abuse his discretion when he is not called upon to exercise discretion. In the second place, the very notion of “manifest necessity” is pertinent, as an exemption from the double jeopardy bar, only in the context of a mistrial’s having been declared at the request of or, sua sponte, on behalf of the State. When a mistrial is even contemplated for the benefit of a defendant, the defendant has the final choice of whether he wishes such a mistrial or not. The very value protected by this subvariety of double jeopardy law is the right of a defendant “in keeping together a tribunal, once it is impaneled, until a verdict has been reached.” West v. State, 52 Md. App. 624, 451 A.2d 1228 (1982).

If a defendant chooses to stick it out to the sweet or bitter end, that is his choice. If the defendant desires a mistrial, he must manifest that desire by asking for it. As part of the unfocused discussion of when mistrials might be appropriate, the appellant Ball cites Holbrook v. State, 6 Md.App. 265 , 250 A.2d 904 (1969), and James v. State, 31 Md.App. 666 , 358 A.2d 595 (1976). He conveniently ignores the salient, threshold fact that those opinions were in the context of defendants’ having asked for mistrials.

Mistrials are simply not thrust upon unwilling defendants who do not wish them. Contention 5: The Statement of the Codefendant Coley, Excised and Unexcised The appellant Ball’s final contention is that error was committed as to him through the admission of the statement of the co-appellant Coley. As to the voluntariness of Coley’s confession and its admissibility in the first instance, this is a personal constitutional concern of Coley and the appellant Ball has no standing to raise the. issue. Ball’s next argument with respect to the confession is that the initial excision of the names of Coley’s three codefendants was not adequate to prevent the jury from drawing ³⁶¹ reasonable inferences as to whose names should logically fill those blanks.

Subsequent developments, however, rendered this contention moot. Coley took the stand and implicated three other persons. The State was then permitted to resubmit Coley’s confession with the names of his three codefendants fully exposed. The appellant Ball does not challenge the propriety of that procedure.

That procedure, unchallenged, makes his present contention meaningless. His final subcontention with respect to Coley is that he was erroneously denied the opportunity to cross-examine Coley with respect to any plea agreement that Coley may have had with the State after the acknowledged plea agreement of March 1, 1982. What eventuated, however, was that the appellant Ball wanted to examine Coley about an offer made by the State on the day immediately preceding the trial, to elicit Coley’s testimony in exchange for a plea to attempted robbery and a sentence of probation. Such an offer by the State was obviously not accepted by Coley and was not relevant to show a bias by Coley in favor of the State.

The only evidence ultimately emanating from Coley and as to which possible bias might have been relevant was the initial confession of Coley. Events far posterior to the giving of that confession would have no bearing on the trustworthiness of that confession. The proffered cross-examination would have gone to an issue which was immaterial. This concludes our review of all contentions raised by the appellant Ball.

Contention 7: The Extrajudicial Confession of the Appellant Coley The appellant Coley objects to the admission of his pretrial confession. Upon being questioned initially by the police, the appellant was given and waived his Miranda rights. He gave the police an exculpatory statement which included an alibi defense. After being informed, however, that he had been implicated by one of his alibi witnesses, ³⁶² Coley spoke with his mother, who in turn asked .to see an assistant state’s attorney.

She spoke with Assistant State’s Attorney Howard Gersh and then went back to consult with her son. Shortly after this, the appellant Coley, his mother, and Assistant State’s Attorney Gersh entered into an oral and then a written plea agreement. He not only gave a statement but agreed to testify for the State. Although he himself later backed out of the plea bargain, the State did not breach the agreement.

The plea agreement itself, dated March 1, 1982, signed by the appellant Coley and by Assistant State’s Attorney Howard B. Gersh, and witnessed by one Lorraine Morris, was not only referred to at the trial but was introduced into evidence. It read as follows: “PLEA AGREEMENT The following agreement was entered into this date by and between Kenneth Dywane Coley and Howard B. Gersh, Assistant State’s Attorney: 1. That if Kenneth Coley is not the actual shooter of Henderson Mclnnis, 2. Kenneth Coley agrees to provide a full, complete and truthful statement as to his participation and the participation of all others in the shooting of Henderson Mclnnis which took place on 19 February 1982 at 2401 Frederick Rd., Baltimore City. 3.

Kenneth Coley agrees to testify truthfully before the Grand Jury of Baltimore City as to his participation and the participation of all others in the above noted shooting. 4. Kenneth Coley agrees, if requested by the State, to testify at any hearings or trials involving any participants of the shooting. It is further agreed that the State of Maryland will accept a plea of guilty to Murder in the Second Degree which carries a maximum sentence of thirty (30) years imprison ³⁶³ ment from Kenneth Coley if he carries out all provisions of this agreement. It is also understood and agreed that if Mr. Coley is the actual shooter of Henderson Mclnnis, is not truthful in any part of this agreement, or refuses to testify for the Grand Jury of Baltimore City or refuses to testify at any trials involving any other participants in the above noted shooting, the State at its option may declare this agreement void and any statements or testimony given by Kenneth Coley may be used against him.

