Johnson v. State

²⁵³ HARRELL, Judge. Larry Marcus Johnson, Petitioner, was convicted in the Circuit Court for Anne Arundel County of fourteen counts of theft over $300. He appealed to the Court of Special Appeals, arguing that the Circuit Court erred because it refused to compel the State to provide the defense with a copy of Petitioner’s pre-trial recorded statement 1 and yet permitted the State, over Petitioner’s objection, to adduce at trial the testimony of one of Petitioner’s police interrogators concerning his version of the inculpatory content of that statement. The intermediate appellate court rejected Petitioner’s argument and affirmed his convictions.

We granted certiorari 2 to consider the following questions posed by Petitioner: I. Whether the State is required to provide to the defense the defendant’s recorded statement where, instead of introducing the recording at trial, it adduces the substance of the statement through the testimony of a police officer.

II

Whether, where the State has failed to provide to the defense the defendant’s recorded statement, it may introduce the substance of that statement at trial through a police officer.

III

Whether the Court of Special Appeals erred in this case in holding that the admission of the oral summary at trial was not error under Maryland Rules 5-1002 and 5-1004. We hold that the State was required to furnish the defense with Petitioner’s recorded statement under Maryland Rule 4-263(b)(2)(A) and reverse. We need not, and do not, decide any other aspect of Petitioner’s questions. ²⁵⁴ I. On the evening of 2 August 1996, Officers Lewis J. Man-gione, Jr. and Zachary Miller, of the Bel Air Police Department, responded to a call for a burglary at a house on Old Orchard Road in Harford County. Officer Mangione chased one suspect running from the house.

During that pursuit, Officer Mangione noticed a vehicle speeding away with its headlights off and signaled Officer Miller to stop the car. 3 Officer Miller pursued the vehicle, stopped it, and arrested Petitioner, who was the driver and sole occupant of the vehicle. According to Officer Miller, Petitioner was visibly nervous and explained his unusual operation of the motor vehicle by stating that he became concerned when he realized he was driving the wrong way on Rock Spring Road. 4 On the backseat of the vehicle, Officer Miller observed a large knife, screwdriver, and various household goods. These items were subsequently inventoried at the Bel Air Police Department and identified as stolen property taken from various locations in Harford County and elsewhere. Corporal John Baker interviewed Petitioner on 2 August 1996, advised him of his Miranda 5 rights, and obtained his signature on an advice-of-rights form.

It is not entirely clear from the record whether this interrogation was recorded. Corporal Baker conducted a second interrogation in the presence of Petitioner’s then counsel, 6 on 14 August 1996, at the ²⁵⁵ Harford County Sheriffs Department. The second interrogation apparently was videotaped. Subsequently, Corporal Baker obtained warrants to search Petitioner’s home, a bedroom in Petitioner’s parents’ home where he sometimes stayed, and his booth at Pilgrim’s Variety, a flea market.

The searches resulted in the seizure of hundreds of'stolen items. Petitioner was ultimately charged in the instant case on 23 January 1998 by criminal information in the Circuit Court for Anne Arundel County with first-degree burglary and fourteen counts of theft over $300 as to those recovered items taken from Anne Arundel County victims. Before trial, Petitioner’s counsel requested discovery of a copy of the State’s recording of Petitioner’s statement. Petitioner’s counsel reasoned that the recorded statement was vital for possible suppression purposes 7 and to prepare cross-examination of Corporal Baker should he testify, as expected.' ²⁵⁶ The following courtroom exchange on 24 July 1998 captures the ebb-and-flow on this subject: [DEFENDANT’S COUNSEL]: Well, Your Honor, there are motions on the table with respect to the warrants, but if I can address one other issue.

I made several requests of the State for access to the videotape statements of my client. The State had indicated that they were not planning to use my client’s statements against him in the case in chief. However, there is still an issue as to whether or not the statements resulted in physical evidence being obtained. I can’t confidently suggest to my client whether we should waive that issue or litigate it, without having access to that videotape to see what my client said.

