Meyer v. State

Moore, J., delivered the opinion of the Court. A mother and her three-month old infant were stabbed to death in their Bowie, Maryland home. Appellant, Gene ⁴²⁹ Thomas Meyer, was convicted of first degree murder of the mother and second degree murder of the child and received sentences of life imprisonment and thirty years, to be served consecutively. On this appeal, the major issue presented involves Maryland District Rule 723 (M.D.R.) requiring an arrested person to be presented “without unnecessary delay” before a judicial officer.

Appellant, relying upon Johnson v. State, 282 Md. 314 , 384 A.2d 709 (1978), contends that two statements obtained from him by the police should have been suppressed as products of an unnecessary delay in presenting him before a District Court Commissioner. In opposition, the State argues: that Johnson should only be applied prospectively to arrests occurring after April 6,1978, the date of the decision; and alternatively, that the delay in presentment was necessary, that the admission of the first statement, if erroneous, was harmless; and that the second statement was a product of deliberate reflection. Appellant has also challenged an in-court identification allegedly made under “impermissibly suggestive circumstances;” the introduction of allegedly inflammatory color photographs of the crime scene and of the autopsy; the admissibility of opinions contained in the autopsy reports; the seizure of his automobile in Virginia by Prince George’s County (Maryland) Police; and a jury instruction containing a reference to “probable cause.” Finding no reversible error, we shall affirm. I The record of the suppression hearings discloses that, on September 23, 1977, Lon Alec Lewis, after finishing work, returned to his home in Bowie and found, in the kitchen, the bodies of his 27-year old wife, Carol, and 3-month old baby, Heather.

He summoned help from a neighbor, and the police were called. Both Carol and Heather had been the victims of an assailant who had brutally stabbed them to death with a knife. Over the next two weeks, Lon Lewis fully cooperated with the police. He permitted them to search his home and consented to being interviewed.

During the course of those ⁴³⁰ interviews, Mr. Lewis admitted having a girlfriend in Texas who had been communicating with him by letters mailed to Mr. Lewis at the address of appellant, Gene Meyer. On October 6, 1977, a Prince George’s County police officer visited the appellant at his Rockville, Montgomery County, apartment to obtain any of the Texas girlfriend’s letters that Mr. Meyer.might have been holding for Mr. Lewis. Although Mr. Meyer did not have any letters, he was interviewed, and a written statement was taken in which he discussed Mr. Lewis’ Texas liaison. Mr. Meyer stated that he learned of Mr. Lewis’ girlfriend when he and Mr. Lewis had spent a week in Texas attending a training program sponsored by their employer.

The next day, October 7, 1977, Lon Lewis was further questioned by the police. Early in the evening he admitted his complicity in the murders of his wife and child and was arrested. 1 Over the next few hours he gave a written statement to the police describing in detail an agreement between himself and Mr. Meyer in which the murders of their wives had been planned. Acting upon this information and the description provided by a witness who saw a man approaching the Lewis house shortly before the murders were committed, the police obtained a warrant for the arrest of the appellant. At 7:15 a.m., on October 8, 1977, Mr. Meyer was arrested at his apartment in Rockville, handcuffed, placed in the back seat of a police cruiser, and given his Miranda warnings. 2 Detective David Hatfield, who rode in the police cruiser during the trip to the Bureau of Criminal Investigation (BCI) in Forestville, Prince George’s County, from Rockville, testified at the pretrial suppression hearing and described appellant’s reaction when told of the Lon Lewis statement.

Mr. Meyer wanted to see the Lewis statement and told ⁴³¹ Detective Hatfield that the police would have to “prove it” because it was Mr. Lewis’ word against his. Upon arriving at BCI, the appellant was placed in an interrogation room, unhandcuffed, and offered some coffee. Detective Hatfield obtained the Lewis statement, and together the two men spent almost two hours reading the 14-page typed and handwritten document. Detective Hatfield testified that Mr. Meyer, after reading the statement, offered to tell his side of the story: “[H]e said he would give a truthful response.” Over the next six hours, until shortly before 4 p.m., Mr. Meyer gave a statement which was transcribed by Detective Hatfield.