It is further understood that if the State declares this agreement void, Kenneth Coley will be charged with any and all crimes and may be sentenced to any punishment allowed by law.” Pursuant to that agreement, the appellant Coley did not simply give a signed statement. He also went before the grand jury that very morning and gave sworn testimony, in the course of which he acknowledged his guilt. In now challenging the admissibility of his statement, the appellant Coley relies exclusively on Hillard v. State, 286 Md. 145 , 406 A.2d 415 (1979), and its reiteration of preexisting Maryland law to the effect that any promise or inducement offered for the purpose of securing a confession will render that confession involuntary and inadmissible. Hillard v. State, supra, does, of course, stand for just such a principle.

It is, moreover, beyond dispute that an agreement by the State to accept a plea of guilty to second-degree murder rather than to push for a verdict of first-degree murder is a most significant inducement. The appellant Coley, however, has failed to heed the advice of Judge Eldridge in Ward v. State, 290 Md. 76, 97 , 427 A.2d 1008 (1981), where he pointed out that the defendant there, even as the appellant here, “overlooks the often expressed ‘admonition that language in a judicial opinion must be viewed in the context in which it appears.’ ” See also Slate v. Zitomer, 275 Md. 534 , 538 n. 2, 341 A.2d 789 (1975), cert. denied sub nom., Gasperich v. Church, 423 U.S. 1076 , 96 S.Ct. 862 , 47 L.Ed.2d 87 (1976); and Bringe v. Collins, 274 Md. 338, 343 , ³⁶⁴ 335 A.2d 670, 674 , appl. denied, 421 U.S. 983 , 95 S.Ct. 1986 , 44 L.Ed.2d 475 (1975). In that regard, the appellant Coley’s argument fails to recognize that the entire body of confession law, typified by such cases as Hillard v. State, deals with the salutary effort of courts to ventilate the incommunicado processes of police interrogation and to prevent the police from making unwarranted promises and inducements. That body of law, however, has never been applied, and cannot be applied, to the legitimate (and even indispensable) process of plea bargaining.

The plea bargain, by its very name,” implies a quid pro quo. If the principles promulgated to deal with police interrogation were ever applied to the plea bargaining process, no plea could ever be voluntary. Every negotiated plea is given in exchange for some sort of promise or inducement or consideration. The inappropriateness of applying police interrogation law to the bargaining process wherein a legally trained assistant state’s attorney reaches an open agreement with the defendant was thoroughly discussed in United States v. Davis, 617 F.2d 677, 686-687 (D.C.Cir.1979): “If accepted, Gelestino’s argument in effect would create a rule that testimony or information given pursuant to a plea bargain is involuntary per se, for a defendant’s execution of his part of a bargain is always ‘induced’ by the prosecution’s return promises.

Such a rule would be overbroad and unwarranted. In Hutto v. Ross, 429 U.S. 28 , 97 S.Ct. 202 , 50 L.Ed.2d 194 (1976), the Supreme Court stated that ‘the Court of Appeals erred when it held that any statement made as a result of a plea bargain is inadmissible.’ Id. at 30 , 97 S.Ct. at 203 (emphasis by the Court). The logic of Gelestino’s approach not only would create a rule of per se involuntariness for statements made pursuant to a bargain but also would render involuntary the pleas themselves, which also derive from the Government’s promises. We cannot conclude that pleas and statements resulting from plea bargaining are always involuntary.

Rather, the proper task is a case-by-case ³⁶⁵ consideration of whether the defendant voluntarily entered into the plea agreement and whether he testified voluntarily, as revealed by an examination of the surrounding circumstances.” A modicum of reflection reveals that the law could not be otherwise. Once a plea bargain has voluntarily been struck between a defendant and the State, the State is, of course, bound to live up to the terms of the agreement. The obligation is not bilateral, however. A defendant, prior to the ultimate acceptance of the plea, is entitled to change his mind and back down from the agreement.

The exercise of that option, however, does not date back and contaminate the earlier proceedings. The first meeting of the minds was either voluntary or it was not, and later events will not alter that historic fact. If the law were otherwise, the complications that might result are fearful to contemplate. Could a defendant upon appeal challenge the voluntariness of his guilty plea on the solitary ground that he was induced into making it by the promise of the State to drop other charges?

Certainly not! Might a clever defendant, however, claim that the voluntariness of such a plea was eroded because the trial judge failed to inform him that a pretrial confession, given pursuant to the plea arrangements, could be suppressed from evidence as involuntary under Hillard v. State, supra? That situation might be before us if the appellant Coley had not himself withdrawn from the plea bargain. In considering, as we should, the ramifications of our holding, we hypothesize Coley’s situation with a few additional factors.

