Pinder v. State

WEANT, Judge. A Kent County jury has found Kelly Lee Pinder (appellant) guilty of battery. On appeal, Pinder claims five instances of trial court error, namely: I. The court below erred by denying a mistrial based on a prospective juror’s statement that she had seen Appellant in jail.

II

The court below erred by admitting medical records without a proper foundation.

III

The court below erred by denying motions to suppress improperly obtained statements of a witness.

IV

The court below erred by excluding testimony of police misconduct. V. The court below erred by denying a mistrial after the jury heard inflammatory, prejudicial testimony. ²²¹ For the reasons set out below, we shall affirm the judgment against appellant. I. During voir dire a prospective juror, who was employed by the Sheriff’s Department as a correctional officer, disclosed that Pinder “has been in the jail before.” That remark prompted appellant to move for a mistrial. The court denied the motion and instead instructed the prospective jurors that the fact that someone is in the jail, of course, has no bearing whatsoever on the fact of whether that person is guilty or not guilty of an offense with which he is charged.

And therefore you should draw no conclusion as to the guilt or innocence of the Defendant, Mr. Pinder. So just disregard that, because you will hear me later also explain a couple of other things that the law provides for all of us. Unlike appellant, we do not perceive the court’s failure to grant a mistrial as an abuse of discretion. In our view, the court acted promptly and forcefully to remove the possibility of injury to Pinder.

See Myers v. State, 58 Md.App. 211, 228 , 472 A.2d 1027, 1036 , cert. denied, 300 Md. 484 , 479 A.2d 373 (1984). Moreover, after juror selection was completed, both appellant and his counsel noted, without qualification, that the jury as constituted was satisfactory; consequently, appellant withdrew or abandoned his prior objection that prospective jurors had been prejudiced by the correctional officer’s remark. See Foster v. State, 304 Md. 439, 447-53 , 499 A.2d 1236, 1240-43 (1985), cert. denied, — U.S.-, 106 S.Ct. 3310 , 92 L.Ed.2d 723 (1986).

II

Blackiston, the victim, went to Kent and Queen Anne’s Hospital for treatment of the injuries he allegedly sustained at the hands of appellant. Dr. James G. McGettigan attended to Blackiston’s injuries and so testified at trial. He also ²²² produced the medical report that is the subject of appellant’s second claim of error. Although appellant concedes that hospital records kept in the ordinary course of business are admissible under the business records exception of the hearsay rule, he challenges the court’s decision to admit those sections of the medical report not authored by Dr. McGettigan, claiming lack of proper foundation.

Our review of the medical report in question, as well as the trial court’s questions to Dr. McGettigan regarding the report, persuades us that the trial court properly admitted it into evidence. See Watkins v. State, 42 Md.App. 349, 355-56 , 400 A.2d 464, 468 (1979). In any event, we fail to perceive how admission of the report harmed appellant. (His objections to introduction, both at trial and here, do not address this issue.) Because the medical report merely describes Blackiston’s injuries and the treatment he received, and because Dr. McGettigan and Blackiston had already testified about these matters, there is no evidence that appellant was prejudiced by the court’s decision to admit the report.

III

After the jury was sworn, the trial judge held a hearing to determine whether statements made by Shelly Blanch-field, appellant’s sister, to Officer Thomas Groce of the Chestertown Police Department and to Deputy State’s Attorney Susanne Schmoldt should be suppressed. Ms. Blanchfield and Ms. Schmoldt testified at the hearing; stated briefly, their testimony revealed the following facts. Somehow, Officer Groce learned that Ms. Blanchfield had information concerning the Blackiston incident. Groce went to Blanchfield’s place of employment and from there took Blanchfield to the police station.

