Garner v. State

MURPHY, Chief Judge. In the Circuit Court for Baltimore City, a jury convicted Matthew Leo Garner, appellant, of attempted first-degree murder, first-degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, and unlaw ⁹⁷ ful possession of a handgun. The conflicting evidence presented to the jury was sufficient to establish that he committed each of those offenses. Appellant argues, however, that he was unfairly prejudiced by a violation of his Fifth Amendment rights, and presents a single question for our review: I. Did the prosecutor’s misconduct in violating the rule of Doyle v. Ohio [42G U.S. 610, 619, 96 S.Ct. 2240, 2245 , 49 L.Ed.2d 91 (1976) 1 so infect appellant’s trial with unfairness as to make the resulting conviction a denial of due process?

For the reasons that follow, we shall reverse the judgment of the circuit court, and remand the case for a new trial. Factual Background In the early morning hours of September 23, 1998, at 4513 Shamrock Avenue in Baltimore City, appellant shot Omar Ford after Ford punched him. 1 Candace Baxter, who witnessed the shooting, gave testimony that was consistent with the testimony of Mr. Ford. 2 She also testified that, after the ⁹⁸ shooting, she and appellant became romantically involved, and that appellant told her that he was going to testify that he was not in possession of a gun when Ford punched him. About five days after the shooting, Baxter gave a written statement to appellant’s counsel in which she stated that appellant was not in possession of a gun on the occasion at issue. Baxter testified that she gave this statement because she both liked appellant and was scared of him.

Appellant testified to the following facts. 3 He was with Candace Baxter when Mr. Ford confronted the two of them, and asked Baxter “what the fuck was going on.” Appellant tried to leave, but Baxter appeared to be afraid and appellant feared for her safety. Ford asked appellant if he liked Baxter, and appellant replied yes. Ford then struck appellant on the left side of his face with enough force to knock appellant to his knees. While he was struggling with Ford, he heard a gunshot and stumbled into a shed in the back yard.

The gunshot was fired by Ford. Appellant did not have a gun with him when this incident occurred. After he stumbled into the shed, appellant noticed that the gun was on the ground. Appellant grabbed the gun and, out of fear that Ford was going to harm Baxter, fired one shot in Ford’s direction.

The following transpired at this point in appellant’s direct examination: ⁹⁹ MR. RUBIN: After you fired that weapon what did you do sir? MR. GARNER: I ran home in fear, I ran home in fear.

MR. RUBIN: What were you afraid of? MR. GARNER: I was just scared.

MR. RUBIN: What were you scared of? MR. GARNER: I thought I was shot, I didn’t know what was going on.

MR. RUBIN: Were you still bleeding? MR. GARNER: Yes.

MR. RUBIN: What did you do with the gun as you were running down the alley? MR. GARNER: When I approached my house I threw it in the alley.

Threw it in the backyard of someone’s— MR. RUBIN: The backyard of someone’s house? MR. GARNER: Yes.

MR. RUBIN: And then what did you do, did you go home? MR. GARNER: Yes.

MR. RUBIN: And what did you do when you got home? MR. GARNER: I told my mother that I was shot and that I needed to go to the hospital.

MR. RUBIN: You thought that you were shot? MR. GARNER: Yes.

MR. RUBIN: And were you? MR. GARNER: No. MR.

RUBIN: Did you go to a hospital? MR. GARNER: Yes. MR.

RUBIN: You went to the hospital? MR. GARNER: I went to a hospital a couple of weeks later. MR.

RUBIN: Okay, let me ask you sir, did you stay home? MR. GARNER: No. MR. RUBIN: Where did you go?

MR. GARNER: To my brothers [sic] house. ¹⁰⁰ MR. RUBIN: Which brother would that be? MR.

GARNER: My brother Isadore. MR. RUBIN: And where does he live? MR.

GARNER: On North Avenue. MR. RUBIN: And what did you do the next day? MR.

GARNER: I came to your office, found out that I had a warrant and went and turned myself in. MR. RUBIN: Turned yourself in where? MR.

GARNER: Central booking. MR. RUBIN: The very next day after this incident occurred, correct? MR.

GARNER: Yes. The following transpired at the conclusion of appellant’s cross-examination:- THE STATE: Did you ever tell the police where the gun was? MR. RUBIN: Objection.

I move to approach the bench. (Counsel approached the bench and the following ensued.) MR. RUBIN: I move for a mistrial on the basis of Depuis [sic] v. State. She has absolutely no business asking this defendant whether he ever told the police anything ...

THE STATE: Then I’ll withdraw it. MR. RUBIN: It’s too late. It’s out of the bag.

THE COURT: (inaudible) tell me why (inaudible) MR. RUBIN: Your honor she cannot cross examine any defendant about what he did or did not tell the police. Because the defendant in a police setting has an absolute right not to say anything and if he testifies at trial, the State cannot bring up (inaudible) didn’t talk to the police ____It’s absolutely textbook law. THE STATE: I’ll withdraw it.

MR. RUBIN: She can’t withdraw it, it’s out. THE STATE: He doesn’t have to answer it. ¹⁰¹ MR. RUBIN: No it’s not a question (inaudible) THE COURT: (inaudible) MR.

RUBIN: Your Honor (inaudible) THE COURT: You made a motion (inaudible) (Counsel returned to trial tables and the following ensued.) THE COURT: Objection motion denied. Objection overruled. THE STATE: Thank you Your Honor. I withdraw the question.

May I have a moment Your Honor Please? THE COURT: Yes. THE STATE: Thank you. Your Honor I don’t have any further questions.

