Jackson v. State

DEBORAH S. EYLER, J. A jury in the Circuit Court for Baltimore City convicted Bion Jackson, the appellant, of two counts each of first degree burglary, robbery, second degree assault, and misdemeanor theft, and one count of felony theft. The court sentenced the appellant to two 15-year consecutive sentences on the first degree burglary convictions, two 15-year concurrent sentences on the robbery convictions, and a 10-year consecutive sentence on the felony theft conviction. Sentences on the other convictions were merged. ¹⁸⁰ The appellant presents two questions on appeal, which we have rephrased: I. Did the motion court err in ruling his confession admissible?

II

Did the sentencing court err in imposing sentences for robbery and felony theft? For the following reasons, we answer the first question “no” and the second question “yes.” Accordingly, we shall affirm the appellant’s convictions but vacate his sentence for felony theft. FACTS AND PROCEEDINGS On the afternoon of March 15, 2000, the appellant went to an apartment complex in the 4300 block of North Charles Street, in Baltimore City, and tricked Francis Meginnis, an elderly woman, into opening her apartment door. He forced his way inside Meginnis’s apartment and demanded money and “diamonds.” Meginnis gave the appellant about $100 and her ATM card.

The appellant then forced Meginnis to call her neighbor, Paul Pannella, and lure him to her apartment under a pretext. When Pannella arrived, the appellant confronted him, took $40 and his credit card, and forced him and Meginnis into a bedroom, where he tied them up with telephone cord. The appellant took Pannella’s keys, went to Pannella’s apartment, and took $600. Finally, the appellant used Pannella’s keys to steal Pannella’s 1997 BMW automobile. .

When Meginnis and Pannella managed to free themselves, they called the police, who launched an investigation. The next day, March 16, 2000, the appellant called Pannella’s home telephone number and left a voice-mail message saying he would call back about the BMW. Pannella told the police of this and several officers came to his apartment. They were present when the appellant called back and demanded that Pannella pay “seven or eight hundred” dollars for the return of his car.

Pannella offered to pay $200. The appellant ¹⁸¹ agreed, and told Pannella to meet him in front of The Johns Hopkins Hospital Emergency Room to make the exchange. A police officer posing as a taxicab driver drove Pannella to the Hopkins Emergency Room. When the appellant called out to Pannella and approached him, the police arrested him.

The appellant was transported to the Northern District Police Station. Upon being questioned by Detective Thomas Wolf, the appellant gave a written statement in which he admitted committing the crimes and then arranging to meet Pannella at the Hopkins Emergency Room. In his statement, the appellant said that a man named “Hugo” had taken him to Meginnis’s apartment and, after the robbery, “Hugo” had driven the appellant home in Pannella’s car and had kept the car, after giving the appellant some money and heroin. Pannella’s BMW was recovered seven days after the appellant was arrested, in the 1100 block of North Wolf Street, in Baltimore City.

Additional facts will be given in our discussion of the issues. DISCUSSION I. Before trial, the appellant moved to suppress his written inculpatory statement to the police on the ground that it was not freely and voluntarily made. The court held a suppression hearing at which the State called Detective Wolf as the sole witness in its case-in-chief. Detective Wolf testified that he arrested the appellant in front of the Hopkins Emergency Room sometime between 6:30 p.m. and 8:00 p.m. on March 16, 2000.

He next had contact with the appellant at 9:05 p.m., at the Northern District Police Station. In the interim, Detective Wolf was driving Pannella home and the appellant was being transported to the Northern District Police Station and being held there until Detective Wolf returned. According to Detective Wolf, the appellant was in police custody for “probably an hour and a half’ before he and his ¹⁸² partner, Detective Myra Sexton, returned to the station house. During that time, the appellant was «kept in Detective Wolfs office, and was handcuffed.

Also during that time, other police officers may have had contact with the appellant. An activity log was not kept because it was not standard practice to do so except in homicide and rape cases. Detectives Wolf and Sexton together interviewed the appellant and took his written statement. At the outset of the interview, Detective Wolf read the appellant his Miranda warnings. 1 The entire interview lasted about 20 minutes.

