Robeson v. State

Liss, J., delivered the opinion of the Court. Appellant, Dythian Theolaef Robeson a/k/a Dykie, was convicted by a jury in the Criminal Court of Baltimore of first degree murder, assault with intent to murder and two counts of the use of a handgun in the commission of a crime of violence. Sentences were imposed and it is from these judgments that this appeal was filed. Appellant raises six contentions on appeal which he states as follows: “1.

Did the trial court err in admitting evidence of Appellant’s pre-trial silence? “2. Was the evidence insufficient to sustain Appellant’s first degree murder conviction? ³⁶⁷ “3. Did the trial court err in denying Appellant’s motion for a new trial based upon newly discovered evidence? “4. Was Appellant improperly convicted of and sentenced for both first degree murder and use of a handgun in the commission of a crime of violence? “5.

Did the trial court commit plain error in failing to instruct the jury as to the definition of use of a handgun in the commission of a crime of violence? “6, Was Appellant denied the effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution?” We find no merit in any of these contentions and shall affirm. 1. The evidence produced at trial indicated that on December 27,1976 Officer Thomas Wade responded to a call in the 800 block of George Street to investigate a shooting. On his arrival at the scene he observed three persons standing near a station wagon, the right side window of which had been shattered. A spent bullet was found in the door on the driver’s side.

Lying in the gutter face down was a dead black male later identified as Stilton Jones, nicknamed “Cookie.” Harry Johnson, the owner of the station wagon, testified that on that day he went to 851 George Street to purchase $25 worth of heroin from the appellant but was advised that he could only buy a $50 packet. Johnson saw Cookie there as a customer, and although he had never seen Cookie before, he suggested that they pool their funds and buy a $50 packet of heroin. Cookie agreed and the transaction was completed. Johnson, Cookie and a friend of Cookie’s named McEachin then went to a nearby apartment and injected the heroin.

They were disappointed with the quality of the heroin and returned to the appellant’s apartment to complain. Cookie and Johnson went in and Johnson left to return to his vehicle. McEachin was seated in the back of the car. Cookie came out and got into the front passenger’s seat.

Appellant came out of the building and motioned to Cookie to come to him. Cookie ³⁶⁸ walked toward the appellant and Johnson heard two shots. A second or two later the appellant was at the front passenger’s side of the car and shot Johnson in the head. Johnson was able to drive to the hospital where he was treated.

Johnson stated he did not actually see the appellant shoot Cookie. McEachin’s testimony was essentially the same as Johnson’s except that McEachin stated that he saw Jones and the appellant together, heard one or two shots and then saw Cookie fall to the ground. He saw the second shot fired and saw the appellant holding the gun. His testimony as to the shooting of Johnson was identical to that of Johnson himself.

Appellant, supported by his girl friend as a witness, testified on his own behalf that he knew Cookie as a narcotics pusher and that on the night in question he and his girl friend were leaving his apartment preparing to go to a restaurant when he heard two shots, then heard a car speeding away. He stated that he arranged for an ambulance to be called for Cookie and was still on the scene when the police arrived. He denied shooting Cookie, denied selling narcotics and said he did not have a gun. On cross-examination the prosecutor, over objection, was permitted to question the appellant as to whether he had advised the police of this alleged sequence of events.

Appellant contends that he had a right under the Fifth Amendment to the United States Constitution to pre-arrest silence and that the State violated this right by eliciting from him, during his cross-examination, the fact that he had failed to contact the police and advise them of his knowledge of the events surrounding the murder. We do not believe, under the circumstances in this case, that the appellant’s actions in not communicating with the police amount to “silence” in the constitutional sense of that word. “Silence” in the constitutional sense is the Fifth Amendment right to remain silent when confronted by one’s accusers following an arrest or in a custodial interrogation setting. Evidence of a defendant’s silence under those circumstances is not admissible because: (1) the admission of such evidence would infringe upon his Fifth Amendment ³⁶⁹ right to remain silent, Doyle v. Ohio, 426 U. S. 610 , 96 S. Ct. 2240 , 49 L.Ed.2d 91 (1976); Younie v. State, 272 Md. 233 , 322 A. 2d 211 (1974); Sutton v. State, 25 Md. App. 309 , 334 A. 2d 126 (1975); and (2) silence at the time of arrest lacks significant probative value and carries with it too great a potential for prejudice, United States v. Hale, 422 U. S. 171 , 95 S. Ct. 2133 , 45 L.Ed.2d 99 (1975). The question presented here for the first time to a Maryland appellate court, is whether the identical restrictions apply to cross-examination concerning “pre-arrest silence” with respect to exculpatory testimony offered by a defendant for the first time at the trial on the merits.

We believe it is necessary to set out in detail the cross-examination which is questioned by this appeal and here reproduce it as follows: “Q [By assistant state’s attorney] Did you move out of your house? A [By appellant] Yes, I did. Q You were hiding from the police, weren’t you? A Not really hiding.

Q Well, you knew a warrant was out for your arrest, didn’t you? A Yes, I did. Q You were hiding? A I was.

Q Had you your suitcases there? A Yes, I did. Q You had all your clothes there? A Yes, I did.

Q In a separate room; didn’t you? A From hers. Q In her house? A Yes, I did.

Q There was a bed in that room, wasn’t there? A Yes, it was. Q You were hiding from the police? ³⁷⁰ A I was staying there temporarily until, you know, I could hear the, you know, the results of this, you know. Because I knew I didn’t do it, and I wasn’t the only one that they said did it at the time, because the police come into the restaurant and said they had a warrant for someone else for it.

And then I heard they had a warrant for me for a period. And I didn’t want to get arrested for no homicide I know I didn’t do it So, I did, you know, leave my mother’s house. Q Until January 3rd, until you were arrested; right? A Yes.

Q You didn’t tell the police what happened. Did you go down to the police and tell them you had nothing to do — MR. SUTLEY: I would object, your Honor. 1 THE COURT: I think that is a perfectly proper question. I will take the answer.

Q (BY MR. BRESLOW) Did you ever tell the police what happened? A No, I didn’t. I told them what I knew after, you know, after — THE COURT: You didn’t tell them voluntarily; did you?

THE WITNESS: No, I didn’t. THE COURT: That is what the State wants to know. Q (BY MR. BRESLOW) You didn’t call the police and tell them that you were innocent?

A No, I didn’t. Q You didn’t know why the warrant was out for your arrest? A No, I didn’t.. Q You were with Rose Munford, you didn’t tell them that?

A No, I didn’t. ³⁷¹ Q That you were having tea? A No, I didn’t. Q You didn’t tell the police that; did you? A No, I didn’t.

Q Why not? A I didn’t tell them that until after I was apprehended. The reason I didn’t call before was because, you know, I knew I would get locked up. Q Because you did it?

A No, no, no. Q Then why didn’t you tell them? A Why don’t I call voluntarily? Q And tell them?

A Because, you know, it was Christmas, a holiday. I didn’t want to be locked up — I would have been locked up any way. Q Because you committed this crime? A Not because I committed the crime.

Q Why did you know you would be locked up? A Because I know the procedure you go through. Q Yes, when you commit a crime they arrest you? A No, that’s not the reason.

Q Well, what is the reason; I’m asking you? A Because I didn’t want to be locked up. Q During the Christmas holidays? A Right.

Q But the Christmas holidays were over. A The New Year’s. Q Well, you were out for New Year’s; weren’t you? A Yes, I was.

Q Did you call the police on January 2nd? A No, I didn’t. Q January 3rd? A No, that was the day I got locked up.

That was the day they caught me.” ³⁷² Doyle v. Ohio, supra, and its progeny, stand for the proposition that a defendant has an absolute right to remain silent after arrest and the giving of the rights prescribed by Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966), and that the use of his silence for impeachment purposes under these circumstances is violative of the Due Process Clause of the Fourteenth Amendment. See: Reid v. Riddle, 550 F. 2d 1003 (4th Cir. 1977). Similarly, as stated in Younie v. State, supra, and Sutton v. State, supra, a prosecutor may not comment on defendant’s silence during police custodial interrogation. Appellant urges this Court to extend the holding in Doyle and to declare that he has a constitutional right to remain silent prior to arrest and prior to receiving Miranda warnings and that that right was violated by the cross-examination in this case.

In support of this proposition the appellant relies primarily on a series of cases decided by the intermediate appellate courts of Florida. The cases are Brooks v. State, 347 So. 2d 444 (Fla. App. 1977); Webb v. State, 347 So. 2d 1054 (Fla. App. 1977) and Weiss v. State, 341 So. 2d 528 (Fla.

App. 1977). Weiss and Brooks were decided by the Third District Court of Appeals of Florida and Webb by the Fourth District Court of Appeals of Florida. When these cases are examined, however, they are found to be factually inapposite. In Weiss v. State, the prosecutor asked a defendant, “Did you, at any time, ever receive an offer or an invitation to come to the State’s Attorney’s Office and explain your position to us, prior to your arrest?” and later was asked, “Did you at any time before you testified today, sir, give an account of the events that occurred that evening to anyone other than your counsel?” Id. 341 So. 2d at 530 .

The opinion is silent as to whether the defendant answered the questions, but the inquiries were emphasized again by the prosecutor when he argued to the jury as follows: “He has not talked to anybody other than his attorney even though in the five or six days, in the interim between the time that this incident occurred at Jackson Memorial Hospital and the time that he ³⁷³ was arrested, he never bothered to come up and say, T understand you are investigating me. Here is how it happened. I never laid a hand on this man’.... [H]e does not even bother to tell a soul until some three or four or five months after this happened, here this afternoon. You can form your own conclusion on that.” Id. at 530 .

The trial court rejected a motion for a mistrial, and the District Court of Appeals reversed on the following grounds: “In following his attorney’s advice and refusing to testify or offer any explanation to either the State Attorney or the Internal Security Division prior to his arrest, appellant was simply availing himself of his constitutional guarantee of freedom from self-incrimination. U.S. Const. Amends. V, XIV. “We are therefore of the opinion that the claimed privilege of silence was constitutional in dimension; therefore, it was reversible error not to grant appellant a mistrial when the prosecution attempted to utilize said silence for impeachment of credibility purposes.

Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976); Shannon v. State, 335 So.2d 5 (Fla. 1976); Bennett v. State, 316 So.2d 41 (Fla. 1975). “In addition, and notwithstanding our aforementioned ruling concerning the applicability of the fifth amendment to the case sub judice, we hold that even if the above constitutional safeguard was inapplicable here, evidence of appellant’s silence for impeachment purposes, in light of appellant’s attorney’s advice to appellant not to testify during the administrative investigation, lacked any real probative value and was so overly prejudicial to appellant’s case as to constitute reversible error, c. f. United States v. Hale, 422 U.S. 171 , 95 S.Ct. 2133 , 45 L.Ed.2d 99 (1975).” Id. at 530. We note a substantial factual difference between Weiss and the case sub judice, i.e., in Weiss the pre-trial silence was predicated upon the advice of the defendant’s attorney that ³⁷⁴ the defendant remain silent during the course of a prior administrative investigation. We also conclude that the District Court’s reliance upon Doyle is misplaced since, as we shall hereafter demonstrate, the holding of the Supreme Court in Doyle is a much narrower one than that in Weiss .

Webb v. State, supra, is also distinguishable because there the silence which was the subject matter of the appeal occurred after the appellant’s arrest. The state attempted to cross-examine the accused as to his failure to advise the police of an alibi to which he testified for the first time at the trial. The state contended that the cross-examination with respect to his silence was admissible because the record did not disclose that the appellant had been given his Miranda warnings. The District Court of Appeals of Florida held that Doyle, supra, was controlling and as its reasons stated the following: “[W]e note that, while Miranda warnings make it even more offensive to use a person’s silence upon arrest against him, the absence of such warnings does not add to nor detract from an individual’s Fifth Amendment right to remain silent.

If one has a right upon arrest not to speak for fear of self-incrimination, then the mere fact the police call his attention to that right does not elevate it to any higher level.” Id. 347 So. 2d at 1056. In this case we note that the cross-examination was with reference to pre-arrest conduct only. Brooks v. State, supra, is also inapposite. In that case the alleged silence occurred during the police investigation of a stabbing.

The facts in that case clearly indicate that the silence was justified under the Fifth Amendment. The accused, who was an eyewitness, did not speak up when the person who committed the stabbing gave an exculpatory and false statement to the police. From these circumstances, in a trial in which the eyewitness was charged with participating in the crime, the prosecutor argued that the accused’s failure to contradict the co-defendant’s story to the police was proof that he was a party to the crime. The District Court of ³⁷⁵ Appeals reversed on the ground that the argument was prejudicial.

Appellant also urges that People v. Sheperd, 551 P. 2d 210 (Colo. App. 1976) should persuade us of the validity of his contention. We find, however, upon examination of Sheperd that the Colorado Court of Appeals noted, “The People concede that the right of an accused to remain silent exists prior to arrest and that thus the prosecutor is generally foreclosed from alluding to the exercise of that right in questions propounded to the defendant.” There is no such concession in this case. To the contrary the State vigorously contends that, while an accused may be entitled to pre-arrest silence, this does not preclude the State’s right to cross-examine as to the reasons for that silence, particularly where the accused takes the witness stand and offers an exculpatory statement or alibi for the first time at the trial on the merits.

Appellant also relies heavily on United States v. Hale, supra. In that case the defendant was arrested for robbery and was taken to the police station where, after having been advised of his right to remain silent, he made no response to an officer’s inquiry as to the source of money found on his person. The defendant testified at his trial. In an effort to impeach his alibi, the prosecutor by his cross-examination was able to