Pappaconstantinou v. State

SONNER, Judge. On July 18, 1996, appellant, Michael J. Pappaconstantinou, also known as Michael J. Pappas, was indicted on twelve ⁶⁷⁰ counts of theft under $300 and one count of theft over $300 for stealing merchandise and money from his employer. On October 31, 1996, appellant was brought to trial before a jury in the Circuit Court for Charles County (Nalley, J). At the beginning of the trial, appellant moved to suppress statements he made to his former employer in which he confessed to the theft.

The court held a hearing, outside of the jury’s presence, and determined that the confession was admissible because there was no violation of Pappas’s constitutional rights, and the circumstances surrounding the statement showed that the statement was not “inherently unreliable.” The jury convicted appellant on all counts and the court sentenced him to a nine-month term of incarceration in the county jail. Appellant noted this appeal and argues that the trial court erred in admitting the confession because it was the product of threats and promises and, therefore, involuntary. We conclude that the trial court properly admitted the confession and, accordingly, affirm. STANDARD OF REVIEW In examining the question presented, the record at the suppression hearing is the exclusive source of facts for our review.

Lee v. State, 311 Md. 642, 648 , 537 A.2d 235 (1988). We extend great deference to the suppression court’s fact-finding, particularly that court’s ability to “determin[e] the credibilities of contradicting witnesses and to weight] and determin[e] first-level facts.” Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356 (1990). When conflicting evidence is presented, we accept the facts as found by the suppression court, unless clearly erroneous. Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990), After giving due regard to the suppression court’s findings of fact, we then make our own independent appraisal by reviewing the law and applying it to the facts of the case.

Aiken v. State, 101 Md.App. 557, 563 , 647 A.2d 1229 (1994). SUPPRESSION HEARING FACTS Michael Pappas was employed by Auto Row Auto Parts (Auto Row) in Waldorf, Maryland for approximately three ⁶⁷¹ years. In January 1996, Auto Row terminated Pappas when his employers suspected that he had been stealing from the company. Pappas then went to work for Pep Boys Auto Store and, as of the time of trial, Pappas was manager of Yates Auto Parts (Yates), also located in Waldorf.

On March 29, 1996, shortly after his termination from Auto Row, Pappas had a telephone conversation with employees of Auto Row to discuss allegations that Pappas learned his former employer had been making against him. Specifically, Pappas testified that he “heard on the street” that an Auto Row employee was “saying that I was a crook.” The State contends that Pappas, upon hearing these allegations, initiated contact with Auto Row by paging Auto Row’s sales manager, Len Gentilcore, on the afternoon of March 29, 1996. William Clark, another Auto Row employee, testified at the suppression hearing that he observed Len Gentilcore call Pappas immediately after Gentilcore received Pappas’s page. According to Clark, Pappas told Gentilcore, “I understand I’m being prosecuted, what’s going on, what do I need to do.” Gentilcore told Pappas to “call Bill Clark.” Clark testified that, approximately two minutes later, he received a phone call from Pappas.

Pappas asked Clark, as he had asked Gentilcore, what, if anything, he could do with respect to the allegations against him. According to Clark: [Pappas] stated that I understand I’m being prosecuted, what do I have to do to stop this. We talked for a minute. Really caught me off guard, I told Mike [Pappas] that in my opinion you would have to do three things. * * * * [O]ne, make a monetary reimbursement back to the company for what he stole, [two], not to work in an auto parts store in the Waldorf area, and [three], write a confession of what he did because of all the grief he put everybody through at Auto Row ...

Clark then testified that Pappas called yet again, and the two spoke for “twenty to thirty minutes.” Clark stated: ⁶⁷² [Pappas] called back. Said that if I did [those three things], was there any guarantee, how do I know if I would be prosecuted. I [Clark] said, my word is good ... I told him we need to meet tonight if we are going to do this.

Consequently, he called back the third time and the meeting was set up. Not surprisingly, Pappas presented a starkly different account of how the meeting between him and Clark was arranged. Pappas claimed that it was Auto Row’s Len Gentilcore who made the initial phone call to Pappas. Pappas testified that “Len [Gentilcore] called me at work on the 29th” and said “you better do something, the dogs are after you, Brian [Puckett, Auto Row’s owner] is playing golf with the State’s Attorney, he will have all files as of Saturday.” Pap-pas further testified, consistent with Clark’s testimony, that Gentilcore told Pappas to call Clark.

Pappas continued: So I called [Clark] and I asked him. And he said, I don’t know if Brian’s playing golf with the State’s Attorney. He said, To tell you the truth, being you don’t have any money, it doesn’t matter if they’re playing tennis, whatever they say is what’s going to happen. You don’t have any money, you intend to go to settlement on your house Friday.

Later in his testimony, Pappas again stated that Clark referred to an upcoming meeting he was supposed to have with the State’s Attorney. According to Pappas, Clark said, “[w]e’re meeting with the State's Attorney on Saturday. Once the State’s Attorney is involved, it doesn’t matter what we say, it’s the State [sic] now.” Under cross-examination, however, Clark unequivocally denied saying anything about the State’s Attorney: [Defense Counsel]: Do you know anything about someone playing golf with the State’s Attorney? [Clark]: There was something Mike said about that. [Defense Counsel]: There wasn’t any mention that [Brian Puckett] was going to be playing golf with the State’s Attorney? [Clark]: No, sir. Mike called me. ⁶⁷³ Clark also denied another of Pappas’s allegations, namely, that he threatened to have Pappas arrested on his wedding day.