Detective Wolf testified that no police officers threatened or physically abused the appellant or “offer[ed] him anything” to prompt a statement from him. After the appellant gave his statement, he was transported to Central Booking. The appellant then testified. He. said he was transported to the Northern District Police Station in a paddy wagon and was placed in a room alone for about an hour.

A man then entered the room. He was wearing a name tag, but the appellant could not remember his name. When asked to describe the man, the appellant said he was “kind of tall.” The man was not in a uniform. The appellant thought the man was a sergeant, however, because one of the officers present at the Emergency Room had commented that they were waiting for a sergeant to arrive.

The appellant did not say whether he had seen the tall man at the hospital, however. According to the appellant, the tall man asked him his name, and said, “Where’s the car at?” . The appellant replied, “Man, I’m high right now.” The tall man then “choked him” with both hands and demanded that he say “where the car [was] located.” The tall man left the room to do a computer check on the appellant’s name. When he returned, he was with a “black female” and “another black guy.” 2 The appel ¹⁸³ lant did not identify these people or describe them in any greater detail than that.

All three people demanded to know where the “ATM cards,” “BMW car,” and “money” were, threatened to charge the appellant with Meginnis’s murder, 3 and then “bum wrestled,” “beat[ ],” “chok[ed],” and “hit[ ]” the appellant, using “[fjists, cuffs, the chair that was in there, everything.” The appellant vomited during the beating. Afterward, he was “bruised up, bleeding, busted open.” He had been “cut up,” and had “busted lips, swollen eyes, head.” The appellant further testified that about 15 minutes elapsed between the beating and the start of the interview by Detective Wolf. When Detective Wolf came in the room and started the interview, the appellant’s injuries were present. In fact, the appellant was still “bruised up, bleeding, [and] busted open” after the interview, when he was taken to Central Booking.

The appellant described the interview as being 3/6 hours long. He also said the “female officer and the black guy” both were present during the interview. 4 The appellant claimed he was high on heroin when he was interviewed. He reviewed his written statement and testified that even though his initials appear on it, he did not remember telling Detective Wolf most of the information in it. The appellant further testified that three days after the interview he was taken to a hospital for treatment.

On rebuttal, the State re-called Detective Wolf. It did not call any other witnesses. Detective Wolf testified that when he first saw the appellant at the station house, the appellant appeared “normal. He wasn’t agitated and he appeared to be pretty much the same when I left him from the arrest scene.” Detective Wolf did not see any injuries or marks on the appellant, and the appellant did not seem to be under the influence of drugs or alcohol. ¹⁸⁴ Detective Wolf identified a photograph taken of the appellant after the interview, at Central Booking, “probably after midnight” on March 17, 2000.

The photograph, which was taken as a routine part of the booking process, is a close-up shot of the appellant’s head and face. It shows no signs of injury. Detective Wolf testified that, in his experience, Central Booking will not accept for intake a prisoner with injuries or one who is “intoxicated over a level they think is unsafe” or has “any unusual psychological problems.” Instead, police policy requires that such a prisoner immediately be transported to Mercy Medical Center for evaluation by a doctor. Only after medical clearance will Central Booking accept the prisoner.

In this case, Detective Wolf explained, the appellant was not taken to the hospital for clearance and was accepted by Central Booking — both of which were inconsistent with his having sustained any injuries. At the end of the State’s rebuttal case, neither the prosecutor nor defense counsel made arguments to the court; instead, they both said they were “submit[ting] on the evidence.” The court denied the appellant’s motion to suppress, without comment. The case then went to trial. 5 The appellant’s written statement was admitted into evidence in the State’s case, through Detective Wolf. In the defense case, the appellant testified that he was physically abused by four police officers (not three) before Detective Wolf interviewed him.

First, a man he thought was a sergeant choked him while he was handcuffed to a chair. He then left and “three more officers” came in, questioned him, “choked” him, “hit” him, threw him out of the chair, made him vomit, and told him to clean up the vomit. And the guy, Officer Wolf, he was asking me am I going to make a statement. I made the statement to prevent them from choking me and beating me up. ¹⁸⁵ I was getting tired.

