Jordan v. State

²²⁸ ROBERT M. BELL, Judge. Brian Richard Jordan, appellant, was tried, as an adult, by a jury in the Circuit Court for Carroll County and convicted of conspiracy to commit murder, felony murder, robbery, and conspiracy to commit robbery. He was sentenced to life imprisonment for conspiracy to commit murder and for felony murder and, to ten years each for the robbery and the conspiracy to commit robbery charges. All sentences were ordered served consecutively.

Being aggrieved by these judgments, appellant has appealed, raising five issues: 1. Did the trial court err in failing to suppress the Appellant’s statement to police after making sufficient findings to establish support for that suppression? 2. Did the trial court err in admitting over objection, testimony relating to ritual games when the effect was highly prejudicial and of no relevance? 3. Was Appellant’s trial counsel constitutionally ineffective in failing to move for a reverse waiver of the Appellant’s case to juvenile court? 4.

Was the evidence insufficient to sustain Appellant’s conviction? 5. Did the trial court err in imposing the sentences it did upon the Appellant? Discerning merit in none of them, save for a merger issue, we will affirm, except that we will vacate the sentence imposed for robbery. The facts out of which this appeal has arisen are rather complex.

Preliminarily, we will set forth a concise statement of facts. We will then supply additional facts, as needed, when we address each issue. In late October, 1987, appellant was sent to the Sykesville Shelter Home, a juvenile detention center. While there, he met Brian Tracy and Dawn Torres, Tracy’s girlfriend, who were also residents of the detention center.

Tracy was appellant’s roommate. Shortly after his arrival, appellant and Tracy began to discuss running away. In that regard, ²²⁹ they were heard to comment on their intention to escape to California and on how that would be accomplished. The State produced evidence from residents at the shelter that they overheard appellant and Tracy say at times that “if they had to, they’d kill someone, they might take a car and they might kill someone, they might do this and they might do that.” Dawn Torres testified that she was told by Tracy that he had a gun and that if he had to he would kill someone to get to California.

She also testified that she heard appellant say that he had a knife, with which he would slit someone’s throat, if necessary. Implementation of the escape plan occurred about a month after appellant arrived at the shelter. At that time, he, Tracy, and Torres were picked up, at Tracy’s request, by the victim, Richard Purman. After taking them to Tracy’s home, where Tracy obtained a gun 1 , Purman was directed to a wooded area at Mail and Sam’s Creek Roads.

Once there, Purman helped appellant and Tracy put the runaways’ belongings in a weeded area. As they were returning to the car, Tracy fatally shot Purman in the chest. He then hid the body in the weeds. While Tracy was so engaged, appellant tried to start Purman’s car.

When that attempt proved unsuccessful, appellant, Tracy, and Torres sought assistance at a nearby home. They were eventually taken to a McDonald’s restaurant, from which they called the shelter and obtained a ride. Back at the shelter, Torres told a counselor what had occurred, i.e., that Tracy had killed someone. The police were called and Torres directed them to the location where Purman’s car and body were found.

Appellant and Tracy were arrested in the early morning hours. Appellant was ultimately transported to the Mary-s. nd State Police Barracks. He was transported barefoot, ■ niid wearing only jeans and a tee shirt, despite the 2S ..¿gree temperature outside. Within a short time of his ²³⁰ arrival, but only after he had been advised of his Miranda 2 rights, he made an incriminatory statement.

That statement was approximately iy2 hours long. 1. Prior to trial, appellant moved to suppress the statement on the dual grounds that 1) it was involuntarily made and 2) it was taken in violation of his Miranda rights. A hearing was held on the motion, at the conclusion of which the court found that appellant had been properly advised and that he made the statement voluntarily. 3 It found, however, that the State had not established by a preponderance of the evidence that appellant had knowingly and voluntarily waived his right to counsel. Consequently, appellant’s motion to suppress was granted.

Because, however, the court had already found the statement to have been voluntarily made, its suppression applied only in the State’s case in chief; in the event appellant took the stand, the State would be permitted to use the statement to impeach his credibility. At the conclusion of the State’s case, appellant moved for reconsideration of the court’s voluntariness ruling. At that ²³¹ time, he indicated that, but for that ruling, he would take the stand and testify in his own behalf. He did not, however, proffer his testimony.

The court reiterated its prior ruling. Appellant maintains that the court’s voluntariness ruling was error. In his view, the totality of the circumstances indicate that he made the statement involuntarily. Although it takes the opposite view, i.e., that the totality of the circumstances amply demonstrates the voluntariness of the statement, the State questions whether the issue has properly been preserved for our review.

Because we agree that it has not, we need, and will, not address the merits of the issue. The court ruled that the State’s failure to prove compliance with Miranda rendered appellant’s statement inadmissible in the State’s case in chief. On the other hand, its ruling that the statement was voluntarily made allowed the State to use it to challenge appellant’s credibility should he testify in his own behalf. See Harris v. New York, 401 U.S. 222, 224 , 91 S.Ct. 643, 645 , 28 L.Ed.2d 1 (1971).

