Younie v. State

Moylan, J., delivered the opinion of the Court. The appellant, Walter A. Younie, was convicted in the Circuit Court for Baltimore County by a jury, presided over by Judge H. Kemp MacDaniel, of first degree murder and armed robbery. He now contends: (1) That the State deliberately suppressed material evidence favorable to him in contravention of Brady v. Maryland, 373 U. S. 83 ; and (2) That the court erroneously permitted an interrogating detective to recite to the jury the fact that the appellant refused to answer certain specific questions, which questions and nonresponses were interspersed in a series of admittedly proper questions and answers. Both issues may be more intelligibly viewed in the context of the total case implicating the appellant.

On December 27, 1971, at approximately 7:30 p.m., Reuben J. Kaufman, an employee at the B & F Liquor Store on Pulaski Highway in Baltimore County, was killed by a shotgun blast at close range in the course of an armed holdup. Two hundred and sixty-five dollars were taken in the course of the robbery. A number of witnesses established uncontrovertedly that three men had been observed parked near the store, in a dark-colored Cadillac, shortly before the robbery. Another witness, shortly thereafter, saw two men running out of the store, one of them carrying a shotgun.

At approximately 8:15 that same evening, the police discovered a recently burned out Cadillac abandoned near the intersection of Macon Street and Erdman Avenue in Baltimore City. A computerized records check revealed that the Cadillac had recently been stolen from its owner in Quincy, Massachusetts. It was, however, bearing Connecticut license tags issued on December 9, 1971, to ⁴⁴² Adelbert Grondin of Hartford, Connecticut. Zeroing in on the name Grondin, the police began to check motels and hotels in the Baltimore area.

At approximately 9:30 a.m. on December 28, the police discovered that Adelbert Grondin and an ostensible John McCarron had at 12:45 p.m. on the preceding afternoon checked into the New Motel on Route 40, in the general vicinity where the burned out Cadillac was found. They had checked out, however, at 8:50 a.m. on December 28, some 40 minutes before the police arrived. They had left in a Sun Cab. The motel clerk identified photographs which indicated that the ostensible John McCarron was in fact John D. McCormack.

A taxicab driver recalled picking up two men from room 58 (the room where Grondin and McCormack were registered) and driving them “as far west as they could go for $6.” He dropped them off at the Normandy Shopping Center on Route 40 west of Baltimore. Both Grondin and McCormack were arrested a short time later in Frederick, Maryland. At shortly before midnight on December 27, the police began discovering parts of a dismantled shotgun and live shotgun shells in the general vicinity of the burned out Cadillac and of the New Motel. Proceeding from the robbery scene westward on Pulaski Highway, the police found one spent shotgun shell near the curb of Pulaski Highway, one and six-tenths miles from the robbery scene.

Proceeding further westward on Pulaski Highway and then by way of Erdman Avenue to North Macon Street, the police came to the burned out Cadillac, an additional two and one-half miles from where the spent shotgun shell was recovered. A short distance away from the burned out Cadillac near the Penn Central Railroad tracks, the forestock of the shotgun was found. Across the street, 138 feet away, the double barrel of the shotgun was found. Sixty-seven feet away, the stock was found.

The gun was a 16 gauge sawed-off shotgun. It was missing the trigger guard. Within a radius of 100 feet, three live shotgun shells were recovered. From that vicinity, North Kresson Street leads to Monument Street, a tenth of a mile away.

Along the North Kresson Street route, a fourth live shotgun cartridge was found. From the intersection of ⁴⁴³ North Kresson Street and Monument Street, it is two-tenths of a mile to the New Motel. Astute police work tracked the investigative spore back to Hartford, Connecticut. Two separate witnesses established that 1) the appellant, 2) McCormack, 3) Grondin and 4) the appellant’s traveling companion named Loretta Scully had been together in Hartford throughout the week preceding Christmas and had left on or about December 26.