Clark and Pappas agreed to meet that evening at Jaspers, a restaurant in Crofton, Maryland. Again, the stories regarding this meeting are markedly different. According to Clark, Pappas arrived at Jaspers at the agreed-upon time, accompanied by his then fiancee, Dawn Rae. Dawn Rae immediately went to the bar and remained there for the duration of Pappas’s meeting, while Pappas went to the booth in which Clark and Len Gentilcore were seated. 1 At this point, according to Clark, Pappas sat down and apologized for what had happened and we had a conversation about those things that had took [sic] place at the store.

He also talked about him getting married and I said that I wasn’t aware. Just pleasantries. Clark continued: [Pappas] said, What do I need to write and I said, What you did. And he started actually trying to handwrite.

Clark testified that Pappas wrote the confession on his own and, on cross-examination, denied dictating or otherwise directing Pappas. [Defense Counsel]: You didn’t tell him what to write? [Clark]: Absolutely. No. $ $ $ $ [Defense Counsel]: Did Mike ever stop in the middle of writing and say, This doesn’t sound right, and you said just write? [Clark]: No, sir ... Pappas’s account of the meeting at Jaspers conflicts with Clark’s account in almost every respect. First, Pappas testified that when he and Dawn Rae entered the restaurant, Clark told Pappas that Dawn Rae was not to be involved: ⁶⁷⁴ [Clark] said, this is between us, This is business, this is not concerning your wife. [Clark] goes, We will not talk about anything until she leaves.

Pappas then recounted his version of the rendering of the confession in the following colloquy ón direct examination: [Pappas]: [Clark] said I want you to write this statement saying that you weren’t wrongfully fired and I think that was all he wanted in the statement. And I basically took dictation of what he said. [Defense Counsel]: What do you mean you basically took dictation? [Pappas]: I mean I signed my name myself, but I mean the wording of it is his. [Defense Counsel]: What was your understanding you were getting in exchange for writing this statement? [Pappas]: For writing this statement, he was going to drop all charges, if they even had any. I didn’t know at the time. He didn’t show me any paperwork.

He was going to drop everything he had against me and move on. In his own words, I never want to hear your name again. The handwritten confession, State’s Exhibit # 1 at the suppression hearing, reads as follows: I Michael John Pappas wrongfully took merchandise and money from Auto Row Auto parts. I realize that I was correctly terminated from this establishment.

Property was destroyed and incorrectly marked as return item [sic]. I realize that what I did was wrong and I unjustly cause [sic] a lot of difficulties to the members of Auto Row Auto Parts. The confession was dated March 29, 1996 and signed by Pappas and the three Auto Row representatives present at Jaspers. The court concluded that Pappas’s statement was not “inherently unreliable,” and admitted it.

Though the trial court did not specifically articulate the test that it used, the court apparently based its ruling on common law evidentiary princi ⁶⁷⁵ pies. The court viewed Pappas’s statement as an “admission,” and noted the “general rule” that such statements are normally “inherently reliable because [the declarant] is putting himself in some kind of peril by admitting something.” The court noted that, although threats and promises may cast doubt on the reliability of a statement, the circumstances of this case showed that the statement was freely given and, thus, constituted competent evidence for the jury’s consideration. [N]ot every admission that follows on the heels of a promise or even a threat necessarily is inherently unreliable. And I think this case fits that exception. sf* [Pappas’s statement] ... was not the product of such promise or threat as to render it inherently unreliable ... I am persuaded, at least by the preponderance standard, that whatever discussion was had about prosecution was in the context of defendant’s having asked what can I do to get out of it, what can I do to avoid it.

The court emphasized that its decision turned, in large part, on the credibility of Clark and Pappas, respectively. Mr. Pappas said in response to my question that it was he and not Len Gentilcore who initiated the conversation — the part of the conversation that had to do with prosecution ... I conclude from this that, though [Pappas’s] account and Clark’s account vary substantially as to particulars, that meeting was as much the product of Mr. Pappas bringing up the topic of prosecution as it was Clark’s or Gentilcore’s. Analysis Pappas’s sole argument on appeal is that the trial court erred by not suppressing the confession he made to his former employer, Auto Row.

In particular, Pappas claims that, because his “statement was made in light of [a] promise not to prosecute, it is ‘involuntary’ ... and should have been inadmissible.” Under Maryland law, a defendant’s confession is admissible if it is: ⁶⁷⁶ (1) voluntary under Maryland nonconstitutional law [common law], (2) voluntary under the Due Process Clause of the Fourteenth Amendment of the United States Constitution, 2 and (3) elicited in conformance with the mandates of Miranda. Ringe v. State, 94 Md.App. 614, 621 , 618 A.2d 266 (1993); see also Hoey v. State, 311 Md. 473, 484 , 536 A.2d 622 (1988). Pappas does not and, indeed, could not argue that his confession was obtained in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is well settled that Miranda warnings need be given only when “an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning.” Id. at 478 , 86 S.Ct. at 1630 .

(emphasis added). In addition, “[w]here an accused’s statements are elicited by persons other than police,” official interrogation has been held to exist only “where the State is otherwise involved.” Hamilton v. State, 62 Md.App. 603, 610 , 490 A.2d 763 (1985). Pappas has conceded that the State was not involved in his confession, either directly or indirectly; he acknowledges that the representatives from Auto Row were private actors, and does not claim that Auto Row colluded with law enforcement officers in obtaining the statement from him. Similarly, Pappas does not argue that admitting the confession violates his due process rights under the Fourteenth Amendment.

Again, as he has conceded that there is no State action in this case, we agree that such an argument is foreclos ⁶⁷⁷ ed. See, e.g., Reynolds v. State, 327 Md. 494, 504 , 610 A.2d 782 (1992); Colorado v. Connelly, 479 U.S. 157, 164 , 107