Zemo v. State

³⁰⁵ MOYLAN, Judge. The appellant, Joseph Phillip Zemo, was convicted by a Carroll County jury of the breaking and entering of a gasoline station and related charges. On this appeal, he raises four contentions: 1) that the trial court erroneously admitted evidence that the appellant had remained silent after receiving his Miranda warnings; 2) that the trial court erroneously received hearsay evidence that the investigating detective had received information from a confidential informant that led him to the appellant; 3) that the evidence was not legally sufficient to sustain the convictions; and 4) that the trial judge erroneously refused to instruct the jury to consider whether certain State’s witnesses were accomplices whose testimony would require corroboration. We choose to consider the first two contentions together because they both involve the direct examination of Detective Michael Augerinos of the Westminster Police Department.

In combination, moreover, they reveal an instance of prosecutorial “overkill,” wherein the State, not by passing or careless reference but by a sustained line of inquiry, sought to “milk” the testimony of Detective Augerinos for far more than it was legitimately worth. A Nutshell Preview Detective Augerinos was permitted to testify that he gave the appellant Miranda warnings and that the appellant, following those warnings, chose to remain silent. There was no legitimate purpose for that testimony. The appellant never took the stand and there was no arguable way in which his silence could have been used for impeachment purposes.

Post-Miranda silence, moreover, has no legitimate relevance or probative value. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976). ³⁰⁶ Detective Augerinos’s entire line of testimony leading up to his arrest and “Mimndizing ” of the appellant, moreover, was equally inadmissible. He testified, over objection, that he received evidence about the crime from a confidential informant, that the informant’s information put him on the trail of the appellant and other suspects, that other parts of the informant’s information were corroborated and turned out to be correct, and that, acting on the informant’s information, he arrested the appellant. The only possible import of such testimony was to convey the message that the confidential informant 1) knew who committed the crime, 2) was credible, and 3) implicated the appellant.

Both the confrontation clause and the rule against hearsay scream out that the appellant was denied any opportunity to confront that confidential accuser. Random Error Versus Sustained Error As we begin to examine the tainted testimony of Detective Augerinos, it is important to note what we are not holding and what we are not even suggesting. We are not counseling an overreaction to every passing or random interjection of some arguably prejudicial material into a trial. A few smudges of prejudice here and there can be found almost universally in any trial and need to be assessed with a cool eye and realistic balance rather than with the fastidious over-sensitivity or feigned horror that sometimes characterizes defense protestations at every angry glance.

We are not talking about the expected cuts and bruises of combat. What we are objecting to in this case, rather, is a sustained and deliberate line of inquiry that can have had no other purpose than to put before the jury an entire body of information that was none of the jury’s business. We are not talking about a few allusive references or testimonial lapses that may technically have been improper. We are talking about the central thrust of an entire line of inquiry.

There is a qualitative difference. Where we might be inclined to overlook an arguably ill-advised random skirmish, we are not disposed to overlook a sustained campaign. ³⁰⁷ The Chief Investigator as a Legitimate Witness There was evidence to show that on the night of November 15-16, 1992, the appellant and an accomplice named Anthony Hughes broke into a gas station in Carroll County. They also broke into the nearby office of the gas station. Money was taken from the vending machines in the gas station.

An effort to drill into the floor safe in the station was unsuccessful. Detective Augerinos investigated the break-in. His direct examination consumed thirty-three pages in the trial transcript. Over the course of the first eighteen of those pages, Detective Augerinos described his physical observations of the method of entry into the buildings, of the damage done to the vending machines that were broken open, and of the unsuccessful effort to drill into the floor safe.

He was the key witness to the corpus delicti of the crime. The Chief Investigator as a Greek Chorus At that point, however, Detective Augerinos’s role in the drama was concluded, and it was time for him to depart the stage. Instead, he remained on center-stage for an additional fifteen pages of transcript, recounting events as to which he had no direct knowledge and which were themselves without relevance. Once he had, in the trial’s opening scene, established the corpus delicti of the crime, it was then for other players to develop the appellant’s unfolding complicity.

Chief among those others was Anthony Hughes, the fellow criminal who entered a guilty plea to the breaking and entering and testified as a State’s witness. Supporting Anthony Hughes were Hughes’s wife and two other witnesses from whom both Hughes and the appellant had borrowed the tools they used for the breaking and for the drilling. Detective Augerinos had no proper role in the narrative unfolding of the appellant’s criminal agency. Detective Augerinos, nonetheless, lingered on stage almost in the role of a Greek Chorus.

He vicariously imparted cryptic reports from unnamed sources off-stage, who would never appear before the live audience. Anticipating with ³⁰⁸ prescient antennae what was afoot, defense counsel objected with precision: Q: Following your processing of the scene, what did you do in this investigation? A: Well, we had all our items together, and we—at the time, we had no suspects. On November 29th, I had ...

Ms. Kreinar: Objection, Your Honor. I’d ask to approach at this time. The Court: Okay. (Counsel and the Defendant approached the bench, and the ■ following ensued:) Ms. Kreinar: Your Honor, according to the police report, he received information from a confidential informant naming Joe Zemo and Anthony Hughes as suspects in this case.

I’d object to any information with respect to information he received from a confidential informant, (emphasis supplied). Exposing a False Myth The State’s explanation for its directorial decision was by way of resort to the familiar, if inapt, old chestnut that it is appropriate to apprise the jury of the course taken by the investigation: [BJased on the information, the officer then conducted subsequent interviews of Mr. Stultz, Anthony Hughes, Judy Hughes; that there’s an arrest made, and it all follows after that. Ms. Kreinar: But the testimony as to who he interviewed— I don’t think that that’s relevant as to who he interviewed. The people are witnesses, and they have a right to testify.