I don’t believe that I can confidently cross-examine any State’s witness prior to having access to the videotape or the audiotapes in question. Police reports from Harford County clearly indicate that the statement was in fact videotaped and/or audiotaped and it is my understanding that the Harford County Sheriff Department or the Bel Air Police Department has yet to deliver that tape to [the] State’s Attorney. THE COURT: If they are not using statements of your client in their case in chief, what right do you have to it at this point? I am missing your point. [DEFENDANT’S COUNSEL]: I am under the impression, Your Honor, that they could also use his statements to possibly suppress any specific reference, any items I would like discovered as a result of the statements he made.

Or if his' statements won’t be used to inculpate himself with respect to an admission or confession, those statements certainly did lead to the acquisition of physical evidence. Again, it is my impression, Your Honor, that I am entitled to seek suppression of that physical evidence through that manner. THE COURT: What is the illegality? What is the basis for the illegality? ²⁵⁷ [DEFENDANT’S COUNSEL]: It would basically be a Miranda violation, Your Honor, and possibly a voluntary suspicion [sic].

THE COURT: State? [THE STATE]: Your Honor, some of what was said I believe is accurate and some is inaccurate. There were statements made. At a certain point in time there was an interrogation done by the Bel Air Police in conjunction with the Harford County Sheriffs Department. The Defendant did make several statements in reference to his participation in some things.

I think it is inaccurate to say that certain statements would not be used as part of the State’s evidence. I think several of the statements would not be relevant to the State’s case and would not be used of course. However, the sum and substance of what those statements were, have in fact been provided to [Petitioner’s counsel]. There does — on Tuesday I said there appeared to be, I can now say with confidence that I have ascertained that there was a videotape done of this interrogation.

A videotape we believe exists. I have been in contact with the Harford County Sheriffs Office; they would have possession of it. They have individuals that are trying to find it. As recently as yesterday evening, I spoke with a Lieutenant Sandaman up there at Harford County who reasonably was confident that they could find it; they simply don’t have it yet.

Certainly, in an ideal world we would have had that. It should be provided. I certainly agree that the Defense would be entitled to use it, or at least to inspect it if we were to use that particular piece of evidence. I think the significance here are the statements themselves.

The sum and substance of the statements have been given to them. All the videotape is going to show is him saying it, as opposed to somebody else saying he said it. THE COURT: All right. You answered my question.

Thank you. ²⁵⁸ [THE STATE]: Okay. THE COURT: Anything else, [Petitioner’s counsel]? [DEFENDANT’S COUNSEL]: Well, subsequent to that issue, Your Honor, again we - THE COURT: Under the rules of discovery the State is required to give you the substance of any oral statements. The proffers have been given to you. I don’t understand the purpose for the hearing. [DEFENDANT’S COUNSEL]: The purpose of the hearing, Your Honor, would be that I have the substance of the statements.

I believe the statements are possibly suppressible in themselves. As such, I believe this investigation may have gone any further. I am not aware of any independent investigation that was in effect at the time Mr. Johnson gave statements that might have led the State to any number of — might have led the State to discover his alleged complicity in any event. For that reason, Your Honor, I believe that I am entitled to review those videotapes or that audiotapes [sic].

THE COURT: I don’t understand what the issue is. I really don’t. You have got the statements. You know what he said.

If you are saying that somehow [ ] Miranda was violated, fine. We will have a hearing on that. If you are saying that he was coerced into giving a statement, fine. We will have a hearing on that.

I want to know what your position is. [DEFENDANT’S COUNSEL]: Based on what my client has told me, I dispute the accuracy of the substance of the statements that have been provided to me. THE COURT: Well, that can be tested through cross-examination, the accuracy of the statements. [DEFENDANT’S COUNSEL]: Again, I feel that I am handicapped by not having access to the tapes prior to the cross-examination. Again, I believe that — I understand what the Court is saying and I defer to the Court. But, for the record, I believe I should be entitled to access to the ²⁵⁹ videotape prior to such time that I get to cross-examine any officer that was involved in taking those statements.

