Hamilton v. State

ALPERT, Judge. Raymond Hamilton, appellant herein, feels aggrieved by the methods employed by the Maryland State Police in investigating the murder of one Frank Siejack. He contends, in this appeal, that the police violated his constitutional rights by taping conversations between himself and ⁶⁰⁷ his acquaintances who, at the time, were acting as State agents. Upon a review of the record and applicable case law we, as the court below, find no such violation.

We explain. Appellant’s convictions 1 in the case sub judice are in connection with the shooting of Frank Siejack in Queen Anne’s County, Maryland, on August 8, 1978. Prior to trial, appellant filed a Motion to suppress several statements made by him during the course of the Maryland State Police Department’s murder investigation. The statements were made by appellant to appellant’s acquaintances who, at the behest of the State police, agreed to tape their conversations with appellant in exchange for the authorities’ consideration on pending charges.

James Letchworth’s conversations with appellant were taped when Letchworth consented to wearing a body wire which would allow the police to monitor and record their conversations. The tapes which appellant sought to suppress were made prior to any charges being brought against appellant and concern, generally, the events surrounding Siejack’s murder. The tapes of appellant’s conversations with Kenneth Fowler were also made while Fowler was wearing a body wire. These conversations occurred prior to appellant’s being charged in this case but after appellant had been incarcerated in connection with an unrelated matter.

On two occasions Fowler visited appellant at the Maryland House of Correction and elicited from appellant incriminating statements regarding Siejack’s murder. The last tape, one of a conversation between Fowler and appellant, was made on July 14, 1982, and occurred after the police had surreptitiously arranged for appellant’s release from prison. ⁶⁰⁸ The conversation which concerns the murder weapon took place as Fowler and appellant drove to the crime scene. The trial court denied appellant’s motion to suppress his statements to both Fowler and Letchworth. Before us appellant challenges only the admissibility of his statements to Kenneth Fowler.

Appellant asserts that the statements made while he was in the Maryland House of Correction were the result of “custodial interrogation” and, therefore, were inadmissible because they were not preceded by Miranda warnings. He also argues that the statements made at the crime scene concerning the murder weapon were inadmissible as the fruit of a poisonous tree. I. Preliminarily, we observe that the admission of these tapes does not appear to be in violation of the Maryland or federal wire tap statutes. Section 10-402(c)(2) of the Courts and Judicial Proceedings Article permits the interception of oral communication in order to provide evidence of the commission of the offense of murder if “one of the parties to the communication has given prior consent to the interception.” Md.Cts. & Jud.Proc.Code Ann. § 10-402(c)(2) (1984 Repl.Vol.); 18 U.S.C. § 2511 (2)(c) (1982). .

See also Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law, 8 U.Balt.L.Rev. 183, 193 (1979). Next, we observe that the admission of these tapes is not in violation of appellant’s Fourth Amendment protections against unreasonable searches and seizures. The Supreme Court in United States v. White, 401 U.S. 745, 747 , 91 S.Ct. 1122, 1123 , 28 L.Ed.2d 453 (1971) indicated that in a similar situation there was no “justifiable expectation of privacy” because: [T]he law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent ... [or] when that same agent has recorded or transmitted the ⁶⁰⁹ conversations which are later offered in evidence to prove the State’s case. Id. at 752 , 91 S.Ct. at 1126 .

Appellant’s argument before us is essentially that admission of the statements made to Fowler was in violation of his Fifth Amendment privilege against self-incrimination. Specifically, he argues that Fowler’s conversations with him were custodial interrogations and, therefore, should have been preceded by advising him of his Miranda rights. We disagree. The Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) requiring that certain advisory rights be read to an accused prior to questioning was predicated upon its conclusion “that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely____” 384 U.S. at 467 , 86 S.Ct. at 1624 (emphasis added).

See also Hoffa v. United States, 385 U.S. 293, 304 , 87 S.Ct. 408, 414 , 17 L.Ed.2d 374 (1966). While advising an accused of his rights is merely a procedural safeguard, see Miranda, 384 U.S. at 478 , 86 S.Ct. at 1629 , it, nonetheless, aids in “mitigating the dangers of [the] untrustworthiness” of the accused’s statements. Id. at 470 , 86 S.Ct. at 1625 . Miranda warnings must be given when “an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning.” Id. at 478, 86 S.Ct. at 1629 (emphasis added).

In order, therefore, to find a violation of Miranda in the case sub judice, we must find (a) that appellant was interrogated; (b) that the interrogation occurred while he was in custody or otherwise deprived of his freedom; and (c) that appellant was not properly advised of his Miranda rights. Appellant argues and we agree that Fowler’s conversations with him amounted to an interrogation because ⁶¹⁰ Fowler was a “state agent sent for the purpose of questioning [him] about the Siejack case____” Where an accused’s statements are elicited by persons other than police, official interrogation has been held to exist where the State is otherwise involved. In Marrs v. State, 53 Md.App. 230 , 452 A.2d 992 (1982) we held that statements made to a probation officer without the benefit of Miranda warnings were inadmissible in a subsequent criminal prosecution. Compare, Minnesota v. Murphy, — U.S.-, 104 S.Ct. 1136 , 1143 n. 5, 79 L.Ed.2d 409 (1984).

While only “official” custodial interrogation is proscribed by the Fifth Amendment and must be preceded by Miranda warnings, we observed in Marts that the protection of the Fifth Amendment was not “limited to any single source of official interrogation.” Id., 53 Md.App. at 233 , 452 A.2d 992 . Questioning by prison guards, I.R.S. agents, court designated psychiatrists and prosecuting attorneys have all been held to amount to official interrogation. See Marts, 53 Md.App. at 233 , 452 A.2d 992 and cases cited therein. In cases where courts have addressed the admissibility of incriminating statements elicited from an accused by an informant, they have been held admissible because there was no evidence of the government’s involvement in the questioning.

