Brooks v. State

Melvin, J., delivered the opinion of the Court. James Ellsworth Brooks and Robert Arthur Brooks were tried jointly by a jury in Charles County (Mitchell, J. presiding), and found guilty of robbery with a deadly weapon on three separate indictments. The main contention of each on appeal is that the trial judge improperly admitted into evidence confessions of each of the defendants. On September 26, 1974, the I.G.A. Foodliner store in Waldorf, Maryland, was robbed by at least three armed men.

None of the victims could identify any of the robbers, but on October 17, 1974, acting on information provided by an informant, the police obtained an arrest warrant for James Brooks. James Brooks was arrested at home, and while he was sitting in the patrol car, the police fooled James Brooks’ younger brother, William, into going into the house and bringing back a shotgun that was suspected of being used in the robbery. Later that same day Robert Brooks turned himself in to the police. On October 25, 1974, James was given a lie detector test ¹¹⁸ and, according to police officers he made an oral confession.

On October 30, Robert Brooks was also given a lie detector test and signed a confession. The police testified that before the confession was taken from each defendant each was informed of his rights, including his right to an attorney, and that each defendant waived his rights. Appellants attack the admissibility of the confessions on several grounds. I Each asserts that the admission of the confession of the other in their joint trial violated his Sixth Amendment right to confront his accusers.

In Bruton v. United States, 391 U. S. 123 (1968), the Supreme Court of the United States held that at a joint trial the admission of a non-testifying co-defendant’s extrajudicial confession implicating the defendant violated the defendant’s constitutional right of confrontation. In the case at hand the extrajudicial confession by each defendant implicated himself and his co-defendant. Under the rule in Bruton neither confession should have been admitted at their joint trial unless the defendant who made the confession testified and was subject to cross-examination. The trial court in considering the point at the time of the objection gave the following reasons for admitting Robert Brooks’ confession, the first to be offered by the State: “THE COURT: ...

I think your motion would be premature at this time or your objection [sic]. We don’t know until the State has concluded whether the introduction of this confession ... is prejudicial or not. MR. KRATOVIL: The confession has been read, Your Honor.

THE COURT: Yes, but confessions should be admitted in evidence and considered to be non-prejudicial, if there is other evidence. Until the State has concluded its case, we don’t know what the other evidence might be.” ¹¹⁹ It is patent thát the trial judge was invoking, anticipatorily, the harmless error doctrine. The harmless error doctrine is of course not a rule of evidence to be applied by trial judges in determining questions of admissibility. While it is true that the Supreme Court in Brown v. United States, 411 U. S. 223 (1973), ruled that violations of Bruton may amount to harmless error where other evidence against the defendants is overwhelming, the Court did not say that the confessions were properly admitted; rather it held that even though the confessions were erroneously admitted, the error was cured.

Even if at the time the State offered the confession of Robert into evidence, the State had already introduced overwhelming evidence against James, the character of the other evidence could not change the status of the admissibility of the confession. In a joint trial, Bruton proscribes the admission of a non-testifying co-defendant’s confession which implicates another co-defendant. It was a clear violation of Bruton to admit either the confession of Robert or James Brooks in their joint trial during the State’s case in chief as was done here. In this instance, however, any violation of the confrontation clause was cured when each defendant thereafter took the stand and was subject to cross-examination.

In Nelson v. O’Neil, 402 U. S. 622 (1971), the Supreme Court held that where a co-defendant, whose extrajudicial statement is introduced at a joint trial, takes the stand at the joint trial, there is no violation of the Sixth or Fourteenth Amendment since the other co-defendant then has the opportunity to confront his accusers. In the case sub judice, each defendant took the stand to testify after the confessions were admitted in evidence. James Brooks denied making any inculpatory statement at all, and Robert, though admitting he signed a written statement implicating himself and James in the robbery, denied the truth of the statement claiming he was forced to sign by threats of violence made to him by the interrogating officer. Under the circumstances we hold that any Bruton error committed ¹²⁰ when the confessions of Robert and James were admitted in evidence was cured.

Nelson v. O’Neil, supra. II Appellants also contend the confessions should not have been admitted because a) they “were not provided with the assistance of counsel until after interrogation and confession in spite of their requests and an apparent referral by the court for such appointment and therefore they could not be found to have waived such rights”; b) they “were subjected to direct inducements which led to the alleged confessions”; and c) James Brooks’ confession was elicited without prior Miranda warnings. We find no merit in any of these contentions. (a) The record reflects that promptly after their arrests on October 17, 1974, both appellants were taken before a District Court Commissioner at Waldorf, Maryland, and the following day were brought before the Maryland District Court in La Plata, Maryland.

M.D.R. 709. They contend that even though the District Court Judge indicated counsel would be appointed for them, no counsel was appointed until after they were interrogated by the police. James Brooks was interrogated on October 25,1974, and Robert on October 30, 1974. Although the record is silent as to when a public defender was actually appointed to represent appellants, the public defender ultimately assigned to them stated to the court below that he was unaware of his appointment until October 31, 1974.

