Ellerba v. State

Moore, J., delivered the opinion of the Court. Appellant, Charles Ellerba, alias Alphonso Davis, was convicted by a jury in the Criminal Court of Baltimore (Kaplan, J.) on December 8,1977 of two charges of arson. He was thereafter sentenced to two consecutive 20-year terms. On appeal, he argues six assignments of error by the trial court: (1) appellant did not freely and voluntarily waive his right to counsel on May 31, 1977 and, therefore, it was error to admit statements made by him at a custodial interrogation on that date; (2) appellant did not breach the June 9, 1977 agreement between himself and the State in which the State promised not to use appellant’s May 31, 1977 statements in return for appellant’s cooperation and, consequently, it was error to admit his May 31 statements; (3) the court should not ⁷¹⁴ have admitted evidence, from any source, of other arsons allegedly committed by appellant; (4) appellant’s motion for a separate trial on each of the two indictments should have been granted; (5) the evidence was insufficient to convict appellant of the arson of 12 South Calhoun Street; and (6) the evidence was insufficient to convict appellant of the arson of 2470 Shirley Avenue.

I On May 24, 1977, appellant was arrested and charged with the arsons of 12 South Calhoun Street, 2470 Shirley Avenue, and 516 North Pulaski Street. The latter charge was subsequently nolprossed. Bail was set at $250,000. Assistant State’s Attorney Jonathan Shoup, Detective John Dillon, and Sergeant Paul Lioi first met with the appellant on May 25.

After the Miranda rights were read to the appellant, he indicated he wanted a lawyer. Following appellant’s request and before appellant was returned to his cell, the men asked appellant several routine questions, not concerning the fires. No incriminating statements were elicited. James Gitomer was retained tentatively as defense counsel on May 26 by appellant’s wife and mother.

A possible conflict of interest, later determined to be nonexistent, necessitated the tentative nature of the appointment. On May 27 appellant and Gitomer met. Assistant State’s Attorney Shoup, who was handling the case, was aware of this meeting but did not record it nor notify others in the State’s Attorney’s office before he departed on May 27 for a two-week tour of duty in the Army National Guard. Thereafter, on May 30, Detective Dillon was notified by Sheila Mack, appellant’s girlfriend, that he wished to talk with them.

A writ of habeas corpus was issued and appellant was brought to the State’s Attorney’s office on May 31, where Detective Dillon, Sergeant Lioi, and Assistant State’s Attorneys Howard Gersh and Michael S. Glushakow were present. It was later testified that all-of these individuals were unaware that appellant was represented by counsel. Before any questioning commenced, Gersh, as a ⁷¹⁵ precaution, thoroughly explored with appellant his reasons for wanting to talk. Appellant replied that he was tired of being used by his “employers” and he no longer wanted to take the blame alone for the fires.

Gersh, after he was satisfied that appellant had voluntarily and intelligently reached his decision, repeated to Ellerba his Miranda rights, but appellant indicated, in writing, that he did not want a lawyer present. 1 Following the waiver of counsel, appellant proceeded to discuss his involvement in six fires. None of the fires appellant discussed were involved in the indictments. Appellant described, in elaborate detail, schemes to defraud insurance companies whereby he was paid by one William Goldberg and one Al Rachelson to set fires to various properties they owned in Baltimore City. According to Gersh, appellant, a home improvement specialist by trade, described himself as a “furnace man.” He drew for Gersh a detailed diagram of his method of setting fires.

Appellant said he would lower the thermostat, turn off the electrical current, splice the wire running from the thermostat to the furnace, and then run more wires off the main wire. These wires were exposed. Appellant would then place a flammable liquid near the wires surrounded by some type of flammable substance. Depending on the outside temperature, appellant would set the thermostat at an appropriate degree so that it would trigger the furnace after he had left.

When this occurred, the electrical current passed through the exposed wires which would ignite the flammable substance, causing the fire. Appellant admitted starting 6 or 7 fires using this method, including properties at North Pulaski Street, Boyd Street, Groveland Avenue, and 1825 and 1827 West Baltimore Street. Although appellant’s statements made during this meeting were later reduced to written form by his interrogators, he did not sign them. During the questioning session, appellant ⁷¹⁶ agreed that he would testify to the same information before the grand jury the following day.

However, before the questioning was concluded, defense attorney Gitomer, who had discovered appellant was being questioned without his knowledge, burst into the State’s Attorney’s office in an outrage. Curiously, according to the testimony of Gersh, appellant said that he did not know Gitomer nor did Gitomer represent him. Because of this confusion, Gersh suggested that Gitomer and appellant go into the next room to discuss the matter. Later, the two men emerged from their discussion with appellant apparently accepting Gitomer as his counsel and, at the latter’s request, an agreement was made to cancel appellant’s grand jury appearance for the next day.

