State v. Kidd

³⁴ Orth, J., delivered the opinion of the Court. I In a criminal cause, when the prosecution introduces an extrajudicial confession or admission 1 given by the defendant to the authorities, the basic rule is that it must, upon proper challenge, establish by a preponderance of the evidence that the statement was obtained (1) voluntarily, and (2) in conformance with the dictates of Miranda v. State of Arizona, 384 U. S. 436 , 86 S. Ct. 1602 (1966). (1) The first requisite is bottomed upon constitutional grounds. In Bram v. United States, 168 U. S. 532, 542 , 18 S. Ct. 183 (1897), the Supreme Court of the United States declared: ° In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the fifth amendment to the constitution of the United States commanding that no person “shall be compelled in any criminal case to be a witness against himself.” Any doubt that the admissibility in a state criminal prosecution is tested by the same standard, applied in ³⁵ federal prosecutions since 1897 under the .Bram holding, 2 **S.was laid to rest by Malloy v. Hogan, 378 U. S. 1 , 84 S. Ct. 1489 (1964): “[T]he person must not have been compelled to incriminate himself....

Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth... . The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.” Id. at 7-8 . The imposition upon the state of the federal constitutional prohibition against compelled self-incrimination effected no change in the voluntariness requirement followed ■ by Maryland for the admissibility of confessions and admissions. More than a century ago, in Nicholson v. State, 38 Md. 141 , 153 (1873) this Court said that “it is very clear upon all the authorities, that if the confession of the [accused] had been induced by any threat of harm, or promise of worldly advantage held out to him ... it ought to be excluded.” The crucial test was succinctly put in Taylor v. State, 238 Md. 424, 429 , 209 A. 2d 595 (1965): “If freely and voluntarily given, it is admissible; if not, it is inadmissible.” For a statement to be the free and voluntary act of an accused, it must be obtained without force applied, coercion used, hope held out or promise made on the part of the ³⁶ authorities.

Abbott v. State, 231 Md. 462, 465 , 190 A. 2d 797 (1963). In other words, a confession or admission is not “voluntary” if it is the product of physical or psychological coercion. This test has been referred to as voluntariness in the traditional sense, and we shall so refer to it here. (2) Miranda v. State of Arizona, supra, 384 U. S. at 478 , expressly affirmed that “[a]ny statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence....

Volunteered statements of any kind are not barred by the Fifth Amendment. ...” The Supreme Court said in Davis v. State of North Carolina, 384 U. S. 737, 740 , 86 S. Ct. 1761 (1966): “The review of voluntariness in cases in which the trial was held prior to our decisions in Escobedo [v. State of Illinois, 378 U. S. 478 , 84 S. Ct. 1758 (1964)] and Miranda is not limited in any manner by these decisions [Davis and Johnson v. New Jersey, 384 U. S. 719 , 86 S. Ct. 1772 (1966) in which Miranda was held to be applied prospectively only].” Miranda held: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. 3 Id. at 444 . Thus, Miranda impressed procedural safeguards on the traditional test of voluntariness. The procedural safeguards are warnings to be given. They were expressly set out and explained in detail in Miranda, supra, 384 U. S. at 444 and 479, and their familiarity in the law makes it unnecessary to repeat them here.

These warnings are not in themselves rights protected by the Constitution but are instead ³⁷ measures to insure that the privilege against compulsory self-incrimination is protected. Michigan v. Tucker, 417 U. S. 433, 444 , 94 S. Ct. 2357 (1974). Thus, they have no constitutional basis, but are prophylactic rules created by judicial decision to safeguard that constitutional privilege. Id. at 445-446 .

The defendant may waive effectuation of the Miranda safeguards, provided the waiver is made voluntarily, knowingly and intelligently, but until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained through an interrogation can be used against him. Miranda v. State of Arizona, supra, 384 U. S. at 449 and 479. As we have indicated, the burden is on the State of proving that a confession or admission is voluntary in the traditional sense and that there has been compliance with the Miranda safeguards. “It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession .... Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession.” Jackson v. Denno, 378 U. S. 368, 376-377 , 84 S. Ct. 1774 (1964).

