Davis v. State

Melvin, J., delivered the opinion of the Court. On April 12, 1978, at a jury trial in the Circuit Court for Allegany County (Getty, J., presiding), the appellant, Charles William Davis, Jr., was convicted of murder in the first degree and the use of a handgun in the commission of that crime of violence. The murder victim was Mrs. Kathleen Cook, who was shot to death behind a shopping center parking lot in Baltimore County on the night of December 31, 1975. Mrs. Cook, with her husband, had gone to a night club located in the shopping center to meet some relatives and friends for a New Year’s Eve party. ⁵⁴⁸ At trial, over appellant’s objection and following pre-trial suppression hearings, appellant’s oral confessions were admitted in evidence.

The confessions were given to the police on September 4th and 5th, 1977. Those given on September 4th were recorded on tape in the appellant’s own voice and transcribed. At trial the tapes were admitted in evidence and heard by the jury. The transcriptions were also admitted in evidence.

The confession of September 5th was presented to the jury through the testimony of Maryland State Trooper David Horan. Testifying from notes made at the time, Trooper Horan related the appellant’s detailed account, given at the scene of the crime, of how, on New Year’s Eve 1975, the appellant had lured Mrs. Cook, thinking she was someone else, from the night club onto the parking lot of the shopping center, had sexual intercourse with her, beat her, fired four .38 calibre bullets into her body, and left the scene. The appellant elected not to testify either at the suppression hearings or at trial, and otherwise presented no evidence to contradict the State’s evidence concerning the corpus delicti of the crimes or his criminal agency. On appeal his primary contention is that the judgments of conviction must be reversed because the trial judge erred in admitting his confessions into evidence.

He does not contend here that his confessions were involuntary in the traditional sense or that any of his rights set forth in Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 (1966) were violated so as to invoke the exclusionary rule enunciated in that landmark decision. He does invoke, however, two other exclusionary rules: 1) the Fourth Amendment exclusionary rule followed in Ryon v. State, 29 Md. App. 62 , 349 A. 2d 393 (1975), aff’d. 278 Md. 302 , and 2) the per se exclusionary rule adopted by the Court of Appeals in Johnson v. State, 282 Md. 314 , 384 A. 2d 709 , decided April 6, 1978, four days before the appellant’s trial below and seven months after his confessions. The appellant argues that a proper application of either of these rules required the trial judge to exclude his confessions. Related to the claimed applicability of the Johnson exclusionary rule is appellant’s remaining contention that the ⁵⁴⁹ trial judge erred in failing to instruct the jury that it was up to them, the jury, to determine whether or not the rule of Johnson applied to this case.

After a careful review of the record we conclude that there is no merit to any of the appellant’s contentions and we affirm the judgments of conviction. I The Fourth Amendment Claim The relevant facts as presented to Judge Getty at a suppression hearing on March 13th, 14th and 15th, 1978, are as follows. On July 20, 1977, Maryland State Troopers David Horan and Gary Hartman were driving in Baltimore City when they passed the appellant Davis driving his Volkswagen in the opposite direction. Trooper Horan recognized Davis as an individual who had been questioned several months before in connection with the murder of Kathleen Cook, the victim in this case, and the August 24, 1976 murder of one Peggy Pumpian.

Trooper Horan also had information that the license plates on the Volkswagen were “switch tags”, i.e., that they had not been issued to the Volkswagen Davis was driving. Trooper Horan turned around and followed Davis. A radio call to Maryland State Police Headquarters confirmed the fact that the license plates had been issued to another vehicle. Davis was stopped by the troopers for the motor vehicle violation.

Davis admitted that he had switched tags and was told by Trooper Horan that citations for this and other motor vehicle violations (driving “without any registration plates at all” and “operating a vehicle without any insurance”) would be issued. Trooper Horan then asked, “Can I search your vehicle, Charlie?” Davis consented to the search. There is no claim in this appeal that Davis did not voluntarily and willingly consent to the search or that the scope of the search of the vehicle was in any way limited by the consent given. In the course of searching the inside of the Volkswagen, Trooper Hartman saw an uninstalled CB radio under one of the seats.