In this statement (the first statement) the appellant denied any involvement in the murders. Instead, he blamed Lon Lewis, stating “When I heard the news that she got killed I figured he did it or got someone to do it.” Appellant also expanded upon his previous discussion of the Lewis Texas tryst, and he admitted being at the Lewis home on Thursday, September 22, 1977, the night before the murders. He also acknowledged owning a cream-colored suit and a briefcase. After giving this first statement, the appellant was transported to Upper Marlboro from BCI and presented before District Court Commissioner Michael J. O’Brien at 4:15 p.m.

The Commissioner certified that he informed the appellant of his rights set forth in the charging document, 3 and the appellant similarly signed an acknowledgment of receipt of such rights. On the trip back to BCI from the Commissioner, Mr. Meyer indicated that he was hungry. A steak dinner was purchased, and the appellant ate his dinner back at BCI in an interrogation room. Detective Corporal Michael K. Morrissette was present while the appellant had dinner, and according to Corporal Morrissette’s testimony he engaged the ⁴³² appellant in general conversation, discussing his upbringing, background, job, and marriage.

At 6 p.m., Corporal Morrissette read the Miranda warnings to the appellant. He orally waived his rights and expressed a willingness to talk to the police. During the next three hours, the story gradually unfolded. The appellant admitted killing 3-month old Heather, but stated that it was an accident.

He also confessed to the stabbing of Carol Lewis. At 9 p.m., there was a twenty-minute break during which Corporal Morrissette prepared to take a written statement from the appellant. From 9:20 to 10:00, the two men worked on a written statement (the second statement); Corporal Morrissette typed each of the four pages and Mr. Meyer signed each page at the bottom. After the confession was completed, the appellant was asked to sign a written waiver of rights, but he refused.

Shortly after 10:00 p.m., Mr. Meyer was transported to the Prince George’s County Detention Center from BCI. Hearings on the appellant’s motion to suppress evidence, including the first and second statements, were held over a period of four days during March and April, 1978. 4 Judge Jacob S. Levin denied the motions. Trial commenced April 20, 1978 on two counts of murder in the first degree. On April 26, 1978, the jury returned verdicts finding the appellant guilty of the first degree murder of Carol Lewis and the second degree murder of Heather Lewis. ⁴³³ II The appellant first urges that the trial judge was in error when he denied the appellant’s motion to suppress the two statements taken after the appellant’s arrest.

It is his contention that the police violated M.D.R. 723 by unnecessarily delaying his initial appearance before a judicial officer. Citing Johnson v. State, 282 Md. 314 , 384 A.2d 709 (1978), he argues that the first statement should have been suppressed because it was taken prior to his initial appearance and during a period of unnecessary delay. 5 Appellant also urges us to rule that the second statement should have been suppressed for two reasons: first, the initial appearance before Commissioner O’Brien was defective because the Commissioner did not read the complete “advice of right to counsel” required by M.D.R. 723 (b); second, the statement was “tainted by the previous illegal detention,” and does, therefore, fall within the Johnson exclusionary rule. THE FIRST STATEMENT In response to the appellant’s argument that the period during which the first statement was taken constituted an “unnecessary delay” in bringing the appellant before a judicial officer, the State first urges us to conclude, as did the trial judge, that the nine hour delay was necessary under the circumstances presented here. Appellee points out that the appellant had to be transported to BCI from his home in Rockville, processed, and then transported to the Commissioner from BCI; but concedes that, at most, these events consumed a total of eighty minutes.

Any contention that a period of eighty minutes establishes a necessity for a nine hour delay is patently without merit. In Johnson , the Court of Appeals listed five examples of ⁴³⁴ necessary delay. Id. at 329 , 384 A.2d at 717 . The examples were intended to be just that; they were not intended to be an entire litany of occurrences from which the State is required to justify a delay in the initial appearance of a defendant before a judicial officer.

