Johnson v. State

ROBERT L. KARWACKI, Judge (retired), Specially Assigned. Appellant, John Clifton Johnson, was convicted at a bench trial in the Circuit Court for Allegany County of both premeditated and felony varieties of first degree murder of Edwin Donald Hartman, Sr., robbery with a deadly weapon of Mr. Hartman, carrying a deadly weapon openly with intent to injure, and assault upon Brian Kinser. The court imposed the death penalty for the first degree murder and terms of imprisonment for the other offenses consecutive to sentences then being served by the appellant. The case is before this Court pursuant to Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 414. ³⁴¹ Ample evidence was offered at trial of the following facts supporting the convictions.

At approximately 10 p.m. on April 19, 1995, appellant parked the automobile he had borrowed from his girlfriend, Amy Parker, in a wooded area near Hartman’s store on Valley Road in the suburbs of Cumberland, Maryland. He entered the store, confronted Hartman and then inflicted multiple stab and cutting wounds with a knife he had carried to the store, causing Mr. Hartman’s death. As Mr. Hartman’s body lay in a pool of blood on the floor of the store, appellant went to the cash register but was unable to open it. As he was trying to do so Brian Kinser, who lived about 1/4 of a mile away, entered the store, observed Mr. Hartman’s body and appellant attempting to open the cash register.

He recalled that appellant was “real bloody” and that he appeared confused as he was trying to pry open the cash register with a knife. When Johnson noticed Kinser he put the knife in his jacket, and said “Oh, my God.” Johnson then pulled out a small silver handgun, aimed at Kinser and said “Don’t even try it.” Kinser immediately ran to his cousin’s house located near the store and reported what he had observed in an emergency call to the police. Soon after Kinser left, Johnson took some Marlboro cigarettes and a few dollars from the store and returned to the car he had parked in the woods. As he drove from the store, Johnson ran the automobile off the road.

After returning the damaged automobile to Amy Parker, Johnson telephoned Christopher James Kroner, his half-brother, and asked Kroner to pick him up at Ms. Parker’s home which is in Wiley Ford, West Virginia. Christopher James Kroner and his wife, Iris Kroner, traveled from their home in Piedmont, West Virginia to Ms. Parker’s home. They arrived there at approximately midnight and found Johnson waiting outside the house. They recalled that he appeared “half-drunk,” “confused” and “disoriented.” At Johnson’s request the Kroners agreed to take Johnson to his home in Augusta, West Virginia.

On the way, Johnson told the Kroners that he ³⁴² had “robbed” a store and stabbed someone. After they crossed the Blue Beach Bridge in West Virginia, Johnson told Mr. Kroner to stop the car. Johnson got out of the car with a red Marlboro bag that he had brought with him and threw something over the embankment at the side of the road. The Kroners did not believe the story Johnson told about the robbery and the stabbing until they read the next morning’s newspaper account of the crimes.

They then called the police and reported what had happened the previous evening and earlier that morning. Johnson was arrested on April 20, 1995, in Baltimore County, Maryland where he was staying with relatives. We will recite additional facts as necessary in addressing the several contentions of the appellant. I. GUILT/INNOCENCE PHASE A. REQUEST FOR FILING BELATED NCR PLEA Appellant seeks a reversal of his convictions and the sentences imposed thereon because he was not permitted to file a belated “not criminally responsible” (NCR) plea on the first day of his scheduled trial.

We decline to do so and explain. Maryland Code (1982, 1994 Repl.Vol.), § 12-109 of the Health—General Article governs the procedure for filing a NCR plea. It provides in pertinent part: “(a) Time and manner of pleading.—(1) If a defendant intends to rely on a plea of not criminally responsible, the defendant or defense counsel shall file a written plea alleging, in substance, that when the alleged crime was committed, the defendant was not criminally responsible by reason of insanity under the test for criminal responsibility in § 12-108 of this title. (2) A written plea of not criminally responsible by reason of insanity shall be filed at the time provided for initial pleading, unless, for good cause shown, the court allows the plea to be filed later.” ³⁴³ The time for the filing of a NCR plea in a circuit court is also addressed in Md. Rule 4—242(b)(3): “(3) Time in Circuit Court.—In circuit court the defendant shall initially plead within 15 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213(c).

