Chase v. State

ORTH, Judge. The saga of the current travails of Jerome Edwin Chase began when he pled guilty to robbery in the Circuit Court for Prince George’s County. He was sentenced to imprisonment for a term of 10 years. The execution of all but 55 days of the sentence was suspended, and he was placed upon conditional probation for a period of five years.

Apparently Chase was not impressed by his good fortune in escaping a lengthy incarceration. A year later he was found to have violated certain conditions of his probation. The court “reimposed” the 10 year sentence, gave credit for 250 days served, and again suspended execution of the balance in favor of probation for five years. One of the conditions of this grant of probation was that he “obey all laws.” Chase was still not convinced that he should abide by the conditions upon which he was permitted to stay out of jail nor did he attempt to become a respectable member ²²⁹ of society.

Less than a year later, he tempted fate again. He was observed by two police officers in an area of considerable narcotic trafficking engaged in what they believed to be a drug transaction. They arrested him and searched him incident to the arrest. Their belief proved to be correct.

They seized from his person marijuana, drug paraphernalia and a substantial amount of cash. He was charged with violations of the Controlled Dangerous Substances Act. Chase filed a motion in the criminal cause against him to suppress the evidence seized from him. The court conducted a plenary hearing and granted the motion.

It found that the officers did not have probable cause to arrest Chase. Therefore, the warrantless arrest was illegal and the search and seizure incident thereto was repugnant to the Fourth Amendment to the Constitution of the United States as unreasonable. The exclusionary rule applied to exclude the evidence from the prosecution’s case-in-chief at a criminal trial on the merits. The State, in light of this ruling, nol prossed the charges.

In the meantime the State had filed a petition to revoke his probation for failure to comply with the condition that he “obey all laws,” in that he possessed marijuana and narcotic paraphernalia. It pursued the petition. Chase asked the court “whether or not [it] will consider the evidence seized at the time of [Chase’s] arrest as the basis of violation of [Chase’s] probation.” The court treated this question as a motion to dismiss grounded on the claim that the challenged evidence was inadmissible at the revocation hearing. The court denied the motion on the basis that the exclusionary rule did not apply, in the circumstances, to bar the evidence at Chase’s revocation of probation hearing.

Upon that ruling, Chase ultimately conceded that he had possessed marijuana. The court revoked his probation and the suspension of the execution of the 10 year sentence, suspended all but four years of it, gave credit for 580 days of previous incarceration and placed him once more on conditional probation for a period of five years commencing upon his release from prison. Chase appealed. The Court of Special Appeals affirmed the judgment except as to the ²³⁰ length of the probationary period, which it ordered be reduced by 408 days, representing probationary time already served.

Chase v. State, 68 Md.App. 413 , 511 A.2d 1128 (1986). We granted Chase’s petition for a writ of certiorari and our order for the issuance of the writ accepted the two questions presented by Chase: 1) Is evidence that police have seized without a warrant and in violation of [Chase’s] Fourth Amendment rights admissible to prove that he violated a condition of his probation? 2) Must the record of [Chase’s] violation hearing show either that he was present and contested the charges or that he knowingly and voluntarily waived his rights to be present and to contest the charges? I The violation of probation hearing consisted of two phases, conducted about three months apart. The first phase dealt with the matter of the admissibility, at the hearing on the merits of the revocation of probation, of the evidence seized from Chase incident to his arrest.

This evidence was the foundation of the State’s case, but, as we have seen, it had been suppressed with respect to the criminal cause. The transcript of the suppression phase of the revocation hearing shows that when the case was called, defense counsel informed the court that Chase was “in the lock-up.” The prosecutor thereupon introduced himself to the court, and the transcript immediately thereafter reads, “(Defendant present).” Defense counsel suggested that the evidence adduced at the suppression hearing in the criminal cause surrounding the arrest of Chase be entered in the revocation hearing by way of stipulation. The following stipulation was proffered by the State: If we were to actually present evidence at this hearing the State would show that Private Andrew Pappas and Private Anderson, who is present in the courtroom, on January the 9th, 1985, were in the 7300 block of Haw ²³¹ thorne Street in Landover, Prince George’s County, Maryland, when they saw the Defendant apparently signal to a passing motorist, who stopped his car. They saw apparently something exchanged between the Defendant, who pulled something out of his glove and gave it to a person in the car.

