Brown v. State

ROBERT M. BELL, Judge. Derrick Oden Brown, appellant, confessed to and was subsequently convicted by a jury in the Circuit Court for Prince George’s County of the March 26, 1988 murder of Renee Thomas. The jury’s verdict was for second degree murder. Appellant was sentenced to a term of 30 years imprisonment, with all but 20 years suspended, in favor of 5 years probation upon his release.

On appeal, he presents the following issues for our consideration: 1. Did the trial court improperly curtail defense counsel’s argument respecting suppression of Appellant’s statement? 2. Did the trial court err in admitting hearsay evidence? 3. Must Appellant’s sentence be limited to a term of 20 years?

The first issue has merit; we answer it in the affirmative. Consequently, we will reverse the conviction and remand the case to the circuit court for a new trial. We address the third issue for the guidance of the court on remand. See Maryland Rule 8-604(d). ²⁶ SUPPRESSION HEARING The victim, Renee Thomas, was found dead on March 26, 1988, in a wooded area to the rear of the John Eager Howard Elementary School, Capitol Heights, Maryland.

She had been severely beaten about the face and head. The cause of death was determined to be homicide. On August 2, 1988, appellant telephoned the Prince George’s County Police Department, homicide section, and confessed to the murder. Indicating a desire to turn himself in, he directed Detective Yeeder, to whom he confessed, to meet him at a Homoco gas station.

Officers Shimp and Johnson went to the Homoco station, picked appellant up, and brought him back to the police station. At the police station, appellant was interrogated. As a result, he confessed, initially in a writing and subsequently by responding to questions the officers asked him. He wrote: I, Mr. Derrick, did have a problem with Renee Thomas, and I got her on the corner, and took here [sic] in the woods, and took her off the map.

Responding to the officers’s questions, he said that Thomas was a friend; that he picked her up on Nova Avenue, and they had sex in the rear of his car; that he then took Thomas to the John Eager Howard School, where they again engaged in sex, this time on the school grounds; and that, as they were having sex, he grabbed several tree limbs with which he beat Thomas about the head. The only reason appellant gave for killing Thomas was that she had stolen twenty dollars from him. Appellant moved to suppress his confession, contending that it was neither voluntarily nor knowingly made. See Hillard v. State, 286 Md. 145, 150-54 , 406 A.2d 415 (1979).

Specifically, he cited, in support of the motion, his intoxication and alleged suggestive comments by the police, both contested issues. Following an evidentiary hearing, defense counsel, by proceeding to present argument on the motion, prompted the following exchange: ²⁷ MR. NILAND: Your Honor, the law in this area I think is, so far as I know, is fairly set out in several cases, ... with respect to the consideration of intoxication and/or the effect of intoxication upon a person in having given a statement and whether the statement’s knowing and voluntary. I concede the law in those areas is not very definitive or clear cut in telling us what kind of cases intoxication has reached a level where a statement would not be knowing or voluntary and, in fact, cases indicate the simple fact that a person is intoxicated or under the influence of drugs does not per se make a statement involuntary or unknowingly given and, therefore, does not per se exclude a statement.

Now, however, I think that in this case you have several factual considerations. THE COURT: Let me stop you right here. I am aware of everything that you’ve just told me and so forth and I really would give a lot more consideration to what you’re saying except for one factor in this case, and I’m going to cut you short because I have to be someplace else. But the problem I have in this case in regards to anything you’re going to tell me about intoxication, drugs, whether it’s free or voluntary, this is not the usual case that I see where there is an arrest made by the police or — your client initiated this whole procedure.

It wasn’t as a result of anything that the police did in this case that he was in Forestville. MR. NILAND: I agree with that. THE COURT: It was as a result of what he did and his actions in getting to Forestville were free and voluntary on his part.

The police had nothing to do with getting him there. It was his idea. It was at his insistence. It was at his phone calls that he was in Forestville being questioned by the police.

MR. NILAND: I don’t disagree that he initiated the contact. THE COURT: That’s what takes this case out of the ordinary— ²⁸ MR. NILAND: To an extent it does, but it also reflects upon his lack of judgment as a result of having been engaged in the use, heavy use of alcohol and drugs before he contacted the police.

