Davis v. State

MOYLAN, Judge. The appellant, Dallas Henry Davis, Jr., was convicted by a Montgomery County jury, presided over by Judge William M. Cave, of armed robbery and related offenses. Upon this appeal, he raises one contention going to the merits of his convictions: (1) That an incriminating statement was erroneously admitted in evidence. He also raises two contentions challenging the imposition of an enhanced sentence as a fourth offender under Art. 27, § 643B(b): (2) That he did not receive adequate notice that the State intended to proceed against him as a fourth offender; and (3) That the evidence was not legally sufficient in several respects to sustain the finding that he was indeed a fourth offender.

The Admissibility of the Statement The appellant gave an incriminating statement to the Montgomery County police. He does not claim that he was not given his fair warnings under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), or that his treatment was improper in any other respect, so as to make that statement itself directly involuntary. He seeks to establish rather a tenuous chain of cause and effect tracing back to his earlier arrest for a Charles County robbery by the State Police and his subsequent questioning at the hands of Prince George’s County police. Our holding that the incriminating statement to the Montgomery County authorities was properly admitted into evidence is, in the last analysis, the product of a practical and common-sense overview.

We decline to follow the appellant through every ⁶⁹⁸ labyrinthine corridor of strained logic and hypertechnical argument. Some brief background is necessary. The appellant “pulled” an armed robbery in Charles County during the early morning hours of January 26, 1982. He was observed in the getaway car moving from Charles County into Prince George’s County.

He was ultimately caught after a' chase by the Maryland State Police. He abandoned the car in Prince George’s County and fled on foot for about ten minutes before being apprehended by the State Police. He was taken to the Maryland State Police barracks in Forrestville for processing. Before being returned to the Sheriff’s Department for Charles County, he was taken to the Bureau of Criminal Investigation, Robbery Division, in Prince George’s County.

He was there questioned by a Sergeant Krouse of Prince George’s County with respect to any robberies which he had perpetrated in Prince George’s County. He gave a statement concerning a robbery in Prince George’s County. According to the appellant’s testimony, the following exchange occurred right after the appellant gave that statement relating to the specific Prince George’s County crime: “He asked me something about Charles County and everything, he said, ‘Well, we know we’ve got you for that already, so it’s best for you to come clean on the rest of them, you know, just clear the books, and it might come easier for you in the long run.’ Q: And did you make a statement about a Montgomery County robbery? A: I thought about it, and at the time he said, ‘Well, if you remember anything about something happening in Frederick, Anne Arundel, all the counties in the State of Maryland, it’d be helpful for you in the long run, why don’t you clear their books, too?’ So, I got to thinking about Rockville and I’m trying to remember did I commit a crime there, and I think I did make a statement, something about Montgomery County.” ⁶⁹⁹ Taking off from that exchange, the appellant moves on to Hillard v. State, 286 Md. 145 , 406 A.2d 415 (1979), and its holding that a statement will be deemed involuntary if “an accused is told, or it is implied, that making an inculpatory statement will be to his advantage.” Id. at 286 Md. 153 , 406 A.2d 415 .

Although the appellant himself was the only source for his version of the interrogation session, he relies upon Streams v. State, 238 Md. 278 , 208 A.2d 614 (1965), for the proposition that his testimony as to this inducement must be accepted as true if the State fails to rebut it specifically. In terms of direct cause and effect, the issue as to this vague and ambiguous conversation is moot. Without laboring unduly over whether some general bromide to the effect that “it’s best for you to come clean on the rest of them, you know, just clear the books, and it might come easier for you in the long run” about possible happenings “in Frederick, Anne Arundel, all the counties in the State of Maryland” was the effective operative cause for some statement dealing with “something about Montgomery County,” it is enough for us to note that no such statement (if, indeed, one was ever made and whatever it dealt with) was ever offered in evidence in the Montgomery County armed robbery trial. The appellant, however, pushes his strained syllogism one step further and urges upon us the holding of Edwards v. State, 194 Md. 387 , 71 A.2d 487 (1950), to the effect that “[wjhere one confession is held to be involuntary and inadmissible a presumption exists that any subsequent confession was made by reason of the prior influence.” Id. at 194 Md. 400 , 71 A.2d 487 .

