Brittingham v. State

ALPERT, Judge. A request for counsel is not always relevant to the voluntariness of a confession. Startling? Not under the unique circumstances of this appeal.

I. THE FACTS This case arises from a break-in at the home of Joseph and Debra Kiss in Baltimore City which occurred shortly after midnight on October 10, 1982. The break-in was carried out by two male intruders, one armed with a hand ¹⁶⁸ gun and the other with a knife. Mr. and Mrs. Kiss and their infant son were home at the time of the occurrence. The intruders ordered Mr. Kiss to turn over all of the family’s money, and he complied.

Mr. Kiss was then escorted to the second floor where he was bound and gagged. Mrs. Kiss was taken at knife-point to the basement where she was forced to have sexual intercourse with both of the intruders. Immediately thereafter, Mrs. Kiss was taken back upstairs, where she was bound and gagged. The intruders then left the Kiss home taking, according to the Kisses, $500 in cash, jewelry, and the keys to their 1979 green Cadillac.

The Cadillac, which was parked outside, was also taken by the intruders. Eventually, Mrs. Kiss was able to loosen her bonds, untie her husband and summon the police. The Kisses’ son was not harmed in any way. After the police arrived, Mrs. Kiss was transported to City Hospital for examination and treatment.

Subsequently, appellant and one Dennis Pierson drove the Kisses’ Cadillac to Ohio, where both were arrested. Ultimately, appellant was charged with various offenses which occurred at the Kiss residence on October 10, 1982, and he was subsequently convicted by a Baltimore City jury (Arabian, J., presiding) of rape in the first degree, robbery with a deadly weapon, use of a handgun in a crime of violence, burglary and false imprisonment. He was sentenced to life imprisonment for the rape, a consecutive term of 20 years for robbery with a deadly weapon, a concurrent term of 20 years for the handgun offense, a concurrent term of 20 years for the burglary, and 10 years (consecutive to the rape sentence) for false imprisonment. Appellant noted a timely appeal to this court and asks whether: (1) the admission into evidence for impeachment purposes of an oral confession allegedly made by appellant violated appellant’s right to due process because such confession was made involuntarily ¹⁶⁹ (2) the trial court erroneously excluded evidence proffered by appellant which was relevant and material to the issue of the voluntariness of appellant’s confession (3) appellant’s motion for new trial was improperly denied by the trial court where the court’s refusal to consider newly discovered evidence constituted an abuse of discretion (4) the trial court committed error .in its instruction to the jury with regard to the effect of evidence of flight We respond in the negative and therefore affirm the judgments of the court below.

II

PRE-TRIAL TESTIMONY ON THE CONFESSION Prior to the start of the trial, the judge heard motions brought by appellant to suppress two statements he made. The first inculpatory statement was made to Detective Robert Jansen of the Sex Offense Unit of the Baltimore City Police Department following appellant’s trip back to Baltimore after being arrested in Ohio. The second inculpatory statement was made to Corporal Richard Sheldon of the Maryland State Police prior to the administration of a polygraph examination. It is this second statement which forms the centerpiece of this appeal.

Two hearings were conducted by the trial judge. At the first hearing, testimony was elicited from Corporal Sheldon and Detective Jansen as to the circumstances surrounding each of the two statements. Corporal Sheldon testified that appellant was transported to the State Police barracks on October 6, 1983, for the purpose of taking a polygraph examination. Appellant had requested the lie detector test.

Appellant was advised of his rights pursuant to Miranda and a civil waiver form (pertinent to the polygraph) was explained to him. Appellant signed this form after reviewing it point by point with Corporal Sheldon, along with a release form. Corporal Sheldon then testified that appellant made a statement to him prior to the administration of ¹⁷⁰ the polygraph. In this statement appellant admitted that he was present at the Kiss residence on the evening in question for the purpose of purchasing some cocaine.