Appellant, as we have seen, elected not to testify; hence, the statement was never used in the case for any purpose. Therefore, the issue simply has not been properly presented for our review. 4 See Offutt v. State, 44 Md.App. 670 , 410 A.2d 611 (1980), cert. denied, 291 Md. 780 (1981). See also Luce v. United States, 469 U.S. 38 , 105 S.Ct. 460 , 83 L.Ed.2d 443 (1984). One of the issues presented in Offutt , was the reviewability of a court’s ruling, on a motion in limine, that a prior conviction for distribution of heroin was admissible as impeachment evidence should the accused testify.

The ac ²³² eused did not testify, offering the court’s .ruling as his reason for not doing so. We held that the question was not ripe for review, reasoning: Although it is entirely possible that the ruling of the trial judge motivated the appellant not to testify, it is also possible that he had no intention of testifying regardless of the ruling of the trial court on the motion. It is also possible that had appellant testified the State would have changed its position and not used the conviction. We do not rule on academic questions. 44 Md.App. at 677 , 410 A.2d 611 .

Luce v. United States is to like effect. There, the accused moved in limine to exclude the use of a prior conviction to impeach him should he elect to testify. The court ruled the conviction admissible, depending upon the nature and scope of the accused’s trial testimony. The accused did not testify; indeed, he made no commitment that he would have testified had the motion been granted.

Nor did he proffer his testimony. The Court of Appeals for the Sixth Circuit held that the court’s ruling on the motion in limine was not reviewable. The Supreme Court affirmed. It pointed out: Any possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative.

The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant’s proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling. On a record such as here, it would be a matter of conjecture whether the District Court would have allowed the Government to attack petitioner’s credibility at trial by means of the prior conviction. When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction.

If, for example, the Government’s case is strong, and the ²³³ defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction. 469 U.S. at 41-42 , 105 S.Ct. at 463-464 . Under a factual scenario almost identical to that in the instant case, the Supreme Court of New Hampshire reached the identical result. In State v. Bruneau, 131 N.H. 104 , 552 A.2d 585 (1988), the accused, by motion in limine, filed before trial, claiming a violation of Miranda, successfully moved to suppress a statement he had given to the police. The court ruled, as did the court in this case, that the statement was nevertheless admissible for impeachment purposes should the accused take the witness stand.

The accused did not testify. On appeal, he challenged the court’s “ruling that [his] statements ... obtained in derogation of State and federal rights to counsel, could be used to impeach him if he took the stand.” 552 A.2d at 586 . The Court did not reach the merits of the challenge since the accused did not take the stand and suffer impeachment by the statement’s use. 5 It explained: ... Assuming arguendo that the defendant raised an issue involving post-indictment State and federal rights to counsel, we find the claim of prejudicial error too speculative for adjudication.

The defendant never testified and was never impeached. We have no way of knowing whether his decision to remain off the stand was influenced to any degree by the ruling in limine, any more than we can tell what would have happened if he had testified. We do not know whether his testior whether the State would actually have used the statement to impeach him. 552 A.2d at 592 . In the instant case, appellant proffered that, but for the court’s ruling he would have testified.

Therefore, he sug ²³⁴ gests, there is no speculation involved in determining whether the court’s ruling precipitated his decision and thereby prejudiced him. We do not agree. The connection between the court’s ruling and appellant’s decision to refrain from testifying is no less speculative because appellant proffers that he elected not to testify solely because of the court’s ruling than it would be had he not so proffered. In either case, the court may have changed its ruling or the appellant’s testimony may not have produced the factual predicate which would have permitted use of the statement for impeachment purposes.

This is particularly so where, as here, no proffer has been made as to what the testimony would have been; under the circumstances it is pure speculation that appellant’s testimony, had he taken the stand, would have generated an impeachment issue. We are aware of Passamichali v. State, 81 Md.App. 731 , 569 A.2d 733 (1990). The issue presented in that case was the constitutionality of Maryland Courts & Jud.Proc.Code Ann. § 10-905. In an effort to raise that issue, the accused “[made] clear that [he] chose not to testify solely because of the pending admission of his robbery conviction.” We held that appellant’s constitutional claim had thereby been sufficiently preserved for appellate review.

We reasoned: It defies logic to suggest that a defendant must testify in order to preserve for appellate review a claim of deprivation of the constitutional right to testify. If such a requirement existed, this constitutional challenge could never be squarely presented for appellate review because the claim would dissipate upon the defendant taking the oath. In the case sub judice, there was no factual determination to be made which would have required appellant to take the stand. The issue was a purely legal one — the constitutionality of § 10-905 — and as Justice Brennan stated, to require appellant to testify in order to preserve the issue is inappropriate.

