Thomas v. State

THEODORE G. BLOOM, Judge, Retired, Specially Assigned. Appellant, Edward Thomas, was convicted by a jury in the Circuit Court for Baltimore County (Hennegan, J. presiding) of robbery, first degree assault, second degree assault, attempted robbery, and attempt to remove a firearm from the possession of a law enforcement officer. In accordance with Maryland Code (1957, 1996 Repl.Vol., 1998 Supp.) Article 27, § 643(B)(c), 1 appellant was sentenced, as a recidivist, to a prison term of twenty-five years without parole for the robbery. He was also sentenced to a consecutive term of ten years for the first degree assault, a consecutive term of ten years for the attempt to remove a firearm from the possession of a law enforcement officer, and concurrent terms of two years on each of the other offenses.

In this appeal from those judgments, appellant presents us with the following questions: 1. Did the court below err in refusing to suppress an in-custody statement made by appellant in the absence of Miranda warnings? ²⁸⁰ 2. Did the court below err in admitting prejudicial hearsay evidence? 3. Did the court below err in allowing the State to enter a nolle prosequi to a charge of theft? 4.

Was the evidence insufficient to sustain the charges of: (a) robbery of Alice Miller; (b) first degree assault of Allen Bleach; (c) second degree assault and attempted robbery of Douglas Irwin? FACTS The following facts were adduced at trial. Alice Miller testified that, on 4 May 1998, she went to her bank at about 2:30 p.m. She parked her car in the bank’s parking lot, which abutted a wooded area on one side.

She completed her transaction at the bank and, as she left the building, a man came out of the woods and down a hill and said, “This is a stickup.” She noticed that he had something in his hand but did not know what it was; it might have been a gun or a stick. She started screaming. The man grabbed her purse off her shoulder and, in doing so, spun her around. The man ran away, over a hill, and another man chased after him.

Later, the man who chased the purse snatcher came back to the bank and said he could not catch him, but another man came in the bank and gave her purse back to her. Nothing was missing. Subsequently, the police drove her around to where they had caught the culprit; they had him on the ground and he was biting an officer. In court, Ms. Miller was not asked to identify the person who took her purse and, consequently, did not identify appellant as the culprit.

Detective Andy Essery testified that on 4 May 1998 he was with a team of about fifteen police officers, all in plain clothes, who were conducting a surveillance “on the lower end of Liberty Road in a high crime area.” Essery was in a vacant apartment on Aurora Lane. At about 2:30 p.m., he observed a black male, dressed in a grey top and carrying something in his hand, run past the detective’s surveillance position. Three or four seconds later, an older black male also ran past, ²⁸¹ apparently chasing the first man, saying, “Yeah, you. You just snatched that lady’s purse.” Essery left the apartment and joined the second man in pursuing the first one, who was later determined to be Edward Thomas, the appellant.

As they ran, Essery asked the older man what happened. The latter “replied that the subject he was chasing just grabbed a purse from the lady at the bank.” Detective Essery and the older black man chased appellant until they came to a wooded area, where Essery lost sight of appellant momentarily. Then he saw appellant again, but they were on opposite sides of a chain link fence. Appellant tried to climb the fence, but Detective Bleach, who was on the same side of the fence as appellant, pulled him to the ground.

Appellant and Bleach fought, and appellant got away from Bleach just as Essery and Detective Irwin managed to get to the same side of the fence that appellant was on. Essery and Irwin tackled appellant and brought him to the ground. Appellant had no weapons of any kind on his person. Detective Bleach testified that he, like his colleagues, was in “nondescript clothing: jeans, T-shirts, tennis shoes.” At about 2:30 p.m. on 4 May 1998, Bleach was in an unmarked car in the parking lot of a church on St. Lukes Lane.

He received a call from Detective Essery that someone was running and being chased by another man. Responding to that call, Bleach drove to the front of an apartment complex on Aurora Lane. When he arrived at that location, he saw two men running as had been described to him. Bleach “bailed out of his car and ran toward the first subject [appellant], asking for him to freeze,” and telling him he was under arrest.

Appellant started climbing over a fence, and Bleach grabbed him by the ankles and pulled him down. Appellant broke free, and the man who had been chasing him started yelling, “Don’t let him go. He’s the one. He’s the one that did it.

