Dupree v. State

³¹⁶ RAKER, Judge. In this case Petitioner was convicted by a jury in the Circuit Court for Baltimore City of second degree murder and use of a handgun in the commission of a crime of violence. During his direct testimony, the investigating detective was permitted to testify, over defense counsel’s repeated objections, that after Petitioner was arrested, the detective advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), even though Petitioner had made no subsequent statement to the police. The Court of Special Appeals affirmed Petitioner’s convictions in an unreported opinion.

We granted Petitioner a writ of certiorari to answer the question, “If the defendant chose to remain silent when questioned by the police after his arrest, may the State elicit testimony that the police read the defendant his Miranda rights?” Our answer is in the negative. Because we conclude that the disputed testimony bore no relevance to any issue in the case and was highly prejudicial, we shall reverse. I. On May 3, 1996 Hulbert Clark was returning from a local store with three friends after an afternoon of playing basketball in the neighborhood park. While walking eastbound along the 4000 block of Chesterfield Avenue in Baltimore City between six o’clock and six-thirty in the evening, Clark and his companions, Dwayne Green, William Roberts and Antoine Williams, were approached by Petitioner, Sean Dupree.

Dupree exchanged greetings with the group and at some point shortly thereafter, according to Green, became engaged in “loud talking” with Clark. Green testified that after a mutual exchange of “What’s up?” with Dupree, his attention had been momentarily diverted from his friends but was drawn back by a “commotion” between Dupree and Clark. While unable to distinguish all that the two were saying, Green recalled that Dupree was saying ‘What’s up, what’s up” in a “tone of voice [that] didn’t sound like a regular greeting.” As Green turned back to ³¹⁷ wards this commotion, he observed Dupree holding Clark in his chest area and pointing a handgun at Clark’s head. Dupree pulled the trigger and shot Clark in the head.

Green stated that Dupree shot Clark another two times, once as the victim was falling and again as his body hit the ground. The shooting took place less than two feet in front of Green. As Dupree turned toward Green, the latter fled to an alleyway where he remained momentarily until he was certain Dupree had left the area. Green then returned to the scene of the shooting.

After seeing Clark’s lifeless body and Antoine Williams kneeling down nearby in what appeared to be a state of prayer, Green ran to his house nearby “to dial 911.” Green testified that at no point did he ever see Clark with a gun. Moreover, he reasoned that neither Clark’s attire of sweatpants and a tee-shirt, which he had just put back over his torso only moments before the shooting, nor Clark’s activity of playing basketball all afternoon would have been suitable to carrying a gun. In his testimony, William Roberts reiterated Green’s account of their returning from the local store along with Clark and Antoine Williams when Dupree approached and joined the group. Roberts further testified that he and Williams were walking ahead of the other three, with Dupree and Clark following together in the middle and Green trailing along directly behind them, when he heard three gunshots.

He turned to see what had happened and observed Clark lying on the ground and Dupree running towards a nearby alley. Roberts then ran to Green’s house and called Clark’s mother to inform her that her son had just been shot. Roberts acknowledged on cross-examination that Dupree and Clark had been speaking to each other before the gunshots occurred but he was unable to distinguish what the two were saying. In addition, Roberts confirmed that he too had witnessed Williams kneeling down in prayer over Clark’s body.

Because he could not be located, Antoine Williams did not testify. Detective Richard Petrey testified that, as the primary detective assigned to investigate the shooting death of Hulbert Clark, he responded to the scene within minutes and shortly ³¹⁸ received from a fellow officer the name of Sean Dupree as a suspect. Unable to locate Dupree at his home, the detective obtained a warrant for Dupree’s arrest. On May 31, 1996 Detective Petrey had Dupree profiled on local television news programs as being wanted for murder.

The next day Dupree turned himself in to the police. During Detective Petrey’s direct testimony regarding his post-arrest interview of Dupree, the following occurred: Q. And, upon meeting the Defendant what, if anything, was done by you at the time? A. Okay. There is a— [DEFENSE COUNSEL]: I object.

THE COURT: Come on up. During the ensuing bench conference, the following exchange took place: [DEFENSE COUNSEL]: He continues his constitutional right to remain silent, which just the fact that he didn’t say anything is not incriminating. So, he has a constitutional right not to say anything, so I object to any line of questioning whether he said anything or didn’t say anything. The truth is he didn’t say anything as the State related to us. [PROSECUTOR]: His rights were enforced. [DEFENSE COUNSEL]: I understand. [PROSECUTOR]: All I want to do is ask him is did he explain his rights to him, did he understand them, did he proceed to make a statement. [DEFENSE COUNSEL]: I submit he has a constitutional right to remain silent. [PROSECUTOR]: That’s exactly what he’s going to say.