The person in the car gave something back to him. Given the nature of the area, that has a high volume of drug transactions that occur in exactly the same manner, they felt that they had just witnessed a drug transaction and decided to apprehend the Defendant. Both officers did apprehend the Defendant. They conducted a search of the Defendant and recovered from him one plastic bag containing 58.6 grams of marijuana; three manila coin envelopes each containing a quantity, a small quantity of marijuana; and ... 125 small empty manila envelopes, and $171 in U.S. currency.

It was further proffered that Officer Anderson did not know the Defendant, Jerome Edwin Chase, Jr., prior to this time. He had no knowledge at the time of the apprehension that he was on probation. In fact, the reason for the apprehension was in order to prosecute him for what they believed to be a drug violation at that point in time. Defense counsel expressly agreed to the stipulation and it was accepted by the court.

It appears that the stipulation was in accord with the evidence adduced at the suppression hearing in the criminal cause. It was on that evidence that the court ruled that the articles seized from Chase were not admissible to prove the criminal charges against him, prompting the State to enter a nolle prosequi to all criminal charges. At the revocation suppression hearing, counsel argued whether the evidence seized from Chase incident to his arrest was admissible to establish that he had violated a condition of his probation. After due consideration, the court ruled that it was admissible. ²³² Following the ruling of the court, the revocation action came on for hearing on the merits.

It is at this adjudicatory phase of the revocation hearing that the record is deficient. When the case was called for trial, Gregory Powell, Esq., informed the court that he was “standing in” for the defense counsel who was trying a case elsewhere. Powell said that he was ready to proceed and that Chase was “in the lock-up.” The court asked: “He’s coming around?” The Deputy Clerk of the court answered: “Yes, I called for him.” There immediately follows in the transcript a question by the court: All right, Mr. Powell, you admit or deny the allegations in the petition for violation of probation?. There is no indication in the transcript whether Chase was present in the courtroom when the court asked that question and Powell answered, or how much time elapsed between the clerk’s statement that he had called for Chase to be brought from the lock-up and what thereafter followed.

Powell answered the court’s question: For the record, we would like to preserve the right to appeal. We would deny any violation. But I believe we previously stipulated to the facts of the alleged violation. And basically that was, Your Honor, was that we agreed if there had been testimony presented in this case, the police officer would have provided the same testimony that he presented at the suppression hearing.

And, also, Your Honor, in light of the fact that there is a drug report in the underlying case reflecting that the material seized from Mr. Chase was, in fact, marijuana, we would stipulate that there was marijuana taken from Mr. Chase. The court said: “Based upon that evidence, I am going to find the defendant in violation of probation.” Defense counsel and the prosecutor entered into a discussion with the court concerning the disposition to be made of Chase. It was at the end of this discussion that the presence of Chase is affirmatively shown by the transcript. The court addressed Chase: “Mr. Chase, do you have anything you wish to tell me?” The transcript reads: “The Defendant: ²³³ No, sir Your Honor.” The court announced its disposition and informed Chase that he had “a right to appeal this judgment of guilt in 30 days; ask me to reconsider it in 90 days.” According to the transcript the case was called at 9:45 a.m. and the proceedings concluded at 9:55 a.m.

No one, including Chase and his counsel, have at any time suggested that Chase was in fact not present when the hearing went forward. Chase’s complaint is simply that the record does not reflect that he was present at all times. We know that Chase was in the courthouse lock-up awaiting the calling of his case and was readily available. We know that the Clerk had “called for him.” We know that he was brought to the courtroom.

