State v. Franklin

Orth, J., delivered the opinion of the Court. Stephen Franklin was shot on the evening of 19 December 1974. The aftermath was a charge against him of attempting to rob Jarrett D. Christian, a taxicab driver, with a dangerous and deadly weapon, a trial in the Criminal Court of Baltimore at which he was convicted by the court of the offense, and a sentence of twenty years. On direct appeal the Court of Special Appeals reversed the judgment and remanded the case for a new trial.

Franklin v. State, 33 Md. App. 690 , 366 A. 2d 111 (1976). On certiorari we shall reverse the judgment of the Court of Special Appeals, thereby leaving the judgment of the trial court standing. I The State presented evidence in its case in chief through the testimony of Christian and John Grimes, a detective in the Baltimore City Police Department who investigated the incident. Franklin was the only witness for the defense.

Up to a crucial point, the testimony of Christian and the testimony of Franklin did not conflict. Christian said he picked up Franklin 1 and two girls about 9:30 p.m. at the corner of Pennsylvania Avenue and Laurens Street in Baltimore City. Franklin verified this. He explained that he was on Pennsylvania Avenue and was ready to go home because he felt “kind of sick.” He was “slightly intoxicated, just a little bit” but “knew what [he] was doing.” He had “been on medication,” phenobarbital and dilantin, under a ⁵⁴ doctor’s prescription, “ever since 1958 . .. for a [s]hot in the head.” Two girls asked where he was going, and when he told them to Pimlico (he lived on Queensberry Avenue), they asked if he wanted to ride with them in a cab.

He told them he had only “a dollar and something” and they offered to “take [him] up.” They hailed Christian’s cab. Both Christian and Franklin said the girls left the cab at Ashburton Street and North Avenue. Franklin observed that they left “giggling,” leaving him “stuck” with the fare. According to Christian and Franklin, Franklin directed Christian to an address on Spaulding Avenue near Park Heights Avenue.

Franklin said a friend lived there. Christian waited in the cab while Franklin went to the house and knocked on the door. There was no answer to his knock. He returned to the cab. 2 At this point the testimony of Christian and Franklin diverged.

Christian’s version was that he was making an entry in his log when Franklin approached him on the driver’s side with his hands in his pockets and said: “You know what this is. Give it up.” Christian took off in the cab, hitting a pole while trying “to make it through [an] alley.” He heard shots fired, saw his windshield was hit, grabbed a gun he kept in the . cab, jumped out and started firing. He fired five shots at Franklin but did not know whether he hit him. Bullets fired at the cab struck the windshield, a door and the rear of the vehicle.

According to Franklin, when he returned to the cab Christian “had a pistol at my face.. . . Right there I panicked because I was shot twice. This is the third time .... I ran down the alley.

About a second later I heard five shots. I was hit with one of them. I scared. I stopped at Garrison.

He came through with the cab, and then he stopped.” Calling Franklin an obscene name, Christian ordered him to come out from behind the bushes. “So I came ⁵⁵ out.” Franklin told Christian: “I got one dollar, something. I live right around the corner .... You go around the corner, you get the rest of your money.” Christian replied: “No, just throw the dollar across the hood.” Franklin flatly denied that he attempted to rob Christian. Franklin went home, changed shirts and put on a leather jacket.

His sister took him to the hospital. Christian reported the incident to the police. Grimes received a report over his car radio about 10:30 p.m., went to the scene and talked to Christian. About an hour later he went to Sinai Hospital in response to a call that a man was being treated for a gunshot wound.

Franklin was in the emergency room dressed in hospital garb. He had a bullet wound in his left shoulder. His clothes, a three-quarter length brown jacket and a shirt, were nearby. There were no bullet holes in this clothing.

Grimes notified Christian through “Communications” to come to the hospital. Grimes and Christian each testified to the effect that Christian arrived at the hospital about twenty minutes later, saw Franklin in the emergency room, and, unsolicited, made a positive identification of him as the man who attempted to rob him. Franklin testified that when Christian came in the officer asked: “Is that the one?” Christian said, “Yeah,” and ran right back out. Grimes went to Franklin’s home and was given Franklin’s jacket and sweater by Franklin’s sister.

