Franklin v. State

Sweeney, J., delivered the opinion of the Court. On September 8, 1975, Stephen Franklin was convicted of attempted robbery with a dangerous and deadly weapon by the Honorable Paul A. Dorf, sitting without a jury in the Criminal Court of Baltimore. He was sentenced to 20 years incarceration. Franklin now attacks his conviction, asserting that his constitutional rights were infringed because the trial court failed to make a preliminary or subsequent determination of the voluntariness or trustworthiness of certain extrajudicial statements attributed to him, which were introduced by the State for impeachment purposes.

Franklin also alleges that the court erred in permitting a police officer to testify as to his silence when he was asked certain questions by the officer. The State’s primary witness was a taxicab driver, Jarrett Christian, who testified that he had picked up the Appellant and two young girls at Pennsylvania Avenue and Laurens Street in Baltimore City at approximately 9:30 p.m. on December 19, 1974. Christian testified that the females left the cab at Ashburton Street and North Avenue, and that the Appellant then directed him to drive to a certain address on Spaulding Avenue. When they arrived at that address, according to Mr. Christian, the passenger got out of the cab and knocked on several doors and then returned to the cab, walking around in front of it with his hands in his pockets and saying to him “you know what this is ... give it up.” Christian stated that he responded by attempting to flee, driving his cab up an alley at a high rate of speed, striking a pole as he did so.

While driving away, he heard several gun shots and saw that the windshield of his taxi had been struck by a bullet. Christian theft jumped out of the cab and fired a pistol at his assailant, but did not know if any of the bullets struck him. He notified police of the attempted robbery, and after two policemen came to the scene and spoke to him, drove his cab back to bis garage. On his arrival ⁶⁹² at the garage, he was advised that two detectives wanted to see him at Sinai Hospital.

He arrived at the hospital, he said, about an hour after the shooting incident and there he identified the Appellant, who was being treated for a gun shot wound, as the man who had been a passenger in his cab and who had attempted to iob him. In court, on the day of trial, Mr. Christian identified the Appellant as a person who “looked like” his passenger on the day of the shooting. No objection was made to the admissibility of this in-court identification. The State’s second and last witness in its case in chief was Detective John Grimes of the Baltimore City Police Department, who testified that on the date in question he received a call directing him to go to the scene of a taxicab holdup in the 3000 block of Garrison Avenue.

On arriving there he found the cab driver, Mr. Christian, who made a report to him. Grimes stated that he then canvassed the area for possible suspects, without success. Approximately an hour later, he heard a call over the police radio advising that a man was being treated for a gun shot wound at Sinai Hospital. He went to the hospital where, he stated, he “observed the defendant here sitting in the emergency room/ being treated for a gun shot wound of the left shoulder.” He said the Appellant was then dressed in hospital clothing, with his own clothing piled up nearby.

Grimes testified further that he determined that none of that clothing, which consisted of a three-quarter length brown leather jacket, and a shirt, contained any bullet holes. During Grimes’ testimony he attempted to describe his conversation with the Appellant at the hospital, and the following colloquy ensued: “Q What did you do after viewing the Defendant and looking at his clothes? A I interviewed the Defendant at that time. Not as a Defendant.

I asked him what — how he got shot. Q And what did he say? A He stated that he — MR. MEYERS: Objection. ⁶⁹³ THE COURT: Is there any objection?

What’s the purpose of the objection, the reason for the objection? MR. MEYERS: Well, Your Ho;l0r, there has been no testimony that the Defendant was advised of his rights before the interrogation. THE COURT: No testimony that it is an interrogation.

MR. MEYERS: Well, he is asking questions, and he hasn’t advised the Defendant he has a right to counsel and so on. THE COURT: Well, there has been no objection as to an oral confession. MR.

MEYERS: Well, here he is getting into a statement made by the Defendant. I don’t believe what it is going to be, but I think — MR. LEWIS: Your Honor - THE COURT: I’ll let you qualify at this point of time, not qualify as to whether it’s custodial interrogation or not. MR.

LEWIS: To avoid the problem, we will withdraw the question at this time. THE COURT: Routine investigation, not custodial interrogation. All right. Question withdrawn.” Grimes then testified that after talking to the Appellant, he called communications and asked to have the cab driver come to the hospital.

He stated that when Mr. Christian arrived at the hospital he “observed the Defendant and stated, that is the man that tried to hold me up”. Grimes testified that he then went to an address at 4900 Queensberry Avenue, where he was given certain articles of clothing by the Appellant’s sister. He identified those articles as a jacket and a sweater and said that each contained bullet holes. He testified further that he examined Mr. Christian’s taxicab and found several “indentations” on the cab: one in the windshield, one in the side and one in the ⁶⁹⁴ rear.

