Grier v. State

MURPHY, Chief Judge. In the Circuit Court for Baltimore City, a jury (Hon. Mabel Houze Hubbard, presiding) convicted Robert Grier, appellant, of attempted robbery with a deadly weapon, mayhem with the intent to disfigure, and related offenses that were merged for purposes of sentencing. Appellant concedes that the evidence was sufficient to persuade the jury that he robbed the victim, used a knife to commit that offense, and cut the victim’s hand in the process.

Appellant does contend, however, that he is entitled to a new trial because “(t)he trial judge erred in admitting evidence of appellant’s post-arrest silence as substantive evidence of guilt.” We shall affirm the judgments of the circuit court. The Evidence at Issue The jurors heard Carl Mack testify that he was approached by appellant, who first asked for a cigarette but then produced a knife, attacked him, and made off with his backpack. Although appellant did not testify at trial, the following questions asked by his trial counsel insinuated that he was approached by the victim, who sold him a camera for $10.00 and then attacked him with the knife: Q. Isn’t it true, Mr. Mack, that you offered to sell this camera to Mr. Grier? A. No. Q. And that you, in fact, did sell it to him for $10? ⁵³⁷ A. No. Q. And that after you sold it to Mr. Grier, you attacked Mr. Grier?

A. That is not true. Q. And that Mr. Grier bit you on the hand or on the wrist? A. That’s not true. Q. And then when you tried to lunge at him with the knife, he hit you across the bridge of the nose with the camera that you had just sold him?

A. That’s not true. Q. Is it fair to say that the version of the facts that the police heard was your version of the facts because you were the first one to get to them? A. I guess that’s a fair assumption. The jurors also heard from Officers Charles Farley and Richard Purtell of the Baltimore City Police Department, who were on patrol when the attack occurred and who arrived on the scene when the victim and appellant appeared to be involved in a fight with one another.

As the officers approached the location at which appellant and the victim were struggling with one another, the victim remained at the scene but appellant did not. Officer Farley spoke to the victim while Officer Purtell followed appellant, who walked quickly into an alley and discarded a knife. The following transpired during Officer Farley’s direct examination: A. When we rode by, I seen them standing right in front of each other arguing. After that point we did a U-turn and came back through.

And as we did the U-tum I seen them struggling with each other. The defendant had grabbed the victim. By the time we got down there, and he had let go and starting walking away. Q. When you got down there, who let go and started walking away. ⁵³⁸ A. The defendant, I mean, yeah, the defendant let go of the victim and starting walking away from us.

Q. And what happened to Mr. Mack? A. He was there. He had—I had approached him and my partner went towards the defendant. I had approached Mr. Mack and I observed— Q. Was he standing? ' A. He was holding his hand when I approached him.

Q. And what, if anything, did you see with his hands? A. I saw blood all over his hand. Q. And did you take a look at it? A. Yes, before I investigated everything, I seen a cut straight down his hand.

Q. Which hand? A. On his left hand. Q. Okay. Hold it up and show where the cuts were.

A. It was like straight down here on both fingers (indicating). Q. And how deep was it? A. I could actually see the skin was pulled back and I seen like part of the bone. Q. Okay.

Now, when you saw the defendant, did you see the defendant walk away? A. Yes, sir. Q. Did you see, what, if anything, he was carrying? A. I seen him with a camera or a carrying case and a camera.

Q. Now, did there come a point that the defendant was apprehended? ⁵³⁹ A. Yes, sir. A. After I called the ambulance, I left Mr. Mack to go with my partner. Q. And where did your partner go, if you know? A. He was walking eastbound down on 30th.

Q. Your partner was walking? A. Well, he was walking right behind the defendant. The defendant was walking very fast. Q. And where did the defendant go, if you know?

A. When we were going down, he attempted to go through an alley which was a dead end, and then he come back out and tried to go back down the street and that is where we got him. A. [Appellant] walked down, continued eastbound on 30th and it looked like he had thrown something. I didn’t know what happened at that time, onto a porch there, and at that time we had got him and put him on the ground and then got into custody. Q. And did anyone go back up to the porch?

A. Yes sir, my partner did. Q. You didn’t go up there? A. No. Q. Did the defendant offer any explanation as to what this was about? [DEFENSE COUNSEL]: Objection, Your Honor. THE COURT: Sustained. [PROSECUTOR]: Your Honor, may we approach?

THE COURT: Yes. (Counsel and the defendant approached the bench and the following ensued:) ⁵⁴⁰ [PROSECUTOR]: Judge, I believe that the question does not elicit any hearsay. THE COURT: What does it elicit? [PROSECUTOR]: Just whether he offered an explanation or not. THE COURT: Do you expect him to give you an answer about what explanation was offered? [PROSECUTOR]: No. THE COURT: You expect him to say no explanation? [PROSECUTOR]: Uh-huh.

THE COURT: Oh, okay. Well, you have to ask it right. [PROSECUTOR]: Okay. THE COURT: Change the phrasing. Okay.

(Counsel and the defendant returned to the trial tables and the following ensued:) BY [PROSECUTOR]: Q. Officer, what, if any, explanation did the defendant offer to you ever why he was or why this was taking place? [DEFENSE COUNSEL]: Objection, Your Honor. THE COURT: You may answer, sir. THE WITNESS: He didn’t offer any. THE COURT: The Court does overrule the objection.

The following transpired during Officer Purtell’s direct examination: Q. But you weren’t running? A. No. Q. Now, why did you stay 20 feet back? A. Because Mr. Mack had just been stabbed, and I have been trained that with a knife, you keep back at least 21 feet to 20 feet because your weapon if ineffective is someone turns around and comes after you with a knife. For my safety, I didn’t want to approach him right off the bat until I knew what was going on. ⁵⁴¹ Q. Okay.

And what, if anything, did you do with that camera? A. I asked the defendant if that was his camera. [DEFENSE COUNSEL]: Objection. Your Honor. THE COURT: Sustained.

The Inadequate Objection Appellant complains that Judge Hubbard erroneously admitted evidence of his post-arrest silence as “substantive” evidence of his guilt. 1 Once a defendant has been taken into custody for the purpose of prosecuting him or her for a crime, the State is prohibited from introducing evidence that he or she exercised the right to remain silent. Wills v. State, 82 Md.App. 669, 677 , 573 A.2d 80 (1990); Robeson v. State, 39 Md.App. 365, 368-369 , 386 A.2d 795 (1978), aff'd. 285 Md. 498 , 403 A.2d 1221 (1979). Pre-arrest silence, however, enjoys no such protection. In this case Officers Farley and Purtell had a duty to investigate the incident they had come upon.

To perform that duty, the officers had a right to “accost” and a right to detain briefly both the combatants and any material witnesses. In such situations, while the investigating officers are in the process of determining what happened, and until they are in a position to decide whether anyone should be taken into custody for purposes of prosecution, the statement of a person who is subsequently arrested is not entitled to constitutional protection. Cornish v. State, 215 Md. 64, 68 , 137 A.2d 170 (1957). The very same rule applies to the pre-arrest silence of a person who is subsequently arrested.

Robeson,, supra, 39 Md.App. at 380 , 386 A.2d 795 . Thus, the State was entitled to introduce evidence of appellant’s pre-arresc silence, and appel ⁵⁴² lant was entitled to a ruling that excluded evidence of his post-arrest silence. The record shows that Judge Hubbard initially prohibited Officer Farley from testifying that appellant offered no explanation to the