Appellant stated that McBee, a co-felon, pulled a knife on Mrs. Kiss and that he then pulled a gun. According to appellant, McBee later took the gun from him. Appellant further stated that it was McBee who took Mrs. Kiss downstairs where the rape occurred. Appellant contended that he remained upstairs, but admitted removing certain articles from the Kiss residence and leaving the premises in the Kisses’ green Cadillac.

Finally Corporal Sheldon testified that appellant informed him that he and Dennis Pierson subsequently left the state in the stolen Cadillac and drove to Ohio, the situs of their eventual arrest. Corporal Sheldon denied making any promises or inducements to appellant or telling appellant that any delay in the polygraph would “cost him a fortune.” Detective Jansen was then called to testify regarding the other statement at issue. Jansen testified that he travelled to Ohio on October 29, 1982, to transport appellant and Dennis Pierson back to Maryland. He advised both men of their Miranda rights and warned them that it was a long trip back and that it would be best not to discuss the case.

In fact, the case was not discussed in the car; however, appellant made a statement to the detective upon their arrival in Baltimore. Detective Jansen testified that appellant admitted his involvement in the robbery, but denied any participation in the rape. Appellant also stated that Pierson was not involved in the incident in any capacity and identified Randy McBee as his co-felon and the rapist. Detective Jansen denied questioning the appellant prior to the statement, but indicated that the statement may have been prompted by Pierson who was interested in extricating himself from the whole situation.

In ruling on the admissibility of the two statements, the trial judge had no difficulty in finding that the statement to Detective Jansen was admissible. The trial judge found that the statement was not preceded by any interrogation, ¹⁷¹ but instead was “more or less in response to the other person, who was in the vehicle. And was at most a blurt or an answer to the question of a friend who was trying to extricate himself____” The trial judge initially reserved ruling on the statement to the polygraph operator, but later ruled it to be admissible. The trial judge found that Miranda warnings had been given, that the statement was voluntary and that it was simply an extension of the earlier statement.

The judge then proceeded with jury selection. Before the trial began, however, appellant came forward with additional evidence as to the motion to suppress the statement to the polygraph operator. Defense counsel called both Marcie Simpkins, a paralegal, and the appellant to testify. Ms. Simpkins testified that Michael Ryan, an investigator with the Baltimore City State’s Attorney, called her office on October 6, 1983, because the appellant had voiced a request to discuss the lie detector with his attorney.

She informed Ryan that appellant’s counsel was out of town and suggested that the test be postponed. Ryan did not tell her a future polygraph could not be scheduled. Appellant then testified that he was informed that any delay would cost him a fortune. He understood that although the polygraph, which he had requested, was free that day, he would be charged for a test administered at a future date.

Appellant also testified that he had requested that his attorney be present, but was informed that he was in Spain and that it would be best to proceed without him. The State then called Investigator Ryan. Ryan admitted calling appellant’s attorney, but denied telling appellant that he would be charged if the lie detector were postponed. He did admit informing appellant that it could take up to six weeks to reschedule the test.

After hearing this additional evidence, the trial judge granted the motion to suppress finding that the statement was a confession obtained contrary to the mandate of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). ¹⁷² III. TRIAL TESTIMONY ON THE CONFESSION Trial on the merits then commenced. Detective Jansen testified during the State’s case-in-chief about the statement appellant made to him upon their arrival in Baltimore. This testimony essentially mirrored that elicited at the pre-trial motion, i.e., that appellant admitted his involvement in the robbery, but denied raping Mrs. Kiss.

Appellant testified on his own behalf and denied participating in the robbery and rape or even seeing Debra or Joseph Kiss on the evening in question. Appellant did admit being in the green Cadillac a few hours after the robbery, but contended that an acquaintance, Randy McBee, picked him up on Eastern Avenue between 3:00-4:00 a.m. Appellant further testified that he did not know, at that time, who owned the vehicle. According to appellant, he and McBee had separated around 11:30 p.m., at which time McBee left a bar allegedly to purchase cocaine.