At this point, appellant’s counsel renewed his motion and the following transpired: MR. RUBIN: Your honor I think, I think (inaudible) defendant exercises his right to remain silent which he has every right to do. But the State has no business questioning about that. Even if he elects to testify at trial, the fact that he didn’t give a statement to the police is not for the jury to consider.

I say that because I don’t believe it’s curable. If he had given a statement such as “a” testifying as to “b” that’s one thing but that was meant for only one purpose. THE COURT: Excuse me. Answer this question.

The question [the prosecutor] asked was “did you tell the police where you threw the gun” and the defendant never answers. Now tell me why. MR. RUBIN: The defendant didn’t answer because I objected.

But the point is, the question alone number one suggests that the answer is no. I think that’s suggestive by the tone of the question number one. And number two Ms. Driggins knows very well this gentlemen never gave a statement. I mean she has the inherent knowledge knowing whether a defendant gave a statement or not and to put that in the minds of the jury is wrong.

Duprey [sic] says it’s wrong. ¹⁰² THE STATE: Your Honor I will (inaudible) MR. RUBIN: Well this jury is going under the impression that he either gave no statement at all or he gave a statement different than his testimony. That was elicited by the prosecutor. It had nothing to do with anything I brought up____It puts in front of the jury the [sic] that this defendant either exercised a right to remain silent or gave a statement contrary to what his testimony was.

The circuit court denied appellant’s motion and the jury ultimately convicted appellant of attempted first-degree murder, first-degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, and unlawful possession of a handgun. Discussion Two of the circuit court’s rulings are before us: (1) the refusal to grant appellant’s motion for mistrial, and (2) the overruling of appellant’s objection to the prosecutor’s final question. We need not reach the issue of whether the circuit court abused its "discretion in denying the motion for mistrial, 4 because we are persuaded that it erred in overruling the objection to the question, “Did you ever tell the police ... ?” Appellant’s trial counsel argued to the circuit court that the question at issue was improper under Dupree v. State, 352 Md. 314 , 722 A.2d 52 (1998), and has argued to us that this ¹⁰³ question was improper under Doyle v. Ohio, swpra. Those cases, however, involve “post-arrest, post -Miranda” silence. 5 In Doyle , the defendants, after being arrested for selling marijuana, received their Miranda warnings and chose to remain silent. 426 U.S. at 611-12 , 96 S.Ct. at 2242 .

During their trials, they testified that they had not sold marijuana, but had been “framed.” 426 U.S. at 612-13 , 96 S.Ct. at 2242 . To impeach the defendants, the prosecutors asked them why they had not relayed this version of events at the time of their arrest. Doyle, 426 U.S. at 613 , 96 S.Ct. at 2243 . The United States Supreme Court held that the prosecution may not impeach a defendant with his post-Mira,nda silence because those warnings carry an implicit “assurance that silence will cany no penalty.” 426 U.S. at 618 , 96 S.Ct. at 2245 .

In Dupree v. State, 352 Md. 314 , 722 A.2d 52 (1998), the Court of Appeals stated 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 his ¹⁰⁴ Miranda rights, is a violation of the Fourth Amendment’s, U.S. Const, amend. XIV, guarantee of due process.” 352 Md. at 324 , 722 A.2d at 57 (citing Doyle v. Ohio, supra, 426 U.S. at 619 , 96 S.Ct. at 2245 ). The Dupree Court held that such evidence is irrelevant, explaining that “[o]nce the State put before the jury the fact that Dupree had been advised of his rights yet offered no evidence of a subsequent statement by Dupree, the inference of Dupree’s silence, and thus his guilt, lay dangling for the jury to grab hold.” 352 Md. at 333 , 722 A.2d at 61 . Thus, while proof that the defendant received the Miranda warnings is a necessary foundation for the admission of any statement made after the warning, if no statement had been made, the trial court must exclude evidence that the defendant received the warnings. 352 Md. at 332 , 722 A.2d at 61 .

Although “post-arrest, post-Miranda ” cases do not control the issue before us, “we have no difficulty discerning the precise nature of the appellant’s contention.” Sherman v. State, 288 Md. 636, 640 , 421 A.2d 80, 82 (1980). There is an important distinction between (1) the specific ground of objection (relevancy, unfair prejudice, etc.) and (2) the points and authorities argued in support of the objection. The issue of whether the circuit court erred in overruling a timely objection to the “Did you ever tell the police ... ?” question has been preserved for our review. 6 In Wills v. State, 82 Md.App. 669 , 573 A.2d 80 (1990), this Court held that the defendant’s post-arrest, pre-Miranda silence constitutes improper impeachment: [Ejvidence of an accused’s post-arrest, pre-Miranda warning, silence for impeachment is inadmissible because the ¹⁰⁵ probative value, if any, of such evidence, is clearly outweighed by its potential for unfair prejudice.... In view of the potential for unfair prejudice to the defendant and the likelihood that an arrestee’s silence is motivated by a reason other than consciousness of guilt, we hold that it is error for the court to admit evidence of a criminal defendant’s post-arrest, pre-Miranda warning, silence for impeachment purposes. 82 Md.App. at 677-78 , 573 A.2d at 84-85 .

In Crosby v. State, 366 Md. 518 , 784 A.2d 1102 (2001), the Court of Appeals noted that through reliance on State evidentiary law, the Court of Special Appeals has provided greater protection for a defendant’s silence than the Supreme Court by asserting that an accused’s post-arrest, pre-Miranda warning, silence is inadmissible for impeachment because the probative value, if any, of such evidence, is clearly outweighed by its potential for unfair prejudice. See Grier v. State, 351 Md. 241 , 718 A.2d 211, 220 (1998)(noting that while this Court has not had occasion to address the issue of whether post-arrest, pre-Miranda warning, silence is admissible for impeachment purposes, the Court of Special Appeals has