THE COURT: Well, I don’t think at this point of the trial — well, we haven’t even started the trial yet, we are just still on motions. I don’t understand any basis that you have proffered for any preliminary motion with regard to statements. So your request for a hearing on that is denied, based on what you have told me. At the bench trial, before Corporal Baker was allowed to testify, Petitioner’s counsel expressed his belief that the “State has agreed, has been asked not to use any of Mr. Johnson’s statements in their case in chief, Your honor.” The State responded: Your Honor, we have touched on this several times and he keeps mentioning that and I indicated even earlier this morning that there was not an agreement that we would not use statements in this case in chief.

I said that there were certain statements that he made that weren’t relevant to this case and certainly would not be used on that basis. I don’t know where the belief that we would not use statements in the case in chief came from; each time he has reiterated that view, Your Honor, I have reiterated that that was not the case. Petitioner’s counsel retorted: It is my understanding, Your Honor, that we did waive motions on the Miranda issue because I believe the State did tender to me the statements that they were not going to use of my client’s. Inculpatory statements in their case in chief.

It was with that understanding that I didn’t pursue the Miranda issue at the motions hearing. The following colloquy ensued between the trial judge and Petitioner’s counsel: THE COURT: As I recall it, as I recall that issue when it came up, I posed a question of whether or not you — well, not whether or not, but suggesting to you that you could cross-examine any witness concerning those statements. That is what I thought you were going to do. But, if they ²⁶⁰ say they want to use his statements, why can’t they use his statements?

What law dictates that they can’t? [DEFENDANT’S COUNSEL]: No, Your Honor. I suppose there is case law. I waived to get a — I permanently waived the Miranda, issue at the motions hearing, based on the premise that they weren’t going to use those statements— THE COURT: This whole case is premised on misunderstandings. If you want to cross-examine the witnesses, you have every right to do it.

I am going to overrule the objection. Corporal John Baker was then permitted to explain his version of the interrogations. As to the first interrogation on 2 August, Corporal Baker testified as follows: I conducted an interview with Mr. Johnson and asked him if he would state what had occurred that evening. He stated that he and his nephew had been sitting at the parking lot at Klein’s, which is a superthrift, on North Main Street in Bel Air.

Then some juveniles on bicycles started harassing them. He said his nephew became agitated, exited the vehicle and started chasing these individuals on foot. Mr. Johnson stated he was driving around looking for his nephew when he observed the police in the area of Howard Street and Old Orchard Road and then fled the area with his lights out. I asked him about the other things that had occurred during the time when he was being stopped and he stated that he was keeping his lights out so that he could retrieve some marijuana that he had hidden in his vehicle and tried to throw it out the window so he wouldn’t be caught with it, but instead he stuffed it in the console.

He stated that he wanted to come clean with what he had done and to try and help the police, but only after he had talked with an attorney and then invoked his right. At that time all questioning ceased with Mr. Johnson. Regarding the 14 August interrogation of Johnson, he testified, in pertinent part: ²⁶¹ [THE STATE]: Who was present? [CORPORAL BAKER]: There was myself, Detective Agnor, Farrell, Smith would be from the Harford County Sheriffs Department. Agnor and Farrell would be from the Newark, Delaware Police Department.

There was Mr. Johnson and his [then] attorney, [ ]. [THE STATE]: Prior to the interview was Mr. Johnson read his Miranda rights? [CORPORAL BAKER]: He was advised of his Miranda rights by [ ], his attorney. He was again issued a Miranda by police. [THE STATE]: Did he affirmatively waive his Miranda rights to you? [CORPORAL BAKER]: Yes, sir, he did. [THE STATE]: How was that done? [CORPORAL BAKER]: He conferred with his attorney and after conferring with his attorney he agreed to be interviewed by all officers that were there, involved in this, and to tell what he knew in reference to the burglaries and what his involvement was. [THE STATE]: What, if anything, did Mr. Johnson state to you during that interview? [CORPORAL BAKER]: At 1036 hours that morning he was interviewed by myself and Detective Smith of the Sheriffs Department at the Harford County Sheriffs Department. He stated that he mostly acted as a fence for his nephew, Robert Mark Rinkowitz. He referred to him always as Mark.

He stated that Mark would commit these burglaries, bring the property to him to sell. He stated that he would sell some of these items at a flea market in Aberdeen and some he would take to other types of sales or other places where items could be bought and sold. Also he said that Mark had four people working for him. All he could think of were a couple of first names.

