Holloway v. State

Sweeney, J., delivered the opinion of the Court. The Appellant, Johnny L. Holloway, was convicted in the Criminal Court of Baltimore by a jury presided over by Judge Paul A. Dorf of unlawful possession of narcotics. He was sentenced to two years imprisonment under the jurisdiction of the Department of Correction. The prosecution and conviction of Holloway grew out of a lengthy investigation into the theft of a large quantity of heroin from the property room of the Baltimore City Police Department.

At the time of his indictment and arrest, Holloway was a member of the Baltimore City Police Department, and during the year 1972 he was assigned to the Special Tactical Operations Patrol (STOP), a unit which included illegal traffic in narcotics in its area of responsibility. On February 24, 1972, Holloway and one or more other members of his unit made several narcotics arrests during the course of which they seized substantial quantities of heroin. According to normal departmental procedures, this contraband was stored in the Police Department property room pending the trial of the arrested persons. At some time during the period between February 24, 1972 and January 11, 1973, a large quantity of the heroin was found to be missing from the property room.

Holloway was charged in a multi-count indictment with unlawful possession of narcotics and larceny of the heroin, and was brought to trial on March 18, 1973. He was found guilty of unlawful possession, the jury being unable to reach a verdict on the other counts. Holloway now attacks his conviction on four grounds, two of which can be dealt with summarily. The evidence revealed that the narcotics in question were seized by Holloway and other officers incident to the arrest of three individuals, ³⁸⁵ Donald McNeal, Robert Crawley, and Louis Jefferson.

Two separate seizures were made, but all of the heroin appears to have been contained in small glassine bags and all of it was taken to the “tactical station” where it was field tested, examined, initialed, and counted by each individual bag. The State introduced two laboratory analysis reports signed by Holloway as the reporting and/or arresting officer. These reports, State’s Exhibits 4 and 5, indicated that 1248 bags of heroin were seized in the arrest of McNeal and Crawley and 5389 bags were seized in the arrest of Jefferson. At trial, Holloway’s counsel made repeated attacks on the accuracy of the count of the seized heroin at the time it was received into the property room, in an attempt to show that the count was erroneous, and that the State, therefore, could not prove that any of the substance had been stolen from the property room.

To testify about the manner in which the count was conducted, the State produced John Lewis, a detective assigned to the STOP squad, who had participated in the arrests of Crawley, McNeal, and Jefferson. Lewis testified that he had assisted in counting the seized drugs and that he had personally counted all 1248 bags seized in the McNeal and Crawley arrests. He testified further that he had participated in the counting of the bags seized in the Jefferson arrest and that he was present throughout the entire counting process and when the final tally was made. During Lewis’ testimony, he was permitted to refer to State’s Exhibits 4 and 5, in order to refresh his recollection.

The Appellant urges that it was improper for him to have been permitted to do this, as he was not the police department official who had actually prepared those documents. We find no merit in this contention. It is clear that Lewis was present throughout the entire counting process and was present when the final tally was made. His testimony was not hearsay, but proceeded from his own personal knowledge, and was clearly admissible.

His reference to the State’s exhibits in order to refresh his recollection did not taint his testimony. ³⁸⁶ Appellant next attacks the refusal of the trial judge to permit him to cross-examine Detective Roger Nolan, another State’s witness, on alleged inconsistencies between his testimony at the Holloway trial and his prior testimony in the United States District Court for the District of Maryland, at the trial of Robert Crawley, one of the persons arrested in the raids on February 24th. Nolan was also among the officers who participated in the heroin count on February 24th and he testified at considerable length at the Holloway trial about the manner in which that count was conducted. On cross-examination, Nolan admitted that he had told another police officer that . . the easiest thing for [him] to believe [was that] there had been a miscount on February 24, 1972, that is why there is a shortage.” Appellant’s counsel then sought to cross-examine him further concerning testimony he had given in the federal trial of Crawley. The trial judge refused to permit cross-examination on this topic.

The record discloses that at a bench conference, Appellant’s counsel read the portions of Nolan’s testimony in the federal proceedings about which he wanted to interrogate Nolan. That excerpt of testimony revealed that Nolan had, in that trial, cast doubts on the accuracy of the heroin count of February 24, 1972. Therefore, his testimony in the federal proceeding was consistent with and not contradictory to his testimony at the Holloway trial, and we can find no abuse of discretion on the part of the trial judge in refusing Appellant’s counsel the right to pursue the matter; nor do we find any prejudice resulting to the Appellant from that refusal. We also find that the trial judge did not err in refusing to allow Holloway’s counsel to cross-examine Nolan as to any changes made in police department procedures for handling narcotic substances subsequent to the time when the shortage in question was discovered.

Judge Dorf, in our view, correctly ruled that any departmental procedures occurring after Holloway’s arrest were not relevant to the matter before him. Holloway’s other contentions, however, present us with questions of a much more difficult nature. He alleges that ³⁸⁷ the trial court erred in admitting into evidence two oral statements and one written statement allegedly made by him to his superiors during his interrogation about the missing heroin. That error was so prejudicial, he states, that his conviction cannot be permitted to stand.