If the inducement, which is an integral part of the very plea bargaining process, would compel the suppression of a confession given pursuant to the plea bargain: 1. Would it contaminate the testimony given to the grand jury? 2. Would it compel the suppression of physical evidence obtained in the course of a consensual search, the ³⁶⁶ consent to search having been given pursuant to the same plea bargain? 3. Would it compel the suppression of a post-indictment police lineup identification following the waiver of counsel given pursuant to the same plea bargain? 4.

Would it compel the suppression of Coley’s in-court testimony? 5. Would it, under the fruit of the poisoned tree doctrine, compel the suppression of other evidence and/or witnesses only discovered by the police by virtue of the leads developed from the information given pursuant to the plea bargain? 6. Would it entitle the codefendants to a jury instruction to the effect that the inducement that made the confession involuntary as to Coley makes the confession less trustworthy as to them? 7. Would it, at some possible retrial, bar the submission of the first trial testimony as a prior recorded testimony exception to the rule against hearsay, if otherwise appropriate?

Can a single inducement yield a half-dozen products, some of which are voluntary and some of which are involuntary, without reducing the language to a shambles? The ultimate paradox would be an agreement entered into by a defendant whereby he preserves his right to challenge his plea-induced statement pretrial but then agrees that he will offer a guilty plea at trial if, but only if, his pretrial motion is properly denied. He then challenges the confession, even as here, on the ground that it was the product of the bargained-for inducement. We hold that the confession was not involuntary and was properly received in evidence.

Contentions 8 and 9: Spin-off Contentions from Hillard Our immediately preceding holding with respect to Coley’s confession serves to moot Coley’s next two contentions. They both involve peripheral evidentiary questions going to the issue which we have now deemed to be immaterial. The ³⁶⁷ first of these contentions is that the trial judge erred in refusing to allow Coley to cross-examine Sergeant Brandner as to a conversation he overheard between Assistant State’s Attorney Gersh and the appellant Coley during the plea bargaining stage. The second of these contentions is that the trial judge committed error when he refused to permit defense counsel to read to the jury, in closing argument, a passage from Hillard v. State, supra, dealing with the corrosive effect of an inducement on the voluntariness of a confession.

Our earlier holding that the virtually omnipresent inducement which is an integral part of the plea bargaining process is not fatal to voluntariness as it would be in the very different context of incommunicado, station house interrogation of a suspect, renders both these contentions moot. * Contention 10: The Voluntariness of Coley’s Trial Testimony Mootness as a result of our earlier holding on the admissibility of Coley’s extrajudicial confession is also one of our alternative responses to Coley’s next contention. Coley took timely exception to the following statement made by Judge Hammerman in the course of his instructions to the jury: “What the defendant Coley said on the witness stand two days ago was free and voluntary on his part. Whether you believe what he said or not is another matter that is entirely up to you, of course. But he said it freely and voluntarily.” Our holding that no error occurred rests on two separate predicates.

In the first place, Coley does not argue that there was any coercion or other improper stimulus which caused him to take the witness stand during the trial or that he was in any way not lucid while on the stand. He argues rather a “fruit of the poisoned tree” rationale, Harrison v. United States, 392 U.S. 219 , 88 S.Ct. 2008 , 20 L.Ed.2d 1047 (1968); Hillard v. State, supra, in that once having given an involuntary, extrajudicial confession, he may have deemed it ³⁶⁸ futile not to reiterate it from the witness stand. We observe, only in passing, that he did not in fact reiterate but gave a version of the facts diametrically opposed to that contained in his earlier confession. So much for Coley’s sense of resigned futility.

More directly dispositive, however, is the fact that our holding that the extrajudicial confession was not involuntary renders the tree nonpoisonous and its alleged fruit, therefore, nonpoisoned. Quite independently of that rationale, we note the concession in the appellant Coley’s brief that the effective cause for his decision to take the witness stand at trial was not the existence of the earlier confession but rather a felt compulsion to testify “because of how Taylor and Woods had testified.” When the appellant alleges one factual explanation for his decision, we are relieved of the onerous responsibility to negate other hypothetical possibilities. Contention 11: The Indefiniteness of the Sentence The appellant Coley will fare better with his final contention. The trial judge imposed upon Coley a sentence of life imprisonment and then suspended fifteen years of that sentence.

When Coley’s counsel quizzically inquired, “How does that work?”, the court replied, “That is up to the Parole Board, not up to me.” The appellant Coley now contends that he is entitled to be resentenced because the sentence actually imposed was indefinite. There is, of course, much validity to the State’s observation that the language of sentencing is impressionistic at best and cannot realistically be expected to be otherwise. The abacus of industrial time and good behavior time, manipulated so adroitly by correction and parole authorities, is something largely beyond