Lewis v. State, 285 Md. 705 , 404 A.2d 1073 (1979). M.D.R. 723, while allowing for necessary delays in presenting a defendant before a judicial officer, does not countenance a delay for the principal purpose of obtaining a statement or a confession from the defendant. The Maryland Rule has its antecedents in the federal McNabb-Mallory Rule. McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S. 449 (1957).

In the latter case the Court made it plain that “the delay must not be of a nature to give opportunity for the extraction of a confession.” Id. at 455 (emphasis added); see also United States v. Meachum, 197 F. Supp. 803 (D.D.C. 1961); Commonwealth v. Davenport, 471 Pa. 278 , 370 A.2d 301 (1977). M.D.R. 723 is designed to insure that even a defendant arrested pursuant to a warrant is promptly brought before a neutral judicial authority who can formally apprise the defendant of his rights and ascertain his desires with regard to legal counsel. 6 See, e.g., Watson v. United States, 234 F.2d 42 (D.C. Cir. 1956) and 249 F.2d 106 D.C. Cir. 1957). In the instant case, Mr. Meyer was arrested at 7:00 a.m. and taken to BCI. He was informed of the existence of the Lewis statement implicating him in the murders; he requested to see the statement and then offered his own version denying any involvement in the brutal stabbings.

In Commonwealth v. Abu-Ibn Hanifah Bey, 462 Pa. 533 , 341 A.2d 907 (1975), the Pennsylvania Supreme Court held that a delay for the purpose of confronting a defendant with a statement implicating him in a robbery and taking his statement ⁴³⁵ thereafter is “unnecessary” under the terms of a similar Pennsylvania rule. Here an obvious opportunity existed for the extraction of a confession after the appellant’s arrest and prior to his initial appearance. It was error to admit the first statement because it was obtained in violation of M.D.R. 723. Johnson v. State, 282 Md. 314 , 384 A.2d 709 (1978).

Upon our own independent review of the record, however, we are convinced beyond a reasonable doubt that the erroneous admission of the first statement in no way influenced the jury’s verdict. The error is, therefore, harmless and reversal of the conviction is not required. Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665, 678 (1976). See also Chapman v. California, 386 U.S. 18 (1967); Harrington v. California, 395 U.S. 250 (1969); Fahy v. Connecticut, 375 U.S. 85 (1963).

It is of no significance that the error complained of is not of constitutional dimension, for Maryland has but one harmless error rule for criminal cases. Dorsey, id. at 657-59, 350 A.2d at 677-78 . In the erroneously admitted first statement, Mr. Meyer vehemently denied any involvement in the murders; he did accuse Lon Lewis of complicity in the crimes. He also expanded somewhat on the information he had previously supplied to the police concerning Mr. Lewis’ Texas girlfriend. 7 Mr. Meyer did admit visiting the Lewis home the night before the murders, and he did admit owning a cream-colored suit and a black briefcase.

The major portion of the first statement, however, was devoted to the appellant’s denial of culpability in the crime. The evidence in the case was overwhelming. The appellant’s confession detailing the manner of the stabbings was, as we hold, infra, properly received into evidence. Cf.

Milton v. Wainright, 407 U.S. 371 (1972) (erroneous admission of inculpatory statement was harmless in light of other properly admitted confessions). An eyewitness identified the appellant, both in and out of court, as the person she saw approaching ⁴³⁶ the Lewis home shortly before the murders were committed. In addition, there was independent evidence of the ownership of the briefcase: a picture of the briefcase lying on the back seat of the appellant’s automobile was admitted along with the briefcase itself. Other evidence clearly linked the appellant to the crime: expert testimony concerning the nature of the wounds on the victims’ bodies and the strength required to inflict such wounds; and blood found on the appellant’s shoes.

