Raithel v. State

Thompson, J., delivered the opinion of the Court. This is the second time appellant, Thomas Leonard Raithel, has been before this Court seeking reversal of his convictions for murder in the first degree, assault with intent to rape, and carrying a deadly weapon. In the previous appeal we affirmed the convictions in an unreported per curiam opinion, Raithel v. State, No. 1007, September Term, 1975 (Md. App. filed Sept. 23, 1976). That decision was subsequently reversed by the Court of Appeals because competency to stand trial was not properly determined.

Raithel v. State, 280 Md. 291 , 372 A. 2d 1069 (1977). I The Facts On July 5, 1974, at approximately 9:30 P.M. Deanna Miles was fatally stabbed outside the ladies’ restroom in the Old Angus Restaurant in College Park. Although the actual stabbing was unwitnessed, appellant became the prime suspect after various pieces of evidence were put together. On the night of the murder Ms. Miles had been accompanied by Walter DeGrouchy.

At approximately 9:30 P.M. she left DeGrouchy to go to the ladies’ room but did not return. Her body was subsequently discovered by two patrons at the restaurant some time before 10:00 P.M. Prior to the homicide the appellant had been observed coming out of the men’s ¹⁰⁹ restroom and, according to the night manager of the restaurant, had been observed earlier in the evening coming through a conference room that connected a downstairs kitchen with the restroom area. Although the kitchen door was normally locked, the lock was found to be broken on the night of the murder. After being questioned by the police, appellant finally confessed to the murder. 1 His confessions revealed that he had been harrassed by his peers and coworkers about his sexual inexperience and as a result planned a rape.

On the night of the homicide he hid by the ladies’ restroom, armed with a steak knife, “awaiting a victim.” When Ms. Miles walked by he grabbed and choked her causing her to faint. He then “stomped her head” as she lay on the floor and stabbed her. No motive was expressed for the killing. During the trial defense counsel attempted to suppress the confessions. 2 The trial judge noted that a motion to suppress the confessions had also been made during the previous trial.

As he had presided over the first trial and remembered the testimony, the trial judge suggested that the motion be decided on the basis of the previous testimony along with any other testimony the parties wished to present. This procedure was accepted by counsel. At the previous suppression hearing the State had produced the two police officers involved in eliciting appellant’s confessions. In the course of their testimony the officers, Det.

Lawrence Doman and Det. Earl Jones, gave the following account of the events surrounding the confessions. At their request appellant and his father visited the police station in an effort to clear up any suspicion. Doman told appellant’s father that a polygraph examination would be the best way to resolve the matter.

After discussing this possibility with his father, appellant agreed to take the test. ¹¹⁰ Prior to the start of the examination appellant was given his full Miranda warnings and was told that he was free to leave at any time. 3 After Det. Jones, who had been contacted to administer the exam, explained how the polygraph operated and asked some background questions, appellant stated that he did not want to take the test. Jones then told appellant he knew he could not take the test “because he had done it” and suggested the killing might have been accidental. When appellant agreed the killing had been an accident Jones told appellant that he did not believe him.

After this exchange appellant and Jones then “got down to discussing exactly how it occurred.” According to the officers’ testimony, the ensuing confessions were made without any threats, inducements, or coercion. Appellant did not introduce any evidence in support of his motion during the first hearing. During the second hearing, appellant took the stand and gave his version of the events leading up to his confessions. He claimed that his father had urged him to take the test and he consented because he “couldn’t refuse [his] father.” After Det.

Jones connected him to the polygraph and showed him how it worked he decided he no longer wanted to take the test. At that point Jones stopped the paper in the polygraph and asked him why he had killed Ms. Miles. When this happened appellant noticed the needles on the machine started “jumping” and he told Jones to disconnect him from the polygraph. Once this was done, he “calmed down” and decided to leave.

As he was halfway to the door Jones told him although he was free to leave the room, he could not leave the building because he knew he was guilty. Appellant then testified that he asked to see his father but was told his father had left to get something to eat. When he said that he would go outside and wait for him, Jones stood up jn a threatening manner and told him to sit down. After several more hours of interrogation he finally confessed.

Appellant’s father testified he had taken his son to the police station at about 7:00 in the evening. When his son was ¹¹¹ taken into the examination room he remained at the police station and did not leave at any time. After a considerable period of waiting, he inquired about the delay and was told by the police that they were having trouble with the polygraph. Finally around 2:00 or 8:00 the next morning the police informed him that his son had confessed.

The State produced Det. Jones on rebuttal; his testimony was substantially the same as that given during the previous hearing. After the evidence on the motion had been presented the following exchange occurred between the trial judge and defense counsel: “The Court: ... I might comment it seemed most strange to the [cjourt that this issue wasn’t raised in the previous trial, which I frankly will say to you right now does have some bearing on the credibility issue to the [cjourt.