The appellant and the State subsequently entered into a written agreement on June 9, 1977 whereby the appellant agreed to cooperate with the State and the grand jury in the arson investigations then being conducted by the office of the State’s Attorney. In return, the State promised appellant: there would be no further indictments against him; the May 31 statement would not be used against him; and there would be a recommendation for his release on $5,000 bail and notification to the sentencing judge of appellant’s cooperation. It was a condition of the agreement that appellant give “truthful testimony” and provide “reasonable cooperation” throughout the investigation. If appellant failed to honor his commitments, the agreement would become null and void and the State would then be free, among other things, to use the statement and to charge him “in any matters.” Pursuant to this agreement, appellant testified before a special session of the grand jury, giving the same information he related to his interrogators on May 31.

His testimony led to the indictments of William Goldberg and A1 Rachelson. Subsequent to these indictments, information was uncovered which placed the truthfulness of appellant’s testimony at issue and resulted in the dismissal of the Goldberg and Rachelson indictments. Between July and October, the State repeatedly attempted to locate appellant to question him further but efforts to locate him were fruitless. According to ⁷¹⁷ the State, appellant had thus breached the agreement, thereby releasing it from the promises made to appellant and freeing it to use his statements in his trial scheduled for October 13, 1977.

On the initial day of trial, the court first took testimony on appellant’s motion to suppress his May 31 statements. The witnesses were Detective Dillon, Mr. Gersh, Mr. Shoup, and the appellant. The court ruled that the appellant freely and voluntarily waived his right to counsel. Furthermore, it was held, appellant had breached the June 9 agreement, therefore permitting the State to use his May 31 statements.

Appellant’s motion for a severance, which accompanied the motion to suppress, was also denied, the court stating that severance was “not legally required.” At trial, the State first presented testimony concerning the incendiary nature of the fire at Shirley Avenue which occurred on January 22, 1977. When the blaze occurred, the house — owned by appellant and his wife — was being remodeled. According to Battalion Chief Fred R. Schwartz, Jr., who had ordered a “complete second alarm assignment” after he had arrived on the scene, the fire, apparently originating in the basement, moved through the dumbwaiter shaft to other levels of the dwelling, the damage being heaviest in the stairway area. A separate fire had started in the upstairs bedroom.

In the basement, there were few burn marks on the furnace. A five-gallon can with the residue of what appeared to be flammable paste, resembling tile paste, was found there. Qualified as an expert in the field of fire investigation, Captain Robert Hatoff of the Fire Investigation Bureau of the Baltimore City Fire Department, testified that “the fire was incendiary in origin.” Hatoff said that the debris and the unusual burn patterns — indicative of burning from flammable liquid — caused him to conclude that arson had been perpetrated. Hatoff also testified that soon after the fire apparatus had arrived, appellant appeared at the scene and identified himself as owner.

In response to his questioning, Ellerba said he had been “in and out” of the Shirley Avenue premises during the day. Hatoff asked him to remain for ⁷¹⁸ further questioning. Appellant, however, disappeared. Following his testimony and that of several other witnesses, Captain Hatoff was permitted, over objection, to be present in the courtroom during the testimony of Assistant State’s Attorney Gersh.

Captain Hatoff thereafter testified, using for illustration pictures taken at Shirley Avenue after the fire, that, in his opinion, the fire had been started by the “furnace method,” in the same way described by appellant in his May 31 statement. As to the Calhoun Street fire, which occurred on November 27, 1975, Thanksgiving Day, Captain John C. Richter of the Fire Investigation Bureau was the State’s main witness. He testified that the fire started and was contained in the basement of the temporarily vacant three-story dwelling. The colors of the burn marks were darkest on the floor, which indicated to Richter that the fire started there before it proceeded up the wall.

The investigation was conducted several days after the fire and all of the debris had been moved outside. The investigators, therefore, were unable to determine whether a flammable liquid had been used. Investigators also were prevented from obtaining fingerprints because the wood was either wet or charred. No pictures were taken.

Through the testimony of the claims manager of the Hartford Mutual Insurance Company, the State introduced a notarized proof of loss statement executed by appellant and a draft for $1,247.11 covering the property loss to South Calhoun Street. The draft was payable to appellant and two other payees, Central Public Adjusters, the loss adjusters, and Grant Cylus, also known as William Goldberg. The witness did not know who ultimately received the draft proceeds. Olivia Anderson Jones, the appellant’s former girlfriend, who was living with him on the day of the South Calhoun Street fire, testified that on the morning of the fire, appellant left the house early, around 6:00 a.m., and returned between 8:30-9:00 a.m.