He didn’t say anything. [DEFENSE COUNSEL]: Then why is it being brought up? There is no statement that is coming in. There—it will only leave an impression with the jury that there is something wrong with him not saying something. ³¹⁹ THE COURT: Well, you can ask him did he ask—did he advise him of his rights according to procedure and then stop. [PROSECUTOR]: Okay. THE COURT: He’s right. [PROSECUTOR]: Okay.

The assistant state’s attorney then continued the direct examination of Detective Petrey: Q. Detective Petrey, upon your first meeting with the Defendant did you advise him of his rights according to Police Department procedure? A. Yes, I did. Q. Would you advise the jury what you advised the Defendant of with regard to his rights? A. Okay. [DEFENSE COUNSEL]: Objection.

THE COURT: Go ahead, sir. THE WITNESS: There is a Police Department form that we use. It’s form, Form 69, that we use with everybody who is taken into custody and on this form their name appears, age, their educational level, their date—I’m sorry—the date and the time is put on to the form also. In addition to the form in the upper right hand corner I noted certain things about the Defendant such as he was left handed, that he did not require glasses, that he had no drugs or alcohol, he was on no medication, and that he could read or write.

BY [THE PROSECUTOR]: Q. Now, when you advised him of his rights was there anyone else with you at the time other than the Defendant? A. Yeah, that would have been Detective Hoover. Q. And, upon advising the Defendant of his rights did you get the understanding that he understood what he was being advised of? A. Yes, after each of the rights, number one through five, there is a small line at the rear of each right where the ³²⁰ Defendant initials and that indicates that he does understand his rights.

During cross-examination of the detective, defense counsel pressed the point that the scene of the shooting had not been secured for a number of minutes before the first police officer arrived and therefore the area around Clark’s body was subject to possible “tampering.” In addition, the defense elicited from Detective Petrey that the police had not been able to locate Antoine Williams, the third eyewitness to the shooting (and the last person known to be near Clark’s body before police arrived), since the summer of 1996, some nine months prior to the trial. Dupree took the stand in his own defense and testified that he ran into the group while he was walking down the street. Dupree explained what transpired thereafter: I spoke to them. They said what’s up.

I said nothing. That’s when [Clark] turned, said bitch, you run up on me like that again I kill you. I said what? He said you heard me, nigger.

What’s up? So, he shoved his hand down his pants like so. He put his hands down, so he . shoves his hand down his pants like he was going for his gun, so I grabbed mine and shot. Dupree testified that it was this gesture by Clark and his seeing the butt of a black gun that caused him to react in panic by shooting Clark aimlessly with his own “22” that he had bought “off the street.” After shooting Clark, Dupree dropped his own gun and ran.

Dupree further related that all he knew about Clark was that he was from Atlanta and that because they “didn’t have a relationship” Dupree “didn’t know how to take him.” Clark had made threats to Dupree in the past, “[l]ike nigger, you don’t know where I’m from. You don’t know.” Hence, he took Clark’s threatening gesture seriously and “reacted accordingly.” During portions of his closing argument the prosecutor addressed the jury as follows: So, what does Sean Dupree do? Well, the little punk that he is he just runs out of there and what does he do? He ³²¹ don’t come—he don’t run around to ... where he lives and say mama, I’ve just done a terrible thing, call the cops, you know, I just killed somebody.

No he runs for not one, two or three days, not even for a week or two. He stays away for four solid weeks, says he calls his mother one time in four weeks after he just killed somebody. Now, does that make any sense? Why does he stay away?

Because he just killed somebody for absolutely no reason at all. Why doesn’t he tell the officers I’m sorry, I had a gun, I saw a gun. Why can he not tell the officers that he had—that Hulbert had a gun? Because Hulbert Clark did not have a gun.

That’s called—that defense is called desperation and speculation. I got to think of something quick to tell these twelve people, that I was trying to defend myself. Maybe he thinks I can get away with this. I’ll stay away for a month, finally turn myself in.

Why didn’t he tell the cops [Hulbert Clark] had a gun? Because he didn’t. Because he didn’t. Hulbert did not have a gun.