I was already under the influence because I done did three bags of dope already, so I’m tired of them punching me in my stomach so I said, “Yeah I did it,” so they would leave me alone. The questions on that statement, I didn’t even read the questions or nothing like that. I just signed my name right there saying I did it. The appellant contends the circuit court erred in ruling his confession admissible because the State’s evidence was legally insufficient to “rebut the specific allegations of coercive mistreatment” by the police that he claims rendered his confession involuntary.

Specifically, the appellant argues that because Detective Wolf acknowledged, in the State’s case, that there was a period of time when he (the appellant) was at the station house and other officers may have had contact with him, it was incumbent upon the State to call the officers who allegedly abused him, or some combination of them, or to call others who had custody of him from the time he arrived at the station house until Detective Wolf arrived and began the interview, to counter his testimony. He maintains that under the circumstances, Detective Wolfs rebuttal testimony and the booking photograph were insufficient, as a matter of law, to refute his testimony about physical abuse. In advancing this argument, the appellant relies on Mercer v. State, 237 Md. 479 , 206 A.2d 797 (1965); Streams v. State, 238 Md. 278 , 208 A.2d 614 (1965); Gill v. State, 265 Md. 350 , 289 A.2d 575 (1972); and Hutchinson v. State, 38 Md.App. 160 , 380 A.2d 232 (1977). The State responds that this issue was not preserved and lacks merit in any event.

It argues that, in deciding the threshold question of voluntariness of a defendant’s confession or incriminating statement, the court may consider the totality of the evidence. In this case, the court did so, and properly concluded, based on the total evidence, that the State had met its burden of proving voluntariness, notwithstanding that the unidentified officers were not brought in to testify on rebuttal. The State also argues that any error by the court in this regard was harmless. ¹⁸⁶ In Maryland, a defendant’s confession is admissible in evidence against him if it is: (1) voluntary under Maryland nonconstitutional law, (2) voluntary under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article 22 of the Maryland Declaration of Rights, and (3) elicited in conformance with the mandates of Miranda [v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) ]. Winder v. State, 362 Md. 275, 305-06 , 765 A.2d 97 (2001) (footnote omitted) (citing Ball v. State, 347 Md. 156, 173-74 , 699 A.2d 1170 (1997); Burch v. State, 346 Md. 253, 265 , 696 A.2d 443 (1997); Hof v. State, 337 Md. 581, 597-98 , 655 A.2d 370 (1995); and Hoey v. State, 311 Md. 473, 480 , 536 A.2d 622 (1988)).

Voluntariness under Maryland nonconstitutional (i.e., common law) means that the incriminating remark 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). The state common law standard, “[i]n plain English, ... means that, ‘under the totality of all the attendant circumstances, the statement was given freely and voluntarily.’ ... The ‘totality of the circumstances’ test also governs the analysis of voluntariness under the State and Federal Constitutional provisions.” Burch v. State, supra, 346 Md. at 266 , 696 A.2d 443 (quoting Gilliam v. State, 320 Md. 637, 650 , 579 A.2d 744 (1990)). The State bears the burden of showing that the defendant’s confession was his free and voluntary act, and was “not a product of force, threats, or inducement by way of promise or advantage.” Parker v. State, 225 Md. 288, 291 , 170 A.2d 210 (1961).

Voluntariness of a defendant’s confession must be established in a two-tier approach. First, the trial court must rule on the admissibility of the defendant’s confession, that is, whether it passes constitutional and state common law muster, and comports with the requirements of ¹⁸⁷ Miranda v. Arizona. Hof v. State, supra, 337 Md. at 604 , 655 A.2d 370 ; Bagley v. State, 232 Md. 86, 92-93 , 192 A.2d 53 (1963). At that juncture, the State must prove the voluntariness of the confession by a preponderance of the evidence.

Winder, supra, 362 Md. at 306 , 765 A.2d 97 . Once the court has ruled the confession admissible, the issue of its voluntariness, if generated at trial, “becomes a question for the jury to decide in the light of all the facts and circumstances of the case,” Bagley, supra, 232 Md. at 93 , 192 A.2d 53 , and must be proven by the State beyond a reasonable doubt. Winder, supra, 362 Md. at 306 , 765 A.2d 97 . In reviewing the motion court’s threshold ruling on whether the defendant’s inculpatory statement was voluntarily given and hence is admissible, we consider only the evidence adduced at the suppression hearing.

