Harrison v. State

DAVIS, J. Appellant Gerald Harrison 1 filed a motion to suppress, which was heard on June 10, 2002 in the Circuit Court for Baltimore City (Brown, J.). Proceedings resumed on June 11, 2002, at which appellant’s motion was denied. On June 12, 2002, the parties proceeded on an agreed statement of facts. Appellant was found guilty of attempted second degree murder and use of a handgun in the commission of a felony or crime of violence.

He was subsequently sentenced to twelve years’ imprisonment for attempted second degree murder and to a concurrent five-year term of imprisonment for the use of a handgun in the commission of a felony. ⁶⁵¹ Appellant noted his timely appeal on June 14, 2002 and presents two questions for our review, which we rephrase as follows: I. Did the trial court err by denying appellant’s motion to suppress his confession as involuntary?

II

Was the evidence sufficient to sustain appellant’s conviction for attempted second degree murder? We answer appellant’s first question in the negative and his second question in the affirmative, thereby affirming the judgment of the circuit court. FACTUAL BACKGROUND At trial, the case against appellant proceeded by way of an agreed not guilty statement of facts. The facts would be that on July 27th in the year 2001 in the fifteen hundred block of Clifton Avenue, the victim in this matter, Mr. James Cook, was standing and talking with friends when he was struck in the neck with a bullet.

Investigation revealed that the [appellant] and another unknown person were shooting at someone known only to them as Valentine, and in the course of the shooting accidentally struck the victim Mr. Cook. Your honor, a witness was identified, he was taken down to the station and shown a photo array. He observed the photo array and picked out the [appellant] who would be identified in court here today as [appellant] to my right with counsel. As the person he knows as Fats and as one of the shooters.

I believe the photo array is already in evidence in the court file from the motions hearing. Conditionally the [appellant] was advised of his rights. He waived his constitutional rights and he did give a statement that was taped. I believe that and the advisement of rights are already in the court file as well from evidence and motions hearings.

During the statement the [appellant] advised that he and a person known to him as Twin Shitty 2 began firing on a ⁶⁵² person that they knew as Valentine. The [appellant] stated that he had one gun and the other person had two guns, stating that he fired six shots, and then they both ran. Found out later that somebody other than their intended target was shot. If called to testify, the ballistics examiner would have stated that the ballistics evidence recovered from the crime scene was consistent with the [appellant’s] confession and that ballistics show that there were three different fire arms [sic] used, and they matched the caliber that the [appellant] described.

The victim was taken to Sinai Hospital where he was operated on. All events occurred in Baltimore City, State of Maryland. That would be the statement supporting the guilty plea as a count two, attempted murder in the second degree and count six, use of a handgun in the commission of a crime of violence. Prior to trial, defense counsel filed a motion to suppress appellant’s statement to police in which he admitted involvement in the alleged offenses.

Detective Sergeant Massey of the Baltimore City Police Department testified at the suppression hearing that, after appellant was arrested, he advised appellant of his constitutional rights and appellant waived his rights. Detective Massey further testified that he informed appellant that the police were investigating a shooting incident. Appellant responded that he had information; however, he wanted to relate directly his version of what happened to the State’s Attorney instead of to the detective. Detective Massey informed appellant that appellant could not directly convey information concerning the offenses under investigation to the State’s Attorney because the State’s Attorney would then become'a witness in the case.

Detective Massey told appellant that appellant could talk directly with the detective and that he would then forward appellant’s statement to the Office of the State’s Attorney. After their discussion, appellant agreed to give a statement and Detective Massey recorded appellant’s statement on audiotape. ⁶⁵³ Detective Ronald J. Ciraolo, Jr., testified that he was present, along with Detective Massey, at appellant’s interview. He also testified that appellant asked Detective Massey whether he could speak to the State’s Attorney. According to Detective Ciraolo, Detective Massey replied that appellant had to speak directly to Detective Massey and he would forward the information to the State’s Attorney.

Additional facts will be supplied as necessary and relevant. LEGAL ANALYSIS I Appellant first contends that the trial court erred by denying his motion to suppress his confession as involuntary. The motion was heard on June 10, 2002 and subsequently denied on June 11, 2002. He argues that his confession was involuntary based on improper inducements by the police.

Under Maryland law, confessions must “be shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary.” Hillard v. State, 286 Md. 145, 150 , 406 A.2d 415 (1979). If a confession is induced either by threatening harm or by promising some sort of advantage then it should be excluded. Reynolds v. State, 327 Md. 494, 507 , 610 A.2d 782 (1992). We have formulated a two-part test for determining whether a confession is voluntary and thus not induced: [I]f 1) a police officer or an agent of the police force promises or implies to a suspect that he or she will be given special Consideration from a prosecuting authority or some other form of assistance in exchange for the suspect’s confession, and 2) the suspect makes a confession in apparent reliance on the police officer’s statement.