This determination must “appear from the record with unmistakable clarity.” Sims v. Georgia, 385 U. S. 538, 544 , 87 S. Ct. 639 (1967). In Maryland, two steps are involved in this procedure, which is applicable to a case tried before a jury, Day v. State, 196 Md. 384, 399 , 76 A. 2d 729 (1950), and without a jury, Ralph v. State, 226 Md. 480, 487 , 174 A. 2d 163 (1961), cert. denied, 369 U. S. 813 (1962). The trier of fact passes on traditional voluntariness only after the judge, upon a hearing, out of the presence of the jury, has fully and independently resolved the issues against the accused. Jackson v. Denno, supra, 378 U. S. at 378.

See Dempsey v. State, 277 Md. 134, 143-146 , 355 A. 2d 455 (1976); Gill v. State, 265 Md. 350, 357-358 , 289 A. 2d 575 (1972); Sabatini v. State, 14 Md. App. 431, 449-451 , 287 ³⁸ A. 2d 511, cert. denied, 265 Md. 742 (1972); Mulligan v. State, 10 Md. App. 429, 431-433 , 271 A. 2d 385 (1970); Murphy v. State, 8 Md. App. 430, 436-437 , 260 A. 2d 357 (1970); Barnhart v. State, 5 Md. App. 222, 223-227 , 246 A. 2d 280 (1968). The federal constitutional test with respect to the judge’s preliminary decision is that of a preponderance of the evidence, Lego v. Twomey, 404 U. S. 477 , 92 S. Ct. 619 (1972), and the test with respect to the final determination by the trier of fact is beyond.a reasonable doubt, Linkins v. State, 202 Md. 212, 223 , 96 A. 2d 246 (1953). The burden upon the State to establish affirmatively the admissibility of the confession or admission arises upon proper objection. Wainwright v. Sykes, 433 U. S. 72, 86-87 , 97 S. Ct. 2497 , 45 U.S.L.W. 4807 , 4811 (1977).

See Jackson v. Denno, supra, 378 U. S. at 380; Tucker v. State, 237 Md. 422, 425 , 206 A. 2d 691 (1965); Gaudio and Bucci v. State, 1 Md. App. 455, 463 , 230 A. 2d 700 (1967). The requirement of a proper challenge applies to both aspects of admissibility — constitutional voluntariness and compliance with Miranda’s prophylactic safeguards. Fundamental rights can be waived by an accused, State v. McKay, 280 Md. 558, 570 , 375 A. 2d 228 (1977), and the right to a hearing and determination by the trial judge of the admissibility of a confession or admission provides no exception. State procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.

Mapp v. Ohio, 367 U. S. 643, 658, n. 9 , 81 S. Ct. 1684 (1961). See Porter v. State, 230 Md. 535, 536-537 , 187 A. 2d 870 (1963). In Maryland, objection to the admission of evidence is governed by Maryland Rule 522 d, made applicable to criminal causes by Rule 725 f. The Rule encompasses the admissibility of confessions and admissions.

Objection to the admission of evidence is treated as waived unless made at the tinte when such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent, Rule 522 d 2, and unless requested by the court, it is not necessary to state the grounds for the objection, Rule 522 d 1. Thus “where the trial court does not request a statement of the ³⁹ grounds for an objection, a general objection is sufficient to preserve all grounds which may exist.” von Lusch v. State, 279 Md. 255, 262-263 , 368 A. 2d 468 (1977). “On the other hand, where the trial court does request specific grounds for an objection, the objector is bound by the grounds he states, and he normally is deemed to have waived any objection to the evidence on a ground not stated.” Id. at 263 , citing Wilt v. Wilt, 242 Md. 129 , 218 A. 2d 180 (1966); Eckhart v. Ayres, 240 Md. 153 , 213 A. 2d 493 (1965). This principle was extended by judicial decision, so that “where one objecting to the admission of evidence, although not requested by the court to state his grounds, goes ahead and delineates specific grounds for his objection he will be bound by those grounds and will ordinarily be deemed to have waived other grounds not mentioned.” von Lusch v. State, supra, 279 Md. at 262-263 . II Prior to Miranda , the opinions of this Court reflected no distinction as to the rules regarding admissibility between confessions or admissions of a defendant offered by the prosecution to prove its case in chief and those offered to impeach a defendant’s testimony at trial.

