Casey v. State

MURPHY, Chief Judge. In the Circuit Court for Harford County, a jury convicted Benjamin James Casey, appellant, of murder and conspiracy to commit murder. The State’s evidence was sufficient to establish that he committed each of those offenses after he was hired by one Kenneth Daughton to kill the victim. Appellant does not argue to the contrary.

He does contend, however, that he is entitled to a new trial and presents the following questions for our review: I. Did the trial court err in admitting into evidence as part of Appellant’s statement to police a)his invocation of the right to counsel and b) the opinion of an interrogating officer that Appellant was not telling the truth?

II

Did the trial court err in denying Appellant’s motion to strike a non-responsive answer to defense counsel’s question, resulting in improper evidence that an alleged co-conspirator of Appellant had entered a plea of guilty?

III

Did the trial court erroneously permit improper prosecutorial closing argument? IY. Did the trial court err in permitting the State to cross-examine Appellant concerning his hiring of ³³⁶ counsel and information that he imparted or chose not to impart to counsel? V. Did the trial court err in admitting into evidence certain aspects of the police investigation relating to William Haynes?

VI

Did the trial court err in refusing to compel the State to turn over statements of Detective Cole for the purposes of cross-examination at the hearing upon Appellant’s motions to suppress evidence?

VII

Did the trial court err in denying Appellant’s motion to dismiss the indictment? We answer “yes” to questions I, II, IV, and V, and must therefore reverse the judgments of the circuit court. We shall also address the remaining issues that are certain to arise when this case is tried again. Background On October 29, 1994, Michael Corey Allendorf was shot and killed outside his residence in Joppa, Maryland.

On March 6, 1996, appellant was charged with Allendorfs murder. Kenneth Daughton, who had entered a guilty plea for his role in the murder, testified that he hired appellant and William Hynes to kill Allendorf for Two Thousand Dollars ($2,000.00). 1 Daughton’s credibility was attacked by several defense witnesses. 2 Because Daughton knew many details surrounding ³³⁷ the shooting, the defense argued that he may have been the shooter. Appellant testified that, although he did agree at one point to “beat (Allendorf) up,” he played no role in the murder. I. Appellant argues that the circuit court erred when it admitted the following portion of a February 1, 1996 tape recorded statement he gave to the investigating officers: [APPELLANT]: I never talked to [Daughton] about beating up the guy. [OFFICER COLE]: Um you know we have too much information for you to sit here and tell us that you don’t know what we’re talking about.

OK? Um and we’re talking about something serious, OK. This isn’t play time. [APPELLANT]: This is obviously serious. [OFFICER COLE]: This is obviously serious. Um I can see exactly what happened here....

Uhl think you knew about, you know, from what I’m hearing you’re the type of guy if somebody needs a hand you’re glad to lend it. And uh I think that’s what happened basically, is Daughton’s [sic] were having a problem and they came to you and I think you have some, you know, you have loyalty to your friends and I think you got uh hooked into something you didn’t want to be.... And um it, and it’s up to you. You can sit and, you know, we, you can sit here and tell us you don’t know anything about it and we know that’s not true.

Um we know some of the people. And it’s not just what[Daughton] told us. We’ve talked to [Gill] ... and we have some other records, you know, we have access to a lot of records that can back up some of the information that [Daughton] and [Gill] were telling us and uh so it’s not just [APPELLANT]: For example? [OFFICER KECK]: Before [Daughton] and [Gill] were arrested there, there was a wire tap placed on [Gill’s] phone and uh [Daughton’s] phone ³³⁸ [OFFICER COLE]: Well, the point, yeah, the whole in this is that we’ve been working on this year and a half and it’s too long for you to sit here and tell us we don’t know what we’re talking about, cause we know that’s not true____ You can help us, you can. If not, then, you know, that’s up to you.

But don’tsit here and tell us you don’t know anything about it cause we know that’s not true. [OFFICER KECK]: You know, you can set [sic] there all you want and deny you have any knowledge of what’s going on, but we know different. This is your opportunity, your saving grace at this point. [APPELLANT]: I think my best bet right now is from here on out end this conversation. Speak to a lawyer. Appellant’s trial counsel interposed a timely objection to the introduction of this evidence.

The circuit court overruled that objection, but did instruct the jurors that they should draw no inference of guilt from appellant’s invocation of his right to counsel. We are persuaded that there are two reasons why the evidence at issue should have been excluded. It is well settled that evidence of an accused’s intent to obtain the advice of counsel is inadmissible under Maryland Rule 5-401. In Waddell v. State, 85 Md.App. 54 , 582 A.2d 260 (1990), this Court reversed a first degree murder conviction because the jury received evidence of appellant’s intent to obtain counsel.

We rejected the State’s argument that the jury would be unlikely to equate a request for counsel with evidence of guilt: A juror, even without the prosecutor’s suggestive comments, easily might infer from the witness’s testimony that appellant planned to obtain counsel because he had done something for which he needed a lawyer to defend him. ... As an evidentiary matter, the testimony was irrelevant and should not have been admitted into evidence. Id. at 65 , 582 A.2d 260 , citing Hunter v. State, 82 Md.App. 679, 690-691 , 573 A.2d 85 (1990). In Hunter , this Court ³³⁹ reversed a conviction for negligent homicide by motor vehicle while intoxicated because the jury received evidence that appellant contacted his attorney immediately following the fatal accident: To draw an inference of consciousness of guilt from the seeking of such advice, then, is both illogical and unwarranted; the fact to be inferred — the consciousness of guilt — is not made more probable (or less probable) from the mere seeking of legal advice or representation,and so evidence of the predicate fact is simply irrelevant.

