Jacobs v. State

Moylan, J., delivered the opinion of the Court. This appeal, in its most significant aspect, requires us to stand far back and observe some fundamental characteristics of the criminal justice system that are too easily lost sight of when we get in so close that we lose perspective. It requires an appreciation of the functional difference between the ⁶³⁶ common law of evidence and the constitutional law of evidence. It requires a sensitivity to the distinct traditions, purposes and rules of procedure surrounding those basically different limitations upon the fact-finding process.

Macroscopic vision is sometimes as needed as microscopic vision. But first the backdrop: On the evening of February 5, 1978, Robert Lashley was murdered by four gunshot wounds to the head and one to the neck, two of the shots at point-blank, contact range. A Baltimore City jury, presided over by Judge David Ross, convicted all three appellants, Randy Jacobs, Lawrence Rufus Jackson and Robert Lewis (a/k/a Robert Galloway and Robert Lewis Jackson) of murder (Jacobs and Lewis of first-degree murder and Jackson, by way of obvious compromise, of second-degree murder) and related handgun charges. Their respective appellate contentions diverge as widely as did their trial tactics.

Legal Sufficiency of the Evidence (As to Appellant Jackson Only) Lawrence Rufus Jackson alone challenges the legal sufficiency of the evidence, claiming that Judge Ross erred in ruling that there was enough proof to go to the jury on the issues of murder in the second degree and the use of a handgun to perpetrate a crime of violence. In this regard, Jackson does not cpntest the adequacy of the proof to establish the corpus delicti of the two crimes. He challenges only the sufficiency of the evidence to establish his own criminal agency in those crimes. His challenge is without merit but will serve to place the contentions that follow in factual context.

Curtis Carter, a close friend of the murder victim, received via telephone ongoing "spot reports” on the progress of the murderous evening. He knew both the appellant Jackson and the appellant Lewis and knew, as well, that they were both acquainted with the victim Lashley. All of the actors in this case were homosexual acquaintances of each other. Both ⁶³⁷ appellants Jackson and Lewis as well as Lashley had been together on one occasion in Carter’s home within a week prior to the murder.

On the evening of the murder, the victim Lashley was expecting an imminent visit from the appellant Jackson, and he communicated that expectation to Carter. The first call came from Lashley to Carter relatively early in the evening (the times of the various calls were established with less than pinpoint precision) wherein Lashley informed Carter that Lashley expected the appellant Jackson to "pay him a visit that night.” While the conversation was in progress, Carter overheard a knock at Lashley’s door and heard Lashley say, "Oh, hi, Robert.” Carter then had a brief conversation with the appellant Lewis, whose voice he recognized. Lewis then hung up the phone. This occurred at some point between 8:30 and 10:00 p.m.

Approximately 20 minutes later, the victim Lashley called Carter back. Lashley indicated to Carter that he, Lashley, had taken Lewis and Jackson to the bus stop. He indicated further that he was angry at the appellant Jackson for having brought his brother (the appellant Lewis) along on this visit. The conversation concluded with Lashley saying, "I don’t feel like talking.

I guess I’ll talk to you later.” Carter, in the meantime, was also in telephone contact with Ronald Whitfield, a mutual friend of Carter and the victim Lashley, keeping Whitfield apprised of his growing sense of dread. At one point, following Carter’s second telephone conversation with Lashley, Whitfield called Lashley and determined that all was well. Whitfield communicated that reassurance to Carter, but Carter was not reassured. Carter called Lashley again.

A voice answered which Carter recognized to be that of the appellant Lewis. The answer, however, was to the effect that Carter had the wrong number, and the phone was then hung up at Lashley’s end. Carter immediately called back. The appellant Lewis again picked up the phone but this time identified himself.

The appellant Lewis told Carter that Lashley and the appellant Jackson had gone out to get some beer. Carter heard background noises similar to those made ⁶³⁸ when furniture is being moved. Following this conversation, Carter telephoned the police and asked them to check out Lashley’s apartment. The call to the police was made at approximately 11:40 p.m.

In the meantime, one David Bavis, a neighbor of Lashley’s, heard the sound on Lashley’s television set or stereo suddenly turned up very loud at approximately 11 p.m. Bavis interpreted this as a signal from Lashley to stop the band rehearsal which Bavis had been conducting in his own apartment. Bavis testified further that some five to ten minutes later, he heard a thumping noise come from Lashley’s apartment, along with noises which he interpreted as emanating from a fight. In response to Carter’s call, Officer Charles Scharmann of the Baltimore City Police Department responded to check out Lashley’s apartment at 11:42 p.m.