He stated that in reference to what we arrested on, on the 2nd of August, 1996, he drove Mark around the neighborhood of ²⁶² Old Orchard Road. He then parked on the parking lot of Klein’s Superthrift. Petitioner’s defense at trial was that his nephew (Mr. Rin-kowitz), who had stayed at Petitioner’s parents’ home and also worked at the Pilgrim’s Variety flea market, was the guilty party. Marcus Johnson, Petitioner’s father, testified that Rinkowitz maintained a separate booth at the flea market that was across the aisle from Petitioner’s booth.

During the execution of the warrant, officers took items from both booths. He also testified that Rinkowitz had been living in his home and storing goods in his basement, but at the time of the search he was staying elsewhere and stopped by two or three times per week. Petitioner’s father stated that his son stayed at his parents’ house “very seldom.” The trial judge-found Petitioner guilty of fourteen counts of theft over $300. On 2 October 1998, the court imposed a sentence of fifteen years’ imprisonment for the conviction of theft over $300 under count 2 of the charging document, to be served consecutive to a sentence imposed in the Circuit Court for Harford County, and concurrent sentences of fifteen years’ imprisonment each for the remaining convictions, the latter suspended in favor of five years’ probation upon release.

The Court of Special Appeals affirmed the judgment, holding that the trial court did not err when it denied defense counsel’s request for a copy of Petitioner’s recorded statement. The court explained that the defense was not entitled to a copy of the recording because the substance of the content of Petitioner’s recorded statement had been provided, and furthermore, the State did not offer the actual recording as evidence at trial. The court reasoned that: The substance of appellant’s statements during the interviews was provided to appellant’s counsel, pursuant to Rule 4-263(a)(2). Appellant nevertheless insists that the State intended to use his recorded statement at trial and, thus, he was entitled to view the videotape under Rule 4-263(b)(2).

To the contrary, it is undisputed that the State did not intend to use the tape---- Moreover, the State did not use ²⁶³ the recorded statement at the trial. Rule 4-263(b)(2) is applicable only when “the State intends to use” a statement made by appellant. The statement was not used; consequently, Rule 4-263(b)(2) was not applicable. II. 8 Petitioner contends that the trial court’s ruling denying him the right to obtain his recorded statement violated Maryland Rule 4-263(b)(2)(A). 9 He argues that the Circuit Court should have required disclosure of the recorded statement because the State intended to use the content of the statement at trial through the testimony of Corporal Baker, one of his interrogators.

He urges us to enforce the plain meaning of Maryland Rule 4 — 263(b)(2)(A) to require the State to furnish a copy of the recorded statement, not merely the substance of the content of the statement. Petitioner argues that, without the recorded statement, he was unable to determine whether the statement was lawfully obtained or to prepare for cross-examination and his defense. The State argues that it provided the discoverable information required to be disclosed by the rule. It states: ²⁶⁴ The State complied with the [rule.] ... [ ] [Because] [ ] the State did not intend, to use the video-recorded statement, the State was not required to produce that recorded statement pursuant to Rule 4-263(b)(2)(A); and, [ ] by providing the substance of Johnson’s oral statement obtained on August 14, 1996, the State complied with Rule 4-268(b)(2)(B).

Furthermore, the State asserts that the Court of Special Appeals was correct in its attempted distinction for discovery purposes between the videotaped statement as a physical item and the substance of the content of that statement, and then pointing out that only the latter was introduced in evidence through the testimony of Corporal Baker. A. As to criminal cases, Maryland Rule 4-263(b)(2) provides, in pertinent part: Rule 4-263. Discovery in circuit court. $ $ $ (b) Disclosure upon Request. Upon request of the defendant, the State’s Attorney shall: ❖ ❖ s{« ❖ (2) Statements of the defendant.

As to all statements made by the defendant to a State agent that the State intends to use at a hearing or trial, furnish to the defendant, but not file unless the court so orders: (A) a copy of each written or recorded statement, and (B) the substance of each oral statement and a copy of all reports of each oral statement; With respect to the interpretation of the Maryland Rules, this Court has stated that, “[t]he canons and principles which