We hold that appellant adequately preserved his constitutional claim by noti ²³⁵ fying Judge Bothe of his desire to testify and of the sole reason for his refusal to testify. 81 Md.App. at 740-741 , 569 A.2d 733 . 2. Appellant moved in limine to exclude from the trial any evidence of “alleged occult or satanic activities”, such evidence being irrelevant and highly prejudicial. During the argument on the motion, appellant proffered that the “occult activities ... involved ... some sort of game playing or — I believe the game is entitled Runes, where the individuals took part in the game, that questions were posed concerning what they should do.” Having heard extensive argument on the subject, including the State’s proffer of the evidence it intended to offer, the court denied the motion, but not before expressing a real concern as to the admissibility, in general, of evidence concerning appellant’s occult activities. Specifically, the court stated: ...

Assuming all other things — the proper foundations are laid. What I would suggest, gentlemen, is that — I—I will deny the motion in limine, at this point, with a — a very — with a caution that the business of Satanism, per se, the fact that they worship — in other words, their religious — or the defendant’s religious belief, unless it’s shown or can be proffered that it’s going to be the proximate cause for the motivation of the crime or some other relevant issue, I think the State would be on very dangerous ground getting into that; however, that doesn’t mean that it can’t develop at some point in the trial, then may become admissible. The issue surfaced again, just prior to the State calling John Saylor, its main witness to the Runes games played by appellant and Tracy. At that time, appellant sought reconsideration of the court’s prior ruling and, in particular, “... that the court hear the testimony as to the — out of the hearing of the jury, as to whether or not particular testimony regarding a particular Runes game is going to be admissible because of its prejudicial nature.” Agreeing, the ²³⁶ court heard the testimony out of the presence of the jury.

It then heard, once again, extensive argument by counsel. During his argument, appellant’s counsel clarified his position: What I am seeking to exclude, I’d suggest to the court is the — the Runes game associated with the ritual, because therein lies the prejudice. As far as his limited testimony is concerned, in terms of other Runes games, where there were questions, “should we steal? should we run to California?”, that is not the thrust of the motion. The thrust of the motion is only that part of the Runes game that’s associated with the — the alleged satanic rituals____ Once again, the court denied the motion and, once again, it emphasized that there should be no reference to satan or the devil in testimony.

Before the jury, John Saylor testified concerning the Runes 6 games, as follows: Q. Now, did there come a time when you witnessed the game of Runes with Brian Tracy and Brian Jordan? A. Yes. Q. Okay. Now, where did this game take place?

A. Well, there were several games. Some of ’em were in the open, with everybody, and there were others that were in the bedroom that they were in. Q. Okay. Now, in the bedroom they were in, did you see a game late at night?

A. Yes. Q. All right. Now, about what time of night is that? A. There were two.

One was just before midnight, and one was some time between one and two o’clock. Q. In the morning? A. Uh-huh. Q. Okay.

But, that was all one evening? A. Yes. ²³⁷ Q. Okay. Now, in playing this game of Runes, where did they play it? A. Just right in the bedroom.

Q. But, where in the bedroom? A. I don’t recall exactly. Q. In other words, on the — on a bed or on the floor or on the wall — how do you do that? What did they do?

A. You just — you just draw one out of the bag. Q. Okay. A. I don’t remember whether they were sitting down on the bed or ... Q. Okay.

And, had they drawn something on the floor? A. Yes. Q. All right. And — what ...

A. There were — there were concentury uh [sic] circles about five to six feet across, drawn on the floor, with a star inside. Q. Inside the circles? A. Uh huh. Q. Okay.

And, then, what did they do with these Runes? A. They were drawn out and depending upon what position they were drawn out in they were supposed to indicate an answer to questions. * * * * * * A. Each of the — each of the Runes is supposed to be— and pictured in a certain way, if you pulled it out one way, it — it’s right side up, and if its the other way, its upside down. If it’s right side up, it means yes. If it’s upside down, it means no.

Q. Okay. Now before midnight, they were doing something with either Runes? A. Yes. Q. And what was that? ²³⁸ A. They were asking the Runes questions about if they ran away would they succeed and just asking general advice about running away. 7 $ * $ $ # * Q. Okay.

Now this — at 11:30, th — what kind of questions were they asking? A. They asked if — if they ran away, would they — would they succeed in getting to California, and if they held a ritual, would it succeed. Q. Okay. Any other questions that they asked as you can recall?

A. Not that I specifically recall. Q. Okay. So, now, after midnight, there was another Rune session. A. Right.

Q. Okay. And — who was present at this? A. Brian Tracy, Brian Jordan, and myself. Q. Okay.

And, who was pulling the Runes out? Was anybody in particular pulling the Runes out? A. I recall Brian Tracy doing it for sure, but I don’t know whether Brian Jordan did or not. Q. Okay.

And what questions — what did they do then? What was — describe this session. A. They repeated the same questions as before and Brian Tracy