Leach v. State

Liss, J., delivered the opinion of the Court. Gregory Neal Leach, appellant, was charged with murder and tried before a jury in the Criminal Court of Baltimore. The jury was unable to agree upon a verdict and a mistrial was granted. Appellant was thereupon tried a second time and on April 2, 1980, was convicted by a jury of first degree murder.

The presiding judge imposed a life sentence and from that judgment, defendant appeals. Appellant raises nine issues to be decided by this Court: I. Did the trial court err in prohibiting appellant from using an inculpatory statement of a third party in his defense?

II

Did the trial court err in admitting into evidence statements made by appellant to Los Angeles, California police officers? ⁶¹³ III. Did the trial court err by refusing to strike a juror who was a former schoolmate and neighbor of a state’s witness?

IV

Did the trial court err in refusing to grant a short continuance to allow appellant to be examined by a medical doctor for a stomach disorder? V. Did the trial court err in refusing to grant a mistrial for misconduct by the State?

VI

Did the trial court err in refusing to grant appellant’s requested instructions on malice and the weight to be given police testimony?

VII

Did the trial court err by allowing the jury to be separated and return to their homes after they had started their deliberations?

VIII

Did the trial court abuse its discretion in reading unrequested portions of appellant’s testimony to the jury?

IX

Did the trial court err by denying appellant’s motion for a judgment of acquittal because the evidence was insufficient? We believe that a brief recitation of the facts of this case will be useful in placing the legal issues in proper perspective. On March 9, 1979, the police discovered the badly decomposed body of Essie May Robinson, appellant’s mother-in-law, at 20 North Morley Street in Baltimore City, where appellant resided at the time. An assistant State medical examiner determined that the deceased had died from multiple stab wounds.

Approximately one week after the discovery of the body, an unidentified male approached Officer Keith Teidemann and told him that one Rochelle West, who lived at 8 North Morley Street, had approached him and said she needed money to get out of town because she had killed somebody on Morley Street. This information was related to a detective on the homicide unit who prepared a report (apparently erroneous) in which he stated that the information had been given to Officer Teidemann by Rochelle West herself. The report was then relayed to an officer who had been assigned to investigate the homicide at 20 North Morley Street. ⁶¹⁴ At trial, Officer David Enlow of the Los Angeles Police Department testified that on March 26,1979, while on duty, appellant approached him and stated, "Officer, I am in big trouble, I killed my wife’s mother.” Officer Enlow thereupon placed appellant under arrest and detained him in a police cruiser. Officer Carlo Greco, Enlow’s partner, testified that while transporting appellant to the police station appellant told him that he had cut the victim in Baltimore and that she was living at 20 North Morley Street.

Upon arrival at the police station, appellant furnished his name, date of birth and other statistical information. Officer Greco then telephoned the Baltimore City Homicide Unit and upon learning that appellant was wanted in Baltimore, he administered the Miranda rights to appellant. No additional statements were made by appellant to the Los Angeles Police. I. Prior to the beginning of the trial, the State filed a motion in limine to prohibit the defense from producing any testimony concerning the alleged statement by Rochelle West and to preclude the defense from using the statement for impeachment purposes.

The trial judge’s decision to grant the State’s motion is the subject of the first issue on appeal. Assuming the question is before us, we 1 find no error in this ruling. Appellant relies on Jacobs v. State, 45 Md. App. 634 , 415 A.2d 590 (1980), which gives an exhaustive review of the evidentiary status of declarations against penal interests. The principles governing such declarations were stated as follows: We begin with the principle that declarations against interest are admissible as exceptions to the rule against hearsay.

A limitation is placed on that principle, exempting declarations against penal interest from the admissible category. The lat ⁶¹⁵ ter-day exceptions to that limitation are that such declarations against penal interest will be admissible where there is "no evidence of collusion” and where the declaration is "not on its face obviously untrustworthy.” \Emphasis supplied.] 45 Md. App. at 651 . The trial court found the alleged declaration by West against her penal interest to be untrustworthy and therefore inadmissible for three reasons: first, because West was available to testify at trial; secondly, because the statement was ambiguous; and third, because the alleged informant had never been identified. In addition, West took the stand at the suppression hearing and denied ever making such a statement.

The Court of Appeals held in Brady v. State, 226 Md. 422 , 174 A.2d 167 (1961) that the initial determination as to the trustworthiness of evidence must be made by the trial court. In this case the trial court was asked to admit third or fourth level hearsay. The chain of individuals involved in the alleged hearsay was as follows: (1) Rochelle West purportedly made a confession to an unknown person; (2) the unknown person then told Officer Teidemann about West’s statement; (3) Teidemann then reported this statement to Detective Brown; (4) Brown reduced this information to a written report and relayed it to the first investigator, Detective Willis, who then gave it to the acting investigator, Detective O’Brien. At trial, defense counsel argued that he should have been permitted to call Officer Teidemann to the stand to testify as to the alleged statement made to him by the unidentified informant.