At the station, Groce told Blanchfield that she would be arrested as an accessory after the fact in connection with the Blackiston beating if she did not give a statement. Blanchfield, without being ²²³ advised of any constitutional rights she might have, then executed a written statement that incriminated her brother and Vernon Walters. At Groce’s urging, Blanchfield also wrote that she had approached Groce about giving a statement. Groce himself added a clause to the effect that everything contained in Blanchfield’s written statement was the sworn truth; this clause was penned after Blanchfield signed her statement.

Later, Deputy State’s Attorney Schmoldt met with Blanchfield to review Blanchfield’s statement to Groce. The interview between Blanchfield and Schmoldt was taped with Blanchfield’s knowledge. Schmoldt did not advise Blanchfield of any constitutional rights because she did not consider Blanchfield to be a suspect. Schmoldt admitted, however, that, when Blanchfield pressed the issue, Schmoldt told her that the situation sounded like a case of accessory after the fact.

As the interview progressed, Schmoldt learned of Groce’s misconduct; Blanchfield again incriminated her brother and Vernon Walters. Ms. Blanchfield was represented hy counsel at the suppression hearing. He argued that Blanchfield’s statement to Groce should be suppressed because it was the product of coercion and intimidation and was given without Blanch-field being advised of or waiving her constitutional rights. The statement to Schmoldt, he contended, was fruit of the poisonous tree.

Counsel also stated that, if called to testify, Blanchfield would invoke her fifth amendment right against compelled self-incrimination. Pinder’s attorney also argued for suppression. He too complained about the means by which the statements were obtained. He argued that both Groce and Schmoldt threatened Blanchfield with prosecution.

He also focused on the perjury contained in the statement to Groce, contending that the perjury rendered the statement “completely unreliable .... ” When the court immediately responded that “[tjhat’s up to the jury to decide, if the witness testifies,” defense counsel said: “I totally agree with you as to that ²²⁴ aspect of it.” Later, but before its final ruling on the motion to suppress, the court again indicated that it would allow the statements to be used for impeachment purposes if Ms. Blanchfield testified; Pinder’s counsel responded as follows: I won’t dispute that, and of course to indicate the correctness of the statement or the reliability of the statement and of everything that took place is going to be a question for the jury. The significant point is that she was threatened with imprisonment unless she did something, and not only was that wrong— The court ultimately denied Ms. Blanchfield’s motion to suppress, saying that the statements could be used for the limited purpose of impeachment if Ms. Blanchfield testified at trial. The court also ruled that if Ms. Blanchfield asserted her fifth amendment privilege against self-incrimination, it, having found that Blanchfield is not in danger of being prosecuted, would instruct her to testify. On appeal, Pinder “concedes that he has no right to raise and litigate Ms. Blanchfield’s 5th Amendment privilege per se on appeal.” He then argues that “the involuntary nature of both statements [i.e., those made to Groce and Schmoldt,] creates error even apart from any 5th Amendment procedural mandate,” and that, “[w]ith relation to Appellant, if for no other reason, the statements should have been suppressed because of their unreliability.” He concludes by claiming, albeit without citing any authority, that “[t]he suppression of Ms. Blanchfield’s statements at the outset of the trial was necessary to insure a fair trial, and the court below erred by denying suppression.” It is far from pellucid that Pinder’s appellate contentions are properly before us.

During trial there were a number of lengthy discussions regarding Blanchfield’s statements to Groce and Schmoldt. Appellant initially tried in limine to prohibit Blanchfield from being asked any questions concerning statements in which Blanchfield related what may have been said to her by Vernon Walters. Later, defense ²²⁵ counsel suggested that the State and the defense stipulate to certain portions of Blanchfield’s prior statements and have the court read them to the jury. When counsel finally reached agreement on a stipulation, appellant noted a number of reasons why the stipulated portions of Blanchfield’s statements should not be admitted; several of these objections were retracted after further discussion between defense counsel and the trial judge.