Most sensible people, I would think most sensible people wouldn’t call the police and say come and get me and talk about homicide. THE COURT: I’m going to cut this real short. That’s a problem for the jury, as far as I’m concerned. At this time I’m convinced by a preponderance of the evidence that what he — whatever statements he made orally or written were freely and voluntarily given and as a consequence your motion to suppress any and all statements in this case are denied.

Always a pleasure to see you gentlemen. (Emphasis supplied) Analogizing argument on a motion to suppress to closing argument in a criminal case, appellant asserts that the trial court erred in cutting off argument, and without allowing the completion of argument, rendering a decision on the motion. He argues that he was entitled to a full and fair opportunity to present argument prior to the court’s announcement of a decision. He relies on Spence v. State, 296 Md. 416, 419-420 , 463 A.2d 808 (1983) and Martinez v. State, 309 Md. 124 , 522 A.2d 950 (1987).

Spence makes clear “that the opportunity for summation by defense counsel prior to a verdict in a non-jury trial as well as in a jury trial is a basic constitutional right guaranteed by Article 21 of the Maryland Declaration of Rights and the Sixth Amendment to the United States Constitution as applied to the States by the Fourteenth Amendment.” Id., 296 Md. at 419 , 463 A.2d 808 . See also Cherry v. State, 305 Md. 631, 635 , 506 A.2d 228 (1986), where the Court said: The constitutional right of a defendant to be heard through counsel necessarily includes his right to have counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem, unless he has waived his right to such argument, or unless the ²⁹ argument is not within the issues in the case, and the trial court has no discretion to deny accused such right. Neither the Court of Appeals nor this Court has rendered a similar holding as to the right of a defendant, through counsel, to argue a suppression motion. The issue was before the court in Martinez, supra; it was one of the issues as to which the Court of Appeals granted certiorari.

The case was decided on other grounds, however, and that issue was not reached. See 309 Md. at 130 , 522 A.2d 950 . Nevertheless, the court’s comments on the nature and importance of a suppression hearing are instructive. Addressing the question whether an accused’s right to force disclosure of grand jury testimony for purposes of cross-examining a State’s witness who has testified on direct examination, the Court said: A suppression hearing is a critical part of the criminal adjudicatory process.

The Supreme Court has noted, with good reason, that “suppression hearings often are as important as the trial itself.” Waller v. Georgia, 467 U.S. 39, 46-7 , 104 S.Ct. 2210, 2215 , 81 L.Ed.2d 31 (1984) (citations omitted). For example, the State’s case may turn upon the defendant’s confession or other evidence he seeks to suppress, and the trial court’s ruling on such matters may be dispositive of the outcome of the case. Thus, if the defendant prevails at the hearing, the State’s case could be seriously crippled, possibly prompting a dismissal of charges or some other disposition favorable to the defendant. On the other hand, if the State is successful, the suppression hearing may be the only proceeding, because the defendant thereafter pleads guilty pursuant to a plea bargain.

See id. at 47 , 104 S.Ct. at 2215 . Moreover, a suppression hearing resembles a full trial in many respects. Witnesses are sworn and provide testimony, and opposing counsel present arguments. Significantly, the outcome of the hearing will frequently turn on the trier of fact’s evaluation of the evidence and the credibility of the witnesses.

See id. (citation omitted) ³⁰ (“The outcome frequently depends on a resolution of factual matters.”). As such, access to grand jury testimony for use during cross-examination to impeach a witness, to refresh his memory, or to test his credibility, will significantly aid the defense at a crucial stage in the case. Beyond the benefit to the defendant, the availability of such testimony will enhance the accuracy of the factual determinations made at the suppression hearing____ (Emphasis in original, citations omitted). 309 Md. at 143-44 , 522 A.2d 950 .

These comments are particularly apposite to the case sub judice. Without appellant’s confession, the State’s case would have been crippled and,- more likely, irretrievably lost. Thus, we hold that, in this case, it was crucial that appellant be afforded a full and fair opportunity to present closing argument. The State suggests, as it did in Martinez , that the importance of the suppression hearing is undermined by virtue of the fact that the issue raised by the motion to suppress can be, and more likely than not will be, relitigated at trial.

The Court in Martinez had little difficulty rejecting that argument: We reject this contention. It is well settled that a defendant in a criminal case has a constitutional right to "have a “fair