What we do not know from the record is precisely when during the ten minutes it took to dispose of the case he appeared. It stretches credibility to believe that the hearing would have proceeded in the absence of the defendant, particularly after the judge had asked if he was present, without some indication by the court, defense counsel or the prosecutor that Chase was not in court. We are not willing to assume that judges will knowingly not fulfill their sworn obligations, but it is an assumed proposition that “judges are men of discernment, learned and experienced in the law ...” and that the application of this proposition in the performance of their duties “lies at the very core of our judicial system.” State v. Babb, 258 Md. 547, 550 , 267 A.2d 190 (1970). See State v. Hutchinson, 260 Md. 227, 236-237 , 271 A.2d 641 (1970).

But, although the probability is that Chase had appeared before the court asked defense counsel whether the charges were admitted or denied and that the reporter had inadvertently neglected to include in the record those magic words, “Defendant present,” it is possible, no matter how unlikely in the circumstances, that Chase was not then present. Of course, he was entitled to be present, as a part of the minimal due process applicable to probation revocation proceedings. See Morrissey v. Brewer, 408 U.S. 471, 488-489 , 92 S.Ct. 2593, 2603-04 , 33 L.Ed.2d 484 (1972). So we shall assume that Chase was not present until the ²³⁴ transcript reveals that his presence was recognized, and we look at what occurred during the interim.

There were no witnesses called. Evidence was presented by stipulation at the suggestion of defense counsel. It was at the express suggestion of defense counsel that the evidence offered by stipulation in the revocation suppression hearing be accepted in the hearing on the merits. It will be recalled that this was the same evidence adduced at the suppression hearing in the criminal cause in the presence of Chase and received at the suppression hearing in the revocation proceedings in the presence of Chase without objection by him.

We note that during the suppression phase of the revocation hearing, Chase conceded that he possessed marijuana when arrested. The strategy of the defense at the hearing on the merits was clear. In the words of defense counsel, “We would like to preserve the right to appeal” the ruling that the evidence seized incident to an illegal arrest was admissible to establish the violation of a condition of probation. Whether or not that evidence was admissible was the only concern of the defense.

The State was content to abide by the ruling that the search and seizure were illegal, and, of course, Chase was happy with that ruling. In no event was Chase in a position to refute successfully that he had been arrested, possessed marijuana and paraphernalia and charged with a crime. If the contraband seized was admissible at his revocation hearing, it would establish that he had not “obeyed” the law; if it were inadmissible the charge apparently could not be proved. The tactics to accomplish the strategy were to deny the violation but to stipulate the facts which Chase had twice before conceded rather than expend time and money by requiring the State to prove the charge by the introduction of testimonial and physical evidence which the defense realistically could not refute.

The denial of the violation was simply to preserve the appeal on the vital question, and the tactics employed accomplished that strategic objective. What was done in Chase’s assumed absence did not prejudice him one whit. Furthermore, it will be recalled, when the judge asked Chase toward the end of the hearing, “do ²³⁵ you have anything you wish to tell me,” Chase answered “no.” There was no indication that Chase was not aware of what had previously occurred, no intimation that he had actually not been present at all times, and no objection of any kind. In Williams v. State, 292 Md. 201 , 438 A.2d 1301 (1981), we modified prospectively the Maryland common law rule of the defendant’s right to be present in a criminal trial.

We explained: Today, with the complexity of many criminal trials and the absolute right of counsel if there is a danger of incarceration, our system proceeds upon the assumption that it is primarily counsel’s function to assert or waive most “rights” of the defendant. Unless a defendant speaks out, normally he must be bound by the trial decisions, actions and inactions of counsel. Otherwise, the system simply would not work. Id. at 218 , 438 A.2d 1301 .

We concluded: With respect to all criminal trials, or parts of trials, taking place after the issuance of our mandate in this case, an effective waiver of the defendant’s right to be present at every stage of the trial will not always require a personal waiver by the defendant. Where the right of confrontation is not implicated, and where there is involved no other right requiring intelligent and knowing action by the defendant himself for an effective waiver, a defendant will ordinarily be bound by the action or inaction of his attorney. s¡s sH sH * * * [I]f the defendant himself does not affirmatively ask to be present at such occurrences or does not express an objection at the time, and if his attorney consents to his absence or says nothing regarding the matter, the right to be present will be deemed to have been waived. Id. at 219-220 , 438 A.2d 1301 . Cf.