One witness testified that the foursome drove around Hartford in a blue Cadillac and that the Cadillac was bearing Connecticut license tags which had been issued to Grondin. Both witnesses, who knew the appellant well, identified the reassembled shotgun as similar to the sawed-off, 16 gauge shotgun which each had seen on separate occasions, in the apartment of one and in the place of business of the other, in the possession of the appellant. One was aware that the appellant’s shotgun lacked a trigger guard and testified further that the appellant was very reluctant to let the gun out of his own hands and refused to permit anyone else to touch it. Loretta Scully was granted immunity and testified as a State’s witness.

She testified that she left Hartford on December 26 in the company of the appellant, McCormack and Grondin. They first drove to Boston to pick up her pocketbook and then drove to Baltimore. The appellant drove the Cadillac and Miss Scully thought that the car was his. They checked into the New Motel in Baltimore in the early afternoon of December 27, all four of them sharing the room which was registered only to McCormack and Grondin.

Miss Scully took a nap after her three male companions left the motel room at approximately 3 p.m. They returned at approximately 8:30. Because of their loud and excited conversation, Miss Scully asked the three what was wrong. McCormack informed her that they had robbed a liquor store and that in the process, a man had been shot.

The appellant confirmed the robbery and told Miss Scully that he had done the shooting. She had seen the appellant with the sawed-off shotgun in Connecticut but had not seen it in the car during the trip to Baltimore. Her three male companions ⁴⁴⁴ told her that they had stopped on the way back from the robbery and set the car on fire. They had then returned to the motel on foot.

She observed them place approximately $200 on the bed. It was separated into three piles. Each of the three men took one of the piles. After hearing a news broadcast about the murder on the following morning, it was agreed that the party would split up into two groups and meet later in Columbus, Ohio.

Miss Scully left with the appellant and drove to the Greyhound Bus Terminal in downtown Baltimore. They took a bus to Wheeling, West Virginia, and then hitchhiked on toward Columbus, finishing the journey in a stolen car. When Grondin and McCormack failed to show up for the rendezvous, Miss Scully and the appellant continued westward. They were ultimately arrested in Putnam, Indiana, when they pulled away from a gas station without paying.

The appellant, furthermore, after having been given full Miranda warnings, had made incriminating admissions to the police to the effect that he knew both McCormack and Grondin, that he drove the dark blue Cadillac to the armed robbery scene although he denied going in, that the Cadillac had- been stolen from Quincy, Massachusetts, that the Cadillac had been left near a railroad underpass after being set on fire, that he had come from Hartford with Loretta Scully who stayed at the New Motel, and that Loretta Scully did not know that there was going to be a holdup. He does not now attack the admissibility of those statements. The Suppression (Question Added to that overwhelming evidence of guilt was the testimony of an eyewitness, Irvin Lambdin. It is on the periphery of Mr. Lambdin’s testimony that the suppression issue is raised.

Mr. Lambdin, a regular patron of the B & F Liquor Store, drove up to the store on the evening of December 27 with the intention of purchasing a case of beer. As he approached the front door, some unarticulated premonition caused him to hesitate. He had observed that only two cars were on the ⁴⁴⁵ parking lot, one of which he assumed to be the store manager’s and the other of which was a Cadillac. He discerned a male form in the Cadillac.

From the silence in the store and from the holiday season (which he described as a time of high incidence for robberies), he felt a sixth sense awareness that trouble was afoot. He retreated to the rear of his own automobile. He was standing there, curious and observant, when he saw two men burst from the store and run for the Cadillac. The second of the two men was carrying a sawed-off shotgun.

The gun was thrown on the floor of the car, the two men jumped into the Cadillac, and the Cadillac took off at a high rate of speed. Mr. Lambdin later identified the burned out Cadillac as the one which he had observed in the front of the liquor store. He identified the reassembled shotgun as similar to the one he had seen in the hand of one of the robbers. Mr. Lambdin also testified that as the second of the two men, the one carrying the gun, ran for the Cadillac, he pulled a stocking cap off his head, revealing long, shoulder-length blonde hair.

Although Mr. Lambdin could not identify any of the assailants by face, he did give the following response at trial: “Q. Would you describe the color of the hair of the person you saw carrying the shotgun? A. I did. Q. Repeat it. A. Ash-blonde down to shoulder level, blonde hair.

