Bruno v. State

WILNER, Chief Judge. This is a consolidated appeal of two criminal cases tried in the Circuit Court for Harford County. On July 31, 1991, appellant was convicted by the court, on what was intended to be stipulated evidence, of first degree rape, for which he was sentenced to life in prison with all but 20 years suspended. A week later, he was convicted by a jury of solicitation to commit murder and obstruction of justice, for which he was given additional sentences, to run concurrently with the sentence imposed on the rape conviction.

Appellant complains in this appeal that the court erred: (1) in both cases, by denying his motion to suppress certain admissions made by him to State agents; and (2) in the solicitation/obstruction of justice case, (i) by allowing his indictment with respect to the rape charges to be put into evidence in the solicitation case; (ii) in commenting on the evidence; (iii) in failing to instruct the jury on entrapment; and (iv) in limiting his impeachment evidence. Finding no reversible error, we shall affirm the judgments entered below. The Facts In the early morning hours of March 29, 1990, the victim, Kimberly Wilhoit, met appellant and several of his friends at a bar and eventually left the bar with the group in appellant’s limousine. Sometime during the ensuing ride ⁵⁰⁶ through Baltimore and Harford Counties, two of the men left the group, following which appellant parked the car and the three men remaining demanded sexual favors from Ms. Wilhoit.

When she refused, two of the men held her down while appellant began to remove her clothing. Upon her protest, appellant used a stun gun to shock her. Thereafter, he, and apparently the others, engaged in several acts of vaginal intercourse and sodomy with Ms. Wilhoit, forcibly and without her consent. When this was over, they drove to a restaurant to have breakfast.

Ms. Wilhoit complained to a waitress, and the police were summoned. After his arrest, appellant was placed in the Harford County Detention Center to await trial. While there, he admitted to a fellow inmate, Norman Smith, that he had raped a woman — that he had forced a girl to have sex with him after a night of partying. Mr. Smith, either out of new-found religious convictions or in an effort to assist himself with respect to a pending violation of probation charge, relayed this information to Assistant State's Attorney Mark Nelson.

Appellant later told Smith that he (appellant) “was trying to find a way of having the girl knocked off,” to “[p]ut a hit man on her.” Smith relayed that information as well to Mr. Nelson. Upon receipt of this last piece of information, Nelson contacted Corporal Joseph Ryan of the Maryland State Police. Corporal Ryan called Smith, who told him that appellant was trying to get out of the detention center on reduced bond “to kill the girl who brought rape charges against him.” Ryan told Smith to inform appellant that “you know a guy that would do the job.” Corporal Ryan then made contact with Corporal Frank Walters, who worked with the “murder for hire unit” of the State Police. Walters told Ryan that, fortuitously, one Curtis Mack, who had served as an informant in a similar situation arising in one of the State correctional institutions, was in the process of being transferred to the Harford County Detention Center for his own protection.

Arrangements were made to have Mack placed in the same cell block as appellant. ⁵⁰⁷ When Mack arrived at the detention center, he was told by Corporal Walters to keep his eyes and ears open but not to put any ideas into appellant’s head. If appellant expressed interest in carrying out his plan to kill Ms. Wilhoit, Mack was to respond that he knew someone who could do the job. Mack was provided with a telephone number where Corporal Walters, using an alias, could be reached. In due time, appellant did indeed approach Mack regarding a plan to kill Ms. Wilhoit “to prevent her from coming to Court to testify against him.” Mack told him to think about it for a few days, “to make sure this was what he wanted to do.” When appellant confirmed his desire a few days later, Mack gave him Corporal Walters' number.

Appellant eventually called Walters who, as planned, recorded the conversation. Appellant repeated his desire to have Ms. Wilhoit killed and a price of $1,500 was discussed. Suppression of Admissions Appellant moved in both cases to suppress his statements to Norman Smith, Curtis Mack, and Frank Walters on the ground that they were obtained in violation of his Sixth Amendment right to counsel. In pressing this argument, appellant relies on Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477 , 88 L.Ed.2d 481 (1985) and some of its progeny.

As we shall see in discussing those cases, a distinction needs to be made between admissions relating to the solicitation and obstruction of justice charges and those relating to the sex offenses. In Maine v. Moulton, two defendants, Moulton and Col-son, were charged by indictment with four counts of theft. Those charges were based on assertions that they had received and retained three vehicles knowing that the vehicles had been stolen. Both entered pleas of not guilty and were released on bond pending trial.