Don’t let him go. Don’t let him get away.” Appellant tried to climb the fence again, but Bleach pulled him down, managed to get him on the ground in a prone position, and told him again that he was under arrest. ²⁸² While Bleach was on top of appellant, attempting to subdue him, appellant sank his teeth in Bleach’s left forearm. As Bleach pulled his arm away from appellant’s mouth, he heard “the flesh rip” and let go of appellant. Appellant got to his feet and hit Bleach on the side of his face, and then both men exchanged punches for a couple of minutes until other officers arrived and eventually subdued appellant.

Bleach was treated at Northwest Hospital for the bite wound and other injures he sustained in the scuffle with appellant. Appellant had also been taken to the same hospital for examination and treatment. Bleach, concerned that he might have been infected with hepatitis or some other disease through the bite wound, asked appellant to give a blood sample to be tested for certain diseases that may have been transmitted. He told appellant, “I’m the detective that you bit,” and that he needed to know whether appellant had any diseases.

Appellant apologized for biting Bleach and said, “I didn’t mean anything by that; nothing personal. You have to understand, I needed to get away.” He told Bleach he would allow his blood to be taken. Detective Bleach’s trial testimony regarding his conversation with appellant at the hospital was substantially the same as his earlier testimony at a hearing on appellant’s motion to suppress evidence of that conversation, which had not been preceded by advice about his Miranda rights, and to suppress as well the confession he made after having been given the standard Miranda warning. 2 Detective Irwin testified that he was in another apartment in the area when he heard Essery’s broadcast. He ran out, got picked up by another officer, and drove to the intersection of Brubar Court and Liberty Road, where he saw a black man wearing a hooded sweatshirt climbing a fence at the top of the hill.

Irwin ran up the hill, and at the top he found himself on the opposite side of the fence from appellant. He saw Detec ²⁸³ tive Bleach pull appellant down from the fence and onto the ground. Bleach and appellant then “engaged in a fist fight, a street fight____ They were rolling around on the ground throwing punches, hitting each other in the face, in the upper body.” Eventually, Irwin crawled under the fence and grabbed appellant, who scratched Irwin across the forehead and down across his eye. Grabbing appellant by the throat with his right hand, Irwin forced appellant to the ground, where the struggle continued.

Then Irwin felt a tug on his pistol holster. He glanced down and saw that the retention strap on his holster was unsnapped. Appellant’s hand was on Irwin’s pistol and was removing the pistol from the holster. Irwin was able to get his pistol back in the holster and shove appellant’s hand away.

Finally, Detective John Martin testified that he met with appellant at about 11:10 p.m. on 4 May 1998. He read appellant his Miranda rights from a printed form and had appellant sign the form acknowledging that he had been informed of and understood his rights. Appellant agreed to answer questions but declined to give a written statement. Martin then questioned appellant and made notes of the interview from which he later prepared a summary of appellant’s statement.

Martin began the interview by asking appellant why he had robbed the woman. Appellant said that “he robbed her because he didn’t have any money and Mother’s Day was coming up and he didn’t have any money in [sic] which to buy gifts for his mother, his sister, or his girl friend.” He further stated: [H]e had left his apartment on Aurora Lane without any intention to do any robbery. But then as he was out walking around, he decided that he wanted to get some money. He saw a woman leaving the bank on the corner of Liberty Road and Sedgemore Road.

And at that point he decided he was going to snatch her purse. ²⁸⁴ ... [H]e simply approached the victim as she was entering her car, grabbed her purse off of her shoulder and then proceeded to run toward a small wooded area which is on the side of the bank parking lot. As he proceeded to run though the wooded area, he realized that he was being chased by an elderly black man who was yelling something at him, but he did not know exactly what the man was yelling. ... [H]e continued to flee which would basically be an eastbound direction in relation to Liberty Road. As he fled that way, he got to the end of a building, an apartment building. He began to turn the corner at which time he saw what he thought was a pickup truck pull up on what would be Aurora Lane.