Later, when the court finally read the stipulation to the jury, no objection was forthcoming. Whether appellant’s various objections at trial constituted a retraction of his earlier concessions that reliability was an issue for the jury is doubtful. Whether appellant ever clearly articulated that use of Blanchfield’s out-of-court statements would result in an unfair trial is also unclear. Because, however, the admissibility vel non of the statements was an issue the trial court considered time and time again, we shall assume arguendo that appellant’s instant complaints have been preserved for our review.

We also shall assume that appellant’s concluding remark in his appellate brief concerning the unfairness engendered by the trial court’s failure to suppress Blanchfield’s statements is intended as a claim that he was denied due process. A number of courts have considered the issue of whether a defendant’s due process rights were violated when a witness’s involuntary statement was admitted into evidence. E.g., United States v. Merkt, 764 F.2d 266 (5th Cir.1985) (Recognizing that admission at trial of a witness’s coerced out-of-court statement may violate a defendant’s right to a fair trial as guaranteed by the due process clause of the fifth amendment, the court nevertheless found that, even if law enforcement agents had improperly intimidated and coerced witnesses, the conduct was improper but not so egregious as to require exclusion of the witnesses’ statements as a prophylactic measure); United States v. Chiavola, 744 F.2d 1271 (7th Cir.1984) (Recognizing that due process is implicated when the government seeks a conviction through the use of evidence obtained by extreme coer ²²⁶ cion or torture, the court found that defendant’s trial was not fundamentally unfair, since all defendant could claim was that he made incriminating statements during a telephone conversation that had been involuntarily initiated by another); United States v. Fredericks, 586 F.2d 470 (5th Cir.1978), cert. denied, 440 U.S. 962 , 99 S.Ct. 1507 , 59 L.Ed.2d 776 (1979) (Defendant’s right to a fair trial was not prejudiced by introduction of witness’s statement since the reliability of that statement was not suspect and since the actions of the DEA officers were a far cry from the sort of third-degree physical or psychological coercion that might prompt the court to disregard the societal interest of law enforcement by excluding probative testimony); LaFrance v. Bohlinger, 499 F.2d 29 (1st Cir.), cert. denied, 419 U.S. 1080 , 95 S.Ct. 669 , 42 L.Ed.2d 674 (1974) (Where witness at trial had recanted statements in earlier confession saying that the confession was the product of coercion, the court held that a hearing to determine the voluntariness of the confession was required); Bradford v. Johnson, 354 F.Supp. 1331 (E.D.Mich.1972), aff'd, 476 F.2d 66 (7th Cir. 1973) (per curiam) (Recognizing that under normal circumstances the issue of credibility is one which the jury can weigh as a matter of fact, the court found that the testimony of witness given at trial of defendant should not have been admitted because it was a product of torture and thus untrustworthy under due process standards); State v. Montgomery, 219 N.C. 235 , 229 S.E.2d 904 (1976) (Where jury was fully informed of alleged coercive action by police and where each witness steadfastly asserted the truth of the material facts obtained through the alleged coercion, defendant was not deprived of his constitutional right to due process by introduction of witnesses’ allegedly coerced statements). Maryland state courts, in turn, appear only tangentially to have touched upon this same issue.

This Court has recently posited that “the Fifth Amendment privilege against self-incrimination is a personal one which may only be invoked by the witness and his counsel. ... Even if a ²²⁷ witness makes a claim of privilege and is improperly disallowed by the trial court, it is not reversible error on behalf of the defendant.” Rowe v. State, 62 Md.App. 486, 499 , 490 A.2d 278, 284 , cert. denied, 303 Md. 684 , 496 A.2d 683 (1985) (citations omitted). Furthermore, in Veney v. State, 251 Md. 159 , 246 A.2d 608 (1968), cert. denied, 394 U.S. 948 , 89 S.Ct. 1284 , 22 L.Ed.2d 482 (1969), the Court of Appeals found that the fact that the prosecutor had indicated that he might be disposed to drop indictments against certain witnesses did not affect the