Swain v. State

Couch, J., delivered the opinion of the Court. John Swain was charged by indictment filed November 16,1979, with premeditated murder and use of a handgun in the commission of a felony. He pleaded not guilty and not guilty by reason of insanity, and elected a jury trial. The trial commenced on July 28, 1980 in the Circuit Court for Montgomery County.

On August 6,1980, the jury found Mr. Swain to have been sane at the time of the offense, and to be guilty of murder in ³¹ the first degree and use of a handgun in the commission of a felony. He was sentenced to consecutive terms of life imprisonment for murder and five years imprisonment for the handgun offense. On appeal, Mr. Swain, the appellant, presents the following questions: 1. Did the hearing court err in refusing to suppress evidence obtained from appellant as a result of his arrest, which was effected in violation of the District of Columbia Fresh Pursuit Statute? 2.

Did the hearing court err in holding that appellant’s merely telling one police officer that he understood the Miranda rights previously given by another officer constituted an effective waiver of those rights? 3. Did the trial court err in permitting the State to use a medical treatise in the direct examination of its psychiatric expert? 4. Did the trial court err in allowing the State’s psychiatric expert to give opinion testimony that was based in part upon conclusions drawn by an uncertified psychologist? 5. Did the trial court erroneously instruct the jury on the element of malice?

For the reasons set forth in this opinion we hold that the lower court did not err in its actions and rulings, and we affirm the lower court’s judgment. The Facts At approximately 5:30 to 5:45 in the morning of October 25, 1979, Anne Delores Logan was shot five times at close range while she drove on Connecticut Avenue in Chevy Chase, Maryland, a short distance from the Maryland-District of Columbia border. Her 1978 Thunderbird veered off the road and crashed into a tree ³² located in an adjacent park. She died before she could be moved to a hospital.

At this same time, Alec Armbrister prepared to begin his paper route. He was walking along Newlands Street between Connecticut Avenue and Brookville Road when he heard noises sounding like a car backfiring five or six times. He then saw Ms. Logan’s car traveling north on Connecticut Avenue, and watched the car as it crashed off the road. Mr. Armbrister entered the small park by jumping over a fence, and he saw a man approach him from the wrecked car.

To Mr. Armbrister’s question, "What should I do?”, the man replied, "Go and see if the lady was all right.” The man also indicated that he would call an ambulance, and then he ran out of the park. Although the morning was still dark, Mr. Armbrister saw that the man in the park was a black male, about six feet tall, not muscular, 165-170 pounds, in his early to mid-thirties, with a low bush-style haircut, and wearing all black clothes, including a black jacket. Going to the car, Mr. Armbrister saw its occupant, a black woman, slumped over. Immediately thereafter police officers arrived, and requested that the witness write notes concerning what he had seen.

He was also informed that the woman he had seen had been shot. During this time, a second paper boy, Giles Sommerville, was walking along Brookville Road when he heard sirens coming from the direction of Connecticut Avenue. As he reached the intersection with Quincy Street, a man entered the intersection from Quincy. This man nodded as he walked by, responding to Mr. Sommerville’s salutation, and then turned north on Brookville Street.

Mr. Sommerville described him as a black man, age 25-30 years old, about five eleven to six feet tall, skinny, with close-cut hair, sideburns, and wearing a dark vest, and dark blue trousers. The initial report of Ms. Logan’s car crash reached the Montgomery County Emergency Operations Center (EOC) at 5:39 A.M. The crash was reported as an accident by a ³³ member of the Herndon React. 1 Police officers arrived at the scene by 5:42 A.M., according to EOC records, and quickly reported that a black man had been in the car with Ms. Logan, and had been seen running eastbound, down Melrose from Connecticut. Following notification by medical personnel at the crash site that Ms. Logan had suffered multiple gunshot injuries, at approximately 5:54 a police officer requested that the radio dispatcher, "Call the Bethesda Station and have an officer on this shift get everyone out of the station they can spare and have them converge on the area down here.” By 6:03 A.M. the police were informed by radio that they had "official permission to work two or three blocks into D.C.” The officers were also told that Ms. Logan had died, and that her death appeared to be by homicide (Code 0-100). As officers questioned Mr. Armbrister and Mr. Sommerville, descriptions of the homicide suspect were broadcast.

The initial description, provided at 6:10 A.M., described a black male, over six foot, wearing dark clothes, and possibly wearing a hat. A subsequent broadcast, based on Mr. Sommerville’s questioning, indicated that the suspect was: "A Negro male, skinny, 5'11"-6'0", black pants, solid black vest-type jacket, there’s a white line in it, and last seen on Brookville, and he’s going to be northbound.” Having heard the initial description of the suspect, police officers detained a black male who was walking across Western Avenue, and who was wearing a green Army jacket. The officers reported that they did not believe that he was their suspect, but they did not release him until Mr. Armbrister saw him and confirmed their belief. The Montgomery County Police then continued in their efforts to find the homicide suspect.