He wants you to believe he had a gun so he can think of this perfect or imperfect self-defense, but ladies and gentlemen of the jury, we have got to call this what it is.... This is first degree murder. [Emphases added.] The jury convicted Dupree of second degree murder and use of a handgun in the commission of a crime of violence, in violation of Maryland Code (1957, 1996 Repl.Vol., 1998 Supp.) Article 27, § 411 and § 36B (d), respectively. The trial court sentenced Dupree to the Department of Corrections for a term of twenty years, the first five without the benefit of parole, on the handgun count, and to a consecutive term of thirty years on the murder count. Dupree noted a timely appeal to the Court of Special Appeals.

That court affirmed Dupree’s convictions in an unreported opinion.

II

Petitioner argues that Detective Petrey’s testimony informing the jury that he advised Dupree of “his rights according to ³²² procedure” violated Dupree’s rights under the Fifth and Fourteenth Amendments to the United States Constitution as well as his rights under Articles 22 and 24 of the Maryland Declaration of Rights. The State was permitted to accomplish indirectly what it is constitutionally forbidden to do directly, that is, present to the jury evidence that Dupree remained silent after being apprised of his Miranda rights. Dupree asserts that the detective’s testimony regarding his Miranda warnings, combined with the absence of any statement by the defendant thereafter, left the jury with the unmistakable impression that Dupree chose to exercise his right to remain silent, a choice that some persons commonly view as indicative of guilt. Dupree also argues that the challenged testimony, short of any constitutional infringement, was nonetheless “inadmissible under the rules of evidence in that it was plainly irrelevant to any issue in the case.” The State counters that there was no constitutional error in Petitioner’s trial because “there was absolutely no mention to the jury that Dupree even exercised his Fifth Amendment privilege ... nor was there any attempted use of this silence by the prosecution.” By itself, Detective Petrey’s testimony that he advised Dupree of his Miranda rights did not amount to reversible error.

The State stresses that it is the particular use of post-arrest silence that must be reviewed for possible constitutional violation, not the mere mention that an arrestee was advised of his rights. Because the State did not exploit the “single reference to the fact that Dupree was advised of his ‘rights,’ ” Dupree’s conviction should be affirmed. Moreover, Dupree’s contention for the first time before this Court that the prosecutor’s closing remarks comprised the illicit exploitation misapprehends the State’s argument. The prosecutor’s summation referenced Dupree’s flight from the scene and month-long absence before turning himself in to the police; in no way did it focus upon Dupree’s post-arrest silence.

Finally, the State does not specifically rebut Petitioner’s relevancy argument but contends that “[a]ny error in admitting testimony of Dupree’s ‘rights’ advisement was harmless.” ³²³ III. As we embark upon our duty to resolve the question presented in this case we take note of this Court’s decision in confronting a similar matter almost two decades ago. State v. Raithel, 285 Md. 478 , 404 A.2d 264 (1979), presented the question “whether a trial court’s use of an accused’s silence at a prior suppression hearing to impeach his credibility when the defendant subsequently testifies at a second suppression hearing is permissible.” Id. at 479 , 404 A.2d at 264 . The Court of Special Appeals had reversed Raithel’s convictions for first degree murder, assault with intent to rape, and carrying a deadly weapon on the ground that the Fifth Amendment “privilege against self-incrimination prevents an accused’s silence at a prior hearing from being considered in assessing his credibility.” Raithel v. State, 40 Md.App. 107, 117 , 388 A.2d 161, 167 (1978).

This Court affirmed the intermediate court but under a different rationale. Judge Eldridge, writing for the court, stated: [N]othing is better settled than the principle that courts should not decide constitutional issues unnecessarily. In the instant case, the Fifth Amendment issue only arises if the defendant’s silence at the first suppression hearing was proper impeaching evidence as a matter of Maryland evidence law. In our view, under the circumstances of this case, the defendant’s silence should not have been considered by the trial court regardless of any Fifth Amendment considerations.

Consequently, we resolve the question presented in this case on that non-constitutional ground, and we do not reach any of the constitutional issues dealt with by the Court of Special Appeals and the State in its argument. Raithel, 285 Md. at 484 , 404 A.2d at 267 . In the present case, the constitutional issues debated by Petitioner and the State need be resolved by this Court only if the testimony regarding Dupree’s receipt of Miranda warnings was proper as a matter of Maryland evidentiary law. Under our rules of relevancy, if evidence lacks any tendency ³²⁴ to make the existence of any fact that is of consequence to the determination of the defendant’s guilt more probable or less probable, that evidence must be excluded.