After introducing certain medical records of the Appellant from Sinai Hospital, the State rested its case-in-chief. Appellant then made a motion for a judgment of acquittal, which was denied, after which the Appellant elected to testify in his own defense. In his direct testimony, Franklin stated that on the evening in question he was on Pennsylvania Avenue preparing to go home because he felt “kind of sick”. “I take epileptic medicine, and I was slightly intoxicated, just a little bit.” He said he got into a conversation with two girls, told them he had only “a dollar and something”, and that they offered to take him home by cab. In the 2700 block of North Avenue, he said, the girls got out of the cab “giggling, you know, so I’m stuck in the cab”.

He said he told the cab driver to keep going, in the hope that he would see someone who could give him the cab fare, but was unsuccessful in that effort. He then told the driver to take him to a friend’s home on Spaulding Avenue, but no one answered at that address. He testified that when he went back to the cab, the driver pointed a gun at him: “A. He had a pistol at my face, you know. Right there I panicked, because I was shot twice.

This is the third time, you know, I ran down the alley. About a second later I heard five shots. I was hit with one of them. I scared.

I stopped at Garrison. He came through with the cab, and then he stopped, said, ‘Come out behind them bushes, I see you.’ Is it all right if I say what he said? ‘You behind them bushes, you black mother-fucker, come out.’ So I came out. T got one dollar, something. I live right around the corner, Queensberry, which I did, you know.

You go around the corner, you get the rest of your money.’ He said, ‘No, just throw the dollar across the hood, or I’ll kill you.’ You know. So I threw the dollar across the hood. My sister take me to the hospital. I took off the bloody shirt I had on, you know, and then I put another on, and my sister threw a leather coat, she put that on.

I got down to ⁶⁹⁵ the hospital, and I was treated. Then he came in. The cab driver came in. He said, ‘Is that the one?’ He said, ‘yeah,’ and ran right back out, you know.

The officer right there he questioned me where my pistol at, but I don’t own no gun. That’s how everything went, you know. Q. Did you have a pistol with you that night? A. No, I don’t own no pistol.

Q. Did you attempt to hold up the cab driver? A. No. On cross-examination, Franklin testified concerning his interrogation by Det. Grimes: “Q. Now, when the officers came to see you at the hospital, what did you tell them happened? A. I told them I got shot.

Q. And, how did you get shot? A. Cab driver shot me. Q. Didn’t you tell them that you had gotten in an argument down at Park Circle and Park Heights, and as a result of that, you had been shot? A. I don’t know nobody there.

Q. So what exactly do you recall telling the officer? A. That I got shot by a cab driver. Q. And did you give a reason why you were shot? A. I told them everything like I am telling you all. > Q. Which is — repeat again what you told the officer, please.

A. Right. Q. Repeat it. A. I told them I got shot by a cab driver. You want me to repeat my statement as far as getting out the cab and running stuff?

Q. It’s your testimony then that you did not tell the officer that you were involved in a fight, someone shot you as a result of a fight? A. Yes, sir.” ⁶⁹⁶ After Franklin’s testimony, the defense rested and the State then recalled Det. Grimes in rebuttal. Grimes testified as follows: “Q. Detective Grimes, when — you previously testified that you went to the hospital and spoke with the defendant about this crime.

How did he say it occurred the first time you spoke with him? A. I asked him how he got shot. MR. MEYERS: Objection.

THE COURT: Overruled. I’ll let it in for impeachment purposes only at this time. THE WITNESS: He stated that he was in a fight at Park Circle with another subject and he got shot in the back. That is when I questioned him about the clothes.

He stated he came right from Park Circle to the hospital. That’s why I questioned him about the hole, why there was no bullet holes in his clothes. Q. And how did he explain that? A. He couldn’t.

Q. Did he say what the fight was about? A. No. I don’t remember. Q. Did he at any time tell you he was shot by a cab driver? A.' No. MR.

LEWIS: No further questions.” This case presents us with a legal question of considerable complexity, and one that is made all the more complicated and difficult because of the sparse record before us. From this record, it is difficult for us even to ascertain whether we are dealing with a custodial interrogation required to be conducted under the guidelines set out in Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966), or whether the conversation between Detective Grimes and the Appellant was a noncustodial interrogation which, under ⁶⁹⁷ Cummings v. State, 27 Md. App. 361 , 341 A. 2d 294 (1975), Tillery v. State, 3 Md. App. 142 , 238 A. 2d 125 (1968), and a host of other cases, would be outside of the ambit of Miranda . See Lamb v. U.S., 414 F. 2d 250 (1969); People v. Phinney, 22 N.Y.2d 288 , 239 N.E.2d 515 (1968); New Jersey v. Zucconi, 50 N. J. 361, 235 A. 2d 193 (1967). The State’s decision not to pursue its efforts to present evidence of this conversation as part of its case in chief gives strong indication that the State was fearful that this evidence might be inadmissible as being violative of Miranda ; but the point is not one of primary concern as, for whatever reason, the evidence concerning the conversation was ultimately offered only in rebuttal, in an effort to impeach the Appellant’s own testimony.

