Vines v. State

Melvin, J., delivered the opinion of the Court. Moylan, J., concurs and filed a concurring opinion at page 668 infra. Lowe, J., dissents and filed a dissenting opinion at page 867 infra, On May 18,1976, the appellant, Jasper Vines, Jr., was found guilty at a jury trial in the Criminal Court of Baltimore of possession of heroin in sufficient quantity to indicate an intent to distribute. He had been charged with that offense as a subsequent offender, and following the jury verdict on May 18,1976, elected to have the issue of whether or not he was a subsequent offender tried by the court.

The court determined that he was a subsequent offender and on July 22, 1976, he was sentenced to the custody of the Division of Correction for a period of 20 years. In this appeal, four questions are presented: “1. Did the trial judge err in denying Appellant’s motion to suppress his alleged confession? 2. Is Appellant’s conviction and sentence as a second offender under Article 27, § 800 null and void? 8.

Did the trial judge err in denying Appellant’s motion to suppress evidence? 4. Was the evidence sufficient to sustain Appellant’s conviction?” As we find no reversible error, the judgment below will be affirmed. I Appellant was arrested on September 15,1975, at his home at 420 North Castle Street in Baltimore during the execution ⁶⁶⁰ of a search and seizure warrant. He was taken to police headquarters and advised of his Miranda rights by Detective Snipes, whereupon appellant stated he did not want to answer any questions and according to police witnesses none were thereafter asked.

Appellant was then taken from the interview room to the “roll call” room in the same building. There was a table in the roll call room on top of which were displayed several “tinfoil packets”. One of the three police officers in the room then told the appellant that the items displayed had been recovered from 420 North Castle Street. According to police testimony the appellant then “stated that it was his stuff” and “wanted to know what he could do to help himself out”.

On appeal, appellant contends that the display of narcotics was tantamount to unlawful “interrogation” in violation of the dictates of Miranda v. Arizona, 384 U. S. 436 (1966). We disagree. As stated by the U. S. Supreme Court in Miranda, supra, at 478: “In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement.-Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.

The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated.... Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” (Emphasis supplied) Under the circumstances here, we do not interpret the statement made by the police to the appellant and the appellant’s viewing of the narcotics as “interrogation” simply because they were followed by an incriminating disclosure from the appellant. See Brewer v. Williams, 430 U. S. 387, 419-420 (1977) (Burger, C. J. dissenting); Howell v. State, 5 ⁶⁶¹ Md. App. 337 (1968); Hopkins v. State, 19 Md. App. 414 (1973), cert. denied, 271 Md; 738 (1974); Cummings v. State, 27 Md. App. 361 (1975); Dent v. State, 33 Md. App. 547 (1976); Humphrey v. State, 39 Md. App. 484 (1978). Thus, although the inculpatory statements were made in a custodial setting, we hold that they were not the product of “interrogation” proscribed by the Miranda decision.

Appellant’s further claim that the inculpatory statements were not voluntary as being the result of “phsychological coercion” is likewise without merit. It is not disputed that shortly before making the inculpatory disclosure, appellant had been fully apprised of his right to remain silent and that anything he said might be used against him in a court of law. It is also undisputed that he understood those rights. Merely because the police entertained the hope (not expressed to appellant) that the display of narcotics would produce an incriminating statement does not mean that in allowing the appellant to view the display they were improperly compelling, coercing, or inducing the appellant to speak.

We agree with the trial judge who, in denying the motion to suppress, said: “The defendant I don’t think was compelled under the atmosphere to say anything, and he wasn’t asked any questions as far as I am concerned in the roll call room”. Ironically, according to appellant’s version of the events in the roll call room, the police never informed him that the drugs displayed were seized in the raid on his house, but rather in the area of a nearby bar — thus rendering the notion of “phsychological coercion” even more remote. Our independent review of the record as a whole convinces us that the appellant’s constitutional privilege against compulsory self-incrimination was in no way violated. II Appellant contends that his conviction and sentence as a subsequent offender is a nullity because the addendum filed with the indictment pursuant to then Rule 713 b referred to the wrong section number of Article 27 (i.e. section 300 instead of section 293).