State v. Magwood, 290 Md. 615 , 432 A.2d 446 (1981). We think that the teachings of Williams are equally applicable to a revocation of probation hearing, which does ²³⁶ not require the full panoply of rights and safeguards associated with a criminal trial. See Black v. Romano, 471 U.S. 606 , 105 S.Ct. 2254, 2259 , 85 L.Ed.2d 636 (1985). On the particular circumstances of the instant case, we agree with the Court of Special Appeals, that “[o]n the record, we cannot find any basis for concluding that, to the extent [Chase] was, in fact, not present, his right of presence was not effectively waived.” Chase v. State, 68 Md.App. at 418 , 511 A.2d 1128 .

As the Court of Special Appeals explained: [Chase’s] right of confrontation was certainly not transgressed, for no witnesses testified against him. It had already been determined that the evidence taken from him was admissible, and the most damaging thing that occurred was his counsel’s stipulation that the substance seized was, in fact, marijuana. But that was never in dispute; indeed at the [previous] hearing, [Chase] stipulated that a bag containing 58.6 grams of marijuana had been seized. Id. at 417-418 , 511 A.2d 1128 .

If Chase was not in fact present at the commencement of the proceedings, counsel made no objection then or later. The record is clear that Chase was not absent during the entire hearing, and when he was given the opportunity to speak, he made no objection regarding any lack of presence on his part or to any action by his counsel. “There is no war between the Constitution and common sense.” Mapp v. Ohio, 367 U.S. 643, 657 , 81 S.Ct. 1684, 1692 , 6 L.Ed.2d 1081 (1961). In the circumstances here, the Constitution and common sense are not in conflict. We have an alternative reason for holding that to the extent Chase was not present at the adjudicatory phase of his revocation hearing, his absence does not require reversal of the judgment.

In Noble v. State, 293 Md. 549 , 446 A.2d 844 (1982), we laid to rest the notion that a violation of the right to be present during a stage of a criminal trial can never be harmless. In doing so we overruled State v. Saul, 258 Md. 100 , 265 A.2d 178 (1970) and disapproved Young v. ²³⁷ State, 5 Md.App. 383 , 247 A.2d 751 (1968). Noble v. State, 293 Md. at 569 , 446 A.2d 844 . We held flatly that the harmless error principle is fully applicable to a defendant’s right to be present during a stage of the trial.

Prejudice will not be conclusively presumed. If the record demonstrates beyond a reasonable doubt that the denial of the right could not have prejudiced the defendant, the error will not result in a reversal of his conviction. Id. at 568-569 , 446 A.2d 844 . This teaching is also equally applicable to the presence of a respondent at a revocation of probation hearing.

The harmless error principle is set out in Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976): [W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated. We have made our own independent review of the entire record. In light of the way in which the defense chose to proceed with its case and the reason for proceeding in that manner as shown by the record, we are convinced beyond any reasonable doubt that Chase’s absence in no way influenced the verdict. As we pointed out above, Chase was not prejudiced one whit if he were not present under the circumstances.

As we are satisfied beyond a reasonable doubt that, to the extent he was not present at the hearing, he was not harmed thereby, the error may be deemed harmless under Dorsey . We so deem it. It follows from all of what we have said that, to the extent Chase may not have been present at the revocation of probation hearing, his absence does not require a reversal of the judgment. ²³⁸ II In Maryland, the revocation of probation is considered to be a civil proceeding. 1 Chief Judge Murphy, speaking for the Court in Howlett v. State, 295 Md. 419 , 456 A.2d 375 (1983), described a probation revocation proceeding thus: While a probation revocation proceeding relates directly to the criminal case of the substantive offense, the proceeding is not itself a new criminal prosecution; the commission of a crime is not charged and the alleged violation of probation, if established, is not punishable beyond the reimposition of the original sentence imposed. Id. at 424 , 456 A.2d 375 .

