Hunter v. State

WILNER, Judge. On the evening of May 25, 1988, while driving south on Md. Route 213 toward Centreville, appellant slammed into the rear of a vehicle that had just turned on to Route 213, killing a passenger in the rear seat of that car. Principally on the basis of certain observations made by one of the investigating officers, Trooper Virginia Prince, and a blood test taken later at a hospital, appellant was charged with, and ultimately convicted in the Circuit Court for Queen Anne’s County of, negligent homicide by motor vehicle while intoxicated, driving while intoxicated, and failure to control the speed of his vehicle to avoid a collision. From the judgments entered on those convictions, appellant has brought this appeal complaining that the court erred (1) in admitting evidence concerning a call appellant made to his attorney after the accident and (2) in allowing the prosecutor to comment in closing argument on a fact not in evidence.

We need address only the first complaint. There was little dispute about the accident itself. The victim’s car entered Route 213 from Route 19; after making the turn, it had traveled about 92 feet when it was hit in the rear by appellant’s car. The night was clear, the road was dry, and there was good visibility.

Appellant admitted to driving about 55 miles per hour, which was the posted limit. He claimed that the other car pulled out onto Route 213 and that he did not see the car until he was about 15 feet from it. Appellant said that he finished work in Chestertown about 7:00, that he had four beers (but nothing more), and that he was on his way home when the accident occurred. He maintained that he was not intoxicated at the time.

The State offered evidence that there were 19 empty beer cans inside appellant’s car and that a blood test, taken three hours after the accident, showed that appellant had a blood alcohol content of 0.15. The critical issues in the case, of ⁶⁸³ course, were whether appellant was negligent and whether he was intoxicated at the time of the accident. Appellant’s first complaint had its genesis in the testimony of Trooper Prince. On direct examination, she said that when she arrived she spent the first 20 minutes or so observing the accident scene and trying to find the drivers of the two vehicles.

She located appellant standing on the shoulder of the road, made certain observations, questioned him briefly about the accident, and had him taken to a hospital for medical attention. In the course of this recitation, she said that the police had been notified about the accident at 10:19 p.m. and that she thought appellant had made the call. That aspect of her testimony was quite innocuous. In opening his cross-examination, defense counsel asked the equally innocuous question, “when you said that you thought that Mr. Hunter is the one who called, did you say the State Police or the ambulance or what,” to which the trooper replied: “I believe I said he had called for assistance.

He advised me that he had gone to the house — there is a house right across the street from where the accident occurred, and he advised me he also contacted his attorney —which, at that time, was a different attorney.” Counsel not only let that answer pass without objection but continued to question Trooper Prince about the matter: “Q But you don’t know if he called the State Police or an ambulance? He called an ambulance? A In order to call for an ambulance, you have to call Queen Anne’s County Fire Board. Q Okay.

A I don’t know when he went to the residence if he called just his attorney, and the residents called the police and Fire Board or — ” Counsel dropped the matter at that point, and there things sat until appellant took the stand in his own defense. On direct examination, appellant said that, at the request of the driver of the other vehicle, he ran to a house across the ⁶⁸⁴ street and dialed “911” in order to summon an ambulance. On cross-examination, the prosecutor got back into the matter of the attorney with this colloquy: “Q Now, you heard Trooper Prince testify, didn’t you? A Yes.

Q And she said that you had gone into the house. You told her that you called your lawyer? A Yes. Q Did you call your lawyer?

A Yes. Q Why did you call your lawyer? MR. SKIPP [Defense Counsel]: Objection, Your Honor.

THE COURT: Why? MR. SKIPP: I don’t think that’s— THE COURT: He’s not asking what he said, he’s asking why he called his lawyer. Overruled.

Q (BY MR. GREGORY) Why did you call your lawyer? A To see if he would defend me. Q And the reason you called your lawyer to see if he would defend you is because you were riding down the road with at least a .15 percent ethyl alcohol percentage weight in your blood stream, and you weren’t paying attention to your driving, isn’t that correct?

