Offutt v. State

Moylan, J., delivered the opinion of the Court. The appellant, Raymond Offutt, a/k/a Raymond Latour Williamson, was convicted by a Montgomery County jury, presided over by Judge Rosalyn B. Bell, of theft. Upon this appeal, he raises three contentions: (1) That the evidence was not legally sufficient to sustain the conviction; (2) That Judge Bell erred in permitting the introduction of his statement in edited form; and (3) That Judge Bell erred in failing to suppress the statement on constitutional grounds. On August 10, 1981, the home of Sheriff John Gue was broken into at some time between 8:40 a.m. and 5:20 p.m.

Among the items stolen was a Browning over-and-under shotgun, valued at somewhere between $1,500 and $4,000. After the police recovered the shotgun, Sheriff Gue identified it as being the one stolen. The barrel of the gun, however, had been shortened from 28 inches to 13 inches since its disappearance. On August 18, eight days after the housebreaking, Detective Slavin executed a search and seizure warrant at ²⁶³ 12630 Viers Mill Road, Apartment 805.

In the closet of the master bedroom, occupied by the appellant, Detective Slavin found the sawed-off shotgun. He also found a hacksaw in that same closet. The official lessee of the apartment was Ms. Johnny Joppy. She testified that the appellant lived there with her between April, 1981 and his arrest on August 18, 1981.

His belongings had been moved to the apartment and his clothes were in the closet in the master bedroom, where the shotgun and hacksaw were found. The appellant had keys to the apartment. The records of the Department of Transportation listed the appellant’s address as 12630 Viers Mill Road, Apartment 805. Ms. Joppy denied all knowledge of the existence of the shotgun.

Legal Sufficiency of the Evidence The appellant acknowledges, as he must, that the stolen gun was found in Apartment 805, which he occupied with his live-in companion, Ms. Johnny Joppy. He seeks solace from the fact that the stolen gun was not in his exclusive possession but, at worst, in the joint possession of him and Ms. Joppy. Sutton v. State, 8 Md.App. 285 , 259 A.2d 561 (1969), upon which he relies, does not afford him such solace. Sutton provides that joint possession does not negate the notion of exclusive possession as that term is used in reference to the permitted inference that may be drawn from such possession.

In the Sutton case, four separate persons were found in joint possession of stolen property, and the permitted inference of theft (and even of burglary) was permitted to flow from that recent and joint "exclusive possession.” Sutton pointed out, at 8 Md.App. 297 : "In the instant case all four appellants are found in the joint possession of stolen merchandise approximately two hours after the time of the crime. This fact alone sufficiently supports the convictions of all appellants because the recent exclusive possession of stolen goods permits a rational ²⁶⁴ inference of fact that they were the thieves or the burglars. McGlothlin v. State, 1 Md. App. 256 , 229 A.2d 428 , Anglin v. State, 1 Md.App. 85 , 227 A.2d 364 . Indeed they could have each been convicted of both charges since there was no merger.” It is equally clear that the evidence with respect to the appellant’s residence in the apartment (including keeping his clothes there, having his own keys, using it as his address of record with the Department of Transportation and sleeping in the very master bedroom wherein the stolen gun was found) was a legally sufficient predicate for a jury finding that he was, at the least, in joint possession of the stolen gun.

With respect to such joint possession, we reasoned in Folk v. State, 11 Md.App. 508, 518 , 275 A.2d 184 (1971): "The common thread running through all of these cases affirming joint possession is 1) proximity between the defendant and the [stolen property], 2) the fact that the [stolen property] was within the view or otherwise within the knowledge of the defendant, 3) ownership or some possessory right in the premises or the automobile in which the [stolen property] is found, or 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the [stolen property].” The evidence was legally sufficient to support the finding of guilt in two separate ways. The law is settled that at least two separate permitted inferences may follow from the predicate fact of possession of recently stolen goods. The Court of Appeals pointed out in Brewer v. Mele, 267 Md. 437, 449 , 298 A.2d 156 (1972): "We have long and consistently held that exclusive possession of recently stolen goods, absent a satisfactory explanation, permits the drawing of an inference of fact strong enough to sustain a con ²⁶⁵ viction that the possessor was the thief .. .; or, under appropriate circumstances, that the possessor was a receiver of stolen goods ...; or, where the theft was compounded, that the possessor was also the burglar ... or the robber.” (Citations omitted). In the present case, the evidence was, therefore, legally sufficient to support a jury finding that the appellant was the thief within the contemplation of the common law of larceny.