Appellant contended that he met a girl named “Mary” around midnight and spent the next several hours with her at the New Motel. Appellant was unable to locate Mary at the time of trial and did not recall her last name. Following their meeting on Eastern Avenue, appellant testified that he and McBee drove the Cadillac to Pennsylvania, where McBee was arrested for assaulting his girlfriend. Appellant then returned to Baltimore in the Cadillac and subsequently met with Dennis Pierson.

Pierson and appellant then drove the vehicle to Ohio, where both were arrested. It was at this point that Detective Jansen picked them up for the return trip to Baltimore. Appellant denied admitting any involvement to Jansen, but indicated that he may have incriminated McBee because it was McBee who gave him the car. As to the incident with Corporal Sheldon prior to the lie detector, appellant denied admitting that he saw the Kisses on the evening of the crimes.

He did testify to telling Sheldon he believed McBee committed the crimes. ¹⁷³ Corporal Sheldon was called by the State during its rebuttal. Sheldon testified, over objection, that the appellant indicated that he saw the Kisses at their residence on the date in question. 1 Appellant also admitted to Sheldon that various articles were removed from the Kiss residence, including $20.00 in cash, syringes, a bottle of wine and the green Cadillac but denied having intercourse with Mrs. Kiss. Through cross examination, appellant tried in vain to establish that he wanted counsel present at the taking of the lie detector test. All objections as to appellant’s reference to legal representation were sustained by the trial judge.

Appellant did not, however, assert that he refused to proceed with the test without the benefit of counsel. Investigator Ryan was also called as a rebuttal witness. Ryan testified that appellant denied participating in the robbery when Sheldon asked him to repeat his earlier statement. Defense counsel attempted to question Ryan regarding appellant’s request for an attorney at the polygraph, but the trial judge sustained all objections to such questions.

Appellant was then recalled to the stand in surrebuttal and was the final witness heard at trial. Defense counsel unsuccessfully attempted to elicit testimony regarding appellant’s request for his attorney at the polygraph. All of the State’s objections were sustained by the trial judge.

IV

THE CONFESSION (the statement to the polygraph operator) A. Voluntariness of the Confession Appellant contends that the trial court erred in admitting (during the State’s rebuttal) his “alleged inculpatory state ¹⁷⁴ ment” to the polygraph examiner for the purpose of impeaching his credibility. He argues, somewhat obliquely, that it was involuntary as a matter of law. He incorrectly asserts that the trial judge “failed to explicitly rule on the issue of voluntariness prior to allowing the statement to be used for impeaching appellant’s credibility,” when the record clearly belies this contention. The statement of Corporal Sheldon, although later deemed inadmissible (as part of the State’s case in chief) under Bryant, was initially deemed fully admissible because Miranda warnings were given and there was no evidence of coercion, i.e., the statement was considered to be voluntary.

Shortly before trial, the court rendered a bench opinion and in pertinent part said: Gentlemen, there were a number of issues raised yesterday. I reserved a ruling concerning, first of all, the admissibility of the statement made by the defendant to the examiner of the polygraph test. In reviewing the cases, on the first issue, of whether the examiner sufficiently advised the defendant of his Miranda warnings, I refer you to the case of State v. Taylor, ... That case, as far as I know, has never been overruled and extended, and the warnings, in this case, sufficiently comply with the Miranda warnings.

Number 2, on the second issue, in the case, is whether that statement was voluntarily given under the circumstances described in the evidence. According to the polygraph examiner, the statement was totally voluntary. That evidence has not been rebutted in any way. I refer you to the case of Johnson v. State, 31 Md.App. 303 [ 355 A.2d 504 ].

That case was one where the statement was given, following a polygraph test. The court held that the statement itself is admissible. The issue of its voluntariness is again, of course, a matter for the jury to determine. And while the results of the polygraph test are not admissible, the fact that there was a polygraph test and the circumstances giving the statement, are issues, before the jury, to determine ¹⁷⁵ the voluntariness if that, in fact, becomes an issue; depending on what you wish to do and how you wish to approach it.