Prior to the trial on the merits, a hearing was held out of the presence of the jury on the Appellant’s motion to suppress the three statements. The motion was denied and the statements were subsequently introduced at the trial. It appears that during the course of the investigation into the missing heroin, departmental officials found that Holloway’s signature was contained in the property room log under date of November 27, 1972, indicating that he had removed the seized heroin from the property room on that date. In the first of the three statements in question, Holloway denied that he had ever been in possession of any of the heroin since it was seized and placed in the property room on February 24, 1972.

That statement was given orally by Holloway to Lt. Leon N. Tomlin, the officer in charge of the investigation, on January 12, 1973. The next day, January 13th, Holloway gave a second oral statement to Lt. Tomlin.

In this statement, he admitted that the signature on the log was his, and admitted that he had removed the drugs from the property room, but claimed that he had merely taken the drugs to his automobile, counted them, and returned them intact on the same day. In his third statement, made in writing on a Police Department form on January 14th, he again admitted having signed the log and removing the drugs, and again claimed to have returned all of the heroin to the property room. These three statements, of course, do not amount to an admission of guilt, but the second and third statements are in such flat contradiction to the first statement that we believe it safe to assume that they were given great weight by the jury as reflecting on Holloway’s credibility. At the very least, the statements were sufficient to prove to the jury that Holloway had had the contraband in his possession and had had the opportunity to appropriate some portion of the narcotics to his own use and purposes.

If the ³⁸⁸ contradictory statements of Holloway were improperly admitted into evidence, it is clear that he was severely prejudiced thereby, and we would reverse his conviction. In the pre-trial hearing on the Motion to Suppress, Holloway attacked the admissibility of all three statements, claiming (1) that he had not been given his Miranda rights, and (2) that even if he had been given his Miranda rights, his statements were inadmissible as having been coerced, because of a Police Department policy stipulating that if a member of the department refused to give a statement to a superior officer when ordered or requested to do so, he would face disciplinary action and possible termination of his employment. The very existence of such a policy, Holloway asserted, amounted to coercion. Judge Dorf denied the Appellant’s motion, and we believe that it was erroneous for him to have done so, although we believe he correctly found from all of the evidence that Holloway had been given his Miranda rights prior to any interrogation and several times subsequent thereto.

There was ample testimony from Lt. Tomlin and other Police Department officials to that effect, and Judge Dorf was entitled to believe that testimony and to disbelieve Holloway’s testimony that he had not been advised of those rights. His error, in our view, lay in refusing to find that the statements were involuntary as a matter of law, because of the existence of a departmental policy of disciplining those who refused to give such statements. The Appellant correctly urges that this situation is controlled by the decision of the Supreme Court in Garrity v. New Jersey, 385 U. S. 493 , 17 L.Ed.2d 562 , 87 S. Ct. 616 , in which case there was a set of facts strikingly similar to those now at hand.

The Attorney General of New Jersey was directed by the Supreme Court of that state to investigate alleged irregularities in the handling of traffic tickets, and in the course that investigation the Attorney General sought to interrogate police officers in certain New Jersey boroughs. Before the interrogation, each officer was warned that anything he said might be used against him in a criminal proceeding, and that he had the privilege of refusing to ³⁸⁹ answer, if his response would tend to incriminate him. Each officer was also advised that if he did refuse to answer, he would be subject to removal from office under the provisions of a New Jersey statute which provided that any public employee refusing to answer questions in a criminal investigation into his conduct would forfeit his employment and be forever thereafter debarred from public employment. The New Jersey officers answered the questions and some of them were subsequently convicted at trials at which their statements were admitted into evidence.

On appeal, they claimed that those statements were coerced by the effects of the forfeiture statute. The New Jersey Supreme Court affirmed the convictions, holding that the statements were voluntary; but the Supreme Court granted certiorari and reversed the convictions, holding that the threat of removal from public office for insisting on the privilege agamst self-incrimination rendered the resulting statements involuntary and, therefore, inadmissible. In the instant case, the State urged before Judge Dorf and urges before us that Garrity is inapplicable, as there is no Maryland forfeiture statute comparable to that then in effect in New Jersey. We are not persuaded by that argument, as Lt.

Tomlin, the State’s witness, testified candidly that there was a written Police Department policy to that same effect. Whether the policy be statutory or by regulation the result would be the same under Garrity , for the effect upon the officer would most surely be the same. If, therefore, the question of the admissibility of Holloway’s three statements were properly before us, we would find Garrity applicable to them, would hold them inadmissible, and would reverse the conviction. But for the reasons which follow, we do not find the question properly before us.

Notwithstanding his vigorous objections to the admission of the statements at the pre-trial hearing, Holloway did not object at trial when the first two of those statements were offered into evidence. A close reading of the record clearly reveals that the only objection made by Holloway to the admission of any of his statements came when the State sought to have Lt. Tomlin produce Holloway’s written ³⁹⁰ statement of January 14, 1973. The refusal of the trial judge to sustain that objection was erroneous under Garrity , but that error was rendered harmless to the Appellant by virtue of the fact that the contents of that written statement were identical to the contents of his oral statement of January 13th, about which Lt.

Tomlin had just testified without objection. Each of the Appellant’s three statements was brief, and because of their importance in this case, we think it appropriate to set out in full Lt. Tomlin’s testimony concerning