It may be that the nature of probation revocation procedures in Maryland is not quite as “flexible and informal” as the Supreme Court perceives such procedures to be generally. Romano, 471 U.S. at 613 , 105 S.Ct. at 2259 . See the description of a revocation hearing in Gagnon v. Scarpelli, 411 U.S. 778, 779 , 93 S.Ct. 1756, 1758 , 36 L.Ed.2d 656 (1973). 2 But even if we have gone beyond the constitutional requirements for the conduct of a revocation hearing, 3 it is ²³⁹ luminously clear that Maryland, like the Supreme Court, deems that a revocation of probation proceeding is not a stage of a criminal prosecution. 4 It is firmly established as a civil action, and, as we have noticed above, the probationer is not cloaked with the full panoply of constitutional rights and procedural safeguards enjoyed by a defendant in a criminal cause, “A person charged with a violation of probation is not, therefore, invested with all the rights constitutionally accruing to a defendant in a criminal prosecution and the hearing is not subject to all the limitations [and procedural safeguards] imposed by law upon a trial leading to conviction.” Howlett, 295 Md. at 424 , 456 A.2d 375 ; Romano, 471 U.S. at 613 , 105 S.Ct. 2259 ; Gagnon, 411 U.S. at 778 , 93 S.Ct. at 1756 . For example, the admission of a violation of conditions of probation is not restricted as is the acceptance of a plea of guilty to a criminal charge.

Rule 4-346(c) declares: “The provisions of Rule 4-242 [Pleas] do not apply to an admission of violation of conditions of probation.” See also Howlett v. State, supra. A probationer is not entitled to a trial by jury. Moreover, the Supreme Court said in Minnesota v. Murphy, 465 U.S. 420 , 104 S.Ct. 1136 , 79 L.Ed.2d 409 (1984): Just as there is no right to a jury trial before probation may be revoked, neither is the privilege against compelled self-incrimination available to a probationer. It follows that whether or not the answer to a question about a residential requirement is compelled by the threat of revocation, there can be no valid claim of the privilege on the ground that the information sought can be used in revocation proceedings.

Our cases indicate, moreover, that a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of ²⁴⁰ incrimination. Under such circumstances, a probationer’s “right to immunity as a result of his compelled testimony would not be at stake,” ... and nothing in the Federal constitution would prevent a State from revoking probation for a refusal to answer that violated an express condition of probation or from using the probationer’s silence as “one of a number of factors to be considered by the finder of fact” in deciding whether other conditions of probation have been violated. Id. at 435 n. 7, 104 S.Ct. at 1146 n. 7. The right of a probationer to confront the witnesses against him is not absolute.

The right is lost if the hearing judge “specifically finds good cause for not allowing confrontation.” Gagnon, 411 U.S. at 786 , 93 S.Ct. at 1762 (quoting Morrissey, 408 U.S. at 489 , 92 S.Ct. at 2604 ). See State v. Fuller, 308 Md. 547, 552 , 520 A.2d 1315 (1987). In Dean v. State, 291 Md. 198, 202 , 434 A.2d 552 (1981), after observing that “[t]he procedural protections afforded a probationer at a revocation of probation hearing are not equivalent to those accorded at a criminal trial,” we said: “Formal procedures and the rules of evidence are not employed.” We made a like statement in State v. Fuller, 308 Md. at 553 , 520 A.2d 1315 (citing Gagnon as authority) and added that “reasonably reliable hearsay may be received.” In Fuller at 552, 520 A.2d 1315 , we noted that Scott v. State, 238 Md. 265 , 208 A.2d 575 (1965), although “drastically weakened” had “not been completely overruled” by Morrissey and Gagnon . We said in Scott, 238 Md. at 276 , 208 A.2d 575 : The facts presented to or coming to the knowledge of the judge, as to the breach of conditions of probation, need not establish guilt beyond a reasonable doubt as in criminal offenses; all that is required is that the facts before him be such that the judge reasonably could be satisfied that the conduct of the probationer has not been what he agreed it would be if he were given liberty.