The facts contained in this first statement were either cumulative of the other evidence or insignificant in light of the other evidence. Moreover, the essence of the statement was exculpatory. Its admission into evidence, while erroneous under M.D.R. 723 (a), was harmless error in this case. See Bartram v. State, 33 Md. App. 115, 152-56 , 364 A.2d 1119, 1141-43 (1976), aff’d, 280 Md. 616 , 374 A.2d 1144 (1977); Holloway v. State, 26 Md. App. 382, 395-96 , 339 A.2d 319, 326-27 (1975). 8 THE SECOND STATEMENT Appellant first asserts that Commissioner O’Brien failed to give the appellant the full advice of right to counsel as required by M.D.R. 723 (b) as set out in M.D.R. 711 (a).

This argument is based on the testimony of Commissioner O’Brien at the pretrial suppression hearing and at trial when he was asked to recite the advice given to the appellant; his testimony, while patterned on the Miranda warnings, did not specifically track the language in M.D.R. 711 (a). We do not think that appellant’s argument can be sustained. It overlooks the acknowledgments signed by both the Commissioner and the appellant at the initial appearance. See n.3, supra.

The “advice of right to counsel” that appears on the charging document, which appellant by his signature ⁴³⁷ acknowledged reading and receiving, conforms with the requirements of M.D.R. 711 (a). In light of this documentary evidence indicating compliance with M.D.R. 723 (b), the appellant’s assertion premised on a mere imprecision in the Commissioner’s testimony must fail. It is also argued by the appellant that the second statement in which he confessed to the murders should have been suppressed because of the preceding illegal detention which violated M.D.R. 723 (a). Since we have found that the appellant’s initial appearance before the Commissioner was unnecessarily delayed by the police, we must focus upon the circumstances surrounding the second statement, specifically to ascertain whether it was an “independent act” and a product of “deliberate reflection.” Johnson v. State, 282 Md. 314, 330 , 384 A.2d 709, 718 (1978).

A similar situation was presented in Johnson: the police had taken two statements from the defendant, one prior to his initial appearance and one following the appearance. In ruling that the second statement should have been excluded, Judge Levin stated for the Court: “Appellant’s second statement, admitting responsibility for the Rainbow Cleaners holdup and shooting, which was given almost immediately upon appellant’s return from the commissioner on January 31, should likewise have been suppressed. We cannot say, on the record before us, that the second confession was an independent act, occurring after time for deliberate reflection and therefore free from the taint of the preceding illegal detention.” Id. at 330 , 384 A.2d at 718 (Emphasis added.) In our judgment the State has met its burden of showing in this case that the second confession was an independent act and a product of deliberate reflection. Appellant’s first statement was essentially exculpatory; he denied any involvement in the murders.

In Johnson , the defendant “all but confessed” in the first statement, id. at 318 , 384 A.2d at 711 ; in the second statement he “confessed outright.” Id. at ⁴³⁸ 318, 384 A.2d at 712 . Moreover, appellant here completed his first statement at 3:45 p.m. He was then driven to Upper Marlboro from BCI, presented before Commissioner O’Brien, and transported back to BCI. During the return trip, a stop was made in order to purchase, at his request, a steak dinner.

Questioning by Corporal Morrissette did not begin until after Mr. Meyer had finished his dinner at 6:00 p.m. — almost two hours after his initial appearance before the Commissioner. The questioning lasted for three hours; there was a twenty-minute break, and then the written second statement was prepared between 9:20 p.m. and 10:00 p.m. — a period of five hours after the appellant’s initial appearance. Although the appellant signed the bottom of each page of the second statement, when presented with a written waiver of rights, he declined to sign that paper, thus indicating that he was fully cognizant of his actions at the time. We also note that Corporal Morrissette testified that he gave the appellant full Miranda warnings at the start of the 6:00 p.m. interrogation session and that the appellant orally agreed to waive those rights and to proceed with the questioning.

In evaluating the circumstances surrounding a confession which follows upon the heels of an illegal detention, we do not apply a rigid talismanic test. See generally United States v. Close, 349 F.2d 841, 851 (4th Cir. 1965), cert. denied, 382 U.S. 992 (1966); Wilkins v. Maryland, 402