Miranda appeared to buttress this notion with respect to its safeguards. The Court of Special Appeals of Maryland, the appellate courts of 13 other states, and six federal courts of appeals read Miranda as forbidding the use by the prosecution of statements by an accused, be they confessions or admissions, inculpatory or exculpatory, stemming from custodial interrogation, unless there was compliance with the requirements of Miranda . 4 See Harris v. New York, 401 ⁴⁰ U. S. 222, 231, n. 4, 91 S. Ct. 643 (1971) (Mr. Justice Brennan dissenting). The Court of Special Appeals flatly held in Franklin v. State, 6 Md. App. 572, 578 , 252 A. 2d 487 , cert. denied, 255 Md. 741 (1969), 399 U. S. 912 (1970) that “[t]he fact that [a defendant’s] admissions may have been used for the purpose of impeaching his credibility as a witness, rather than as substantive evidence of guilt, does not, in our judgment, dispense with the requirement that the State affirmatively show on the record that the. statement was in compliance with the requirements of Miranda ....” Harris v. New York, supra, as affirmed and explicated in Oregon v. Hass, 420 U. S. 714 , 95 S. Ct. 1215 (1975) dispelled this view. The issue decided in Franklin was presented to the Supreme Court in Harris under circumstances which, as recounted in Hass at 720-721 , were as follows: [T]he defendant was charged by the State in a two-count indictment with twice selling heroin to an undercover police officer.

The prosecution introduced evidence of the two sales. Harris took the stand in his own defense. He denied the first sale and described the second as one of baking powder utilized as part of a scheme to defraud the purchaser. On cross-examination, Harris was asked whether he had made specified statements to the police immediately following his arrest; the statements partially contradicted Harris’ testimony.

In response, Harris testified that he could not remember the questions or answers recited by the prosecutor. The trial court instructed the jury that the statements attributed to Harris could be used only in passing on his credibility and ⁴¹ not as evidence of guilt. The jury returned a verdict of guilty on the second count of the indictment. Harris made no claim that the statements made to the police were coerced or involuntary, but the prosecution had not sought to use them in its case in chief, for it conceded that they were inadmissible under Miranda because Harris had not been advised of his rights to appointed counsel.

A majority of the Court in Harris recognized that “[s]ome comments in the Miranda opinión can indeed be read as indicating a bar to use of an uncounseled statement for any purpose,” but those comments were disposed of simply by asserting that “discussion of the issue was not at all necessary to the Court’s holding and cannot be regarded as controlling.” Harris v. New York, supra, 401 U. S. at 224 . The opinion of the Court declared: It 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. Id. at 224. It held that Harris’s “credibility was appropriately impeached by use of his earlier conflicting statements.” Id. at 226. 5 In Oregon v. Hass, supra, a majority of the Court affirmed the position it had taken in Harris.

The only factual distinction between the two cases was that in Harris the Miranda warnings given were defective and in Hass they were proper but the police officer obtained inculpatory statements after Hass said he would like to telephone his ⁴² attorney and was told he could do so “as soon as we got to the office.” There was no evidence that the statements thereafter obtained were involuntary or coerced. Hass took the stand at his criminal trial and gave testimony at variance with the statements previously given the police after he said he wanted to see an attorney. Hass knew that those statements had been ruled inadmissible for the prosecution’s case in chief. Oregon v. Hass, supra, 420 U. S. at 715 -719 and 720-722.

In rebuttal the prosecution offered and the trial court admitted the statements which previously had been held inadmissible, and the court instructed the jury that the evidence went only to credibility and not to proof of guilt. The Oregon Court of Appeals held that the statements were improperly used to impeach Hass’s testimony and the Supreme Court of Oregon affirmed. The majority opinion of the Supreme Court of the United States reversed, holding that the Oregon appellate courts were in error when they ruled that the rebuttal testimony was inadmissible on the Fifth and Fourteenth Amendment grounds for purposes of Hass’s impeachment. Id. at 723-724 .