He saw a man jump out of the pickup truck and come toward him. ... [H]e ... assumed that person was also in pursuit of him. He threw the purse that he had stolen from the victim on the ground of Aurora Lane and proceeded to go through a break area in the fence. At that point, he believed that he was on the opposite side of the fence from the people who were pursuing him. Appellant also told Detective Martin that he was running along the fence when he saw Detective Bleach coming after him, but he did not then know that Bleach was a police officer.

He started to climb back over the fence, but Bleach pulled him down. Appellant decided to fight rather than submit to arrest because “he backed up eight years.” When Bleach had him down on the ground, appellant decided to bite him in order to get free. After the other police officers arrived, and Detective Irwin started choking him, he realized that they were all police officers. Detective Martin initially testified that appellant said he tried to take Irwin’s gun in order to get away, but on cross-examination he acknowledged that what appellant actually said was that, when Irwin was choking him, “he could not breathe, so he was going to use the gun to get out of the ²⁸⁵ choke hold.” Appellant also told Detective Martin that he had no sort of weapon when he took the purse.

The older man who had pursued appellant left the scene without being identified, and the police were never able to locate him. Appellant did not testify at trial and presented no evidence in defense of the charges, which initially included several counts that were nolle prossed by the State. I. In his pre-trial motion to suppress, appellant contended that the statement he made to Detective Bleach at the hospital should not be admitted in evidence because it had been obtained without Miranda warnings. In this appeal, he asserts that the court erred in denying his motion to suppress that statement.

The court also denied appellant’s motion to suppress his post-Miranda warnings confession to Detective Martin, which appellant contended was not freely and voluntarily made. No contention is made on appeal about the ruling on that motion or the admission of the confession in evidence. There was and is no dispute about the fact that appellant was in custody at the time Bleach approached him in the hospital and asked him to submit to a blood test. Appellant was lying on a gurney, waiting to be seen by a doctor.

He had been arrested and was under police guard. It is also undisputed that no Miranda warning had been given to appellant. The ruling of the court at the suppression motion hearing was that the conversation between Bleach and appellant was admissible because it did not involve “interrogation.” Appellant argues that whether Bleach’s purpose was to interrogate him or to obtain an incriminating admission is immaterial. He relies on Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980), in which the Supreme Court stated that “the Miranda safeguards come into play whenever a person in custody is subjected to either express ²⁸⁶ questioning or its functional equivalent.” 446 U.S. at 300-01 , 100 S.Ct. 1682 .

The Court explained: That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.

Id. at 301 , 100 S.Ct. 1682 . (Footnote omitted.) The Court further observed that by “incriminating response” it meant “any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial.” Id., n. 5. The foregoing language in Innis has been quoted with approval in many subsequent cases. See, e.g., Pennsylvania v. Muniz, 496 U.S. 582, 600-601 , 110 S.Ct. 2638 , 110 L.Ed.2d 528 (1990), and Arizona v. Mauro, 481 U.S. 520, 526-27 , 107 S.Ct. 1931 , 95 L.Ed.2d 458 (1987).

In Hughes v. State, 346 Md. 80 , 695 A.2d 132 (1997), cert. denied, 522 U.S. 989 , 118 S.Ct. 459 , 139 L.Ed.2d 393 (1997), the Court of Appeals reversed convictions for possession of cocaine with intention to distribute it, conspiracy to distribute cocaine, and related offenses, because the defendant’s answer to a post-arrest processing question about whether he was a “narcotic or drug user” was introduced in evidence against him despite the fact that he had not been advised of his Miranda rights prior to being questioned. The Court discussed the well recognized “routine booking question” exception to Miranda that had been applied in this State as well as ²⁸⁷ in other jurisdictions even before the Supreme court enunciated it in Pennsylvania v. Muniz, 496 U.S. 582 , 110 S.Ct. 2638 , 110 L.Ed.2d 528 (1990), but concluded that it did not encompass a question on an arrest intake form as to whether the arrestee is a narcotic or drug user. The Court observed that the Supreme Court’s decision in Rhode Island v. Innis, supra, prompted a subtle change in the application of the booking question exception. The Court then noted that, “[i]n some instances, it is plain from the nature of the question whether it is aimed at merely gathering pedigree information for record keeping purposes, or whether it is directed at procuring statements by the suspect that, either in isolation or in connection with other known facts, will tend to prove the suspect’s guilt.” 346 Md. at 95 , 695 A.2d 132 .