A No.” That colloquy ended the evidentiary presentation and the court then gave its instructions to the jury. Following the instructions, the prosecutor indicated at a bench conference some concern about a possible defense argument based on the fact that the victim was not wearing a seat belt, whereupon defense counsel interjected: “I’m a lot more worried about all this talk about him calling his lawyer, that Trooper Prince responded to my question on cross-examination if he called an ambulance, completely on his own started talking about how he called his lawyer. Every single time I asked her a question ⁶⁸⁵ about something else, she got off three different times about how he called his lawyer. I’m asking for a mistrial on that, because Trooper Prince totally disregarded my question, and for getting evidence to the jury about the lawyer, and which led to — it was like it was preplanned.

And, then, the State’s Attorney, on cross examination of my client, when he took the stand, started asking, because of Trooper Prince’s bringing out the fact that he had called his lawyer — ” The court denied the motion. The prosecutor, no doubt smelling blood, used the questioned evidence to good advantage. In his closing argument, he reminded the jury: “And, lastly, what does he tell you? He says, I ran into the house to call the ambulance.

I called my lawyer. Why did you call your lawyer? Because I wanted to see if he would defend me.” Again, in his closing argument, he left the jury with this: “I suggest to you Mr. Hunter was drunk and his negligence caused this accident by his inability to react properly, by his own admission, and, lastly, you have Mr. Hunter who talks to his attorney and the last thing he says is T wanted to talk to my attorney to see if he would defend me.’ A guilty mind. Thank you.” The complaint made in this appeal does not focus on the denial of the motion for mistrial but rather on the reception of the evidence itself.

Appellant urges that it was substantively inadmissible to show consciousness of guilt, which is what the prosecutor clearly used it for in argument, and cannot be justified under the “open door” theory. The State makes no “open door” argument. It insists that (1) the complaint was waived for failure to object below and (2) the evidence was admissible to show consciousness of guilt. Trooper Prince’s injection of this into the case, even if innocent and in good faith, was nonetheless wholly inappropriate.

It was clearly outside the scope of the questions put to her and was therefore volunteered. But as ⁶⁸⁶ no timely motion was made to strike that part of her testimony, no complaint can be made of it now. The cognizable error came not during the testimony of Trooper Prince but on the cross-examination of appellant. When the prosecutor not only returned to that testimony but demanded that appellant explain why he called his lawyer just minutes after involvement in a serious accident, an objection was made, and it was overruled.

It was that question and answer, more than the statements of Trooper Prince, that formed the foundation of the prosecutor’s consciousness of guilt argument in this case. The seeds of the argument were in the admission that the call was made to see if the lawyer would “defend me.” We find that the complaint was not waived. We also find the complaint to be valid. Although it does not appear that the Maryland appellate courts have yet had occasion to consider the question, it has been addressed elsewhere, and the rule seems well-established that it is impermissible for the State to offer evidence of, or comment upon, a criminal defendant’s obtention of counsel or his attempt, request, or desire to obtain counsel in order to show a consciousness of guilt.

The impermissibility of such comments has rested so far on either of two theories, depending upon the circumstance in which the request for or obtention of counsel arises. Where the desire for counsel is expressed during or in anticipation of a custodial interrogation, adverse comment on it has been regarded as inconsistent with Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Some courts have drawn that conclusion directly and more or less uncritically. See, for example, People v. Kennedy, 33 Ill.App.3d 857 , 338 N.E.2d 414 (1975); State v. Kyseth, 240 N.W.2d 671 (Iowa 1976); Mays v. State, 495 S.W.2d 833 (Tenn.1972); People v. Schindler, 114 Cal.App.3d 178 , 170 Cal.Rptr. 461 (1980); cf. United States v. Williams, 556 F.2d 65 (D.C.Cir.), cert. denied, 431 U.S. 972 , 97 S.Ct. 2936 , 53 L.Ed.2d 1070 (1977).

Others have reached the same ⁶⁸⁷ result by extending the principle announced in Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976). In Doyle , the Court noted the Miranda requirement that a suspect be informed prior to interrogation of his right to remain silent and held that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” 426 U.S. at 618 , 96 S.Ct. at 2245 . As explained in United States v. Daoud, 741 F.2d 478, 480 (1st Cir.1984): “Lower federal courts have extended the Supreme