After allegedly receiving certain anonymous threats, Colson decided to cooperate with the police. In a conversation with detectives, he admitted not only the offenses with which he and Moulton were then charged but also several other offenses. In ⁵⁰⁸ addition, Colson recorded three telephone conversations with Moulton and turned the tapes over to the police. Some of these conversations concerned the pending charges.

Through a body wire, Colson later recorded an extended face-to-face conversation with Moulton in which the pending charges and the facts underlying them were discussed in considerable detail — “what actually had occurred, what the State’s evidence would show, and what Moulton and Colson should do to obtain a verdict of acquittal.” 474 U.S. at 165 , 106 S.Ct. at 481 . At one point in the conversation, the notion of “eliminating witnesses” was briefly mentioned but discarded quickly as unworkable; concocting false alibis was also considered. Based upon these admissions, the State amended the indictment against Moulton to add some of the additional offenses he and Colson had discussed. Moulton moved unsuccessfully to suppress the recorded statements.

At trial, the State offered only those statements recorded through the body wire that involved “direct discussion of the thefts for which Moulton was originally indicted” or discussion “about developing false testimony.” Id. at 167 , 106 S.Ct. at 482 . Citing its earlier pronouncements in Massiah v. United States, 377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964), Spano v. New York, 360 U.S. 315 , 79 S.Ct. 1202 , 3 L.Ed.2d 1265 (1958), and United States v. Henry, 447 U.S. 264 , 100 S.Ct. 2183 , 65 L.Ed.2d 115 (1980), the Court confirmed, 474 U.S. at 176 , 106 S.Ct. at 487 , the general principle that “the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.” Applying that principle, it held that the State violated Moulton’s right when it arranged to record conversations between him and its undercover informant, Colson. Addressing then the Solicitor General's argument as amicus that the statements should be admissible because the State had other, valid reasons for eavesdropping on the conversation between ⁵⁰⁹ Colson and Moulton — namely, to investigate Moulton’s alleged plan to kill a witness and to insure Colson’s safety— the Court agreed that the police have an interest in investigating both “crimes for which formal charges have already been filed” and “new or additional crimes.” Id. at 179 , 106 S.Ct. at 489 . It understood as well that, in investigating a person suspected of committing one crime and formally charged with committing another, the police “obviously seek to discover evidence useful at a trial of either crime,” but concluded nonetheless that “[i]n seeking evidence pertaining to pending charges, however, the Government’s investigative powers are limited by the Sixth Amendment rights of the accused.” Id. at 179-80 , 106 S.Ct. at 489 .

In that regard, the Court continued, at 180, 106 S.Ct. at 489 ; “To allow the admission of evidence obtained from the accused in violation of his Sixth Amendment rights whenever the police assert an alternative, legitimate reason for their surveillance invites abuse by law enforcement personnel____ On the other hand, to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities. Consequently, incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel.” (Emphasis added.) In an important footnote to that last sentence, the Court added, “[i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.” (Emphasis added.) Id. at 180 n. 16, 106 S.Ct. at 489 n. 16. The Court confirmed that statement in Moran v. ⁵¹⁰ Burbine, 475 U.S. 412, 431 , 106 S.Ct. 1135, 1146 , 89 L.Ed.2d 410 (1986), where, in discussing Moulton, the Court stated that it had “made clear ... that the evidence concerning the crime for which the defendant had not been indicted— evidence obtained in precisely the same manner from the identical suspect — would be admissible at a trial limited to those charges.” (Emphasis added.) See also McNeil v. Wisconsin, — U.S. - — , 111 S.Ct. 2204 , 115 L.Ed.2d 158 (1991). The same point was made in U.S. v. Terzado-Madruga, 897 F.2d 1099 (11th Cir.1990).

There, as here, the defendant was in jail awaiting trial on charges for which he had been indicted when the police received information that he was attempting to have one or more persons murdered. The government arranged to tape a conversation between the defendant and the hit man that produced damaging admissions regarding not only the contemplated murders but the pending charges as well. The defendant was subsequently charged with three additional counts under the Murder for Hire statute which, in an effort to avoid problems under Moulton, were severed, and the defendant was tried only on the original charges. Upon his conviction, Terzado-Madruga urged that those charges should have been dismissed due to prosecutorial misconduct, part of that misconduct being the surreptitious recording of his telephone conversations in deliberate violation of his Sixth Amendment rights.

