Schmidt v. State

BLOOM, Judge. James Conrad Schmidt, appellant, was convicted by a jury in the Circuit Court for Frederick County of second degree rape, second degree sexual offense and burglary. He received concurrent sentences of twenty years imprisonment for each offense. He now contends that 1) the erroneous admission of a statement he made at a bond hearing requires reversal, 2) the trial court erred in refusing to suppress statements obtained from him in violation of his Miranda rights, 3) the trial court’s failure to instruct the jury on the standard for consideration of his statements constituted plain error, and 4) the trial court should have declared a mistrial and reselected the jury.

We disagree with all of appellant’s contentions and, therefore, we will affirm the convictions and sentences. Facts On December 22, 1981, Victoria Thompson was staying in the apartment of her friend Virginia Sulcer. At about 1:00 a.m., Ms. Thompson and another friend, Janice Onderdonk, left the apartment and went to a bar called McGurk’s, where each had one drink. Seated about twenty feet away ⁹¹ from them at the bar was the appellant.

Ms. Onderdonk did not know Schmidt; Ms. Thompson recognized Schmidt’s face but did not remember his name. As the two ladies left the bar, Schmidt held the door open for them and he and Ms. Thompson exchanged a few words. There had been no communication between Schmidt and either of the two women prior to then. As the two ladies left McGurk’s, Ms. Onderdonk observed a blue Chrysler or Plymouth automobile in the parking lot.

(At trial she referred to it as appellant’s car but did not state how she knew this.) She did not see but assumed that appellant got into his car as the women got into their automobile. Ms. Onderdonk drove Ms. Thompson back to Ms. Sulcer’s apartment, entered and remained for a few minutes and then left. She was sure the door was locked behind her as she left. Aside from Ms. Sulcer, who was not home at the time, only Ms. Onderdonk and Ms. Thompson had keys to the apartment.

As Ms. Onderdonk returned to her car, she observed an automobile very similar to the Plymouth or Chrysler she had seen on McGurk’s parking lot earlier that night. After Ms. Onderdonk left the apartment, Ms. Thompson locked the door, prepared for bed and removed her contact lenses, without which her vision is 20-200. After she had been in bed for about twenty minutes, she heard a banging noise at the door. She then heard someone enter her room and, thinking it was Ms. Sulcer, turned to greet her when a man put his hand over her mouth, told her to be quiet and then put a pillow over her eyes.

She was afraid she would be suffocated, but the man loosened the pillow and told her he would not hurt her if she cooperated. He forced her to commit fellatio, performed cunnilingus on her and then raped her. During the entire time, he kept either the pillow or bedclothes over her face. Thus, Ms. Thompson did not see her assailant except in silhouette as he first entered the room. ⁹² Ms. Thompson heard the man leave the apartment and run down the steps.

Then she heard the squeal of automobile wheels. She got up, armed herself with a knife, and telephoned her mother and her neighbors. After her neighbors arrived, she found some keys on the floor, which she turned over to the police. She also gave the police a description of her assailant as a tall man with a beard, mustache and light hair.

She did not recognize her assailant by his appearance or his voice. She did, however, tell the police that she had met James Schmidt at McGurk’s earlier that night. At first she did not recognize him but later remembered him as someone she had known in high school and had not seen for several years. On the afternoon of December 24, Lieutenant James R. Fraley and Officer Thomas H. Woodward of the Frederick City Police Department went to appellant’s residence to interview him in connection with the rape of Ms. Thompson.

Schmidt did not want to discuss the case in front of his family, so he went outside to talk to the police. Because it was cold and damp, Lt. Fraley suggested that the interview be conducted in his unmarked police car, to which Schmidt agreed. Schmidt was under no restraint.

He had not been arrested and, according to the police, was not then under suspicion. The police informed Schmidt they were investigating the sexual assault on Ms. Thompson and that she remembered seeing him in the bar that night. Schmidt denied noticing Ms. Thompson and insisted that he had driven directly home from McGurk’s. He said he knew Ms. Thompson only slightly but was acquainted with her sister.