Using language similar to that used by the Supreme Court in Innis , the Court of Appeals said: Even if a question appears innocuous on its face, however, it may be beyond the scope of the routine booking question exception if the officer knows or should know that the question is reasonably likely to elicit an incriminating response. Id. (Emphasis added.) In this case, Bleach said that it was not his purpose to interrogate appellant; he approached appellant in the capacity of a victim. Nevertheless, he certainly should have known, had he given it any thought, that any favorable response to his request that appellant permit a blood sample to be taken would constitute either an express or implicit acknowledgment by appellant that he had bitten the officer.

Under the standard pronounced in Innis , therefore, Detective Bleach’s request that appellant submit to a blood test constituted an interrogation, even though it was not intended as such. That appellant, while in custody, was “interrogated” by Detective Bleach without having been “Mirandized” does not end our analysis, however. There are two judicially recognized exceptions to the application of Miranda that must be examined in the light of the peculiar facts of this case. ²⁸⁸ Even prior to Miranda, the appellate courts in California adopted what has since been referred to as the “rescue doctrine.” People v. Modesto, 62 Cal.2d 436 , 42 Cal.Rptr. 417 , 398 P.2d 753 (1965), later app. 66 Cal.2d 695 , 59 Cal.Rptr. 124 , 427 P.2d 788 , cert. denied Modesto v. Nelson, 389 U.S. 1009 , 88 S.Ct. 574 , 19 L.Ed.2d 608 (1967), involved a kidnapping. Without warning the suspect that anything he said might be used against him in court, the police questioned him about the location of the kidnapped victim.

Their professed motive was to locate the victim, who might still be alive, as soon as possible. Furthermore, the officers felt that warning the suspect that any response to their questions could be used as evidence against him could have thwarted their efforts to rescue the victim. The Supreme Court of California upheld the right of the police to question the suspect before warning him, because the motive of the interrogation was to rescue the victim, not to acquire incriminating evidence. It also upheld the use of the suspect’s incriminating response (revealing the whereabouts of the victim) as evidence against him.

Subsequent to the Miranda decision, People v. Dean, 39 Cal.App.3d 875 , 114 Cal.Rptr. 555 (4th Dist.1974), applied the rescue doctrine in another kidnapping case, affirming a conviction based, in part, on the defendant’s inculpatory response to questions — without prior Miranda warnings — designed to find and rescue the kidnapped victim. The court held that, even after Miranda, the Modesto rescue doctrine was still a vital part of the law of California. The doctrine was discussed and described in People v. Riddle (2d Dist.1978), 83 Cal.App.3d 563 , 148 Cal.Rptr. 170 , cert. denied 440 U.S. 937 , 99 S.Ct. 1283 , 59 L.Ed.2d 496 (1979). In that case, a prosecution for kidnapping and murder, the court explained that the doctrine requires the existence of the following elements: 1. urgency of need, in that no other course of action promised relief; 2. the possibility of saving a human life by rescuing a person whose life was in danger; and ²⁸⁹ B. the rescue was the primary purpose and motive of the interrogators.

The rescue doctrine, as explained in Riddle , was approved and followed in People v. Willis, 104 Cal.App.3d 433 , 163 Cal.Rptr. 718 , 9 A.L.R.4th 578 (2d Dist.1980), cert. denied 449 U.S. 877 , 101 S.Ct. 222 , 66 L.Ed.2d 99 (1980). See also annotation in 9 A.L.R.4th 578 . Analogous to the California rescue doctrine is the public safety exception announced in New York v. Quarles, 467 U.S. 649 , 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984). In that case, a woman approached two police officers, asserting that she had just been raped.

She described her assailant and told the police that he had a gun and that he had just entered the nearby supermarket. While one officer went to call for assistance, the other entered the supermarket and spotted a man who fit the description of the assailant. That man turned and ran toward the rear of the store, and the officer followed him but lost sight of him for a moment. The officer eventually caught up with the suspect, stopped him, and frisked him.