See Maryland Rules 5-401 and 5-102. It is well settled that “the admission of evidence is committed to the considerable and sound discretion of the trial court.” Merzbacher v. State, 346 Md. 391, 404 , 697 A.2d 432, 439 (1997), and cases cited therein. See also Hunt v. State, 321 Md. 387, 425 , 583 A.2d 218, 236 (1990); Johnson v. State, 303 Md. 487, 527 , 495 A.2d 1, 21 (1985); Durkin v. State, 284 Md. 445, 453 , 397 A.2d 600, 605 (1979). The trial court’s determination of relevancy will, however, be overturned on appeal for clear abuse of discretion.

See Merzbacher, 346 Md. at 404-05 , 697 A.2d at 439 ; White v. State, 324 Md. 626, 637 , 598 A.2d 187, 192 (1991); Johnson, 303 Md. at 527 , 495 A.2d at 21 ; Durkin, 284 Md. at 453 , 397 A.2d at 605 . We hold that because the disputed testimony lacked the threshold relevancy necessary for admissibility, the trial court abused its discretion in allowing its presentation to the jury. It is therefore unnecessary to address the constitutionality of informing the jury of Miranda advisement where no pre-trial statement by the defendant is to be offered. We find it helpful, nevertheless, to consider similar cases, the majority of them based upon related constitutional grounds, in reasoning through and arriving at our decision in this case.

It is well established that' the prosecution’s use for impeachment purposes of a criminal defendant’s silence at the time of arrest, after the defendant has been advised of Miranda rights, is a violation of the Fourteenth Amendment’s guarantee of due process. Doyle v. Ohio, 426 U.S. 610, 619 , 96 S.Ct. 2240, 2245 , 49 L.Ed.2d 91 (1976). It is fundamentally unfair to induce the defendant’s silence by giving Miranda warnings, only then to punish the invocation of the constitutional right to remain silent by using that silence to impeach the defendant’s testimony at trial. Id. at 618, 96 S.Ct. at 2245 .

In reaching this conclusion the Supreme Court reasoned: ³²⁵ Silence in the wake of [Miranda ] warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. Id. at 617, 96 S.Ct. at 2244 (citing United States v. Hale, 422 U.S. 171, 177 , 95 S.Ct. 2133, 2137 , 45 L.Ed.2d 99 (1975) in which the Court had ruled, under its supervisory authority over the federal courts, that the use of post-arrest, post- Miranda silence was impermissible because silence at the time of arrest is likely to be ambiguous and thus enjoys only dubious probative value). The issue presented in the instant case is of a similar kind, yet different degree.

Petitioner’s central contention is that presentation to the jury of the mere advice of Miranda rights to a defendant upon arrest constitutes a violation of the rule pronounced in Doyle where no pre-trial statement by the defendant is to be admitted into evidence. There appears to be no case, state or federal, that has found a Doyle violation under such circumstances. In fact, several courts have held that the admission of testimony as to the giving of Miranda warnings, despite the defendant’s exercise of the right to remain silent, does not amount to constitutional error. United States v. Whitley, 734 F.2d 1129, 1135 (6th Cir.1984), abrogation on other grounds recognized by United States v. Robinson, 887 F.2d 651, 653 (6th Cir.1989); United States v. Jonas, 639 F.2d 200, 205 (5th Cir.1981); Collins v. State, 464 N.E.2d 1286, 1290 (Ind.1984); State v. Carter, 335 N.C. 422 , 440 S.E.2d 268, 273 (N.C.1994).

A somewhat related conclusion is universally accepted: evidence concerning the advice of Miranda rights followed by testimony as to the defendant’s waiver of those rights, and as to any inculpatory statement given thereafter by the defendant, is permissible in order to enable the jury to assess the voluntariness of the putative waiver and to accord the subsequent statement whatever weight and credibility the jury deems appropriate. See, e.g., United States v. De La Luz ³²⁶ Gallegos, 738 F.2d 378, 381-82 (10th Cir.1984) (“A relevant purpose for admitting testimony that a defendant was advised of his rights under Miranda is to lay a proper foundation for the admission of any statements made by a defendant thereafter” because it is the jury that must ultimately determine