Addressing that issue, the Court held that the government did indeed transgress upon the defendant’s right to counsel, in the words of United States v. Henry, supra, 447 U.S. at 274 , 100 S.Ct. at 2189 , by “ ‘intentionally creating a situation likely to induce [an accused] to make incriminating statements without the assistance of counsel.’ ” 897 F.2d at 1109 . That was true, the court declared, citing Moulton, “even where the government expressly instructs its informant not to initiate any conversations with the accused and not to question him regarding the pending charges.” Id. ⁵¹¹ In determining what to do about the violation, the court, quoting in particular note 16 in Moulton, held that, “[U]nder the teachings in Maine v. Moulton, it is clear that Terzado’s recorded conversations obtained in the unlawful interrogation must be excluded from his trial of the drug-related charges, as the lower court recognized. Likewise, there is little doubt that Terzado’s incriminating statements pertaining to the murder-for-hire scheme, as to which the Sixth Amendment right to counsel had not yet attached, would be admissible in a subsequent trial limited to those charges.” Id. at 1111 (emphasis added). The Court expressly rejected Terzado’s further argument that the tainted evidence should be inadmissible at any trial because it was illegally obtained and that exclusion was necessary to “preserve judicial integrity” and deter further misconduct.

It said, in that regard: “As the Supreme Court has recognized, when a defendant’s right to counsel has attached for one crime, he is not insulated against interrogation as to other crimes, notwithstanding the absence of counsel [citing Moran v. Burbine]. To hold that the government is prohibited from investigating the defendant’s involvement in new crimes, simply because his right to counsel has attached for a separate offense, would be essentially to immunize a defendant from further prosecution. Indeed, in the context of this case, such a holding would be tantamount to declaring ‘open season’ on government witnesses. The Sixth Amendment has not been interpreted to provide a cloak of immunity for a defendant during the pendency of an indictment ... nor to provide a right to consult counsel for advice on committing crimes.

This is especially true where the offense under investigation is a new or ongoing one, such as illegal efforts to thwart the forthcoming prosecution.” Id. at 1111-12 . See also U.S. v. Batista, 834 F.2d 1 (1st Cir.1987); U.S. v. Nocella, 849 F.2d 33 (1st Cir.1988); Alexander v. State of ⁵¹² Conn., 917 F.2d 747 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2831 , 115 L.Ed.2d 1000 (1991); U.S. v. Payne, 954 F.2d 199 (4th Cir.), cert. denied, — U.S.-, 112 S.Ct. 1680 , 118 L.Ed.2d 396 (1992); U.S. v. Cooper, 949 F.2d 737 (5th Cir.1991); and U.S. v. Britt, 917 F.2d 353 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 971 , 112 L.Ed.2d 1057 (1991), applying the same distinction and allowing statements regarding uncharged crimes made to a government agent by a defendant then under indictment for other offenses to be used at a trial for the subsequently charged crimes. Appellant relies principally on U.S. v. Micheltree, 940 F.2d 1329 (10th Cir.1991), which reached what he regards as a different, better reasoned, and more favorable conclusion. Micheltree was an unusual case.

The defendant had been indicted for a variety of offenses arising out of her allegedly having distributed a controlled substance known as MDMA. She was released pending trial. One of the written conditions of the release was that she was to avoid all contact with potential witnesses, although there was some question whether she was aware of that condition. At some point, she called Rizzo, who had been part of the distribution network and was a potential witness, and inquired whether Rizzo had been contacted by detectives.

Initially, Rizzo replied that she had not been so contacted, but, in a subsequent call from Micheltree, Rizzo replied that she had been called by a detective. Micheltree thereupon arranged to meet with Rizzo, ostensibly for Rizzo, a hairdresser, to give Micheltree some sort of hair treatment. Rizzo, concerned, called the detective, who arranged with Rizzo to have the conversation taped. The purpose, according to Rizzo, was to see if Micheltree would try to change Rizzo’s testimony in the case.

The meeting occurred, and the conversation was taped; in it, Micheltree, at Rizzo’s urging, discussed her views about the government’s case and advised Rizzo to make the government subpoena her if she was to testify. ⁵¹³ Following this conversation, Micheltree met with her pretrial services officer who, having been alerted that Michel-tree was attempting to see a potential witness, inquired whether she had been in contact with any potential witnesses. Initially, Micheltree denied any such contact, but upon being informed that the officer had contrary information, Micheltree admitted having seen Rizzo who, she claimed, was her regular hairdresser. Micheltree denied having discussed the case with Rizzo. Both of those statements were untrue; Rizzo was not her regular hairdresser and they had, of course, discussed the case.

As a result of Mieheltree’s contact with Rizzo and her dissembling with the pre-trial services officer, the government added a new count to the indictment, charging Michel-tree with knowingly engaging in misleading conduct with the intent to hinder the communication by a pre-trial services officer to a law enforcement officer or