The suspect was unarmed, but he was wearing an empty shoulder holster. The officer arrested and handcuffed the suspect and, without taking the time to read him his Miranda “rights,” asked, “Where’s the gun?” The suspect nodded his head in the direction of a counter and said, “Its over there behind that counter.” The gun was retrieved and the suspect was charged with illegal possession of a handgun. The New York Supreme Court granted the defendant’s motion to suppress his initial statement to the arresting officer, a statement made later after receiving the standard Miranda warning, and the gun. The Appellate Division of the New York Supreme Court and the New York Court of Appeals affirmed the suppression order, but the United States Supreme Court, in a five to four decision, reversed.

The majority adopted a public safety exception to the Miranda requirement that no statement made by a suspect in police custody before being told his rights, as set forth in Miranda, may be used in evidence against the suspect. Justice Ren-quist, writing for the Court, stated: ²⁹⁰ For the reasons which follow, we believe that this case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda. 467 U.S. at 653 , 104 S.Ct. 2626 . (Footnote omitted.) The Court noted that the case presented no claim that the respondent’s statements were actually compelled by police conduct that overcame his will to resist and that the only issue before it was whether Officer Kraft was justified in failing to advise the respondent of “the procedural safeguards against compulsory self-incrimination since Miranda.” Stating that the facts of the case came within the ambit of the Miranda decision as it had subsequently been interpreted, and that the respondent was in police custody when he responded to the officer’s question concerning the location of the gun, the Court held: [ O]n these facts there is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer.

Undoubtedly most police officers, if placed in Officer Kraft’s position, would act out of a host of different, instinctive, and largely unverifiable motives — their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect. Whatever the motivation of individual officers in such a situation, we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. The Miranda decision was based in large part on this Court’s view that ²⁹¹ the warnings which it required police to give to suspects in custody would reduce the likelihood that the suspects would fall victim to constitutionally impermissible practices of police interrogation in the presumptively coercive environment of the station house.... The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket.

So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it. In such a situation, if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles’ position might well be deterred from responding. Procedural safeguards which deter a suspect from responding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege; when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear the cost. Here, had Miranda warnings deterred Quarles from responding to Officer Kraft’s question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles.

Officer Kraft needed an answer to his question not simply to make his case against Quarles but to insure that further danger to the public did not result from the concealment of the gun in a public area. We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether ²⁹² it best serves society for them to ask the necessary questions without the Miranda warnings, and render whatever probative evidence they might uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them. In recognizing a narrow exception to the Miranda rule in this case, we acknowledge that to some degree we lessen the desirable clarity of that rule....

As we have in other contexts, we recognize here the importance of a workable rule “to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” But as we have pointed out, we believe that the exception which we recognize today lessens the necessity of that on-the-scene balancing process. The exception will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it. We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect. 467 U.S. at 655-59 , 104 S.Ct. 2626 . (Citations and footnote omitted.) The dissenting opinions asserted that a public safety exception to Miranda is unnecessary because in every case an officer can simply ask the necessary questions to protect himself and the public without the prosecution introducing any incriminating responses at a subsequent trial.

Justice O’Con-nor, in a separate opinion, dissented in part (to the holding that Quarles’s initial response to the officer’s question, ‘Where’s the gun?” was admissible) and concurring in part (to the holding that the gun was admissible). She pointed out that the public should bear the costs — inadmissibility of the response to a question asked prior to Miranda warnings— when the question is asked for the purpose of protecting public safety, just as it bears the costs of exclusion of incrimi ²⁹³ nating evidence in order to preserve the Fifth Amendment protection against compelled self-incrimination that the Miranda prophylactic rule was designed to enhance. In a footnote, the majority opinion rejected those arguments of the dissenters, stating: [AJbsent actual coercion by the officer, there is no constitutional imperative requiring the exclusion of the evidence that results from police inquiry of this kind; and we do not believe that the doctrinal underpinnings of Miranda require us to exclude the evidence, thus penalizing officers for asking the very questions which are the most crucial to their efforts to protect themselves and the public. 467 U.S. at 658, n. 7 , 104 S.Ct. 2626 . The language employed by the Court in adopting the public safety exception to