Q. Would you look at the hair of the Defendant in this case and tell the Court and the Jury whether or not his hair is like the hair of the one you saw carrying the shotgun or similar? A. Identical.” The thrust of the defense was to impeach this testimony of Mr. Lambdin that he had observed “shoulder level, blonde hair” by showing that he failed to pass on any such ⁴⁴⁶ description to the first police officer who arrived upon the scene. That policeman was Officer Dale Schulz. The defense theory is disingenuous.

Mr. Lambdin was steadfast in his testimony that he remembered vividly the shoulder length, ash-blonde hair. He also recalled that he had passed this description on to Officer Schulz. The defense argument, in effect, runs that if Officer Schulz did not record this description, then the description was never given to him by Mr. Lambdin. The defense conclusion is, therefore, that Mr. Lambdin never observed the shoulder length, blonde hair, identical to that worn by the appellant at trial.

The defense sought directly to impeach Mr. Lambdin’s testimony by offering an eight-line statement given by him, and in his own handwriting, at 9:08 p.m. on December 27 — within an hour and one-half of the occurrence of the robbery-murder. That statement read: “I saw this man carrying a shotgun come running out of this package goods store an got into a dirty Cad car an went south on the Highway toward Balto. City. The man had on rough clothes, 6 ft. — 190 lbs. with long hair & stocking hat. -r- seaman he had on dark clothes.

I think it was 3 Males. White. Police took me to see the getaway car an I said that I though it was after looking at it.” Mr. Lambdin acknowledged that although his statement included the adjective “long,” it did not include the adjective “blonde.” He could only attribute the omission to the excitement of the moment: “A. I must have left the blonde hair out. Q. Why did you do that?

A. In the excitement a lot of things happened, you know.” We do not find the omission of the adjective at all remarkable. The hasty summary, drawn by an untrained layman, did not purport to be an exhaustive or definitive deposition. ... Neither do we find it remarkable that Officer Schulz, ⁴⁴⁷ upon returning to the station house several hours later, and while completing a 47-item crime report, filled the single line provided for him to identify the suspect with the following entry, “Unk. M/white wearing stocking cap over head.” The defense seeks to make a standardized police form into something which it clearly is not.

We point out that we are dealing here not with an item in a police report which contradicts trial testimony. We are dealing rather with police reports which, by their very nature, purpose, and the circumstances in which they are made, omit inevitably the full detail of trial testimony. The defense notion, frequently raised in this Court, that prosecution testimony must be limited, by way of impeachment at least if not by way of total exclusion, to what is contained in police summaries is specious. It fails utterly to comport with the non-sophisticated reality of police officers, who are not legal technicians, 1) hastily scribbling a penciled note or two in the excitement of a crime scene or 2) laboring to complete their various forms and reports back at the station house before knocking off the shift.

Austerity of language is of the very nature of the medium. The appellant posits the omission of the adjective as proof of the negative proposition: IF THE POLICE DID NOT RECORD THE DESCRIPTION, THE WITNESS NEVER GAVE THE DESCRIPTION AND LIED WHEN HE SAID THAW HE DID; IT FOLLOWS THAT THE WITNESS NEVER MADE THE OBSERVATION AND IS TO BE DISBELIEVED. The factual premises are by no means established. Mr. Lambdin, at worst, failed to tell the police that the long hair which he had observed was “blonde,” and was mistaken in his recollection that he had so told the police.

Even this minor inadequacy is, however, by no means established. Officer Schulz, in complete candor, testified that he could not recall the description which he received at the crime scene that night: “Mr. Lambdin gave me a description of two of the subjects. Now, the exact description which he gave me I cannot remember. As he was giving me the description I was putting it right out over the radio.” ⁴⁴⁸ Not having been able to rely upon Officer Schulz to impeach (by contradicting) Mr. Lambdin even as to this peripheral detail, the appellant now claims that he was unfairly denied the opportunity to do indirectly that which he failed to do directly.