The appellant is not arguing, therefore, that anything done by Sergeant Krouse in Prince George’s County directly contaminated the Montgomery County statement now in issue. He is arguing rather the two-step process generally referred to as “the fruit of the poisoned tree” doctrine. He urges upon us that the later Montgomery County statement is derivative evidence, an exploitation of the earlier and primary illegality. ⁷⁰⁰ When dealing with a “fruit of the poisoned tree” argument, however, the burden of establishing the primary taint is upon the defendant. United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967); Smith and Samuels v. State, 6 Md.App. 59 , 250 A.2d 285 (1969).

The State is not required to come forth and show 1) attenuation, 2) independent source, or 3) inevitable discovery, unless and until the defendant has established to the satisfaction of the court the primary taint. We hold that he has not done so in this case. The primary taint the appellant sought to establish was an improperly induced confession to the Montgomery County armed robbery now under review. The effect that would follow from that cause, if established, would be the futility of subsequently denying a crime that had once been admitted.

The appellant, however, has failed to establish not that some general inducement to say something ever occurred but that an improperly induced confession to this specific armed robbery ever occurred. This, of course, is what distinguishes this case from Edwards v. State, supra. In Edwards , the giving of the inadmissible first statement was clearly established, as were the contents of that first statement. In the present case, by way of contrast, the appellant has shown us no first statement dealing with a specific admission to a specific crime in Montgomery County.

He cannot claim the benefit of the “cat out of the bag” psychology, unless he establishes that there was a very specific cat that was erroneously released from the bag. It is not enough to show some general and undifferentiated inducement. It is not enough to show that the appellant did some undesignated thing as a result of that inducement. It is required that he establish that he confessed specifically to the crime in this case so that, to support his theory, his subsequent confession was nothing more than a reaffirmation.

He has failed to do this, and we decline to anguish further over this clever but strained contention. The only evidence for the very point of ⁷⁰¹ departure for this convoluted logic is entirely too speculative both as to the very making of a statement and as to its possible contents, if made: “I think I did make a statement, something about Montgomery County.” That is simply not enough! The Notice Requirement The appellant’s remaining two contentions deal with his enhanced sentence under Art. 27, § 643B. The first of those contentions is frivolous.

He went to trial on December 9, 1982. Maryland Rule 734c provides that the State is required to give a defendant fifteen days’ notice prior to sentencing if it intends to seek enhanced punishment under the subsequent offender law. Section 643B has two gradations of enhanced punishment. In a nutshell, a “three-time loser” will be sentenced to no less than twenty-five years; a “four-time loser” will be given a mandatory life sentence, without possibility of parole.

On September 22,1982, eleven weeks before trial, the prosecutor wrote a letter to defense counsel, informing her of his intention to “seek a mandatory sentence pursuant to Art. 27, § 643B.” The appellant now claims that this notice only alerted him to the possibility of a twenty-five-year sentence as a three-time loser and not to the possibility of a mandatory life sentence as a four-time loser. The point is frivolous. The undergirding purpose of the notice requirement is not to erect an obstacle course for the State but to give the defendant a fair chance to prepare a defense against the enhanced punishment danger. The appellant here has not proffered how his preparations would have been different whether he was guarding against the danger of being labeled a four-time loser or a three-time loser.

We can imagine no difference in the defense. The letter of notice set forth five prior convictions, any two of which could have served as the predicate for the lesser enhancement and any three of which could have served as the predicate for the greater enhancement. Obviously, a defendant would prepare any legitimate defense available against any of these ⁷⁰² five prior convictions. An adequate defense forestalling the proof of as many as two of the prior offenses would, ipso facto, forestall proof of three offenses. 1 As a purely logical proposition, the defendant could make a better argument that being on notice to guard against three prior offenses did not prepare him to guard against two, since once he was. prepared to defend against the possibility of a third prior conviction, he might have rested upon his oars and not bothered to prepare a defense against the first two, for the reason that that minimal number would not be enough in any event to subject him to the danger of mandatory life imprisonment.