If a motion, demand for particulars, or other paper is filed that requires a ruling by the court or compliance by a party before the defendant pleads, the time for pleading shall be extended, without special order, to 15 days after the ruling by the court or the compliance by a party. A plea of not criminally responsible by reason of insanity shall be entered at the time the defendant initially pleads, unless good cause is shown.” Johnson, accompanied by his counsel, made his initial appearance before the court on July 18, 1995, at which time he filed a plea of not guilty to the several charges contained in the criminal information lodged against him. As early as April 28, 1995, defense counsel filed a motion for transportation of Johnson from the Allegany County Detention Center to the office of Jeffrey Janoski, M.D. of Lutherville, Maryland who had been retained by the defense for a psychiatric evaluation. In that motion counsel represented that his “investigation indicates that substantial mental health issues may exist in the case with regard to both guilt/innocence and penalty issues.” The trial court ordered that Johnson be transported for that purpose on May 2, 1995.

Nevertheless, as indicated above, no NCR plea was filed at the time Johnson entered his plea at his initial appearance before the court. The trial date was initially set for January 9, 1996. Acting on a joint request of the State and the defense, that date was changed by the court on December 15, 1995, to February 27, 1996. On February 5, 1996, the court announced to counsel that the guilt/innocence phase of the trial would begin on February 27,1996, and that a sentencing hearing, if necessary, would commence on March 11, 1996.

On February 11, 1996, defense counsel again sought a continuance of the scheduled ³⁴⁴ trial date. He represented to the court that Johnson had recently been seen by Dr. Jonathon Pincus, a neurologist in connection with a guilty plea Johnson had entered in an unrelated case. Dr. Pincus had recommended that Johnson be examined by a psychiatrist specializing in multiple personality disorders, and defense counsel wished to pursue that avenue before proceeding to trial. The court granted a continuance, setting a new trial date for April 9, 1996.

Subsequent to the psychiatric examination of Johnson, defense counsel informed the court that no NCR plea would be filed. It was not until the beginning of the first day of trial that Johnson sought to file a belated NCR plea. The court found no good cause had been shown for the belated filing of the plea, stating: “The fact remains that on any number of occasions, the Defendant has been in a position to ... accounting from July of 1995 to file a plea of not criminally responsible. In fact trial dates were scheduled and continued at Defendant’s request for the purpose of allowing neurological and other examinations relating to mental status as late as February of this year after a trial date had been scheduled for February 27.

And it’s my recollection that the trial date was selected after consultation with Defense to ensure that the Defendant had ample time not only to have the evaluations and examinations performed, but to produce those experts for trial should that become necessary. Hence, today’s trial date was essentially arrived at by agreement for the ... at Defendant’s convenience ... But for all those reasons, I do not find good cause under the Rule to extend the ... expand the time for filing of a not criminally responsible plea. The time in my view under the way this case has been managed having passed, and no further good cause has been shown.” Under both Md.Code, § 12-109 of the Health General Article and Md. Rule 4-242(b)(3), an NCR plea ordinarily must be filed at the time a defendant initially pleads.

Only two exceptions to that requirement are provided. The first is not ³⁴⁵ applicable under the facts of this case, 1 and the second requires the defendant to show good cause for the belated plea. The trial judge in deciding whether the defendant had shown cause for a belated NCR plea took into account the fact that Johnson had been represented by counsel since soon after his arrest and that his counsel recognized at the outset that “substantial mental health issues” were presented by his case. It was for that reason that he moved and was granted an order on May 2, 1995, to transport Johnson for a psychiatric evaluation by a psychiatrist of his choice.

The trial judge also was told by defense counsel at the hearing on April 9, 1996, that one factor that weighed in favor of not filing an earlier NCR plea was the belief that Johnson had a limited likelihood of success with an NCR plea. In Grandison v. State, 305 Md. 685, 711 , 506 A.2d 580, 593 (1986), we considered the paucity of proof that defendant was not criminally responsible as an important factor justifying the trial judge’s refusal to permit the filing of a belated NCR plea on the eve of the date set for trial. We there commented upon the good cause requirement for the exception to the time constraints upon the filing of a belated NCR plea: “Although not in the context of the insanity plea, we have previously held that a statutory requirement of “good cause” vests the trial court with wide discretion. See State v. Frazier, 298 Md. 422 , 470 A.2d 1269 (1984) (discussing “good cause” in context of postponement of trial date; State v. Jones, 270 Md. 388 , 312 A.2d 281 (1973) (analysis of “good cause” requirement to permit a requested withdrawal of an accused’s jury trial waiver)).