Upon his return, she testified that he said he had “dropped a match”; later he also said “he put oil in the furnace [and] he let the oil out.” The fire at the South Calhoun Street address occurred at 8:56 a.m. Almost all of the ⁷¹⁹ furniture that Jones and appellant owned was in the house .when the fire occurred. At the time of the South Calhoun Street fire, appellant was working for Goldberg doing home improvement work. Jones testified that appellant had told her he was in another business with Goldberg — the business of setting fires for a fee and collecting the insurance proceeds.

According to Jones, appellant said he had set fires at Fayette Street and Pulaski or Payson Street by “letting the oil out of the furnace.” The witness, in concluding her testimony, said she received $4,000 from an insurance company for her property, consisting mostly of furniture which was destroyed in the subsequent Shirley Street fire. Zelda Ellerba, appellant’s wife, was also a State’s witness. Mrs. Ellerba, after reading a list of fifteen properties she and appellant had owned jointly, 2 said she was aware that there had been fires at four of these properties — South Calhoun Street, Groveland Avenue, 22nd Street, and Fayette Street. Moreover, she knew appellant had received insurance proceeds for two of these fires.

She was ignorant, however, of the South Calhoun Street fire until, after receiving a summons to clear the debris, she inspected the property. The witness had no knowledge of the insurance proceeds or the proof of loss statement for 12 South Calhoun Street, On cross-examination, Mrs. Ellerba testified that the mortgage payments for the properties purchased from Goldberg were paid directly to Goldberg and out of these payments, he paid the insurance and ground rent. Goldberg was also an insurance agent. The State’s principal trial witnesses to appellant’s detailed statements of May 31 were Assistant State’s Attorney Gersh and Sergeant Lioi of the Police Arson Squad.

Gersh discussed appellant’s recitation of his involvement in various fires — 1825 West Baltimore Street, 516 North Pulaski, and ⁷²⁰ 1827 West Baltimore Street — and the furnace method he used to start them. According to appellant, he was paid fees of $400 or $100 per fire by either Rachelson or Goldberg. The witness, after examining the land records, found a complex chain of ownership transfers between the appellant and Goldberg. Gersh testified that although both Ellerba (Davis) and Goldberg (Cylus) had changed their names, they used their old and new names on legal documents.

The parties were frequently transferring the properties, struck by fires, back and forth. In some instances, although the property was in the name of one party, the insurance proceeds would be paid to the other. Sergeant Lioi testified that he was present when appellant made his May 31 statement. Although appellant said he could not remember all of the fires in which he played an active role, he did discuss 6 or 7 fires with Lioi.

Lioi took almost verbatim notes while appellant confessed to the arsons — all started by the furnace method — of 1825 and 1827 West Baltimore Street, 516 North Pulaski, 2518 Boyd Street, and 4004 Groveland Avenue. According to appellant, and later confirmed by the records, these properties were owned by either Goldberg or Rachelson. The appellant’s case consisted of four lay witnesses, including himself. The almost exclusive purpose of these witnesses was to discredit Olivia Jones through testimony that she possessed a jealous and revengeful nature.

Martha Means, another girlfriend of the appellant, was also an alibi witness, testifying that she was with him at her mother’s residence in New York on the day of the South Calhoun Street fire. However, she could not remember the New York address because’ her mother was very transient. On one occasion, Means said, Jones had threatened to shoot her because she was jealous of her relationship with appellant. Means who testified that she “was going with appellant,” was unable, however, on cross-examination, to remember where he lived.

Robert Reed, a friend of appellant, and Mary Tate, the appellant’s mother, also testified to incidents allegedly indicative of Jones’ jealousy and motivation to fabricate. When appellant took the stand, he denied any involvement ⁷²¹ in the Shirley Avenue or South Calhoun Street fires. He also testified that on November 27, the date of the South Calhoun Street fire, he did not own that property because it had been sold at a tax sale on the same day. On cross-examination, however, it was shown that on the sworn insurance proof of loss statement appellant claimed ownership of the property.

With respect to his grand jury appearance, he testified that all his testimony was false. The May 31 statement, he said, was also false. He stated that he told his interrogators what he thought they wanted to hear in order to have his bail reduced from $250,000 so he could be released from jail. (The bail was, in fact, reduced to $5,000 and he was released.) After appellant presented his case, defense counsel renewed his motion for judgment of acquittal.