On the parking lot outside, he found the appellant Jackson and the appellant Jacobs cleaning snow off an automobile registered to the victim Lashley. Although the two appellants were cooperative in other regards, the appellant Jacobs falsely identified himself as one Michael Jones. Officer Scharmann observed a Philco television set sitting on the back seat of the automobile. Both appellant Jackson and appellant Jacobs explained to the officer that Lashley had already left the area and that they, at the request of Lashley and as an accomodation to him, were delivering his automobile and the television set to Carter’s apartment.

Officer Scharmann insisted that the two accompany him to Lashley’s apartment. The officer knocked on the door several times but received no response. He inquired of neighbors as to whether they had heard or seen anything unusual and learned that they had not. Solicitous of the murder victim’s Fourth Amendment rights, the officer did not enter the apartment.

He left the scene, and the appellants Jacobs and Jackson were free to go. While Officer Scharmann had the appellant Jackson and the appellant Jacobs "in tow,” two of Lashley’s neighbors made significant observations to which they testified in court. Deborah Sammons observed that after the officer and ⁶³⁹ these two appellants entered the apartment building, a third man crawled out from underneath a car parked beside the one from which the two appellants had been cleaning snow. Another neighbor, Marie Carter (no apparent relationship to Curtis Carter) testified that she saw one of the individuals who entered the building with the police officer later come outside, walk down to the corner of the building, stand there a second and then go back into the building.

The next day, Marie Carter’s husband, John Carter, found the victim Robert Lashley’s wallet on the ground at the spot where his wife had noticed this man standing on the night before. Shortly after this police visit, Curtis Carter received two interesting phone calls from the appellant Jackson. In the first, Jackson informed Carter that Jackson was calling from Jackson’s home. Jackson then said, "Curtis, I don’t know what’s wrong with your buddy, he took me to the No. 5 busline and he act as though he wanted Robert Galloway to go back to his house.” Carter, skeptical as to whether the call had been placed from Jackson’s home, then called Jackson at home.

A young man answered. Carter asked to speak to Jackson but was unable to make contact. Approximately ten minutes later, Jackson called Carter again, this time saying, "Curtis, if anything happens to your buddy, I don’t want you to think I had anything to do with it.” 1 Carter inquired of Jackson as to why Jackson would say something like that. Jackson replied, "Because he gave me the keys to his car and told me to take his television in the car.” Carter asked Jackson what Jackson was supposed to do with the car keys and the television, and Jackson replied that he did not know.

Just before receiving these two calls from Jackson, Carter had called his friend Whitfield and the two determined to go and make their own investigation of Lashley’s apartment. En route, they stopped and informed a police officer of their concern. When they arrived at the apartment, Carter found the door unlocked and Lashley’s body lying in a pool of blood. His television set was missing, and his bedroom appeared to have been ransacked.

The phone rang. Carter picked it up ⁶⁴⁰ and heard the appellant Jackson’s voice on the other end. Carter hung up without responding. He immediately had a neighbor call the police, who arrived at Lashley’s apartment at 1:43 a.m.

There were no signs of a forced entry. A lookout was immediately broadcast for Lashley’s car and for the three appellants. At approximately 3:10 a.m., Lashley’s automobile was found in the 500 block of W. Lafayette Avenue, within a block of the homes of all three appellants. All three appellants were shortly thereafter found in the same area where the car was found and were placed under arrest.

A crime laboratory technician, at 3:52 a.m., performed a leucomalachite test on the hands of the appellants and found the probable presence of blood on the hands of the appellant Jackson and the appellant Lewis. It is simply to state a self-evident truth to hold that this massive web of circumstantial evidence is legally sufficient to have permitted the jury reasonably to infer the involvement of the appellant Jackson in the murder and that Judge Ross, therefore, did not commit error in permitting the case to go to the jury. Williams v. State, 5 Md. App. 450, 459 , 247 A.2d 731 ; Metz v. State, 9 Md. App. 15, 23 , 262 A.2d 331 . Leading Questions (As to Appellant Jackson Only) Before proceeding to the significant legal issues raised on this appeal, we may dispose of summarily the other two contentions raised by the appellant Jackson.