The officers advised Schmidt that Ms. Thompson’s assailant had dropped his keys and they showed him the key ring that the victim had turned over to them. Schmidt denied any knowledge of the key ring. There were three Chrysler Motor Company keys on this key ring and the officers asked Schmidt’s permission to try those keys on the two Chrysler-Plymouth automobiles (one yellow, one blue) in the driveway. Schmidt gave his permission but as the officer started to ⁹³ get out of the police car, Schmidt told him, “Never mind, they fit.” When asked if he wanted to talk, Schmidt said he did, but he wanted to go elsewhere to do so.

He agreed to go to police headquarters where, after being advised of his constitutional rights, he made an inculpatory statement that was reduced to writing. Schmidt signed the statement, after which he was arrested. Four days later, Schmidt appeared, without counsel, at a bail hearing in the District Court. The judge asked him if he knew the alleged victim and Schmidt replied, “At the time, no sir, I didn’t.

I was drunk. I didn’t know who it was.” Motion to Suppress Pursuant to then Md.Rule 736 a, [new Rule 4-252(a)] Schmidt filed a pre-trial motion to suppress “any and all oral and written statements alleged by the State of Maryland to have been made by him.... ” At the hearing on that motion, the State presented evidence as to the statements made in the police car outside Schmidt’s home and at police headquarters, the circumstances under which those statements were made and the manner in which the one at headquarters was recorded, transcribed, and signed. The witnesses for the State testified that the written statement was accurate and that Schmidt read it before he signed it. The police insisted that Schmidt was not under arrest, was not restrained in any way and was free to leave at any time until he was arrested.

Schmidt testified that once he told the police that the keys in their possession would fit the cars in his driveway he felt he was under some restraint despite the fact that he had not been arrested. He claimed that the written statement was inaccurately recorded and transcribed and denied that he read it before he signed it. He said that at first he didn’t recognize Ms. Thompson but then remembered who she was and followed her home. He admitted that he had engaged in sexual relations with Ms. Thompson but claimed it was with her consent and without ⁹⁴ any force or threats on his part.

The court denied the suppression motion. Trial At the trial, the State produced evidence as to the events of December 22 through testimony of Ms. Sulcer, Ms. Onderdonk and Ms. Thompson, as well as from a neighbor who responded to the victim’s telephone call and the victim’s mother and stepfather. A police chemist and the police officers who investigated the crime and interrogated the appellant also testified. Appellant’s written statement was introduced into evidence.

The State then called, as the last witness during its case in chief, an investigator in the State’s Attorney’s office who was permitted to testify, over objection, as to Schmidt’s response to the District Court judge’s question during the bail hearing. Appellant presented testimony from his parents and girlfriend to the effect that at the time of the offense appellant had financial difficulties and other problems. Appellant testified that he had been working several jobs and was drinking heavily on December 22. He was at McGurk’s bar and, after a drinlc, left at the same time as Ms. Thompson.

He recognized her but did not remember her name until he was in his car. He followed her home because he and Ms. Thompson’s sister had been close friends and he wanted to have someone relay a message to his girlfriend, with whom he had quarrelled. He reached Ms. Thompson’s apartment some minutes after she did and remained in his car for another few minutes looking for his cigarettes. He went through the front door and walked upstairs.

According to him, the door to Ms. Thompson’s apartment was not completely closed and it fell open when he knocked on it. He testified that he heard Ms. Thompson say, “Is that you, Jim?” He answered, “Yes,” and walked into the bedroom. Conversation led to kissing and then sexual intercourse. Ms. Thompson suddenly started to cry and pushed him away.

He tried to comfort her, but she asked him to leave. As he was leaving, he tripped over the telephone cord, ⁹⁵ accidentally pulling it out of the wall. Appellant repeated his testimony from the suppression hearing about inaccuracies in the written statement. I. The Statement Made at the Bail Hearing Appellant contends that inculpatory statements made by an accused at a bail hearing should be excluded under any circumstances.