The contention is hypertechnical. The defendant was adequately alerted to prepare any available defense against any or all of five prior convictions. Pursuant to that alert, he was in fact well prepared; Two of the predicate offenses proffered by the State were for convictions and incarcerations in Charles and Prince George’s Counties, respectively, that occurred after the commission of the offense in this case. Recognizing the validity of the defense, the. prosecutor conceded the invalidity of these two offenses for enhanced punishment purposes and did not offer them.

The appellant, moreover, mounted a forceful attack in two separate regards on one of the remaining three predicate offenses — the armed robbery conviction in the District of Columbia. In a word, he was well prepared to defend. When the animating purpose of the notice requirement has been well served, as it was here, we are not going to permit ourselves to be distracted or “hung up” by strained formalities. The Prior Crimes of Violence For his armed robbery conviction, the appellant was sentenced to a mandatory term of life imprisonment without ⁷⁰³ possibility of parole under the provisions of Art. 27, § 643B(b), which provides: “Mandatory life sentence. — Any person who has served three separate terms of confinement in a correctional institution as a result of three separate convictions of any crime of violence shall be sentenced, on being convicted a fourth time of a crime of violence, to life imprisonment without the possibility of parole.

Regardless of any other law to the contrary, the provisions of this section are mandatory.” In several different regards, the appellant challenges the legal sufficiency of the evidence to support this enhanced punishment. Two of the predicate offenses pose no difficulty whatsoever. The evidence established convictions and terms of confinement for the following two offenses: (1) The appellant was convicted of robbery, upon his plea of guilty to robbery, by Judge Joseph Mathias in the Circuit Court for Montgomery County on June 10, 1970. He was sentenced on August 10, 1970 to a term of imprisonment of three years.

That sentence commenced on March 18, 1970 and was served; (2) Leapfrogging for a moment the intermediate conviction in the District of Columbia, the appellant was convicted of armed robbery, upon his plea of guilty to armed robbery, by Judge Ernest Loveless in the Circuit Court for Prince George’s County on January 30, 1975. He was sentenced on March 5,1975 to a term of 16 years in the custody of the Division of Correction. That sentence began on September 27,1974. It was to be served concurrently with the sentence previously imposed by the District of Columbia.

The controversy swirls exclusively about the intermediate conviction in the District of Columbia. The evidence established that the appellant entered a plea of guilty to armed robbery in the District of Columbia on January 18,1973. He was sentenced to a term of eight years under the Federal ⁷⁰⁴ Youth Corrections Act, 18 U.S.C. §§ 5005-5026 . When he was paroled, he still had seven years to serve.

The 1975 sentence by Judge Loveless in Prince George’s County was made to run concurrently with anything yet remaining under the District of Columbia sentence. It is the appellant’s contention that because he was still on parole under the District of Columbia sentence and because there existed the possibility that he would be found in violation of that parole and be required to serve the remaining portion of that sentence (he neither pleaded nor proved anything in this regard), his District of Columbia term of confinement was not “separate” from the subsequent term of confinement imposed by Judge Loveless in 1975. We find the appellant’s argument to be very analogous to one raised unsuccessfully by the defendant in McLee v. State, 46 Md. App. 472 , 418 A.2d 1238 (1980). In that case, the defendant argued that he was not eligible for enhanced punishment because he had not finished serving his necessary term of confinement for one of the predicate offenses.

Prior to the 1979 conviction there under review, McLee had been convicted on two separate occasions, both convictions coming in 1970, of two separate crimes of violence not arising from a single incident. He received sentences of fifteen years for each conviction, the second sentence to be consecutive to the first. After serving seven years on the first sentence, McLee was released on parole. He was less than one year into that parole period and clearly within the fifteen-year potential of the first sentence, when the new crime of violence was perpetrated.

He objected to his mandatory