We held that acquittal of a probationer of a charge of criminal conduct which was a violation of probation does not preclude revocation of probation, if the judge passing on the question is with reason satisfied that the probationer actually ²⁴¹ did that charged in the indictment on which he was acquitted. Id. We see nothing in the decisions of the Supreme Court which undermines the viability of this part of Scott 5 Even though a revocation of probation proceeding is a civil action, it does result in a loss of liberty. Gagnon, 411 U.S. at 782 , 93 S.Ct. at 1759 .

The deprivation of liberty is “not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” Morrissey, 408 U.S. at 480 , 92 S.Ct. at 2600 . Both the probationer and the State have a vital interest. Id. The Court spoke to the interest of the probationer: [T]he liberty of a [probationer], although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a “grievous loss” on the [probationer] and often on others.” Id. at 482 , 92 S.Ct. at 2601 .

It discussed the interest of the State and concluded: [T]he State has an overwhelming interest in being able to return an individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his [probation]. Id. at 483 , 92 S.Ct. at 2601 . It follows that [t]he [probationer] is not the only one who has a stake in his conditional liberty. Society has a stake in whatever ²⁴² may be the chance of restoring him to normal and useful life within the law.

Id. at 483-484 , 92 S.Ct. at 2601 . Thus, [b]y whatever name, the liberty [of the probationer] is valuable____ Its termination calls for some orderly procedure, however informal. Id. at 482 , 92 S.Ct. at 2601 . The validity of the procedure called for is tested by “fundamental fairness—the touchstone of due process____” Gagnon, 411 U.S. at 790 , 93 S.Ct. at 1763 ; Howlett, 295 Md. at 427 , 456 A.2d 375 ; State v. Bryan, 284 Md. 152 , 159 n. 6, 395 A.2d 475 (1978).

This is so because since “the liberty [of the probationer] is valuable [it] must be seen as within the protection of the Fourteenth Amendment.” Morrissey, 408 U.S. at 482 , 92 S.Ct. at 2601 . The Fourteenth Amendment guarantees as to State prosecutions that no person shall be deprived of “life, liberty, or property, without due process of law.” 6 “The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation.” Romano, 471 U.S. at 610 , 105 S.Ct. at 2257 (citing Bearden v. Georgia, 461 U.S. 660 , 666 and n. 7, 103 S.Ct. 2064 , 2069 and n. 7, 76 L.Ed.2d 221 (1983)). Inasmuch as it is clear that due process applies to revocation of probation proceedings, “the question remains what process is due.” Morrissey, 408 U.S. at 481 , 92 S.Ct. at 2600 . The precise question before us is whether the admission at the adjudicatory phase of a revocation of probation hearing of evidence seized incident to an illegal arrest is fundamentally unfair and thereby offensive to due process of law.

In considering the question, we are aware that the Supreme Court emphasized that there is no thought to equate [the adjudicatory] stage of [probation] revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, ²⁴³ affidavits, and other material that would not be admissible in an adversary criminal trial. * * * * * * We have no thought to create an inflexible structure for [probation] revocation procedures. Morrissey, 408 U.S. at 489-490 , 92 S.Ct. at 2604 . It follows that the mere fact that the evidence sought to be admitted at the revocation hearing was suppressed as illegally seized at the criminal trial of Chase provides, in itself, no sound reason to exclude it at his revocation hearing.

Nor, as we have seen, does the fact that Chase was not convicted of the criminal charges arising from the evidence, render the evidence inadmissible at his revocation hearing. We are also mindful of the wide range of constitutional rights and procedural safeguards, listed supra, which are available to a defendant in a criminal cause but are denied a probationer in a revocation hearing without violating due process. This leads us to the bottom line, whether, for process to be due, the exclusionary rule adopted with respect to the search and seizure clause of the Fourth Amendment must be applied in revocation of probation hearings. Ill A “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated____” U.S. Const, amend.

IY. It is a rule of the common law that the admissibility of evidence is not affected by the illegality of the means by which it is obtained. Despite indication in Boyd v. United States, 116 U.S. 616, 635 , 6 S.Ct. 524, 535 , 29 L.Ed. 746 (1886), that the use of evidence illegally obtained by federal officials was “unconstitutional,” the rule was generally followed by the courts throughout the