The court denied the motion. The jury returned guilty verdicts under both indictments. II We shall consider first appellant’s contention that the trial court erred in holding that his statement made on May 31, 1977 was freely and voluntarily given, after he had intelligently waived his right to counsel. This issue is based primarily upon sixth amendment principles but it appears from appellant’s brief that questions involving appellant’s fifth amendment privilege against self-incrimination are tangentially involved.

With respect to the question of appellant’s waiver of his right to counsel prior to making the statements, the record herein discloses that: (a) when appellant was first interviewed on May 26, 1977, he requested counsel and at that time further interrogation ceased; (b) when counsel was engaged for appellant by his mother and sister the following day, there was some question of a possible conflict of interest that would preclude the retainer; (c) when counsel was engaged, this representation became known only to the Assistant State’s Attorney Shoup who thereafter left on a tour of military duty for two weeks; (d) Mr. Shoup’s knowledge was not communicated to Mr. Gersh who handled the case in his ⁷²² absence and (e) no formal appearance of counsel was made of record. Also critically important is the fact that the appellant and not the State sought the May 31 interview with the State’s Attorney’s office, and at that time — after again being administered his Miranda rights — he waived counsel in writing and made no disclosure to Mr. Gersh or the police officers that Mr. Gitomer had been retained. Indeed, when Mr. Gitomer appeared at the offices of the State’s Attorney and loudly protested the interrogation of his client, appellant initially questioned whether Mr. Gitomer was his counsel. Maryland has not adopted the minority view, the so-called perse rule, which mandates exclusion of all statements given by an accused after defense counsel has been engaged unless counsel has been advised of the State’s intention to take a statement and has been given an opportunity to be present.

See generally Watson v. State, 282 Md. 73, 78 , 382 A. 2d 574 (1978); State v. Blizzard, 278 Md. 556, 567-74 , 366 A. 2d 1026 (1976). Thus there is no basis for appellant’s apparent contention that his May 31 statement was admitted improperly because defense counsel was not present. Indeed, we consider it manifest that his contention would be unsupported even under the minority view because his retainer of counsel was unknown to his interrogators and he himself withheld it. The facts here are totally unlike those involved in Brewer v. Williams, 430 U.S. 387 (1977) upon which appellant relies.

There, the police officers knew that the appellant was represented by counsel and the latter had specifically requested that his client not be questioned. Furthermore, in Brewer the defendant himself advised the police that he did not want to respond without the presence of counsel. The officers, however, ignoring the defendant’s request and without administering the Miranda warnings, proceeded by trickery to elicit incriminating information from the defendant, an individual peculiarly susceptible to psychological ploys. In the present appeal, appellant’s statements were not extracted by the State nor was there any surreptitious or questionable inducement.

Rather, the facts in the instant case ⁷²³ are similar to those in State v. Blizzard, 278 Md. 556 (1976), where the request to make a statement originated with the accused and to those in Watson v. State, 282 Md. 73 (1978), where the defendant “took matters into his own hands” and elected to speak with the prosecutors in the absence of his counsel and against the latter’s advice. As to the issue of voluntariness — independent of the question of presence or absence of counsel — we find here no overreaching by the State which would support appellant’s charge, made in brief, that the prosecution was guilty of a “fast and loose manipulation of the bail system.” The interview of May 31 was held because appellant, not the prosecutors, requested it. True, the State was interested in obtaining his cooperation in a far-reaching investigation leading to the apprehension of those who had hired appellant to commit the various arsons involved. But appellant, hardly an uninterested party, was motivated by his desire to have his bail reduced from $250,000 to an affordable sum.

We think the State has asserted correctly that there was a reasonable inference that appellant “set the price for his bartered testimony.” Of course, the trial court was free to accept or reject appellant’s version of the facts and obviously rejected appellant’s testimony that his bail would be reduced to $5,000, if he waived his right to counsel. Upon our independent review of the record in this case, we find ample support for the trial court’s conclusion that appellant knew of his right to counsel, that he freely and intelligently waived this right prior to giving a statement, and that his statement was voluntary. Ill The trial court also ruled that the use of appellant’s May 31 statements was not precluded by his June 9 agreement with the State. Here, appellant’s assignment of error involves the following portions of the agreement: “(7) It is also understood and agreed that this agreement is based upon truthful testimony of Mr. ⁷²⁴ Ellerba and reasonable cooperation throughout the investigation.

(8) In the event he testifies untruthfully or fails to give his cooperation, this agreement shall be considered null and void and the State shall have the option of charging him in any matters and using any and all statements, evidence, and/or testimony against him.” One of the commitments contained in paragraph 7 was that appellant was to testify