We now hold that the “good cause” requirements of § 12-108 (now 12-109) and former Rule 731 (now 4-242(b)(3)) likewise endow the trial court with broad discretion. Thus the trial judge’s determination is entitled to the utmost respect and should not be overturned unless there was a clear abuse of that discretion. ³⁴⁶ Madore v. Baltimore County, 34 Md.App. 340, 346 , 367 A.2d 54, 58 (1976).” Moreover, the court was aware that the trial had been postponed three times, twice at the request of Johnson to accommodate mental evaluations by experts of his choice. Considering all of these factors, the trial judge did not abuse his discretion in denying the filing of a plea at the beginning of the first day of trial, almost nine months after it was required to be filed by the governing statute and rule. Finally, we are not persuaded that the belated NCR plea was justified because the court, at the request of the State, ordered on April 2, 1996, that Johnson undergo a mental evaluation by a psychiatrist of its choice for use solely at the sentencing hearing, if one became necessary.

Defense counsel proffered that the decision to forgo a NCR plea was a tactical one based on the belief that the State would not be entitled to a psychiatric examination unless such a plea was filed. 2 Johnson argues that “when the trial judge granted the State’s belated motion for such an examination, the defense lost the tactical advantage it had hoped to gain. Under those circumstances, it was only fair that the trial judge also extend the time for filing a NCR plea.” He contends that, because this trial strategy was undermined by the court’s subsequent order granting the State’s motion for a psychiatric examination, this constituted good cause which necessarily allowed the entry of a belated NCR plea. Johnson’s argument fails for several reasons. First, Johnson’s failure to file a NCR plea did not preclude the State from obtaining an evaluation of Johnson’s mental status by a psychiatrist of its choice since Johnson intended to rely at any ³⁴⁷ sentencing hearing on “a substantially impaired” mental status as a mitigating circumstance against the imposition of the death penalty.

Md. Rule 4—263(d)(1). Hartless v. State, 327 Md. 558, 564 , 611 A.2d 581, 583-84 (1992). The State was entitled to the mental examination, whether or not appellant filed a NCR plea. The trial court’s exercise of sound discretion in whether to order a mental examination was in accord with Maryland law.

In the circumstances of this case, defense counsel could not alter the degree of this discretion simply by invoking its earlier trial strategy. Second, defense counsel’s argument implicitly embraces the premise that the defense was entitled to the tactical advantage it had earlier hoped to achieve by failing to enter a NCR plea. Such a premise is unsound. In a criminal trial, whether it be capital or otherwise, neither side is entitled to a “tactical advantage.” B. MOTION TO SUPPRESS APPELLANT’S STATEMENTS Appellant next argues that the lower court erred in denying a motion to suppress all statements made by him to the police.

He asserts that the trial judge erred in finding some of his statements admissible, arguing instead that they were the result of improper inducements and in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States, Articles 22 and 24 of the Maryland Declaration of Rights and the Maryland common law. We do not agree with this contention and hold that there was sufficient attenuation between the improper inducements and Johnson’s statements. Johnson was arrested by the Maryland State Police on April 20, 1995, at a house in Essex, Baltimore County, at approximately 4:00 p.m. Upon his arrest he was advised of his Miranda 3 rights and was then transported to the Golden Ring barracks.

At approximately 8:30 p.m. that day, Trooper Michael Grant of the Maryland State Police began to question the Appellant after again giving him the Miranda warnings. ³⁴⁸ During the course of the interview, which lasted about one hour, Trooper Grant indicated to appellant that if he confessed to the murder he might be able to receive some sort of “medical treatment at Perkins” instead of being “locked up for the rest of your life and the key thrown down the sewer.” In addition, in response to a question from Johnson, Trooper Grant intimated that if appellant confessed, his mother’s live-in boyfriend, who had driven Johnson to Baltimore County, would likely be released from custody. Johnson refused to talk about the murder and instead indicated that he wanted a lawyer. At that point, Trooper Grant discontinued the interrogation. The following day, April 21, 1995, Detective Craig Robertson and Corporal Jon B. Dudiak, both of the Allegany Sheriffs Department, arrived at the Golden Ring barracks at approximately 2:00 p.m. to take custody of Johnson and to transport him to the Cumberland Police Department in Allegany County.