Certainly, I could call him as a witness if they testify differently from his police reports or if they said something differently. He can’t recount ’ his interviews with these different people, and the fact that he conducted them. Ms. McFaul: I’m not going into the interviews of each person, just dates that he took them. ³⁰⁹ The Court: Yeah. Okay.

Okay. I’ll overrule the objection under those guidelines. Okay? (emphasis supplied).

The State inquired further as to whether it could ask whether Detective Augerinos’s decision to interview various persons was based on the information given to him by the confidential informant. The defense objected that that would be, in effect, to permit Detective Augerinos to say that “somebody, who’s not coming into court, told him that they were suspects, and that’s direct evidence.” The defense explained, “I don’t have any ability to cross-examine whether that information was good or bad.” The State continued to insist, however, that the information was “not offered for the truth of the matter asserted” but was only offered as “to why he went where he went.” That, of course, is nonsense. It doesn’t matter why Detective Augerinos went where he went. It doesn’t even matter where he went, regardless of why.

Not only is it a matter of complete immateriality why Detective Augerinos interviewed certain persons, it is equally immaterial that he, indeed, even interviewed those persons at all. The persons referred to, other than the appellant, all testified as witnesses. Their testimony was capable of standing or falling in its own right. It would only be in the eventuality that one of the parties sought to rehabilitate or to impeach testimonial credibility by offering the substance of the interviews as prior consistent or inconsistent statements that the very event of the interviews would take on any pertinence.

That never happened. Where the event itself is immaterial, the reason for the event is doubly immaterial. Defense counsel’s focus was clear that the course of the detective’s investigation had no bearing on the guilt or innocence of the appellant: The question is whether Joe Zemo is guilty or not guilty. The fact of how [Detective Augerinos] made his investigation has no relevance to proving whether he’s guilty or not guilty.

The question is his testimony was as to what he saw, [not] [whom] he interviewed. The fact that he conduct ³¹⁰ ed an investigation of this case doesn’t advance the [inquiry] ---- His testimony proves a corpus delicti. He doesn’t have any direct knowledge that Joe Zemo’s involved, and he can’t testify, “Well, first I went here and first I went there.” The State, with the trial judge’s agreement, continued to fall back on the doctrine that it was imperative “to lay out the course of the investigation”: [T]he State’s in a position where they have to lay out the course of the investigation, and Ms. Kreinar’s already indicated she intends to attempt to damage this investigation. If I don’t show a clear set of steps of how he came to this conclusion to start to interview them—they were merely suspects at the time ... and that’s why he went the direction he went, (emphasis supplied).

At this point, it behooves us to point out that the State is retelling the “Old Wives’ Tale” that it is somehow necessary always to lay out for the jury the detailed course of a criminal investigation. It is a tale that seems to be enjoying of late wide circulation at the prosecutorial council fires. It is an apocryphal tale, however, and one that urgently needs demythologizing. The jury, of course, has no need to know the course of an investigation unless it has some direct bearing on guilt or innocence.

That an event occurs in the course of a criminal investigation does not, ipso facto, establish its relevance. A valid criminal trial might well consist of nothing moré than evidence of the corpus delicti of a crime on the East Coast on January 1 followed by the confession of the perpetrator on the West Coast on December 31. What the East Coast investigators did in the intervening year could be completely immaterial, just as could the intervening history of the perpetrator. The intervening events might, on the other hand, turn out to be relevant and material and the evidence of them competent.

In such case, they would be fully admissible. If without pertinence, however, they would be quite beside the point. The State’s theory that the course of an investigation somehow must be shown, pertinent or not, assumes that a criminal ³¹¹ trial should unfold upon the stage of the courtroom with the unbroken linear quality of a silent movie. Modern audiences, however, both in the jury box and out, are capable of “leaping o’er time and space” as relevance and admissibility dictate.

The State’s reliance on McCray v. State, 84 Md.App. 513 , 581 A.2d 45 (1990), cert. denied, 322 Md. 131 , 586 A.2d 14 (1991), is misplaced. In that case, unlike this, the unfolding course of the investigation was the heart of the State’s case. In uncovering bribery within the Department of Motor Vehicles, a state trooper assumed an undercover role and posed as an individual wishing to bribe a public official to issue him a license in exchange for cash. The trooper was permitted to testify briefly that he had received the defendant McCray’s telephone number and that that was how he made his initial contact.

That explanation was pertinent because the subsequent contact with McCray was itself not only pertinent but was the sine qua non of the prosecution’s case. Here, by contrast, there was no need to explain why Detective Augerinos came to interview the appellant because that interview itself was not pertinent. The State’s reliance on Tu v. State, 97 Md.App. 486 , 631 A.2d 110 (1993), is even more misplaced. That case did place its imprimatur on evidence bearing on the thoroughness of a police investigation.

The thoroughness of that investigation, however, had been put in issue by the defense. The charge was that the defendant had murdered his wife. Her body was never found. The defense position was that the wife had flown to California, that a customer relations agent of the airline had indicated to an interviewing detective that a woman resembling the wife had boarded an airplane bound for California, and that the police had negligently failed to follow up on that investigation.

The evidence in question was the detective’s reply that the investigation with airline personnel had, indeed, been very thorough, that at least half a dozen other employees of the airline and passengers had given responses contradicting the recollection of the customer relations agent, and that any