One of the participating police officers was Officer Linda Krieger, a four-year veteran assigned to the Bethesda ³⁴ station. Officer Krieger had worked the 10:00 P.M. to 6:00 A.M. shift on a stake-out detail in the Friendship Heights business district, which is near the crime scene. She worked alone, in plain clothes, and drove an unmarked van equipped with a police radio. As she prepared to go off duty she heard the first radio communications regarding the wrecked automobile on Connecticut Avenue.

Being aware of only a reported personal injury accident, Officer Krieger continued to unload her van at the Bethesda station, while she monitored the police broadcasts. Following the subsequent reports of Ms. Logan’s shooting, that a black male was seen running from the car and that the incident was designated as an "0-100, which is a murder,” Officer Krieger drove her police van into the District of Columbia. As she drove, Officer Krieger continued to receive information regarding the murder suspect from the investigating officers who had questioned the eyewitnesses. She arrived at the site in the District of Columbia where Montgomery County officers had stopped the man wearing a green Army jacket, and she learned of the updated description of the suspect by 6:20 A.M. Officer Krieger then drove northbound, back towards Western Avenue, which divides Maryland and the District of Columbia.

At the corner of Broadbranch and Rittenhouse, which is in the District of Columbia, she saw someone who matched the suspect’s description as he appeared near a well-lit bus stop. She saw no other pedestrians in the entire area. From a distance of fifty feet Officer Krieger did not recognize the suspect. The man did not remain standing on the sidewalk, however, but crossed in front of the police van.

Officer Krieger then recognized the suspect as John Swain, the appellant, who worked as a mechanic at a local Chevron station. Mr. Swain had previously serviced Officer Krieger’s car, and they had frequently seen each other when she stopped at the Chevron station wearing her uniform on duty. As Mr. Swain approached the driver’s side of her van, ³⁵ Officer Krieger called to him by name. He responded by asking, "You are looking for me, aren’t you?” Officer Krieger responded, "Yes,” because, as she later testified, she knew of an outstanding warrant or criminal summons for Mr. Swain’s arrest in a different matter, and because she knew that he fit the description of the homicide suspect.

Concerning their subsequent conversation Officer Krieger stated: "I said, 'Are you hurt?’ Prior to this, the radio transmissions earlier were that the subject might have hit the windshield and may have had some head injury, so I asked him if he was hurt, and I think he said, 'No,’ and then I said something to the effect of, 'Get in the car,’ and just before that he said, 'Is she dead?’ I either said, 'Yes,’ or T don’t know.’ And then he walked across the front of the van to get in, and I unlocked the door to let him in.... [ 0 ]nce John got in the van, he put up his hands, and he said, T don’t have a gun.’ I said, 'Where is it for my benefit and my safety?’ He said, T threw it down the hill and I ran.’ I said, 'Near the car?’ meaning near the accident, and he said, 'Yeah,’ and I said, 'Don’t tell me anymore right now. I will ask you again later,’ and then I patted him down, and I said, T am going to have to cuff you.’ He said, 'Yeah, I know.’ He said, something to the effect of, 'Don’t let them hurt me,’ or 'Stay with me.’ I told him not to worry, that everything would be okay, and we would get it all straightened out.” At 6:31 A.M., while John Swain walked toward the passenger side of the van, Officer Krieger radioed that she had "the suspect in custody.” She drove to Western Avenue and Broadbranch and was met by Montgomery County officers who brought the eyewitnesses for a show-up with Mr. Swain, and by District of Columbia police who were then "maintaining control of him.” He was taken into custody by ³⁶ detectives of the Second District Metropolitan Police Department, but returned to Montgomery County that evening following a waiver of extradition. Additional facts concerning the case will be presented with the discussion of the issues. I. Fresh Pursuit The appellant, John Swain, filed a pretrial motion to suppress evidence obtained in connection with his arrest.

He contended at the pretrial hearing that his arrest occurred in violation of the District of Columbia Fresh Pursuit Act, D. C. Code §§ 23-901 through 23-903 (1973). Section 23-901 of this act authorizes: "Any member of a duly organized peace unit of. any State (or county or municipality thereof) of the United States who enters the District of Columbia in fresh pursuit and continues within the District of Columbia in fresh pursuit of a person in order to arrest him on the ground that he is believed to have committed a felony in such State shall have the same authority to arrest and hold that person in custody as has any member of any duly organized peace unit of the District of Columbia to arrest and hold in custody a person on the ground that he is believed to have committed a felony in the District of Columbia. This section shall not be construed so as to make unlawful any arrest in the District of Columbia which would otherwise be lawful.” Section 23-903 defines the term "fresh pursuit”, stating: "For purposes of this chapter, the term 'fresh pursuit’ shall include fresh pursuit as defined by the common law, also the pursuit of a person who has committed a felony or one whom the pursuing officer has reasonable grounds to believe has committed a felony. It shall also include the pursuit of a person whom the pursuing officer has reason ³⁷ able grounds to believe has committed a felony, although no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed.