He asserts that the State unconstitutionally suppressed evidence favorable to him in contravention of Brady v. Maryland, supra. He charges “that the prosecutor knew that this testimony was false and that the police had in their possession recorded tapes of the broadcast which clearly proved that no reference to ‘long, blond hair’ had ever been made in describing the suspect. The tapes were not made available to Appellant so that he could use them to refute Lambdin’s testimony.” The whole argument hangs by a slender thread. Mr. Lambdin recalled that as he made his report to the first police officer to arrive at the scene, that officer was putting out the alarm over the police radio.

Mr. Lambdin did not testify at any time that he recalled hearing the words the officer used in reporting the incident to his headquarters over the radio. He simply recalled that the officer he spoke to was in radio contact with other police. Officer Schulz, in turn, could not recall the description given to him by Mr. Lambdin. He did testify that as he received the description, he was putting it out over his police radio: • “Mr. Lambdin gave me a description of two of the subjects.

Now, the exact description which he gave me I cannot remember. As he was giving me the description I was putting it right out over the radio.” Officer Schulz pointed out that his radio transmission would have been recorded. He explained at that point: “At that- time I couldn’t make any notes due to the fact I knew this would be all recorded, and if any question was to [be] brought up it could be checked through the recording as to exactly what he told me because I put the exact thing right on the radio.” He testified at another point that he was sure that he ⁴⁴⁹ accurately relayed over the police radio whatever description had been given to him: “Q. What would you have felt to be more important, the fact that the subject was wearing a stocking cap or that he had long blonde hair? A. Both would be important.

Q. Would you have put one in and not the other for any reason, officer? A. The only way I might have deleted one is by forgetting one of them, but I gave the exact description he gave me over the radio.” The appellant’s thesis is that the State suppressed the tapes and that the tapes would have impeached the testimony of the eyewitness Mr. Lambdin. Our rejection of the appellant’s contention is manifold. We note initially that even if we were to assume an unconstitutional suppression (which assumption, for reasons hereinafter to be discussed, we most definitely do not make), we are persuaded that the error would have been harmless beyond a reasonable doubt under the guidelines of Chapman v. California, 386 U. S. 18 , 87 S. Ct. 824 , 17 L.Ed.2d 705 (1967).

We reach that conclusion in two independent regards. In view of the overwhelming evidence of the appellant’s guilt — including his independently established connection with both the blue Cadillac and the shotgun, his arrest in company with Loretta Scully, the directly incriminating testimony of Loretta Scully, and the damning admissions of the appellant himself — the mere lost opportunity to impeach the eyewitness Lambdin on an, at most, speculative theory as to a collateral detail would not, we hold, have given rise to “a reasonable possibility” that the omission “complained of might have contributed to the conviction.” Fahy v. Connecticut, 375 U. S. 85, 86-87 , 84 S. Ct. 229 , 11 L.Ed.2d 171, 173 (1963). The whole point was so tangential and remote that we simply do not think it would have affected the jury’s judgment one way or another. Again assuming error (only arguendo), we would find it, ⁴⁵⁰ beyond a reasonable doubt, to be harmless for the additional and independent reason that the appellant was not prejudiced — that he was not deprived, in actual fact, of the arguably favorable stuff he claims to have been denied.

Indeed, a thorough review of all the final arguments and the instructions to the jury indicates that the appellant got a mileage -o'ut of his-speculative and tangential thesis far beyond its just desserts. A triviality to begin with, it was inordinately spotlighted, with the appellant as the only possible beneficiary of the undue emphasis. At the appellant’s behest, the court gave the following instruction: “Before going into that indictment, one further instruction I wish to give you. The Jury is instructed if the State without satisfactory explanation fails to call an available witness or to produce available documentary evidence on a material issue, it may be inferred the testimony or document will be unfavorable to the party who fails to produce such evidence.” Subsequent argument from both the State and the appellant’s attorney made it clear that the foregoing instruction had reference only to the police tapes.