He "grabbed a hold of it — and pulled it out — and since it wasn’t attached to anything — just looked at the ⁵⁵⁰ serial number and jotted it down on the back, and then called it in for a check — to see if it was stolen.” The information received back was that the CB radio was stolen. Davis was thereupon arrested for receiving stolen property. Subsequent investigation showed that the radio had been purchased with a stolen credit card belonging to the husband of one Carol Willingham. Mrs. Willingham was the victim of an alleged rape and robbery that occurred in Baltimore City on February 23,1977, during the course of which the credit card was taken from her.

Eventually Carol Willingham made a photographic identification of Davis as her assailant. On August 3.0, 1977, an arrest warrant was obtained from the Maryland District Court in Baltimore City charging Davis with the rape and robbery of Carol Willingham. In the meantime Davis had gone to Reno, Nevada, where he worked for an ambulance service. On August 31, 1977, Troopers Horan and Hartman, accompanied by Marshall Feldman, Esq., an assistant State’s Attorney for Baltimore City, traveled by airplane to Reno to obtain custody of Davis and return him to Maryland for trial on the Willingham rape and robbery charges.

At approximately 1:20 A.M. on September 1, 1977, the Reno police, accompanied by Troopers Horan and Hartman, arrested Davis, advised him of his rights and placed him in the Reno jail. Before being taken to the jail Davis told Trooper Horan that he wanted to talk to him privately. The trooper replied that he was busy at that time but that “he [Davis] would get an opportunity later to speak with me if he wanted to”. Later, during the same day, September 1, Trooper Horan went to the jail and asked Davis if he still wanted to speak to him.

Davis said he did not and no questions were asked of him. On the afternoon of September 2, Trooper Horan went to the Reno jail to photograph Davis. At this time Davis told the trooper that “about every six months — he did something big and he gets into trouble” and that there were “two things” he wanted to talk to the trooper about. However, after the trooper made arrangements for a room in which they could have privacy and after Davis had been given Miranda ⁵⁵¹ warnings and asked again if he “wish[ed] to talk to me”, he replied, “Only with a lawyer”.

No further interrogation took place. This was but one of several “false starts” during the next two days in which Davis, without prompting from the police, first indicated a desire to talk about the “two big things” [presumably the Cook and Pumpian murders] and then changed his mind. On September 3, 1977, Davis appeared before a Nevada judge and waived extradition. The extradition hearing ended at approximately 10:15 A.M., at which time the troopers made arrangements to fly to San Diego, California to pick up an escapee from the Maryland House of Correction.

They left Reno with Davis at approximately 1:30 P.M. At 6:30 the following morning, September 4, the four men (Horan, Hartman, Davis and the escapee) left San Diego and after a short stop in Chicago, Illinois, arrived at Baltimore-Washington International Airport at 5:31 P.M. The troopers’ intention was to then drive to Baltimore to deliver Davis to the Baltimore City Police Department. Before doing so they stopped at Jessup, Maryland, to deliver the escapee to the House of Correction. When they arrived at the prison, Trooper Hartman remained in the car with Davis while Trooper Horan took the escapee inside. While waiting in the car Davis told Trooper Hartman that he wanted to talk about the Pumpian homicide.

When Trooper Horan arrived back in the car a few minutes later Davis again said he wanted to talk about the Pumpian homicide. Before making any statement Davis was advised of his Miranda rights. He then confessed to the Pumpian crime and agreed to repeat it on tape. He was then driven to the Waterloo Barracks of the Maryland State Police where at 6:43 P.M. his statements were recorded on voice tape.

The taping session lasted until approximately 10:30 P.M. and included inculpatory statements concerning not only the Pumpian murder but the Kathleen Cook murder as well. 1 The transcript of the tapes shows that before making the statements Davis was fully advised of his Miranda rights ⁵⁵² and that he waived them. He was taken before a commissioner the following day at 7:00 P.M. Davis claims in this appeal, as he did below, that his confessions were inadmissible under the doctrine of the fruit of the poisonous tree. See Wong Sun v. United States, 371 U. S. 471 , 83 S. Ct. 407 (1963); Everhart v. State, 274 Md. 459 , 337 A. 2d 100 (1975). The “poisonous tree”, he argues, was the “seizure” 2 of the serial number of the CB radio at the time his Volkswagen was searched with his consent on July 20,1977.