Prior to the decision of the Supreme Court of the United States in Harris v. New York, 401 U. S. 222 , 91 S. Ct. 643 , 28 L.Ed.2d 1 (1971), whether Miranda was applicable to testimony concerning the conversation between Grimes and Appellant would have been totally dispositive of the question, for prior to Harris the rule in Maryland was that enunciated in Franklin v. State, 6 Md. App. 572 , 252 A. 2d 487 (1969), where, at 579, we said: “If the veracity of an accused testifying in his own behalf is to be attacked by a prior inconsistent or contradictory statement made while he was undergoing a custodial interrogation, the State must affirmatively show that the statement was made after the accused had been fully advised of all of his rights and had effectively waived them in accordance with the standards prescribed in Miranda.” Harris , however, required a material change in the Maryland rule, for in Harris the Court held that a statement made by the accused, even though inadmissible in the state’s ease in chief because of a violation of Miranda , may, nevertheless, be used for impeachment purposes. Harris was accused of unlawfully selling heroin. At trial the state made no effort in its case in chief to use statements made by ⁶⁹⁸ Harris to police officers immediately after his arrest, conceding that those statements were inadmissible under Miranda . Harris, however, like the Appellant in the instant case, elected to testify in his own defense, and on cross-examination he was read certain statements, contradictory of his testimony at trial, and asked whether he had made those statements to police officers immediately following his arrest.

In response, Harris testified that he could not remember virtually any of the questions asked of him by policemen after his arrest, nor his answers to those questions. Harris was convicted and his conviction was affirmed on appeal. The Supreme Court granted his petition for certiorari and affirmed that conviction. Mr. Chief Justice Burger, delivering the opinion of the Court, said “[i]t does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” 28 L. Ed. 2d 4 .

The Court went on to say that “[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.” Four justices dissented, stating that the opinion represented at least a partial reversal of Miranda and asserting that the state should be no more free to use unconstitutionally obtained evidence in rebuttal than in its case in chief. Since the decision in Hams the Court has not amplified in any detail what is meant by the proviso “that the trustworthiness of the evidence [must satisfy] legal standards”, although the phrase was repeated in Oregon v. Hass, 420 U. S. 714 , 95 S. Ct. 1215 , 43 L. Ed. 2d 570 . In Hass the Court reversed the judgment of the Supreme Court of Oregon, holding that the Oregon Supreme Court was in error when it ruled that a police officer's rebuttal testimony concerning prior inconsistent statements of the accused which would not have been admissible in the state’s case in chief was, therefore, also inadmissible in rebuttal, on Fifth ⁶⁹⁹ and Fourteenth Amendment grounds.

The Court did not prescribe what was necessary to prove that the trustworthiness of such evidence satisfies legal standards, but did state that “There is no evidence or suggestion that [the] statements were involuntary or coerced.” 43 L. Ed. 2d, at 578 . Since Harris , three decisions of this court have considered the question of what is required by way of proof of voluntariness-trustworthiness before evidence inadmissible in the State’s case in chief can be later admitted for impeachment purposes, and at least one federal court of appeals and appellate courts of three other states have considered that question. In LaFrance v. Bohlinger, 499 F. 2d 29 (1974), the United States Court of Appeals for the First Circuit held that before admitting for the purpose of impeachment of a government witness a statement in which the witness admitted having stolen a car together with the defendant, the trial court should have held an evidentiary hearing on the issue of whether the statement was coerced, and if it had so found, should have excluded the statement. In Arizona v. Johnson, 505 P. 2d 241 (1973), the Supreme Court of Arizona held admissible rebuttal testimony by a police officer, which testimony would not have been admissible in the prosecution’s case in chief.

The court noted with obvious approval that before that testimony had been admitted, there had been a voluntariness hearing in chambers and an appropriate finding by the trial court that the statement was voluntarily made by the defendant. Similarly, in People v. Nudd, 524 P. 2d 844, 847 , the Supreme Court of California held that “the determination of voluntariness is still necessary under Harris when the statement is offered for impeachment”. A similar conclusion was reached by the Supreme Court of Delaware in Hill v. Delaware, 316 A. 2d 557 (1974). In that case the court held that the defendants had been denied their constitutional rights when certain out of court statements were allowed for impeachment purposes, without a finding by the court that the