Boyer v. State

JAMES S. GETTY, Judge, Specially Assigned. DeWayne Boyer, appellant herein, was convicted by a jury in the Circuit Court for Baltimore City of robbery with a deadly weapon, and use of a handgun in the commission of a crime of violence. He was sentenced to twenty years for the robbery, and to five years (without parole) for the handgun offense. The sentences were to be served consecutively. ⁶⁵¹ Appellant alleges that the court erred with respect to the following issues: 1.

The trial judge erred in denying appellant’s motion to suppress his custodial statement to the police taken in violation of the Maryland common law rule against inducement. 2. The trial judge erred in allowing the State to reopen its case-in-chief after the jury had begun its deliberations. 3. The trial judge erred in denying appellant’s motion to excuse for cause an emotionally distraught juror. We shall address the issues raised seriatim.

Suppression On December 1, 1993, appellant, who was incarcerated at the Baltimore City Detention Center on charges unrelated to the present case, was transported to Northwestern District Police Headquarters and interrogated by Officers Ronald Willis and David Mills. According to Officer Willis, appellant was advised of his constitutional rights from a standard police department form, and he initialed each right, thereby acknowledging that he received the advice. Officer Willis stated that he did not make any promises to appellant concerning any statement he might make to the police. Officer Mills acknowledged that he mentioned to appellant that if he made a statement the police would present that information to the prosecutor.

The testimony was as follows: [DEFENSE COUNSEL]: Did you tell—did either you or Officer Willis tell him you would speak to the State’s Attorney if he gave you a statement? [OFFICER MILLS]: Yes, we always tell—we always advise that we will go to the State’s Attorney and tell—after we are given a statement or received a statement and before we come to court, we talk with the State’s Attorney just to let them know what we have done, touch base with them and see how they feel about an upcoming case. Q. Did you tell Mr. Boyer, “if you talk to me, I’ll be able to talk to the State on your behalf to help you out”? ⁶⁵² A. I would only answer to the point where he would have been cooperative and, you know, was willing to answer questions. I didn’t say that we would be able to give him a lesser sentence to my knowledge. Q. But did you tell him— A. No!

Q. —That you would be able to help him with the State’s Attorney? A. I don’t recall saying I would be able to help him. Q. But did you at some level indicate that you were going to talk to the State’s Attorney on his behalf? A. Sure.

Appellant argued at the suppression hearing that the police conduct represented “inducement” in its clearest form. The trial judge denied the motion to suppress. He concluded that Officer Mills’ words did not create a reasonable assumption by appellant that “it would go easier for him” if he made a statement. At trial, the prosecutor called Janet Griffin, the victim of the robbery, who testified concerning her prior photographic identification of appellant and her in-court identification of him.

Officer Willis testified about the explanation of rights form; he then read the confession to the jury. The State concluded its case without introducing into evidence as exhibits either the explanation of rights form, or the confession. Appellant called Officer Mills, who reaffirmed that he had told appellant that if he talked Mills would go to the State’s Attorney on his behalf. 1 Appellant rested and the State expressly noted that it had no rebuttal. In reviewing the denial of a motion to suppress a statement as involuntary, we make an independent appraisal of the application of the law to the facts, but we accept the ⁶⁵³ trial court’s determination of fact, unless we conclude that the fact-finding is clearly erroneous, giving due regard to the trial court’s opportunity to judge the credibility of the witnesses.

Riddick, supra; Ringe v. State, 94 Md.App. 614, 620 , 618 A.2d 266 (1998). Officer Mills’ response to defense counsel’s questions must be viewed in context. Mills did not say, “I told him I would go to the State’s Attorney on his behalf.” The only person who said anything about going to the State’s Attorney “on his behalf’ was appellant’s counsel, who framed the question. The test of whether a conversation between the police and the accused amounts to an improper inducement by the police in obtaining the cooperation of the accused depends upon what was said, not upon whose behalf it was said.

Clearly, a confession is involuntary if it is induced by force, undue influence, improper promises, or threats. Reynolds v. State, 327 Md. 494 , 610 A.2d 782 (1992), cert. denied, - U.S. -, 113 S.Ct. 981 , 122 L.Ed.2d 134 (1993); Hoey v. State, 311 Md. 473, 483 , 536 A.2d 622 (1988). Whether a confession is voluntary under state non-constitutional law depends upon a “totality of the circumstances” analysis. Hoey, supra.

A common thread present in these cases is that the promise must have induced the accused to confess. Reynolds, 327 Md. at 509 , 610 A.2d 782 . Examples of cases wherein improper inducements rendered a confession inadmissible include Hillard v. State, 286 Md. 145, 153 , 406 A.2d 415 (1979), where the accused was told the police would “go to bat for him” if he made a statement; Lubinski v. State, 180 Md. 1 , 22 A.2d 455 (1941), improper inducement to tell the suspect that giving a statement would “help him a lot”; and Streams v. State, 238 Md. 278, 281 , 208 A.2d 614 (1965), statement not voluntary where police told suspect they would try to get him probation if he talked. The case sub judice offers no such carrot stick for appellant’s confession.

Officer Mills testified that he did not say that appellant would receive a lesser penalty if he talked, and he did not represent that it would be easier on him if he ⁶⁵⁴ confessed. He denied telling appellant that he would help him, or that he would get him a better deal with the State’s Attorney if he talked. What Officer Mills did indicate to appellant was that he would inform the prosecutor that appellant had given a statement and was cooperative. Assuming that appellant concluded that the State would be favorably impressed upon receiving such advice, which is a perfectly reasonable assumption, that conversation does not rise to the level of an improper inducement that would invalidate his confession.

We perceive no error in the trial court’s denial of the motion to suppress. Re-Opening State’s Case After the jury began deliberating, the trial judge received two requests from the jury asking to see appellant’s confession, which had not been introduced at trial. The first inquiry was answered by the judge telling the jury that the document they sought had not been introduced into evidence. Approximately one hour later, the jury sent a second written message asking, “The report or confession of the defendant—is it evidence, or is it an exhibit—for jury’s perusal?” The prosecutor suggested: I think they should be told that the evidence presented from the stand of the confession is evidence they are to consider.

The physical document is not for their perusal. Appellant’s counsel agreed. The court then gave the following instruction: The actual written document that the two officers were referring to in their testimony is not in evidence. Therefore, you can’t consider the written document since you don’t have it in front of you.

You can consider what it says. You may consider what the written document says that you heard in testimony. Does that answer your question? The foreman of the jury responded to the court’s inquiry, stating: Your Honor, there seems to be a need from a certain juror to see actual physical evidence of the defendant’s initials ⁶⁵⁵ that he initialed giving this confession, in other words, what he said and then he initialed it____ Somebody wants to be pleased to themselves that the defendant actually made the confession and verified it with his initials.

The prosecutor then moved to reopen the State’s case for the purpose of admitting the statement into evidence. Over objection by appellant’s counsel, the court granted the State’s motion. Officer Willis was recalled, and a redacted version of the confession was admitted into evidence. 2 After deliberating for another hour, the jury again inquired of the court: Is it possible to get additional information on the length of jacket worn by defendant? The court responded: The answer is you have to rely upon the evidence that you have seen and heard during the trial.

I can’t retry this case for you, ladies and gentlemen