Each garment had a hole in the left shoulder. There were blood stains around the hole in the sweater. During direct examination Grimes said he “interviewed” Franklin in the hospital when he saw that there was no bullet hole in either Franklin’s jacket or shirt. He asked Franklin how he got shot.

Defense counsel objected to the prosecutor’s inquiry: “And what did he say?” The objection was on the specific ground that “there has been no testimony that the Defendant was advised of his rights before interrogation.” After a very brief discussion the prosecutor withdrew the question “to avoid the problem.” Franklin referred to the “interview” by the officer in his direct examination. He said that after the cab driver came in and identified him, “[t]he officer right there he questioned ⁵⁶ me where my pistol was at, but I don’t own a gun.” On cross-examination Franklin was asked: “[W]hen the officers came to see you at the hospital, what did you tell them happened?” The transcript reads: A: I told them I got shot. Q: And, how did you get shot? A: Cab driver shot me.

Q: Didn’t you tell them you had gotten in an argument down at Park Circle and Park Heights, and as a result of that, you had been shot? A: I don’t know nobody there. Q: So what exactly do you recall telling the officer? A: That I got shot by a cab driver.

Q: And did you give a reason why you were shot? A: I told them everything like I am telling you all. Q: Which is — repeat again what you told the officer, please. A: Right.

Q: Repeat it. A: I told them I got shot by a cab driver. You want me to repeat my statement as far as getting out of the cab and running stuff? Q: It’s your testimony then that you did not tell the officers that you were involved in a fight, someone shot you as a result of a fight?

A: Yes, sir. The State called Grimes in rebuttal. The prosecutor inquired about Grimes’s “interview” with Franklin at the hospital. Grimes said: “I asked him how he got shot.” Defense counsel objected.

The court overruled the objection, stating: “I’ll let it in for impeachment purposes only at this time.” The transcript reads: THE WITNESS: He stated that he was in a fight at Park Circle with another subject and he got shot in the back. That is when I questioned him about ⁵⁷ the clothes. He stated he came right from Park Circle to the hospital. That’s why I questioned him about the hole, why there was no bullet holes in his clothes.

Q: Did he at any time tell you he was shot by a cab driver. A: No. II The issue for decision is the propriety of the admission of Franklin’s extrajudicial statement for the purpose of impeaching his credibility. Miranda v. State of Arizona, 384 U. S. 436 , 86 S. Ct. 1602 (1966), barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It established prophylactic safeguards to assure that such evidence be excluded.

Harris v. New York, 401 U. S. 222, 224 , 91 S. Ct. 643 (1971), and Oregon v. Hass, 420 U. S. 714, 722 , 95 S. Ct. 1215 (1975), declared that “[i]t does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” Harris and Hass held that the credibility of a defendant in a criminal cause was appropriately impeached by use of his extrajudicial conflicting statements, even though the Miranda warnings were defective, or, if properly given, were not effectively waived. Harris, 401 U. S. at 226 ; Hass, 420 U. S. at 723-724 . In neither case was claim made that the statements were coerced or involuntary. Harris, 401 U. S. at 224 ; Hass, 420 U. S. at 722 .

In both cases, the statements partially contradicted the defendant’s direct testimony at trial. Harris, 401 U. S. at 223 ; Hass, 420 U. S. at 721 . We had occasion to construe the Harris-Hass limitation of Miranda in State v. Kidd, 281 Md. 32 , 375 A. 2d 1105 (1977). Our decision that the trial judge there erred in ⁵⁸ admitting the impeaching statement entailed the determination that a statement may be received in evidence at the criminal trial of the declarer for the purpose of impeaching his credibility, not generally, but specifically with regard to a contradiction, reasonably inferred, between issues initiated by him on direct examination and the impeaching statement, provided the trustworthiness of the evidence satisfies legal standards.

This is so even though the statement was obtained during a custodial interrogation without the warnings required by Miranda being given, or defectively given, or, if properly given, not effectively waived. 3 For the purpose of decision here we make two assumptions consistent