Davis argues that this “seizure” was illegal because although he consented to the search of his automobile the police did not have probable cause to believe that the radio was stolen or was otherwise connected with any crime. From this premise he argues that there was no valid probable cause for the issuance of the arrest warrant charging him with the Willingham rape and robbery for which he was arrested in Nevada on September 1, 1977; that the arrest was therefore illegal; and that his confessions (nearly 4 days later) to the Cook murder following this illegal arrest were inadmissible. For purposes of this appeal, we shall assume but not decide that Davis’s Nevada arrest, for the reasons argued by him, was illegal. Even so, upon our mandated independent review of the record as a whole, we hold that the confessions were not barred by reason of that illegality.

We base our holding upon application of the principles set forth in Ryon v. State, supra, wherein we said: “1) The Fourth Amendment exclusionary rule applies equally to statements and tangible evidence obtained following an illegal arrest or an otherwise illegal search and seizure. 2) Such statements are not rendered inadmissible simply because of the illegal arrest or unreasonable search and seizure. 3) Such statements are not rendered admissible ⁵⁵³ simply because the Miranda warnings were fully given. 4) Admissibility of such statements, vel non, must be answered on the facts of each case, upon consideration of: (a) the voluntariness of the statement, which is a threshold requirement; (b) compliance with the Miranda safeguards, which is important in determining whether the statements were obtained by exploitation of the illegal conduct; (c) other relevant factors, such as (i) the temporal proximity of the arrest and the confession; (ii) the presence of intervening circumstances; and (iii) 'particularly, the purpose and flagrancy of the official misconduct.’ ” Id at 71-72. Voluntariness of the Confessions As already mentioned, Davis does not contend that the State did not fully meet its burden of showing that the confessions were voluntary under Fifth Amendment standards. There is not the slightest evidence that the confessions were the result of any coercion, threats, promises or undue influence on the part of the police. Compliance with Miranda safeguards The record shows full compliance with the Miranda safeguards before Davis made his decision to confess, and there is no contention to the contrary.

Other Relevant Factors The arrest preceded the confessions by nearly four days. During that time Davis was not questioned at all concerning the Cook murder or the Pumpian murder. Judge Getty said ⁵⁵⁴ in his memorandum opinion following the March suppression hearing: .. The confession was separated from the arrest by a period of four days.

The conversations that took place were initiated by the Defendant. He was before a Judge for the purpose of waiving extradition and made one or two phone calls to his girl friend from the west coast. Davis’ decision to confess strikes the Court as a battle with his own conscience and not a result of impermissive actions by the two police officers. The tape recording indicates an atmosphere of quiet reflection and free expression.” 3 Regarding the “purpose and flagrancy of the official misconduct”, we look to the police conduct that Davis contends tainted his confessions and rendered them inadmissible because of the Fourth Amendment exclusionary rule.

Here the primary illegality, which we have assumed to exist, is the “seizure” of the CB radio serial number. We assume also (again without deciding) that the serial number led to Davis’s photographic identification by Carol Willingham and his Nevada arrest and that the arrest itself was therefore illegal. Under the circumstances, however, we do not find that the assumed “official misconduct” was flagrant or engaged in with any improper motive or design. In summary, with respect to Davis’s claim that his confessions were inadmissible under the Fourth Amendment because they followed an illegal arrest, we find that the State has met its burden of showing that the causal connection between the illegal arrest and the confessions made subsequent thereto was broken, and that the confessions were “sufficiently an act of free will to purge the primary taint.” Wong Sun v. United States, 371 U. S. 471 , 83 S. Ct. 407 (1963); Brown v. Illinois, 422 U. S. 590 , 95 S. Ct. 2254 (1975); Ryon v. State, supra. ⁵⁵⁵ II The Johnson v. State Claim Following the suppression hearing of March 13th, 14th and 15th, 1978, Judge Getty denied the motion to suppress the confessions.

On April 6, 1978, the Court of Appeals filed its opinion in Johnson v. State, supra. Based on the holding in Johnson , Davis renewed his motion to suppress and was permitted to argue as an additional reason for suppression the alleged violation of Maryland District Rule 723 a. 4 The motion was denied before trial on April 10, 1978. In Johnson , the Court held that M.D.R. 723 a was mandatory, and, of more far reaching importance, that the sanction for violating its provisions was the exclusion of “any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer.” The precise holding of the majority of the Court was as follows: “We therefore hold that any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer, thereby violating M.D.R. 723 a, is subject to exclusion when offered into evidence against the defendant as part of the prosecution’s case-in-chief. A statement is automatically excludible if, at the time it