Such term shall not necessarily imply an instant pursuit, but pursuit without unreasonable delay.” Applying this definition to the facts presented at the pretrial hearing, the hearing judge ruled that Mr. Swain was lawfully arrested. The judge stated that: "As to the fresh pursuit, considering the totality of the circumstances here, and in reviewing the law that I have been supplied with, I am satisfied that this is certainly fresh and certainly I can’t believe that in order for it to be a pursuit, that it is necessary that a police officer initially see the alleged suspect in one area and follow him across the line into another area. There are certainly circumstances as we have here that because of police communications, that Officer Krieger got information that I guess she was pursuing once she got down in D.C., and she knew who she was looking for. And much to his regret, she found him.

I am satisfied that this was fresh pursuit as envisioned by the D.C. statute, and that she had probable cause when she found Mr. Swain in D.C. some two, or three, four blocks from the D.C. line to arrest him.” On appeal Mr. Swain renews his challenge of the legality of his arrest. He submits that when the Montgomery County Police obtained permission to enter the District, until the moment of the arrest by Officer Krieger, she and her fellow officers were not in "pursuit” of anyone. Rather, the appellant contends, the police were only conducting a search. The appellant distinguishes a pursuit from a search in that a pursuit connotes the chasing of an object which has already been discovered and a search precedes its discovery.

In response, the State calls the appellant’s criterion "an ³⁸ artificial distinction,” and contends that the D. C. statute does not require continuing surveillance of a suspect or an uninterrupted knowledge of his location. The meaning of "fresh pursuit” must be construed according to the purpose of the D. C. statute. Its purpose is the protection of the District citizens by allowing surrounding jurisdictions’ police to enter the District when they are in "fresh pursuit” of one whom the police has reason to believe has committed a felony and has subsequently crossed the D. C. line. The D. C. city limit is an artificial political border which criminals do not respect and use to their own advantage when committing crimes.

In many cases the effect of the statute will be a much quicker apprehension of the suspect, who is potentially dangerous to D. C. citizens, than would occur if the foreign police were required to stop at the D. C. border and notify the D. C. police, through normal bureaucratic channels, of the description of the suspect, his last location and direction of travel, the crime involved, his propensity for violence, etc. The statute’s purpose is accomplished by allowing a neighboring police department to continue its activities, whether characterized as a pursuit or a search, into the District whenever the totality of the circumstances makes it more reasonable for it to do so than to notify the D. C. police, who would then have to begin the pursuit or search anew. See The Council on State Government, The Handbook on Interstate Crime Control (rev. ed. 1966) 119, quoted in Hutchinson v. State, 38 Md. App. 160, 168 , 380 A.2d 232 (1977), cert. den., 280 Md. 734 (1978). The statute obviously encompasses a bumper-to-bumper high speed chase across the District line and just as obviously does not encompass looking for a Baltimore City robbery suspect in the District on a mere hunch. This case falls between the two extremes and we must decide how to determine whether or not it falls within the statute.

The first requirement is contained in the statute itself, that the police have reasonable grounds to believe that the suspect has committed a felony. See D. C. Code §§ 23-901 through 23-903 (1973). In this case Officer Krieger testified ³⁹ that she drove into the District after hearing the police broadcast of a suspected murder and that a black male had been seen running from the victim’s car. Thus, the first requirement is met.

The second requirement is also enunciated in the statute: "[fresh pursuit] shall not necessarily imply an instant pursuit, but pursuit without unreasonable delay.” D. C. Code § 23-903 (1973). The police must pursue within a reasonable period of time. If they do not have sufficient clues immediately at hand to enable them to pursue the suspect, they obviously cannot do so. But upon receiving information sufficient to make a pursuit possible, they must do so, otherwise they would be just as effective if they notified the D. C. police about the information and allowed them to do the pursuing.

In Hutchinson v. State, supra, 38 Md. App. at 168-69 , we applied the D. C. Fresh Pursuit Act and relied on Kansas v. Tillman, 208 Kan. 954 , 494 P.2d 1178 (1972), because both Kansas and Missouri had enacted the Uniform Act on Fresh Pursuit, as had the District. In Tillman a private citizen followed two armed robbers from Kansas into Missouri and notified police in both states of the location of the abandoned getaway car. Missouri police determined that the car was owned by a Missouri car rental agency which had rented it to one Gratten. Kansas police first staked out Gratten’s residence, then proceeded to the rental agency and arrested the suspects after being informed that they had been seen there.

The police had gone to the scene of the robbery, learned of the location of