Referring to the importance of bail in the American legal system and the “right” to be released on reasonable bail as the general rule, he argues that the admissibility at trial of a statement made at a bail hearing would force an accused to choose between a meaningful determination of his eligibility for bail and the preservation of his right against self-incrimination. See State v. Williams, 115 N.H. 437 , 343 A.2d 29 (1975). Courts in Minnesota and Florida, however, have upheld the admission of statements made by accuseds at bail hearings upon findings that the statements were made with the full advice of counsel. State v. Van Wert, 294 Minn. 464 , 199 N.W.2d 514 (1972); Raffield v. State, 333 So.2d 534 (Fla.App.1976), modified, 351 So.2d 945 (Fla.1977).

We see no need for the per se exclusionary rule urged by appellant. If an accused who is represented by counsel and who is made aware of his fifth amendment right volunteers a statement deemed helpful to his position at a bail hearing, there is no logical reason why that statement could not be used against him at trial. Appellant next contends that even in the absence of a per se exclusionary rule, his statement at his bail hearing was inadmissible because it was a response to an interrogation made in a custodial setting without Miranda 1 warnings. The State argues that because appellant did not file a pretrial motion to suppress the bail hearing statement the issue was not preserved for appellate review.

Former ⁹⁶ Md.Rule 736 a 4 [see new Rule 4-252(a)(4) ]; Kohr v. State, 40 Md.App. 92 , 388 A.2d 1242 (1978). The State is wrong. Appellant’s motion to suppress included all oral and written statements. The failure of the State to mention the bail hearing statement at the suppression hearing, coupled with its failure to furnish appellant with automatic discovery as required by former Md.Rule 741 a 2 (b) [see new Rule 4-263 (a)(2)(B)], effectively concealed from him the existence of this statement as potential evidence.

Since appellant could not have known of the State’s proposed use of his bail hearing statement until it offered the statement into evidence, his objection to its admission was sufficient to raise the issue. And since he did not volunteer and was not asked to state the ground of his objection, all grounds were preserved for review. Former Md.Rules 761, 522 d [see new Rule 4-322 (a) ]; von Lusch v. State, 279 Md. 255 , 368 A.2d 468 (1977). It is necessary, therefore, to address appellant’s Miranda argument.

The Miranda litany of warnings to a suspect of his right to remain silent and to have counsel present during interrogation are by now too familiar to require repetition here. We need only note that there is a basic rule that in a criminal case a statement (confession or admission 2 ) stemming from a custodial interrogation of the defendant may be received into evidence against him over a proper objection only if the State has shown by a preponderance of the evidence that the statement was voluntary in the traditional sense and that there had been a compliance with the Miranda safeguards. State v. Kidd, 281 Md. 32 , 375 A.2d 1105 (1977). ⁹⁷ Although the Miranda decision stemmed from a concern that the “compulsion inherent in custodial surroundings” may endanger an individual’s fifth amendment right to be free from compelled self-incrimination, 384 U.S. at 457-458, 86 S.Ct. at 1618-1619, we must remember that the warnings designed to overcome that danger are merely “prophylactic rules” rather than constitutional dictates. Michigan v. Tucker, 417 U.S. 433, 439 , 94 S.Ct. 2357, 2361 , 41 L.Ed.2d 182 (1974).

We must also bear in mind that statements obtained from a defendant who had not been given the Miranda warnings need only be excluded from evidence if they resulted from a “custodial interrogation” within the meaning of Miranda. Vines v. State, 285 Md. 369, 374 , 402 A.2d 900 (1979). “Custodial interrogation” was defined in Miranda v. Arizona, supra, as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. 384 U.S. at 444, 86 S.Ct. at 1612 (footnote omitted). As Judge Orth wrote for the Court of Appeals in Vines, 285 Md. at 375 , 402 A.2d 900 , quoting Kamisar, Brewer v. Williams, Massiah, and Miranda: What Is “Interrogation”? When Does It Matter?, 67 Geo.LJ. 1, 14 n. 85 (1978): “Because the custody issue has arisen more frequently and has generally been regarded as a more difficult one, a good deal more attention has been paid to what constitutes custodial interrogation than what constitutes custodial