This contention is likewise devoid of ⁶⁶² merit. The addendum properly set forth all the facts necessary to charge appellant as a subsequent offender under the correct section number (293). The parenthetical notation to section 300 at the end of the addendum was non-essential and mere surplusage. As said by the Court in Sonnier v. United States, 314 F. 2d 69, 70 (4th Cir. 1963), the appellant “could not have been more clearly informed of the nature of the charge against him if the correct citation had been made”.

See, also, Kirsner v. State, 24 Md. App. 579, 583 , cert. denied, 275 Md. 752 (1975). Ill The appellant attacks the sufficiency of the probable cause in the application for the search and seizure warrant that resulted in his arrest and the seizure of the heroin he was charged with possessing. Applying the “two pronged test” of Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969), we note that appellant argues only that the “veracity prong” of the test has not been met. In this regard, the affidavit in support of the warrant states: “[The informant] has proven to be reliable in the past and has supplied your affiant information which has led directly to the arrest of (1) person for a narcotic violation and the recovery of a quantity of controlled dangerous substance. [The informant] has also made another controlled narcotic purchase for your affiant. [The informant] has supplied information to your affiant which your affiant has verified and found to be true and factual. [The informant] states that he or she is familiar with heroin and its effects and has used heroin in the past. [The informant] further stated that he or she is also familiar with the manner in which heroin is packaged for street sales and the prices of heroin.” In addition, the affidavit describes in detail a “controlled buy” from the appellant performed by the informant under the direct supervision of the affiant. ⁶⁶³ Under the circumstances, we have no difficulty in concluding that there was sufficient probable cause for issuance of the warrant.

Sewell v. State, 34 Md. App. 691 (1977). IV Finally, appellant challenges the sufficiency of the evidence to warrant his conviction. Our review of the record convinces us that this contention is totally meritless. Williams and McClelland v. State, 5 Md. App. 450 (1968).

Judgment affirmed. Costs to be paid by appellant. Moylan, J., concurring'. I concur.

I join unequivocally both in the result in this case and in all aspects of the majority opinion by Judge Melvin. By way of concurrence, however, I offer these few additional comments in the desire to come to grips with the sincere, but unsettling, observations made by Judge Lowe in dissent. I share his anguish at what seems, sometimes, to happen to the language as it is used by courts. He chides the Law for not always meaning what it seems to be saying.

I find his observations particularly unsettling because they reinforce an increasingly entertained feeling of my own that the language of the Law frequently fails utterly to communicate what is really happening. It would behoove us, I submit, to take a leaf from the book of the Realistic School of Jurisprudence, led by Karl Llewellyn of Columbia and Jerome Frank of the Second Circuit, which revolutionized in the 1930’s our thinking about the very process of Law. Their first commandment was to look beneath the surface of the words used by courts at what is really happening within courts and judges. Animated by that realistic approach, I note the following observations.

Judge Lowe reads the facts in this case to fall beneath the coverage of Miranda v. Arizona. I agree with Judge Melvin ⁶⁶⁴ that the facts in this case are not covered by Miranda v. Arizona. Even assuming, however, that Judge. Lowe’s reading of the facts is correct (which I do not believe), I still could not agree with his legal conclusion.

His logic, otherwise impeccable, proceeds, I believe, from a false premise. The unspoken predicate for Judge Lowe’s analysis is that the spirit of Miranda r. Arizona is still alive and well on East Capitol Hill. It is my reading of both the case law and of the history of our times that the spirit of Miranda has been dead for a decade.

Because of judicial procedural conservatism, Miranda, as a shriveled skeleton of itself, is not technically dead. It is still capable of controlling a situation squarely on all fours with its facts. As a vital juridical force, however, capable of even minor extension to other sets of facts, it was sapped of all vitality as long ago as the Presidential Election of 1968. The law, in splendid isolation, simply cannot ignore what every realistic layman knows to be true.

Leaving aside all value judgment and simply assessing the judicial-political realities of our times, Miranda v. Arizona came at the very crest of the Warren Court’s revolution of the constitutional-criminal process. More than any other case, Miranda became the public symbol of that revolution. It spawned countless state and federal proposals, both statutory and by way of proposed constitutional amendment, to dismantle much of the reform worked by the Warren Court. As Mr. Dooley observed a century ago, “The Supreme Court reads the election returns.” In significant measure, the election of 1968, for better or for worse, was a mandate to cut back on the Warren Court generally and on Miranda specifically.