He claims that Judge Ross committed error in permitting the State to ask leading questions of its witness Curtis Carter. He fails to lay any predicate whatsoever for this contention, however. He fails to direct our attention to a single instance of an arguably leading question, let alone to an instance where timely objection was made and the objection was overruled. We have no way of knowing what rulings of the trial judge the appellant Jackson questions or, ⁶⁴¹ indeed, whether there were any rulings sought and made in this regard.

There is obviously nothing preserved for review. Maryland Rule 1085. Admissibility of Tape Recording of Telephone Call (As to Appellant Jackson Only) It is difficult to fathom the appellant Jackson’s point in this regard except as an understandable desperation effort by a convicted defendant to grasp at any straw, no matter how frail and insignificant it may be. The State’s witnesses Curtis Carter and Ronald Whitfield were unable to pinpoint the precise times when events occurred on the evening and early morning of February 5-6, although they were able to establish the sequence of those events.

The telephone calls they made to the Baltimore City Police Department, however, were taped and were logged in with precise timing. Tape recordings of those calls were played to the jury both to establish the times when they were made and to corroborate the testimony of Whitfield and Carter as to having made the calls. The appellant Jackson does not take issue with the playing of those tapes of those calls. Pie does take issue with the playing of one additional tape recording of one additional telephone call made to the police by a neighbor who called in to report that someone had been killed.

The appellant Jackson’s complaint is that this "was hearsay and served no necessary purpose.” In holding against the appellant Jackson on this issue, our response is twofold: 1) How do we know it was hearsay? and 2) What difference does it make? The court reporter did not transcribe the tape-recorded conversation of the telephone call as the tape was played to the jury. The tape itself was, to be sure, introduced in evidence. No transcript of it has been made, however, and included in this record.

The burden in this regard is clearly upon the appellant. Maryland Rule 1026 (c) (2); White v. State, 8 Md. App. 51, 54 , 258 A.2d 50 ; Van Meter v. State, 30 Md. App. 406, 410 , 352 A.2d 850 . In view of this failure ⁶⁴² of the appellant to perfect the record, we have no way of knowing whether the telephone call in question contained an out-of-court assertion offered in court for the proof of the thing asserted or not. Although this is totally dispositive of the contention, we cannot help but note its frivolous nature even if a perfected record were here to establish everything the appellant Jackson seeks to establish.

In view of the undisputed testimony by Curtis Carter and by the investigating officers that the yictim’s lifeless body was found in his apartment and in view of the indisputable testimony of the medical examiner that four bullets were taken from the victim’s brain, the out-of-court declaration, even be it hearsay, to the effect that "someone had been killed” is as harmlessly redundant as anything could ever be. The appellant himself argues that this hearsay "served no necessary purpose.” Where then was any arguable prejudice? Declarations Against Penal Interest Made to a Private Person (Appellants Lewis and Jacobs) There is a curious "reverse English” to this case. The appellants Lewis and Jacobs vehemently challenge the introduction of two declarations against penal interest made by them to a private person and offered at the trial by their codefendant Jackson.

The declarations were mutually consistent and served to inculpate Lewis and Jacobs but to exculpate Jackson. It was Jackson who offered them as part of his defense. Although the ultimate admissibility of the declarations would not have been affected if the State had offered them, the twist in this case is that the State did not. Indeed, the State objected to the introduction of these declarations.

The State’s tactical situation was such that it deemed the declarations redundant for purposes of further inculpating Lewis and Jacobs, but was fearful of the declarations because of their potentially exculpating influence as to Jackson. On balance, the State simply did not want these declarations against interest to go to the jury. ⁶⁴³ As we approach this central issue of the case, we must observe that analysis would be so much cleaner if all parties could discuss such matters in the neutral language of algebra instead of in the frequently emotionally charged language of English. Although the declarations in issue are full acknowledgments of guilt, they are "declarations against penal interest” and not "confessions.” The very word "confession” carries too much highly charged connotative baggage, with its images of police interrogation, of third-degree sessions under naked lightbulbs, of question and answer formats, of Miranda and its progeny, of the right to counsel, and of the privilege against compelled self-incrimination. The fact that the declarations here were reduced to writing instead of being of a more informal, oral character is beside the point.

The fact that the writings resemble, in terms of the arrangement of the text upon the page, the more familiar police "confession” is beside the point. The fact that the declarations were notarized is beside the point. The fact that the declarations were made within prison bars rather than without prison bars is beside the point. Had the same events occurred with all three codefendants out on bail, the legal posture would not be otherwise.