Winder v. State, 362 Md. 275, 309 , 765 A.2d 97 (2001). Appellant contends that the exchange between Detective Massey and appellant from his recorded confession contains the promise that qualifies as an inducement and makes his confession involuntary. ⁶⁵⁴ [DETECTIVE] MASSEY: Now before we conclude this ah taped interview, I want to make sure how have you been treated since you [sic] been with us[.] [APPELLANT]: Alright. [DETECTIVE] MASSEY: Okay. Have ah we in any way threatened you? [APPELLANT]: No. [DETECTIVE] MASSEY: Have we promised you anything? [APPELLANT]: No. [DETECTIVE] MASSEY: Okay. Ah and [APPELLANT]: I talk, I talked with the State[’]s Attorney. [DETECTIVE] MASSEY: Then I, that I told you that I will take this information to the State[’]s Attorney. [APPELLANT]: And you going to bring, bring me down there to speak with her. [DETECTIVE] MASSEY: Okay and I told you once I make the appointment with the State[’]s Attorney you’d be able to, and why were you. going to come and tell the State[’]s Attorney, exactly what you told me? [APPELLANT]: Right. [DETECTIVE] MASSEY: Okay, so that’s the one thing you want the State[’]s Attorney to know the facts of what happened, is that correct? [APPELLANT]: Yeah and I want to know what type of time I been [sic] looking at [sic]. [DETECTIVE] MASSEY: Okay.

But has anyone promised you anything when it came to any ... any of the statement or anything, that was the one thing you just said, you wanted to be understood that you wanted the State[]s Attorney to know what all happened, is that correct? [APPELLANT]: Right. The trial court ruled that the above exchange did not amount to an inducement and thus denied appellant’s motion to suppress. ⁶⁵⁵ In reviewing a ruling on a motion to suppress evidence, we look exclusively to the record of the suppression hearing. Wengert v. State, 364 Md. 76, 84 , 771 A.2d 389 (2001); Tu v. State, 336 Md. 406, 412 , 648 A.2d 993 (1994). We accept the facts as found by the trial judge unless they are clearly erroneous.

Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990). Additionally, “we give ‘due regard to the opportunity of the trial court to judge the credibility of the witnesses.’ ” Id. (quoting Md. Rule 8-131(c)). 3 In the case sub judice, the trial judge underscored when he ruled on appellant’s motion to suppress that his ruling was based upon the credibility of the witnesses when he stated: Quite frankly, counsel, as far as your client’s credibility is concerned, I do not believe his assertions. It’s, [ijt’s on that issue, the issue of credibility, he fails miserably.

I simply do not believe what he told this court. There was no indication of a promise to induce this young man to give the statement. I find and I’m convinced by preponderance that the statement is voluntary. Motion to suppress is denied.

Although we are constrained to accept the court’s decision not to credit appellant’s testimony, we must determine whether the inquiry, “... you wanted the State[’]s Attorney to know what all happened, is that correct?” constituted an improper inducement. We hold that Detective Massey’s statement did not constitute an improper inducement. The Court of Appeals has held that, when an officer indicated to a suspect that he would “go to bat for him” with the State’s Attorney, there was an inducement. Hillard v. State, 286 Md. 145, 153 , 406 A.2d ⁶⁵⁶ 415 (1979).

By contrast, when an officer has simply stated that “it would be better if he told the truth,” the Court has held that this does not constitute an inducement. Ralph v. State, 226 Md. 480, 486-87 , 174 A.2d 163 (1961). We observed in Boyer v. State, 102 Md.App. 648, 653 , 651 A.2d 403 (1995)(citing Reynolds v. State, 327 Md. 494, 509 , 610 A.2d 782 (1992)), that “[a] common thread present in these cases is that the promise must .have induced the accused to confess.” Judge Getty, writing for the Court in Boyer , succinctly engaged in a proper analysis in a case similar to the case at hand: The case sub judice offers no such carrot stick for appellant’s confession. Officer Mills testified that he did not say that appellant would receive a lesser penalty if he talked, and he did not represent that it would be easier on him if he confessed.

He denied telling appellant that he would help him, or that he would get him a better deal with the State’s Attorney if he talked. What Officer Mills did indicate to appellant was that he would inform the prosecutor that appellant had given a statement and was cooperative. Assuming that appellant concluded that the State would be favorably impressed upon receiving such advice, which is a perfectly reasonable assumption, that conversation does not rise to the level of an improper inducement that would invalidate his confession. We perceive no error in the trial court’s denial of the motion to suppress.

Id. at 653-54 , 651 A.2d 403 . Advisement that Officer Mills would inform the prosecutor that Boyer had given a statement and was cooperative, even assuming Boyer believed conveying the information would be helpful, is strikingly similar to appellant’s belief that his cause would be aided by Detective Massey’s assurances that the prosecutor would be apprized of his version of what occurred. We held there was no improper inducement in Boyer and, for the reasons we rejected the claim of improper inducement in that case, we hold that the lower court properly denied appellant’s motion to dismiss. ⁶⁵⁷ II Appellant next contends that the evidence was not