For example, in People v. Ammons, 103 Cal. App.3d 20 , 162 Cal.Rptr. 772 (1980) the court held admissible statements made by an accused to her family doctor. The court noted that “[i]n the absence of any complicity on the part of law enforcement officers, the admissions or statements made by a defendant to a private citizen infringe no constitutional guarantees.” Id. at 32 , 162 Cal.Rptr. 772 . Also, in In Re Eric J., 25 Cal.3d 522 , 159 Cal.Rptr. 317 , 601 P.2d 549 (Cal.1980) the court held that a juvenile’s confession to a private citizen was admissible even though it occurred in the presence of a police officer.

The court found, inter alia, that the private citizen who interviewed the accused did so on his own initiative and without the participation or direction of the police officer who was present at the time. See also People v. Mangiefico, 25 ⁶¹¹ Cal.App.3d 1041, 1049, 102 Cal.Rptr. 449 (1972) (“In the instant case, as already discussed, there is no evidence that [the informant] was acting as an agent of local enforcement officials.”). Cf. United States v. Burton, 724 F.2d 1283 (7th Cir.1984) (statements made by the accused were not the result of questions asked by an informant).

Unlike the above cases, however, in the case sub judice the informant’s conversations with appellant were in fact solicited by and at the direction of the State police. At the suppression hearing, as part of a stipulation, it was admitted that the State police solicited Fowler’s aid in its investigation. At trial, Trooper Newcomer of the Maryland State Police testified that he and other officers gave Fowler the questions and information they wanted to elicit from appellant prior to his conversations with appellant. Fowler was asked to “solicit conversations from [appellant] in regards to the Siejack shooting.” This difference is material.

In the case sub judice the State was directly involved in soliciting statements from the accused. Having established interrogation, appellant asseverates that the interrogation was violative of his Fifth Amendment rights because “interrogation of an inmate in a penal institution constitutes a custodial situation.” (emphasis added). We disagree. The custody referred to in Miranda is that form of custody which exists at the time of the questioning.

Only if the accused is in a situation where there are inherently compelling pressures to respond to the interrogation are Miranda warnings required. In Hoffa v. United States, 385 U.S. 293 , 87 S.Ct. 408 , 17 L.Ed.2d 374 (1966) a government informer, a business associate of Hoffa’s, testified at Hoffa’s trial regarding statements Hoffa made in his presence about attempts to tamper with a jury. The statements were made by Hoffa at his hotel suite. The trial court, in admitting the testimony, found that the associate’s contact with police was of his own initiative and that when contacted the government ⁶¹² requested only that the associate report information of which he became aware.

In addressing Hoffa’s claimed violation of his Fifth Amendment rights, the Court stated: There have been sharply differing views within the Court as to the ultimate reach of the Fifth Amendment right against compulsory self-incrimination. Some of those differences were aired last Term in Miranda v. Arizona, 384 U.S. 436, 499 , 504 526 [ 86 S.Ct. 1602, 1640, 1643, 1654 , 16 L.Ed.2d 694 ]. But since at least as long ago as 1807, when Chief Justice Marshall first gave attention to the matter in the trial of Aaron Burr, all have agreed that a necessary element of compulsory self-incrimination is some kind of compulsion____ In the present case no claim has been or could be made that the petitioner’s incriminating statements were the product of any sort of coercion, legal or factual. The petitioner’s conversations with Partin and in Partin’s presence were wholly voluntary.

For that reason, if for no other, it is clear that no right protected by the Fifth Amendment privilege against compulsory self-incrimination was violated in this case. Id. at 303-04, 87 S.Ct. at 414-15 (footnote omitted). See also Pulley v. State, 43 Md.App. 89, 98 , 403 A.2d 1272 (1979). The seminal case in custodial interrogation violative of the Fifth Amendment came two years later in Mathis v. United States, 391 U.S. 1 , 88 S.Ct. 1503 , 20 L.Ed.2d 381 (1968).

In Mathis , the Supreme Court held inadmissible a prisoner’s statements to Internal Revenue Service agents. The statements were made when the prisoner was questioned by the agents about his tax returns; he was, at the time, incarcerated on an unrelated matter. No Miranda warnings were given the prisoner and the statements were later used in the prisoner’s subsequent trial for filing false returns. The Court, in reversing, noted: The Government here seeks to escape application of the Miranda warnings on two arguments: (1) that these questions were asked as a part of a routine tax investiga ⁶¹³ tion where no criminal proceedings might even be brought; and (2) that the petitioner had not been put in jail by the officers questioning him, but was there for an entirely separate offense.

These differences are too minor and shadowy to justify a departure from the well-considered conclusions of Miranda with reference to warnings to be given to a person held in custody. Id. at 4, 88 S.Ct. at 1504-05 . Later, in United States v. Henry, 447 U.S. 264 , 100 S.Ct. 2183 , 65 L.Ed.2d 115 (1980), however, the Supreme Court, while holding that statements made to a police informant after indictment of the accused and while the accused was incarcerated were inadmissible on Sixth Amendment grounds, addressed Fifth Amendment concerns in dicta. Citing Hoffa for authority, the Court noted that “the Fifth Amendment had not been held to be implicated by the use of undercover Government agents before charges are filed because of the absence of the potential for compulsion.” Id. at 272, 100 S.Ct. at 2187 (emphasis added).