As a recognized exception to the rule against hearsay, the declaration against interest is admissible if the trial judge deems it trustworthy. 2 This is true whether the forum is civil or criminal; whether the declaration is offered by a plaintiff, a civil defendant, the State or a criminal defendant; whether it is offered for inculpatory or exculpatory purposes. If it is trustworthy, it comes in for all purposes; if it is not trustworthy, it may not come in for any purpose. The trial judge rules upon the question of admissibility. The fact ⁶⁴⁴ finder gives such weight to it as he thinks appropriate in precisely the same way that he weighs all other types of evidence.

The indispensable major premise undergirding the defense argument in this regard is that the rules and procedures controlling the admissibility of a declaration (of any sort) made to a private person are precisely the same as those controlling the admissibility of a confession made to a police investigator. Nothing could be farther from the truth, but an appreciation of the vast difference between the two phenomena requires us to back far off and to view the whole criminal justice system in historic perspective before renarrowing the focus to the precise issue at hand. We need to approach the problem with a keen sense of the difference between the common law of evidence and the constitutional law of evidence. From the earliest beginnings of human society, as people bound themselves together under a variety of social contracts, they promulgated rules of behavior for the group and they provided for the enforcement of those rules.

Whenever the tenets of acceptable behavior were transgressed, men bound themselves together as a posse comitatus — first as families, then as clans, then as tribes, then as nation-states — and demanded an answer to the question, "WHODUNIT?: Who killed the boy?, Who stole the pig?, Who burned the cottage?” Once the transgressor had been identified, a variety of sanctions might be imposed. As this process manifested itself in Anglo-American common law, we early surrounded the process with safeguards to insure that we were "Getting the Right Man.” The service of this goal is the quintessential function of the common law of evidence. In essence, evidentiary law is a set of sieves and devices that pass through to the fact finder data that is competent, relevant and material but screen out all data that is incompetent, irrelevant and immaterial. The common law of evidence is interested fundamentally in the integrity of the fact-finding process.

We keep out all that might obscure the truth; we allow in all that will further the search for truth. The prime concern is the trustworthiness, ⁶⁴⁵ the reliability, the accuracy of the process by which we seek the answer to the ultimate riddle of Whodunit. In the American quadrant of Anglo-America, we have in recent decades superimposed a second limiting condition on the process. Aware of the awesome power of the State, acting in our collective name, to investigate and to prosecute those who break our laws, we seek additional safeguards to insure not simply that we. are "Getting The Right Man,” but also that the State is doing it "By The Marquis Of Queensberry Rules.” The service of this additional goal is the quintessential function of the constitutional law of evidence.

Just as the body of a constitution sets out what government may do, a bill of rights sets out those things that government may not do. The exclusionary rule implements these limitations on governmental behavior. The prime concern is the fairness of the process by which we seek the answer to the ultimate riddle of Whodunit. Thus, we circumscribe the process of identifying outlaws by two basic limiting conditions: 1) Getting The Right Man. 2) By The Marquis Of Queensberry Rules.

The first condition concerns the accuracy of the answer. The second condition concerns the fundamental fairness and decency of governmental conduct in obtaining the proof of the answer. The bitter irony is that the two purposes do not always dovetail; sometimes they are in opposition. This is why the exclusionary rule is described by Wigmore and McCormick and others as serving the purpose of an "extrinsic policy.” We deny the fact finder probative evidence that would enhance the literal, objective search for truth to express disapproval of the means by which government obtained that evidence.

We deliberately diminish the accuracy of the process in order to enhance the fairness of the process. The very existence of this second limiting condition is aimed at governmental behavior alone. The Bill of Rights and the Fourteenth Amendment, by express terms, regulate the behavior of government and not ⁶⁴⁶ of private persons. The attendant rules of procedure that have grown up in this context — special burdens allocated to the State, etc. — are applicable to the regulation of governmental behavior via the constitutional law but do not regulate private behavior.

With respect to evidence procured by private persons, we ask the questions that are the concern of the common law of evidence — Is it competent?, Is it trustworthy?, Will it enhance the accuracy of the verdict? In the case at bar, the State completed its case against all three defendants without offering any inculpatory statements made by any of them. The State rested, and motions for judgments of acquittal were made and denied. It was only then, in the course of defense testimony, that the appellant Jackson called to the stand one Harry Anthony Conyers, a social worker assistant at the Baltimore City Jail and, more significantly for present purposes, a notary public.