Just as I had some reaction to the fact that the circumstances might lead to some kind of coercion, the jury has that issue before it, before me. There was no evidence presented by the defense, that it was coercive in any way. I am left with only the evidence presented by the State that it was totally voluntary. 2 I may add that the statement is an extension of the statement he gave earlier, when it was simply a blurt; which also adds to the contention that it was a voluntary statement, on the basis of the evidence before me, at this time. The motion to suppress is denied.

(emphasis added). As we approach the twentieth anniversary of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), we observe that no area of constitutional criminal procedure has provoked more debate over the last two decades than that dealing with confessions precipitated by police interrogation. As we stated in Bryant v. State, 49 Md.App. 272, 273-74 , 431 A.2d 714 , cert. denied, 291 Md. 772 (1981), cert. denied, 456 U.S. 949 , 102 S.Ct. 2020 , 72 L.Ed.2d 474 (1982): [T]he Supreme Court of the United States, in a series of cases, ... (citations omitted) culminating in the landmark decision of Miranda v. Arizona, has nullified the legality of confessions obtained through duress, whether physical or mental. ¹⁷⁶ We pause for the moment to emphasize that what the Supreme Court has nullified is the legality of confessions obtained through duress, whether physical or mental.

Assuming arguendo that Brittingham’s statement to Corporal Sheldon was the product of interrogation, we shall determine if the Brittingham statement was involuntary as a matter of law. Initially, we note that certain now well-established principles of constitutional criminal procedure are undisputed herein. 1. When an accused, under custodial interrogation, demands the right to counsel, all interrogation must cease at that point. Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981); Bryant v. State, 49 Md.App. 272 , 431 A.2d 714 , cert. denied, 291 Md. 772 (1981), cert. denied, 456 U.S. 949 , 102 S.Ct. 2020 , 72 L.Ed.2d 474 (1982). 2.

When a confession is sought to be excluded on the grounds of a violation of defendant’s Miranda rights and is deemed inadmissible during the State’s case in chief, it may nevertheless be used for impeachment purposes if the defendant testifies in apparent contradiction to the initially inadmissible statement. Oregon v. Hass, 420 U.S. 714 , 95 S.Ct. 1215 , 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222 , 91 S.Ct. 643 , 28 L.Ed.2d 1 (1971); State v. Kidd, 281 Md. 32 , 375 A.2d 1105 cert. denied, 434 U.S. 1002 , 98 S.Ct. 646 , 54 L.Ed.2d 498 (1977). 3. The limited use of the defendant’s confession for impeachment purposes is prohibited when, as a matter of law, it was involuntarily obtained. Mincey v. Arizona, 437 U.S. 385 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978).

Appellant, not satisfied with suppression of his statement under Bryant v. State and Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981) during the State’s case in chief, tried to persuade the court that his statement was inadmissible for all purposes. Citing Mincey v. Arizona, 437 U.S. 385 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978), he ¹⁷⁷ now argues that it was inadmissible as a matter of law. In Mincey the Court stated that the standard for voluntariness is whether the statement is “the product of a rational intellect and a free will.” 437 U.S. at 398 , 98 S.Ct. at 2416 (citations omitted). Quite apart from the constitutional pronouncements of the United States Supreme Court, Maryland law strictly prohibits the introduction of an involuntary confession.

As recounted by Judge Dudley Digges in the Hillard opinion, “Maryland criminal law requires no confession or other significantly incriminating remark allegedly made by an accused be used as evidence against him, unless it first be shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary.” Hillard v. State, 286 Md. 145 at 150 , 406 A.2d 415 (1979) (footnote omitted). Brittingham argues here, as he did below, that he was told by the officer that a postponement of the polygraph examination would cause a delay of four-to-six weeks and further, that he was told the delayed examination would cost him money. Although he refers to this as “additional evidence” generating an issue of voluntariness, we observe that that evidence also was presented to the trial court immediately before the trial and, as indicated earlier in this opinion, the trial court held, perhaps gratuitously at that point, that the statement was voluntary. Appellant argues that pressure was brought to bear upon him in making the statement and that “although the circumstances were not as extreme as in Mincey , ... the psychological exertion pressed upon appellant was