Had the officer been permitted to testify as to the alleged statement- by West against her penal interest, the statement could not have been tested either by oath or cross-examination. In addition, the statement was not sufficiently identified with the murder of the victim. We conclude that the trial judge’s dissatisfaction with the trustworthiness of the statement was adequately stated in his summation of his reasons for granting the State’s motion: ⁶¹⁶ But let’s go one step further. What do we have in the statement?

The law says that a confession by one other than the Defendant that he committed the crime in question — and I emphasize committed the crime in question — should be received and considered by the trier of the guilt of the accused unless also clearly conclusive, frivolous or otherwise untrustworthy. Do we have a confession that the person committed the crime in question? At best, we have that someone came to someone else and the someone is allegedly Rochelle West and stated she had to get money and get out of town because she killed someone on Morley Street. Now, we have got to infer that the address on Morley Street is the same address in the instant case and we’ve got to assume or infer or accept that the person she killed was in fact the person that was killed on that date or at that time.

There’s no date given, no time, no address and no person. So, we’ve got a question of who this Rochelle West killed if we accept the statement of this unknown person. Who she killed, when she killed them, where she killed them — Morley Street is a large street — and under what circumstances. So, first of all, do we have a confession, and I don’t think we have anything that relates to this case that a person says that they did commit the crime in question.

The fact that she killed somebody and there’s no question — or someone on a certain street, when, where, under what circumstances no one knows. We have considered the sub parts of the arguments made in support of appellant’s initial contentions in this case and find no merit in them. ⁶¹⁷ II. We find no error in the trial court’s ruling on the admissibility of the oral statements made by appellant to the Los Angeles police. It is clear from our review of the record that the initial statement made to Officer Enlow by appellant was not the result of an interrogation by the officer; rather, it was freely and voluntarily offered by the appellant.

Likewise, the second statement in question made to Officer Greco while transporting appellant to the station was also a spontaneous utterance made freely and voluntarily by appellant. No interrogation was being conducted during the transportation. Appellant further contends that he was not advised of his rights under Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 (1966) until after the Los Angeles police had completed an interview card in which they obtained from appellant his name, address, date of birth and other statistical information. He suggests that the police were able to locate the corpus delicti of the crime because of the identification information solicited from appellant.

In his view, this tainted the original statements offered by appellant to Officers Enlow and Greco. We do not agree. It is clear to us that the statements made in California were not the result of custodial interrogation and were therefore admissible into evidence. The test was enunciated by the Supreme Court in Miranda v. Arizona, supra, and is stated as follows: ⁶¹⁸ See also Leuschner v. State, 41 Md. App. 423 , 397 A. 2d 622 (1979), cert. denied, 285 Md. 731 (1979), cert. denied, 444 U.S. 933 (1980), reh. denied, 444 U.S. 1027 (1980).

The argument that the completion of the interview cards somehow tainted appellant’s voluntary statements is without merit. We have held in Maryland that information obtained from routine identification questioning will not affect the admissibility of statements challenged under the Miranda exclusionary rule. See Grimes v. State, 44 Md. App. 580 , 409 A.2d 767 (1980). ⁶¹⁷ ... the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. 384 U.S. at 444 . ⁶¹⁸ III.

One of the witnesses called by the State was Homicide Detective Leonard Willis, who had initially been assigned to this case. Detective Willis provided the foundation for the introduction of photographic evidence used in this case. In addition to foundation testimony, Willis expressed an opinion that from droplets of blood found at the scene, the victim had traveled from the front bedroom — the bedroom in which appellant testified he was sleeping — across the hall into the rear bedroom. Willis also testified that he found a suitcase containing male clothing and bedroom slippers in the house.

In opposition to this testimony, appellant contended that the suitcase had been planted there by the police. Upon cross-examination the trial judge discovered that Willis had been acquainted with one of the jurors. After receiving that information, the court conducted a voir dire which disclosed that the juror had been an old schoolmate and neighbor of Detective Willis some fifteen years prior. The juror assured the court that this would not cause her to give Officer Willis’ testimony any greater weight and that her ability to fairly and impartially judge the case would not be impeded.

Upon receiving these assurances, the trial court refused to strike the juror and appellant contends that failure to do so amounted to reversible error. We do not agree. The guidelines for granting a new trial where it has been discovered that a juror has made a misstatement during voir ⁶¹⁹ dire examination are set out in Burkett v. State, 21 Md. App. 438 , 319 A.2d 845 (1974), wherein we held: ... the grant of a new trial where information inadvertently is withheld by a juror’s failure to respond to voir dire inquiry, should be left to the sound discretion of the trial judge unless: (a) actual prejudice to the accused is demonstrated, or (b) the withheld information, in and of itself, gives rise to a reasonable belief that prejudice or bias by the juror against the accused is likely. 21 Md. App. at 445 . We think the same guidelines apply where a mistrial is sought because of misinformation given by a prospective juror during voir dire proceedings.

The voir dire conducted by the trial judge after the discovery of her acquaintance with the police officer satisfied the judge that the failure of the juror to disclose her acquaintance during the original voir dire was inadvertent and unintentional; that the relationship between the juror and the officer was minimal and had existed in the remote past; and that the juror could still render a fair and impartial verdict. Under the circumstances, we do not believe that the facts in this case would require a disqualification for cause of the juror during the