Through Conyers, there were introduced four statements, two of them declarations against penal interest made by the appellants Lewis and Jacobs on February 16, 1978, and two of them declarations against penal interest made by the same two appellants on March 14, 1978. The latter two really concern us here. In both sets of statements, the versions of the crime given by the two confessing appellants are consistent with each other. In both sets of statements, they take full responsibility themselves and exculpate totally the appellant Jackson.

The key difference between the two sets of statements is that in the first set, both appellants confessed to having beaten the victim to death. In the second set; they both confessed to having shot him. According to Mr. Conyers, the statements had been typed in advance but were signed in his presence. They were, furthermore, made under the following oath: "Do you solemnly swear and affirm in the presence of Almighty God that the statements made in this motion are true to the best of your knowledge?” Judge Ross found against the appellants Lewis and Jacobs on the question of authentication and also on the question of whether these statements violated a lawyer-client privilege. ⁶⁴⁷ They had been made apparently at the request of Roland Walker, Esquire, attorney for the appellant Jackson.

No issue is being taken with respect to these rulings by Judge Ross. Judge Ross further found, under the common law of evidence governing exceptions to the rule against hearsay, that these declarations met the criteria of admissibility as declarations against penal interest. Under the common law of evidence, the three critical questions for admissibility of any evidence are: 1) Is it material?, 2) Is it relevant? and 3) Is it competent? In a trial of three defendants for murder, the issue of who committed the murder is quintessentially material.

Declarations by two of the accused defendants implicating themselves and exculpating their codefendant are quintessentially relevant on the issue of who committed the murder. The only question remaining to be asked is: Are the declarations competent evidence? — Are they worthy of belief and, therefore, likely to enhance the ultimate accuracy of the fact finding? A declaration against penal interest is now recognized as competent upon the theory that the statement against interest is a sufficient guarantee of trustworthiness. Although Maryland earlier followed the common law tradition according to the Sussex Peerage case, 11 Cl. & F. 85, 8 Eng.

Rep. 1034 (1844) 3 that a declaration against ⁶⁴⁸ penal interest was not admissible although a declaration against pecuniary interest was, it now has joined the modern trend holding that declarations against penal interest are admissible. In V Wigmore on Evidence (Chadbourn Revision 1974), Section 1476, pp. 350-351, Dean Wigmore looked to the "arbitrary limitation” of the Sussex Peerage case: "[Acceptance was gained, after two decades, for the principle that all declarations of facts against interest (by deceased persons) were to be received. What is to be noted, then, is that from 1800 to about 1830 this was fully understood as the broad scope of the principle. It was thus stated without other qualifications; and frequent passages show the development of the principle to this point.

But in 1844, in a case in the House of Lords, ⁶⁴⁹ not strongly argued and not considered by the judges in the light of the precedents, a backward step was taken and an arbitrary limit put upon the rule. It was held to exclude the statement of a fact subjecting the declarant to a criminal liability, and to be confined to statements of facts against either pecuniary or proprietary interest. Thenceforward this rule was accepted in England, although it was plainly a novelty at the time of its inception; for in several rulings up to that time statements of criminal facts had been received.” He went on to criticize the limitation in Section 1477, at pp. 358-359, referring to it as a "barbarous doctrine”: "It is plain enough that this limitation, besides being a fairly modern novelty of judicial invention, is inconsistent with the broad language originally employed in stating the reason and principle of the present exception ... as well as with the settled principle upon which confessions are received .... But, furthermore, it cannot be justified on grounds of policy.

The only plausible reason of policy that has ever been advanced for such a limitation is the possibility of procuring fabricated testimony to such an admission if oral. This is the ancient rusty weapon that has always been brandished to oppose any reform in the rules of evidence, viz., the argument of danger of abuse. This would be a good argument against admitting any witnesses at all, for it is notorious that some witnesses will lie and that it is difficult to avoid being deceived by their lies.” In dissent in Donnelly v. United States, 228 U.S. 243, 277 , 33 S. Ct. 449 , 57 L. Ed. 820 (1913), Justice Holmes excoriated the Sussex Peerage limitation: "[T]he exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder ....” ⁶⁵⁰ The Maryland commitment to Sussex Peerage was never firm. The first two cases cited for the tradition, Munshower v. State, 55 Md. 11 (1880), and Baehr v. State, 136 Md. 128 , 110 A. 103 (1920), mention neither Sussex Peerage nor the declaration against penal interest doctrine.

They simply hold, without discussion or citation of authority, that