That is now one of the forms of criminal conduct rendering him eligible for conviction under Maryland’s new Consolidated Theft Statute. Art. 27, § 342 (a) provides: "A person commits the offense of theft when he willfully or knowingly obtains control which is unauthorized or exerts control which is unauthorized over property of the owner, and [has the requisite intent].” In the alternative, the evidence was also legally sufficient to support a jury finding that the appellant was a receiver of stolen goods within the contemplation of the common law of receiving. That is also now one of the alternative forms of criminal conduct rendering him eligible for conviction under Maryland’s new Consolidated Theft Statute. Art. 27, § 342 (c) provides: "A person commits the offense of theft if he possesses stolen personal property knowing that it has been stolen, or believing that it has probably been stolen, and [has the requisite intent].” The Editing of the Statement It strikes us as with extreme ill grace that the appellant pushes his second contention.

When the apartment which the appellant shared was searched, stolen goods were recovered that implicated the appellant in a large number of burglaries and housebreakings. At least five other burglaries and housebreakings were involved, in addition to the one ²⁶⁶ now in issue. On August 19, 1981, the appellant gave Detective Bendl a long and rambling statement, explaining how he came into possession of many items of stolen property and protesting that, although he may have been a receiver of stolen goods, he was not the thief. One reference among the many was to the stolen shotgun which was the sole object of the theft case now before us.

In an effort to sanitize the statement in this case, there was meticulously culled out all reference to all stolen property other than the shotgun and all reference to other burglaries or housebreakings. Indeed, it would have been improper to have tarnished the appellant in this case with admissions as to other crimes. Cross v. State, 282 Md. 468 , 386 A.2d 757 (1978); Ross v. State, 276 Md. 664 , 350 A.2d 680 (1976). The editing of a statement in the fashion done in this case is not only permitted but strongly recommended.

Bell v. State, 234 Md. 254, 258 , 198 A.2d 895 (1964). The edited admission that was introduced into evidence was as follows: "I didn’t steal any of that property. I was holding property for some people. I’ll tell my lawyer about everything.

I saw him sawing off the shotgun. I’ll accept the receiving charge but no burglary charge.” The appellant now claims that the truncated statement was improperly received because the editing distorted its meaning. He argues that his words, "I’ll accept the receiving charge but no burglary charge,” may refer to some other item of stolen property and not the shotgun. Our observation is that the admission followed immediately on the heels of the preceding sentence, "I saw him sawing off the shotgun,” and clearly refers to it.

We simply do not see the distortion the appellant claims and cannot believe that the deletion of reference to other crimes did not work to his unquestioned benefit. The appellant’s reliance upon Hadder v. State, 238 Md. 341 , 209 A.2d 70 (1965), and Williams v. State, 205 Md. 470 , ²⁶⁷ 109 A.2d 89 (1954), is totally misplaced. The appellant relies specifically on the following passage from Hadder , at 238 Md. 353 -354: "The law, briefly stated, is that if a confession be admissible, the accused may insist upon it being offered in its entirety, and not simply selected portions thereof; but, after it has once been admitted, the weight to be given the several parts thereof, inculpatory and exculpatory, is for the triers of the facts to determine.” The short answer to the contention is that the appellant simply did not request that the entire statement be introduced in unedited form. It would have been an absurdly self-destructive thing to do, but he could have done it.

He rather took the editing as an accepted starting point and argued from it that the statement, as then distorted, should not have been introduced at all in edited or unedited form. Hadder and Williams do not stand for any such ridiculous proposition. What was done here was for the unquestioned benefit of the appellant and worked to the unquestioned benefit of the appellant. His protest, under the circumstances, falls on unreceptive ears.

The Admissibility of the Statement The key contention raised by the appellant is that the brief admission excised from the long and rambling statement should not have been received in evidence because it violated his rights under Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966), as interpreted by Edwards v. Arizona, 451 U.S. 477 , 101 S. Ct. 1880 , 68 L.Ed.2d 378 (1981). We do not agree. Indeed, we find the factual situation at bar to be one which is clearly controlled by Michigan v. Mosley, 423 U.S. 96 , 96 S. Ct. 321 , 46 L.Ed.2d 313 (1975), rather than by Edwards v. Arizona. ²⁶⁸ Edwards v. Arizona drew a qualitative distinction between the two rights of a suspect which Miranda seeks to protect — the right to silence and the right to an attorney. The distinction deals with the manner in which those respective rights may be waived.

The waiver of the right to silence is judged by traditional voluntariness standards, that once controlled confession law generally and still control the voluntariness of a consensual search. 451 U.S. at 482-484 ; Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973). The waiver of the