On pure evidentiary grounds, it is inadmissable. Id. at 691 , 573 A.2d 85 . It is also well settled that the investigating officers’ opinions on the truthfulness of an accused’s statement are inadmissible under Maryland Rule 5-401. In Crawford v. State, 285 Md. 431 , 404 A.2d 244 (1979), the Court of Appeals reversed a first degree murder conviction because the jury heard evidence of a tape recorded interrogation during which police officers expressed disbelief in the defendant’s story.

The Court held: The credibility of the accused was all important in the determination by the jury of the validity of her claim throughout the interrogations that she killed in self-defense. There is no doubt that the challenged comments of the police which were heard by the jury, whether in the form of questions, assertions of disbelief, ... tended to seriously prejudice the defense. We think they did so improperly in the circumstances. Id. at 451 , 404 A.2d 244 .

See also Snyder v. State, 104 Md.App. 533, 554 , 657 A.2d 342 (1995) in which this Court reversed a murder conviction because the jurors heard an investigating officer’s testimony that “clearly brought out the obvious disbelief of the police in [appellant’s] version of what happened.” On remand, the above quoted portion of appellant’s statement must not be presented to the jury. ³⁴⁰ II. The following transpired during defense counsel’s cross-examination of Kenneth Daughton: [APPELLANT’S COUNSEL]: But during the wiretap neither you, nor [Gill] to you, mentioned the name Benjamin Casey; is that correct? [DAUGHTON]: Because she probably forgot it? [APPELLANT’S COUNSEL]: She probably forgot it? [DAUGHTON]: She did make the statement when she made her plea that his name came up. [APPELLANT’S COUNSEL]: Move that be stricken, Your Honor. [PROSECUTOR]: Your Honor, he asked the question. [APPELLANT’S COUNSEL]: No. I didn’t ask that question. THE COURT: Overruled. We are persuaded that defense counsel’s motion should have been granted.

The State is not entitled to present evidence of an alleged co-conspirator’s guilty plea. Clemmons v. State, 352 Md. 49, 57-58 , 720 A.2d 1170 (1998). ‘When a factfinder is shown that the conspirator, with whom an accused has been charged with having conspired, has pled guilty, there is more than a ‘reasonable possibility that the evidence ... may have contributed to the rendition of the guilty verdict.’ ” Carr v. State, 50 Md.App. 209, 211 , 437 A.2d 238 (1981). On remand, unless Luana Gill’s plea agreement becomes relevant to her credibility as a witness, the circuit court must not admit evidence of that agreement.

III

Appellant next argues that the circuit court erred when it allowed the prosecutor to express a personal opinion about Daughton’s credibility. The following transpired during the prosecutor’s closing argument: [STATE]: I do know that [Daughton] is not lying. So, it’s only going— ³⁴¹ [APPELLANT’S COUNSEL]: Objection to the State’s opinion about any witness. [THE COURT]: Overruled. A prosecutor “has a right to state his views as to what the evidence shows.” Riggins v. State, 125 Md. 165, 174 , 93 A. 437 (1915).

The prosecutor must, however, make it clear that this assertion is based on the evidence presented to the jury. Williams v. State, 50 Md.App. 255, 266 , 437 A.2d 665 (1981). We trust that on remand the circuit court shall prohibit any “personal belief’ argument that implies knowledge of Daughton’s credibility based on evidence other than that presented to the jury.

IV

After appellant and Hynes were arrested, they were confined in different cell blocks at the Harford County Detention Center. While incarcerated, appellant wrote a letter to Kent Brewer, who was confined in the cell block to which Hynes had been assigned. This letter included the following passage: Listen, this is very important. Tell Bill, that apparently someone said that we told them, that we committed the crime.

He probably will come up with same [sic] thought as me. Tell him, not to talk to anybody, including the cops or his attorney about it. I am going to bring the name and the situation up to my attorney when it is appropriate. The States Attorney is cooperating well with my lawyer, so I probably have more information than he does.

Instead of performing as requested, Brewer turned the letter over to Daughton, who then turned it over to the State. No objection was interposed when the letter was introduced into evidence during the State’s case-in-chief. The following transpired during appellant’s direct examination: Q.... Why did you write that (letter)?

A. Well, you have stated to me that there was a witness, and that the State’s Attorney had told you who supposedly was saying that we told him that we had committed the crime. And, at least, that was the understanding which I ³⁴² had, and I wanted to let Bill know the information, for one thing, so he would know what was going on as far as why we — they just finally charged us with the crime. And also because I didn’t want him speaking to his attorney or anyone, because, first of all, I had heard — I had been in jail for less than a week, and I heard all kinds of things,'rumors, and all the stories about Public Defenders. Q. Let me stop you right there.

Who did you believe was representing Bill at that time? A. I hadn’t had any clue whatsoever, and I figured it might be a Public Defender. And the stories I was being told by people within the jail, inmates, was Public Defenders, you really had to be careful what you said to them. They tend to take your evidence and use it against you, and rather than work for me, they work for the State and took a paycheck from the same people that the Prosecutors do.

There’s all kinds of crazy rumors. Q. That’s why you wrote the letter? A. That’s why. That’s the reason why I wanted to contact Kent, because I knew that Kent was in the same cell block as Bill.

So, he would be able to get the information to him for me. Appellant does not challenge the admissibility of this letter. He does argue, however, that neither the letter nor his direct examination “opened the door” to cross-examination about (1) the timing of his decision to obtain the services of a lawyer, or (2) his communications with counsel that were unrelated