It said: As in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the prosecution’s case in chief is barred for all purposes, always provided that “the trustworthiness of the evidence satisfies legal standards.” 401 U. S. at 224 , 91 S. Ct., at 645 . Again, the impeaching material would provide valuable aid to the jury in assessing the defendant’s credibility; again, “the benefits of this process should not be lost,” id., at 225, 91 S. Ct., at 645 ; and again, making the deterrent-effect assumption, there is sufficient deterrence when the evidence in question is made unavailable to the prosecution in its case in chief. If all this sufficed for the result in Harris, it supports and demands a like result in Hass’ case. Here, too, the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or ⁴³ even perjuriously, free from the risk of confrontation with prior inconsistent utterances.

We are, after all, always engaged in a search for truth in a criminal case so long as the search is surrounded with the safeguards provided by our Constitution. 6 Id. at 722. The full impact of Harris has not previously been squarely before the appellate courts of this State. This Court has not considered the Harris holding, affirmed and extended in Hass , and the Court of Special Appeals, although presented with issues relating to Harris in Cooper v. State, 14 Md. App. 106 , 286 A. 2d 579 (1972), Layman v. State, 14 Md. App. 215 , 286 A. 2d 559 (1972) and Sabatini v. State, supra, found in each case that it was not necessary to reach the many unanswered questions posed by Harris. Cooper, supra, 14 Md. App. at 116, n. 4 listed some of these questions, but left their determination for a time when they would be squarely before the court.

See Kidd v. State, 33 Md. App. 445, 449 , 366 A. 2d 761 (1976). The case sub judice requires that some of the questions be resolved. Ill Bruce D. Kidd, charged by a criminal information with the statutory offenses of possessing heroin in sufficient quantity to indicate reasonably an intent to manufacture and distribute (1st count) and with possessing that ⁴⁴ controlled dangerous substance (2nd count), was found guilty under the 1st count by a jury in the Criminal Court of Baltimore and sentenced to imprisonment for a term of eight years. Neither the evidence adduced by the State to prove the charges nor that presented by Kidd in his defense was complicated or subtle.

The State’s case in chief showed that Kidd, a member of a crowd standing on a corner, fled upon the arrival of police officers in plainclothes driving an unmarked car. He was pursued by two of the officers, Alvin Winkler and William B. Smith, and during his flight, threw away 18 bags of heroin. Winkler apprehended Kidd; Smith recovered the contraband. In his defense, Kidd denied having discarded the heroin.

His explanation for his departure from the scene was that his daughter had hurt her knee and he was walking quickly to his car to take her to the hospital when the officers stopped him. This direct conflict between the State’s evidence and the defendant’s evidence was for the trier of fact to resolve. If the jury believed the State’s witnesses, the evidence was sufficient in law for it to find Kidd guilty of the crimes charged. On the other hand, if they believed Kidd, a verdict of not guilty was called for, the evidence not being legally sufficient to convict.

See Thomas v. State, 277 Md. 314, 320 , 353 A. 2d 256 (1976); Williams v. State, 5 Md. App. 450, 459 , 247 A. 2d 731 (1968). Therefore, the credibility of the witnesses was of primary importance. Obviously recognizing this, the State attempted to impeach Kidd’s credibility. On cross-examination the prosecutor asked: “Did you ever tell Officer Winkler that you were a one bag habit man?” Kidd objected and after argument at a bench conference, the objection was overruled. “In response to the question, [Kidd] denied any such conversation with Winkler.

He denied that he was a user on May 9, 1975, but admitted that he had been a heroin user a year previous to the incident.” The State called Winkler in rebuttal. “He testified, over objection, that [Kidd] admitted to him that he was an addict and that he had approximately ‘a one-bag-a-day habit.’ There was no testimony that the Miranda warnings had been given or that any rights had been waived. There was never a hearing, out of the presence ⁴⁵ of the jury or otherwise, on the voluntariness of this statement made to Officer Winkler.” 7 It is not disputed that Kidd’s statement constituted an “admission” within the definition of that term, and that it was