From these facts, appellants argue they were denied their constitutional right to the assistance of counsel at the time they were questioned by the police on October 25, 1974 (as to James) and October 30, 1974 (as to Robert). The difficulty with the argument is that the trial court believed the police testimony that before the questioning took place each appellant was informed of the full panoply of his Miranda 1 rights and voluntarily waived ¹²¹ them before answering any questions. The issue of whether appellants were informed of their constitutional rights to counsel created essentially an issue of fact for the trial judge to resolve. We give great weight to his finding on the issue (Walker v. State, 12 Md. App. 684, 694 (1971)), and upon our own independent review of the record find that each appellant was informed of such right, that each had the opportunity to exercise the right, and that each effectively waived the right.

(b) The contention of each appellant that they were “subjected to direct inducements which led to the alleged confessions” is not supported by the record. (c) The claim of appellant James Brooks that his oral confession was elicited without having been given Miranda warnings is based on the testimony of Trooper Rockel that prior to questioning James on October 25 he gave no such warnings. The record is clear, however, that Trooper Rockel questioned appellant immediately after appellant had been questioned by Sergeant Somers in an adjoining room; that Sergeant Somers had fully advised appellant of all his Miranda rights and appellant had waived them before giving substantially the same statement he immediately thereafter gave to Trooper Rockel. Under these circumstances, it was not necessary for Trooper Rockel to renew the Miranda warnings or that James again waive his rights.

See Brown v. State, 6 Md. App. 564, 569 (1969), and cases there cited. Ill Appellants’ final contention concerning the admissibility of their confessions is that they were “inadmissible under the doctrine of the ‘fruits of the poisonous tree’ During the trial, before the confessions were admitted in evidence, the State made known its intention to offer in ¹²² evidence the shotgun given to the police by appellants’ younger brother, William, at the time of James’ arrest. Appellants objected, claiming the shotgun was obtained in violation of their Fourth Amendment protections against unlawful search and seizure. A hearing was then held out of the presence of the jury during which evidence was heard concerning the circumstances of the obtention of the weapon by the police.

Trooper Rockel described the arrest and how he obtained the shotgun: “Q.... And would you tell the Court how you came into possession of that weapon? A. On the 17th I went to the Brooks residence and arrested James Elsworth Brooks. I then took him to the police car and while we were seated in the police car before leaving the residence he stated to me to instruct his brother to remove the frying pan from the stove because — Q. Which brother was this?

A. He didn’t specify the brother. He indicated he was cooking breakfast at the time he was arrested. Then [I] went to the house and I told his younger brother, his name is William Brooks, I said that your brother wants you take the frying pan off the stove and to bring out a shotgun, the one that is shorter than the others. And he then removed the frying pan from the stove and then went and got the shotgun and brought it to me.

A. I was in the doorway of the, in fact, I didn’t step inside until he was approaching me with the gun. And at that point I stepped toward him to get the gun.” Trooper Rockel also testified that prior to obtaining the shotgun from William no police officers conducted any search of the premises and that he “had no idea where the weapon was or if in fact it was positively there”. He further ¹²³ testified that James “had requested the frying pan be removed but not that the shotgun be brought out”. Appellant James Brooks then testified, out of the presence of the jury, that the shotgun belonged to him and had been kept in his bedroom.

Appellant Robert Brooks testified, also out of the presence of the jury, that he lived in the house with James and William. The younger brother William was not called to testify by either the appellants or the State. The trial judge ruled that the seizure of the shotgun was illegal and suppressed it as evidence. The judge felt the circumstances amounted “to an agent of the police going into the house and bringing out the weapon”. “It is so to speak a long arm search and not fitting into any of the categories permitted”.

Implicit in his ruling was his conclusion that William was not “in a position to give consent to the policeman by his long arm, to wit, the minor brother going into the room and bringing out this weapon”. For the purposes of this appeal, we shall assume without deciding, that the trial judge was correct in his ruling. Appellants contend that the shotgun, ruled by the trial judge to have been illegally seized, was used by Trooper Rockel in eliciting their confessions and therefore each confession was inadmissible as being the “fruit of the poisonous tree” and therefore violative of the Fourth Amendment exclusionary rule. In Ryon v. State, 29 Md. App. 62 (1975), 2 Chief Judge Orth (now an associate judge of the Court of Appeals) considered at length the Fourth Amendment exclusionary rule and the application of that rule in determining the admissibility of confessions following an illegal arrest or an otherwise illegal search and seizure.

Chief Judge Orth summarized the law as follows, at 71: “The teachings of Wong Sun[ 3 ] and Miranda, as explicated in Tucker[ 4 ] and Brown,[ 5 ] are clear. ¹²⁴ 1) The Fourth Amendment exclusionary rule applies equally to statements and tangible evidence obtained following an illegal arrest or an otherwise illegal-search and seizure. 2) Such statements are not rendered inadmissible simply because of the illegal arrest or unreasonable search and seizure. 3) Such statements are not rendered admissible simply because the Miranda warnings were fully given. 4) Admissibility of such statements, vel non, must be answered on the facts of each case, upon consideration of: (a) the voluntariness of the statement, which is a threshold requirement; (b) compliance with the Miranda safeguards, which is important in determining whether the