Davidson v. State

Alpert, J., delivered the opinion of the Court. On March 29,1982, a jury in the Circuit Court for Carroll County (Burns, J. presiding) convicted Thomas James Davidson, the appellant, of possession of marijuana with intent to distribute, possession of controlled paraphernalia, and possession of marijuana. He was sentenced to five years imprisonment, which was suspended, and placed on supervised probation for three years. This appeal followed and presents us with the following two questions: 1.

Did the court err in denying appellant’s motion to suppress incriminatory statements made by him without benefit of counsel at the trial of another? 2. Did the lower court err in denying appellant’s motion to suppress the items seized from his residence? Finding no error in either regard, we shall affirm. I. Trial Judge’s Failure To Advise Trial Witness Of Right To Counsel Appellant claims that because he "was not informed of his constitutional right to counsel before making incriminatory statements, those statements should be suppressed.” Otherwise stated, he claims he should have been given his ³²⁵ Miranda warnings.

Appellant, who was not present at the time of the search of his premises made by police pursuant to a search warrant, subsequently voluntarily turned himself in to police custody. Although charged with drug related offenses emanating from the search, those charges were dismissed at a preliminary hearing in the District Court for Carroll County. Appellant, however, was called as a defense witness at the trial of Chadwick Dyer, another individual charged as a result of the search. Before Davidson testified, counsel for Dyer and the prosecutor requested that appellant be informed of his Fifth Amendment right against compulsory self incrimination: MR.

JOHNSON: ... I’m strictly asking the Court, in view of the fact that Mr. Davidson could be prosecuted as a result of his testimony, whether he should not be advised of his fifth amendment rights. I would proffer that he is the person who is the tenant of the place that was raided, although he was not present at the time of the raid, that he, as a result of this hearing could be prosecuted. There was a preliminary hearing conducted of which I’m aware and charges were dismissed against him because of lack of probable cause.

I think he should be aware of the fact that the testimony he gives today could be used as a basis for evidence for prosecution if the State were to elect to proceed against him. In all fairness, I’m calling him as a witness and I wanted to point this out to the Court. The judge agreed and so advised appellant: THE COURT: Mr. Davidson, let me ask you a few preliminary questions before Mr. Johnson starts his examination of you. Mr. Johnson has advised me in a Bench conference that certain charges were placed against you, I’m not too sure if they result out of the charges in this case or are similar thereto, but anyway, certain charges were placed against you and there was a preliminary hearing. ³²⁶ MR.

JOHNSON: Your Honor, I understand that Mr. Davidson was charged along with everyone else. . . THE COURT: Okay. MR. JOHNSON: ... in this particular incidence.

THE COURT: In this particular incidence. Okay. So, certain charges were placed against you involving this particular incidence. There was a preliminary hearing in the District Court of Maryland for Carroll County at which time the charges were dismissed for lack of probable cause, is that correct?

THE WITNESS: Yes, sir. THE COURT: Okay. Now, the only thing I want you to make sure — I want to make sure that you understand, I believe that Mr. Johnson has spoken to you about this. I don’t know what questions will be asked of you and I don’t know what your answers will be, but it would be possible though that depending upon the questions and the answers that you could be re-charged if the State felt that certain testimony came from you which would allow them to go forward with the charges.

You have an absolute right not to testify, so as to protect yourself under the Fifth Amendment which gives you the right not to incriminate yourself. Do you understand? THE WITNESS: Yes, sir. THE COURT: Do you have any questions you wish to ask me on this point?

THE WITNESS: No, sir. Appellant’s testimony at the Dyer trial resulted in his being arrested and charged with committing the offenses in question. Certain statements from that trial were used, over objection by appellant, in the State’s case in chief. Appellant contends that it was error for the trial judge in the Dyer trial not to inform him of his right to counsel.

We disagree. Miranda v. Arizona, 384 U.S. 436 (1966) is premised upon a ³²⁷ custodial interrogation. Before a person in custody is interrogated, he must be advised of certain basic rights, including the right to counsel. In the case sub judice we hold that appellant was not in custody and the court was not in error in failing to inform him of the right to counsel.

A person is in custody if law enforcement officials formally arrest him or restrain his freedom of action in any significant manner. Cummings v. State, 27 Md. App. 361 , 341 A.2d 294 (1975). It is noteworthy in this regard that appellant understood his right against self incrimination, for he invoked this right at several junctures during his testimony. We do not believe that Miranda was ever intended to reach this type of factual scenario.

Indeed, Miranda speaks of protecting an "isolated” defendant held "incommunicado.” The Supreme Court observed "As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other investigations, where there are often impartial observers to guard against intimidation or trickery.” Miranda, supra, 384 U.S. at 461 . Additionally, as we observed in Marrs v. State, 53 Md. App. 230, 232-33 , 452 A.2d 992 (1982): The privilege against self-incrimination, which Miranda warnings are primarily intended to secure, mandates that no person shall be compelled in any criminal case to be a witness against himself. U.S. Const., amend. V. In order to be subject to Miranda warnings, a defendant’s statement must flow from "custodial interrogation” within the meaning of Miranda , there defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444 , 86 S.Ct. at 1612 . ³²⁸ The rationale underlying the suppression of statements given a law enforcement officer or any other 'official interrogator’ without proper safeguards is that the circumstances of custodial interrogation may compel an accused to make incriminating disclosures.

Appellant’s rights were adequately protected when the trial judge informed him of his right against compulsory self-incrimination. See, State v. Williams, 59 N.J. 493 , 284 A.2d 172, 177 (1971); Beckley v. State, 443 P.2d 51 (Alaska 1968). See also Leuschner v. State, 45 Md. App. 323 (1980) and 49 Md. App. 490 (1981). There were sufficient judicial safeguards to protect his interests.

The mere possibility that a witness may later be indicted based upon his testimony is not sufficient to invoke the right to counsel admonition. See, United States v. Mandujano, 425 U.S. 564 (1976). In that case, as a result of certain information concerning his participation in an attempted sale of heroin, Mandujano was subpoenaed to testify before a grant jury investigating narcotic traffic in the area. The prosecutor warned him that he was not required to answer