He arrived at about 5:00 p.m. and, after being photographed and fingerprinted, he was again read his Miranda rights. He continued to refuse to talk about the murder but he gave a statement on an unrelated robbery. Appellant was then transferred to the Allegany County Detention Center in Cumberland, Maryland. Two days later, on April 23, 1995, Detective Robertson went to the Allegany Detention center on an unrelated matter, and he saw Appellant in the hallway talking on the telephone.

A correctional officer told Detective Robertson that Appellant wanted to speak with him. While speaking to the detective, Johnson indicated that he wanted to make a deal and that he intended to ask for the death penalty at trial. Detective Robertson advised Johnson that he did not have the authority to make a deal and that the Appellant should speak to his lawyer about it. He further advised Johnson that it would have to be worked out between his lawyer and the State’s Attorney.

Detective Robertson had to leave for a meeting, but he told Appellant he would come back if Appellant still wanted to talk. ³⁴⁹ Upon Ms return, Detective Robertson had a correctional officer ask Johnson if he still wanted to talk, and Appellant responded that he did. Detective Robertson again advised Johnson that he should contact his lawyer. Appellant stated that he wanted to talk without a lawyer. Detective Robertson and Corporal Dudiak then transported Johnson back to the Cumberland Police Department where he was again advised of his Miranda rights.

Johnson executed a written waiver of his Miranda rights at 8:27 p.m. He then confessed to being at the murder scene but he indicated that he could not remember everything about that night. When he began to hyperventilate while reducing his statement to writing, the detectives stopped the interview. The abbreviated written statement was admitted at trial along with Detective Robertson’s oral summary of the interview.

The trial court granted Appellant’s motion to suppress all other statements made, including those made at the Golden Ring barracks to Trooper Grant, those made while the defendant was being transported to the Cumberland Police Department on April 21, 1995, and those made at the Allegany County Detention Center on April 23, 1995, prior to being transported back to the Cumberland Police Department. The trial judge refused to suppress the statement made to Detective Robertson and Corporal Dudiak at the Cumberland Police Department on the evening of April 23, 1995, even though defense counsel argued that the improper inducements made at the Golden Ring barracks on April 20 by Trooper Grant were still influencing the defendant. The trial judge ruled that because the Appellant initiated the contact with Detective Robertson and there was sufficient attenuation between the two events, the statements were admissible. We agree and we shall affirm the trial judge’s ruling.

As a threshold matter, we must decide whether Johnson’s request for an attorney at the Golden Ring barracks requires exclusion of the statements at issue. Under the facts of this case, we hold that it does not. In State v. Conover, 312 Md. 33, 38 , 537 A.2d 1167, 1169 (1988), we recounted the ³⁵⁰ constitutional requirements regarding custodial interrogation of a defendant by reiterating that “[w]hen an individual in custody requests an attorney, interrogation must cease until an attorney is present, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Citing Edwards v. Arizona, 451 U.S. 477, 484-85 , 101 S.Ct. 1880, 1884-85 , 68 L.Ed.2d 378 (1981); Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). (Emphasis added).

In this case, the trial judge found that the evidence revealed that Appellant did in fact initiate contact with Detective Robertson two days after being transported to the detention center. Turning to the merits of Appellant’s argument, we hold that the trial court did not err in refusing to exclude the statements made by Appellant after he initiated contact with Detective Robertson. When discussing voluntariness of a confession under common law principles, in Reynolds v. State, 327 Md. 494, 509 , 610 A.2d 782, 789 (1992) we observed “[o]ne common thread that runs through our cases is that the promise must have caused the suspect to confess. If a suspect did not rely on an interrogator’s comments, obviously, the statement is admissible regardless of whether the interrogator had articulated an improper inducement.” (Emphasis added).

Thus, it is the trial judge’s responsibility to determine not only if an inducement was made, but to ascertain further whether or not the defendant was influenced by the inducement. Ralph v. State, 226 Md. 480, 486 , 174 A.2d 163, 166 (1961). In this case, the trial judge found and the State agreed that the promises made at the Golden Ring barracks by Trooper Grant were very likely improper inducements, and any inculpatory statements made as a result were properly suppressed. In addition, statements made the following day while being transported to Cumberland, although still not a confession to the murder, were also deemed to be inadmissible as a result of the possible lingering effect of the inducements made the prior day. ³⁵¹ As we further reasoned in Reynolds, supra, “the Supreme Court made it clear that constitutional voluntariness does not require that all promises, threats, or inducements render a confession involuntary; instead, the federal constitution requires only that courts consider promises, threats, or inducements as part of the