Pappaconstantinou v. State, 118 Md.App. 668, 670 , 703 A.2d 1295 (1998). We defer to the motion court’s first-level factual findings and its witness credibility determinations. Id. We will not disturb the motion court’s ruling on admissibility “unless there was a clear abuse of discretion.” Murphy v. State, 8 Md.App. 430, 435 , 260 A.2d 357 (1970) (footnote omitted).

We make our independent appraisal of the legal significance of the motion court’s factual findings, however. Pappaconstantinou, 118 Md.App. at 670 , 703 A.2d 1295 . Finally, we review decisions on questions of law de novo. (i) The State maintains that because the appellant did not argue, at the conclusion of the suppression hearing, that the State’s failure to specifically rebut his claims of police coercion meant that its evidence of voluntariness was legally insufficient, he failed to preserve the issue for appeal.

It cites Brashear v. State, 90 Md.App. 709, 720 , 603 A.2d 901 , cert. denied, 327 Md. 523 , 610 A.2d 796 (1992), in support. In that case, the defendant had moved to suppress certain evidence on Fourth Amendment grounds, arguing that one of two police officers who had entered his apartment and seized the evidence had had no right to enter the apartment at all. The ¹⁸⁸ single contested issue at the suppression hearing was whether the appellant had given that officer consent to enter the apartment. The motion court ruled that consent had been given.

On appeal, the defendant argued that that ruling was erroneous, and that the evidence should have been suppressed because the other police officer should have obtained a warrant. We reviewed the motion court’s ruling on the issue of consent but declined to address the warrant issue, on the ground that it was not raised or decided below, and therefore was not preserved for review. The instant case is not analogous to Brashear on the question of preservation. The particular Fourth Amendment argument raised for the first time on appeal in that case involved questions of fact on which no evidence had been presented and questions of law that were not addressed or decided below.

Here, the single issue before the court was the voluntariness of the appellant’s statement, and all of the evidence and the ruling of the court addressed and decided that issue. Once the appellant moved to suppress his statement on the ground that it was coerced, thereby placing the burden of the State to prove the statement’s voluntariness in an evidentiary hearing in which the court was the decision maker, the legal sufficiency of the State’s evidence, like the legal sufficiency of the evidence to convict in a court trial, became a question of law inherent in the court’s ruling. Cf. Md. Rule 8-131(c) (“in action tried without a jury, [t]he appellant court will review the case on both the law and the evidence”); Williams v. State, 5 Md.App. 450, 455-56 , 247 A.2d 731 (1968) (holding that, in a case tried by the court, the appellate court may entertain the issue of sufficiency in the absence of a motion for judgment of acquittal, because the case shall be reviewed on the law and the evidence).

In other words, in ruling on the suppression motion, the court necessarily had to decide whether the State’s evidence of voluntariness was legally sufficient to permit the written statement to come into evidence. If the evidence was not sufficient, the ¹⁸⁹ court was bound, in applying the law, to rule it inadmissible, regardless of whether the appellant articulated the precise reason why it was not sufficient. Thus, by raising the issue of voluntariness, the appellant preserved the question of the sufficiency of the State’s evidence on that point. (ii) The line of cases the appellant cites to support his argument that the State’s evidence of voluntariness was insufficient to counter his evidence of police coercion predates Mercer , and includes Jackson v. State, 209 Md. 390 , 121 A.2d 242 (1956), in which the State acknowledged that the defendant had been beaten by police officers two days before he gave a confession but argued that the confession was freely given because the defendant was calm and composed at the time.

In rejecting that argument, the Court of Appeals remarked, in dicta, that in showing that a defendant’s confession was not induced by force or other forms of coercion exercised by police officers, “[i]n practice, the State has almost invariably attempted to meet [its] burden by calling all persons who had the prisoner in charge.” 209 Md. at 394 , 121 A.2d 242 . In Bagley v. State, 232 Md. 86 , 192 A.2d 53 (1963), the Court clarified this comment, explaining that while the State “almost invariably” goes about proving the voluntariness of a confession by calling all the people