Mr. Redmond [defense counsel]: Well, Your Honor, I can’t speak for what— The Court: I understand. Mr. Redmond: — Attorney Hughes did in the first trial. The Court: I say, but your client was there, and the client’s father was there and it does have some bearing in the [cjourt’s mental process in an area that is as important as this, because I think it should be abundantly clear to everybody that if these statements are suppressed, the State’s likelihood of getting to a jury have been diminished greatly, because I sat through the previous trial and you about had all of the substantive testimony from the State other than these statements that they had, I think. So it is a highly critical issue, obviously, and I have to say, Mr. Redmond, I have some problem, although I will obviously read the record, I have some problem as to why today it’s been raised for the first time. ¹¹² Mr. Redmond: I understand that problem, Your Honor, and that is why I mentioned during our pretrial conference that I would be raising this issue that, surprisingly, to me, had not been raised in the first trial.

However, I don’t have the benefit of Mr. Raithel’s counsel’s in the first trial’s thoughts in the matter; as you well know, counsel make tactical decisions for all kinds of reasons. The Court: That may be true, but you sure got to apply it with murder sitting there and an adult father who would have some interest in the matter. But go ahead.” The confessions were subsequently found to be voluntary and admitted into evidence. After the State had presented its case appellant did not offer any evidence to show he had not killed Ms. Miles but maintained he was not criminally responsible at the time of the crime.

On appeal appellant maintains: (1) It was impermissible for the trial judge to consider appellant’s failure to testify at the prior suppression hearing in determining the voluntariness of his confessions; (2) It was impermissible for the trial judge to use the prior testimony of the State’s witnesses during the suppression hearing in lieu of live testimony; (3) A psychologist should have been permitted to express an opinion on appellant’s sanity at the time of the offense; and (4) The trial judge erred in ruling that certain evidence was admissible under the business record exception to the hearsay rule. ¹¹³ II Consideration of Appellant’s Prior Silence in Assessing Credibility Before considering the merits of appellant’s claim we must first consider the State’s contention that the point was not preserved for appellate review. During the suppression hearing appellant did not object to the trial judge’s use of his prior silence in assessing credibility. He did object, however, when the State later introduced the confessions into evidence. We think this objection was sufficient to preserve the point.

The comment in the instant case dealt with the judge’s thought process in ruling on the admissibility of the confession. Appellant’s objection,was sufficient to allow an attack on the ultimate ruling on admissibility and, consequently, preserved for review the question as to whether or not the trial judge in reaching that decision relied on impermissible factors. The constitutional question to be decided is whether an accused who testifies waives his right not to be cross-examined as to his silence in a prior proceeding. 4 This question was initially answered in the affirmative in Raffel v. United States, 271 U. S. 494 , 46 S. Ct. 566 , 70 L. Ed. 1054 (1926). Raffelinvolved a situation where an accused remained silent during his first trial despite accusations by a government agent that he had made incriminating admissions.

The agent gave the same testimony at the second trial but this time the accused took the stand and denied the accusations. The court stated that as the accused voluntarily took the stand he could be cross-examined as to why he had not previously testified: “The immunity from giving testimony is one which the defendant may waive by offering himself as a witness----When he takes the stand in his own ¹¹⁴ behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined as to the facts in issue____He may be examined for the purpose of impeaching his credibility----His failure to deny or explain evidence of incriminating circumstances of which he may have knowledge, may be the basis of adverse inference, and the jury may be so instructed. His waiver is not partial; having once cast aside the cloak of immunity; he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.” (citations omitted). “The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf and not for those who do. There is a sound policy in requiring the accused who offers himself as a witness to do so without reservation, as does any other witness.” Id. 271 U. S. at 496-497, 499 .

While Raffel would seem to foreclose appellant’s constitutional attack on the trial judge’s comment, its present validity is a matter of considerable doubt in light of several subsequent decisions. Twenty-seven years after its decision in Raffel the Court ruled in Johnson v. United States, 318 U. S. 189 , 63 S. Ct. 549 , 87 L. Ed. 704 (1943), under its supervisory powers over federal courts, that it was impermissible to allow comment on the exercise of the privilege against self-incrimination once the privilege was granted, even though the privilege was granted erroneously. 5 In so ruling the Court noted: “[Wjhere the claim of privilege is asserted and unqualifiedly granted, the requirements of fair trial may preclude any comment. That certainly is true ¹¹⁵ where the claim of privilege could not properly be denied. The rule which obtains when the accused fails to take the stand (Wilson v. United States, 149 U.S. 60 , 13 S. Ct. 765 , 37 L. Ed. 650 ) is then applicable.

As stated by the Supreme Court of Pennsylvania, ‘If the privilege claimed by the witness be allowed, the matter is at an end. The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences