Rowe v. State

Lowe, J., delivered the opinion of the Court. A jury in the Circuit Court for Anne Arundel County convicted appellant of second degree murder. His appeal raises four issues, two of which contend that a pretrial inculpatory statement should have been suppressed. A third issue charges a discretionary abuse by the court in allowing a variance in the order of proof presented by the State.

The final concern is with the sufficiency of the evidence. The latter argument acknowledges the confession and the testimony of appellant that he first shot, then stabbed, the deceased. He contends, however, that in both instances they were founded upon a factual justification indicating self-defense. Appellant summarizes this argument by saying: “Since the element of self-defense was introduced during the presentation of the State’s case in chief, amplified during the presentation of the defense, and never thereafter rebutted by the State, the Appellant contends that the State did not meet its burden of negating the defense elements by proof beyond a reasonable doubt.” Because appellant stated that he depends upon Gilbert v. State, 36 Md. App. 196 (1977), “to spearhead [his] argument,” we assume that he contends here, as did Gilbert there, that since the State must rely upon a presumption to prove the ⁶⁴³ negative elements of malice necessary to raise the admitted homicide to murder (i.e., non-excuse, non-justification and non-mitigation), such presumption was not raised (or, as in Gilbert at 201 , dissipated), because the statement giving rise to the presumption of homicide came in concomitantly with the unrebutted explanations of self-defense.

But appellant does not seem to have caught Judge Moylan’s distinction in Gilbert between presumptions and inferences. A presumption is a legally required inference. An inference is a factually permissible presumption. Even if we agree that the negative presumptions in this case either disappeared or never arose, there remains an apparent inference from the mode as well as the cause of death, that — absent the excuse — there was malice in the doing.

As indicated by Judge Moylan in Gilbert : “The flaw in the appellant’s argument is that although the presumption of a fact may have been dissipated [or absent], the permitted inference of that fact is not, thereby, automatically extinguished also. It may, as a survivor, have an independent life of its own. In this case, it does.” Id. at 205 . Judge Moylan went on to point out that it is really a question for the factfinder.

It may choose to believe the admission of the homicidal act with its permitted inferences of malice from “how” it was done; and yet, may choose to disbelieve the more subjective reasons expounded in explaining “why.” “The thing that saves the appellant from the otherwise foreclosing effect of the presumption — the thing that dissipates the presumption — is evidence that is merely legally sufficient to raise the possibility of a defense. The fact finder may believe such evidence and the appellant is, for that reason, entitled to have the fact finder consider it. Just as the fact finder may believe it, so too may he utterly disbelieve it. In that case, it is as if the evidence had never been given.

All that has occurred in a case such as this is that the appellant has generated a genuine jury issue. ⁶⁴⁴ ... The fact that it may be believed is enough to get the defense before the jury; the fact that it may not be believed is enough to keep the State’s case before the jury.” Id. at 205-206 (footnote omitted). See Smith v. State, 41 Md. App. 277, 280 . Our conclusion that there was sufficient evidence to sustain the verdict presupposes that the evidence was admissible. — involuntary inducement — We next address the admissibility of the inculpatory statements.

Prefatorily we point out that our constitutionally mandated independent appraisal of the record satisfies us that there had been no coercion or improper inducement which caused the appellant to confess. Haynes v. Washington, 373 U. S. 503, 515-516 (1963). The State proved by a preponderance of the evidence that the confession was not made as a consequence of an improper inducement. Lego v. Twomey, 404 U. S. 477, 489 (1972).

To support appellant’s assertions to the contrary, he specifies three circumstances which to him warrant an opposite conclusion. Initially he complains that the atmosphere surrounding the interrogation was too compatible, notwithstanding his sub silentio admission that the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966), were fully given to him. It seems that the interrogating officer explained to appellant that the officer had known what a “no good son-of-a-bitch” the victim had been, and “that the only thing that we wanted to do really was to shake the hand of the man that murdered him____” 1 With a classic non-verbal act which in itself might have constituted a confession, appellant offered his hand to the officer. Quoting Spell v. State, 7 Md. App. 121, 129 (1969), appellant classifies this friendly atmosphere and suggestive remark as something proscribed by the statement that “[A confession] cannot be extracted by any sort of ⁶⁴⁵ threats or violence, nor obtained by any direct or implied promises nor by the exertion of any improper influence ...

But this is not a “psychological coercion” as depicted by appellant and proscribed by Escobedo v. Illinois, 378 U. S. 478 (1964). See Blackburn v. Copinger, 300 F. Supp. 1127, 1139 (1969). It may have been precisely what was felt by the officer (a fact conceded at argument by appellant), however, even assuming the worst, i.e., that it was deceptive trickery to entice a confession — which it inferentially did — it is not unconstitutional to entice confessions deceptively. Hopkins v. State, 19 Md. App. 414, 424 (1973), cert. denied, 271 Md. 738 (1974).

An enticement is only improper when “the behavior of the State’s law enforcement officials was such as to overbear [appellant’s] will to resist and bring about confessions not freely self-determined____” Rogers v. Richmond, 365 U. S. 534, 544 (1961). Deception short of an overbearing inducement is a “valid weapon of the police arsenal.” Hopkins v. State, 19 Md. App. at 424 . The implicit condonation of appellant’s criminal conduct would only be an improper inducement if appellant understood it as a preliminary pardon from his legal responsibility for the commission of the crime. In that case, the question becomes one of reasonable interpretation of the words used under the extant circumstances by a person of the accused’s capabilities, Biscoe v. State, 67 Md. 6, 7 (1887), i.e., whether the condonation was a personal expression or an authoritative absolution.

The words used in this case are certainly not such as to automatically render that which follows inadmissible. It is barely conceivable that anyone could have interpreted the officer’s comment as anything more than an effort to “soft soap” the appellant, hoping to trap him into admitting the