In the wake of that mandate, the Supreme Court was significantly restructured qualitatively as well as quantitatively. Although the fiction of the law pretends otherwise, the Supreme Court is not a monolithic Rock of Ages but a fluid body, changing as its composition and the political complexion of that composition changes. It might well be that the Warren Court would have read the facts now before us as Judge Lowe reads them, but that is beside the point. I have no doubt that ⁶⁶⁵ the Burger Court would read the facts before us as Judge Melvin and I read them.

The hard reality is that the Burger Court, and not the Warren Court, today represents “the law of the land.” Not once since 1968 has the Supreme Court reversed a conviction on the basis of Miranda nor even held Miranda to apply. Despite clear language in Miranda pointing the other way, Harris v. New York, 401 U. S. 222 (1971), held that Miranda did not apply to a confession offered in rebuttal for purposes of impeachment. Michigan v. Tucker, 417 U. S. 433 (1974) , denied Miranda even the dignity of being of “constitutional dimension,” as it held that a Miranda violation was not even enough to trigger analysis under the “fruit of the poisonous tree” doctrine. Oregon v. Hass, 420 U. S. 714 (1975) , like Harris v. New York, refused to apply Miranda to a rebuttal-impeachment situation, dealing with a case where a request for counsel under Miranda had been flatly ignored by the police.

United States v. Mandujano, 425 U. S. 564 (1976) , refused to apply Miranda to interrogation before a grand jury. Oregon v. Mathiason, 429 U. S. 492 (1977), refused to apply Miranda to a case where a parolee-suspect voluntarily came to the police station and was there interrogated. In Brewer v. Williams, 430 U. S. 387 (1977), the Supreme Court, in reversing a conviction for what clearly could have been a Miranda violation, pointedly ignored the very existence of Miranda and based its decision on other grounds. The unmistakable message I get from the Supreme Court was expressed by this Court in Bartram v. State, 33 Md. App. 115 , 149: “To give ‘the broadest possible reading’ to Miranda in any respect is simply not the current tenor of Supreme Court thinking.

The constitutional interpretations of that Court are not immutable as the laws of the Medes and the Persians. It is to blink at reality for the law to pretend not to see what every literate layman knows — that Miranda v. Arizona is in definite disfavor with the strong majority of the ⁶⁶⁶ present membership of the institution charged with interpreting the law of the land. Miranda has not been overruled and is not likely to be overruled. The disfavor is manifested by its being read and applied in a restrictive rather than an expansive manner.” Even Judge Lowe’s reading of the facts must concede that the case before us is not absolutely controlled by a literal, four-square application of Miranda.

There is some room for maneuvering. We may determine, guided by the prevailing spirit of the law of the land, whether to squirm slightly forward or inch slightly backward. To discern that prevailing spirit, it is not enough to read Miranda in a vacuum. We must set a weather eye for the larger tide to see whether the direction of movement is forward or backward.

The trend is unmistakable. Its message is clear that Miranda, even as far as it goes, is in distinct disfavor and that it will not be extended by the Supreme Court by so much as a millimeter. This is the reason I perceive for giving Miranda a tightly restrictive reading in this case. If, on the other hand, Miranda. were riding a flood tide rather than an ebb tide, one might agree with Judge Lowe that a logical extension of its spirit would compel the result he urges.

My reading of the history of our constitutional law for the last decade indicates that as of 1978, Miranda is a setting sun and not a rising sun. I am not unhappy with this state of affairs but even if I were, objectively I would still have to read the history of the decade in the same way. I quite agree with Judge Lowe that a cleaner method of accomplishing this constitutional purpose would be frankly and candidly to overrule Miranda. That prerogative, however, lies in Washington and not in Annapolis.

Judge Lowe suggests as an alternative avenue for reaching the result he seeks a holding that the right to the assistance of counsel under the Sixth Amendment was violated. The Supreme Court has made it clear that an individual only becomes “the accused” for purposes of the attachment of the right to counsel as of the time of indictment. Kirby v. Illinois, 406 U. S. 682 (1972); Massiah v. United States, 377 U. S. 201