The arguments, furthermore, probed and dissected with painstaking thoroughness the whole issue of the tapes. The State, in its initial argument to the jury, made the following reference: “At that point there is obviously some conflict between what Lambdin is saying and what Officer Schulz is saying, a question of long hair or short hair and the color of it. I can only assume the inference you would take from this and from the State’s reaction to it, that had the police tapes revealed a description of someone with long, ash-blonde hair you would be listening to radio tapes from Police Headquarters, and since the tapes did not reveal that the tapes were not presented.” The appellant’s attorney developed his entire thesis fully and effectively: ⁴⁵¹ “Along those lines the Court has instructed you that if the State without satisfactory explanation fails to call an available witness or to produce available documentary evidence on material issues — and what can be more material than the description of the man with the shotgun? — it may be inferred that the testimony or the document will be unfavorable to the party who fails to produce such evidence. That is the law.

The police here have told you that they have a system when a broadcast is put out over the radio that all of those tapes are saved so they can show what went out over the airways. What has been produced in Court by the State to indicate a transcription of what went out on December 27th, 1971? Nothing. Judge MacDaniel said because of that failure you should infer that that evidence would be unfavorable to the State.

We suggest, ladies and gentlemen, it was not produced because there was no mention of blonde hair and there was no mention of blonde hair because Mr. Lambdin didn’t say the man had blonde hair because he didn’t see a man -with blonde hair until he came in Court and saw Walter sitting next to me. He also told you he gave the same information to Lieutenant Roemer. Lieutenant Roemer has been in this Courtroom for three days. Did he testify and say that Mr. Lambdin told him the suspect had blonde hair?

He did not. Judge MacDaniel has told you when that happens you should infer he did not so testify because he couldn’t testify.” In rebuttal to that argument, the State confirmed the very inference which the defense was seeking to have the jury make: “Now, Officer Schulz didn’t put down on his report the man had long, blonde hair. He says maybe the man told him but there is no way of knowing whether Mr. Lambdin did or did not tell ⁴⁵² Officer Schulz the man he saw when he pulled the hat off had long, ash-blonde hair. There is no way to say that Mr. Lambdin is lying.

Officer Schulz said he may have told him that and in the excitement of getting the information on the police .radio while it was hot he could have missed it. He is not sure. The inference, then, is the State is trying .to hide or conceal evidence. Why?

Why would we conceal evidence? The tapes-were played after it was brought out in Court and I personally heard the tapes there was no description of long, ash-blonde hair. Why should I bring them over? But you can rest assured if it was on here the tapes would -have been here.

So why waste the Court’s time and your time? But no one can say that. Mr. Lambdin was lying about the description he gave to the officer.” For whatever he wished to make of it (and he made a lot of it), the appellant was simply not denied the effective use of the issue. For reasons now to be explored, however, we point out that there was no error in that there was no unconstitutional suppression of evidence by the State.

The constitutional peg on which the whole suppression issue hangs is the due process clause of the Fourteenth Amendment. The fountainhead of present constitutional law on the subject is Brady v. Maryland, 373 U. S. 83 , 83 S. Ct. 1194 , 10 L.Ed.2d 215 (1963). 1 Evolving from the more modest holdings in Mooney v. Holohan, 294 U. S. 103 , 55 S. Ct. 340 , 79 L. Ed. 791 (1935), and Pyle v. Kansas, 317 U. S. 213 , 63 S. Ct. 177 , 87 L. Ed. 214 (1942), that the due process clause was offended whenever the state had made knowing use of perjured testimony and in Alcorta v. Texas, 355 U. S. 28 , 78 S. Ct. 103 , 2 L.Ed.2d 9 (1957), and Napue v. Illinois, 360 U. S. 264 , 79 S. Ct. 1173 , 3 L.Ed.2d 1217 (1959), that the due process clause ⁴⁵³ was also offended when the state had knowingly allowed false evidence to go uncorrected even though it had not affirmatively solicited the false evidence, the Supreme Court in Brady finally held that the due process clause would be offended if the state even suppressed evidence which might, under certain guidelines, be favorable to the accused. The precise holding of Brady was, at 373 U. S. 87 : “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” The Court expanded somewhat on that holding, at 373 U. S. 87 -88: “A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not ‘the result of guile,’ to use the words