Bailey v. State

• Decision Date: 01 September 1985
• Docket Number: No. 2,2
• Citation: 496 A.2d 665,303 Md. 650
• Parties: Erquies C. BAILEY v. STATE of Maryland. (Adv.),
• Court: Maryland Court of Appeals

Page 650

303 Md. 650

496 A.2d 665

Erquies C. BAILEY v. STATE of Maryland.

No. 2 (Adv.), Sept. Term, 1985.

Court of Appeals of Maryland.

Sept. 6, 1985.

Sherrie R. Berger, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Carmina Szunyog Hughes, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen. and Stephanie J. Lane, Asst. Atty. Gen., Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and McAULIFFE, JJ., and W. ALBERT MENCHINE, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

RODOWSKY, Judge.

Our primary reason for granting certiorari in this multiple issues appeal was to consider an aspect of discovery in criminal causes. That question is whether oral statements which the State intended to use at trial and which had been made by the defendant to an out-of-state police officer were "statements made by the defendant to a State agent" within the meaning of former Maryland Rule 741 b 2 and present Md. R. 4-263(b)(2). As explained below, we shall hold that the statements made to the out-of-state police officer in this case were discoverable by the defendant and that the other points raised by Bailey are without merit.

(1)

Appellant, Erquies C. Bailey (Bailey), was charged on January 27, 1984, by criminal information with, inter alia, robbery with a deadly weapon committed on September 29, 1983, in Baltimore City. Property alleged to have been taken from the victim included a 1967 Ford Mustang automobile. Bailey and a female companion were arrested at approximately 10:20 p.m. that same day in possession of the Mustang at a point on the New Jersey Turnpike 72 miles north of the Delaware Memorial Bridge. The arresting officer was Trooper Scott W. Jenkins (Jenkins) of the New Jersey State Police.

In a disclosure filing of February 16, 1984, the State said that Bailey had made no statement, oral or written, known to the State at that time. Listed among the witnesses whom the State intended to call was "Trpr. S. Jenkins--Md. State Police, New Brunswick, Barrack 'D.' " On February 21, 1984, the accused formally requested "the substance of each oral statement" and "a copy of all reports of each oral statement made by the defendant to a State agent which the State intends to use at a hearing or trial." ¹ The State did not respond, thereby leaving unmodified its prior position that Bailey had made no statement.

At trial, when the prosecutor in his opening statement began to describe a prearrest conversation between Bailey and Trooper Jenkins, defense counsel objected, based upon the State's representation in discovery that there was no statement. The court ruled that the New Jersey trooper was not a "State agent" under Md.R. 741, and he would be treated as a private citizen.

Trooper Jenkins subsequently gave evidence over objection. He described observing the Mustang, apparently disabled, on the northbound shoulder of the turnpike and stopping to render assistance. Bailey, using the car's keys, could not start it and asked Trooper Jenkins to radio for a tow truck. When Jenkins asked Bailey for identification and for the vehicle's registration, Bailey said that he and his companion were hitch-hikers and that the car's owner was seeking help at the rest stop across the highway. Jenkins described other factors leading up to the arrest of Bailey, including Jenkins' unsuccessful inquiries made at the rest stop concerning the supposed owner of the Mustang.

A jury found Bailey guilty of robbery with a deadly weapon. At the hearing on a motion for new trial, the prosecutor advised the court that he became aware of Bailey's statements to Jenkins a "couple of days" prior to the trial when he interviewed Jenkins, who had brought the New Jersey offense report with him to Baltimore.

The motion for new trial was denied; final judgment was entered; Bailey appealed; and we issued certiorari on our own motion prior to consideration of the case by the Court of Special Appeals.

Bailey submits that the trial court erred in holding that there was no discovery violation. He seeks reversal as the cure. Bailey is correct on the first step of this submission.

Under Md.R. 741's structure, § a (now Md.R. 4-263(a)) requires certain disclosures to be made by the State without the necessity of a request by the accused. These disclosures include "relevant material or information regarding ... the acquisition of statements made by the" accused. Section b of Md.R. 741 (now Md.R. 4-263(b)) addresses matters discoverable on request by the accused, including the substance of each oral statement "made by the defendant to a State agent which the State intends to use at a hearing or trial...." All the objections made by Bailey in the instant case were based on Md.R. 741 b. Hence the trial court had to decide whether Trooper Jenkins was a "State agent."

Md.R. 741 b cannot, however, be read in isolation. Our prior cases have explained that there is an interrelationship between §§ a and b of the rule and that the automatic disclosure required by § a is designed to force the accused to file any motions to suppress in advance of trial on the merits. See Jennings v. State, 303 Md. 72, 492 A.2d 295 (1985); Warrick v. State, 302 Md. 162, 486 A.2d 189 (1985); White v. State, 300 Md. 719, 481 A.2d 201 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 1779, 84 L.Ed.2d 837 (1985). Md.R. 741 a 3 provides that "[t]he State's Attorney's obligations under this section extend to material and information in the possession or control of ... any others who have participated in the investigation ... of the case and who ... with reference to the particular case have reported to his office." That scope provision covers Trooper Jenkins in the instant case.

With respect to the discovery of the substance of oral statements and of reports containing oral statements, the words, "State agent," in Md.R. 741 b 2 are not to be read more narrowly than the persons referred to in Md.R. 741 a 3 as "any others who have participated in the investigation" and who "with reference to the particular case have reported to [the State's Attorney's] office." Otherwise, the purpose of § a is defeated where agents of a sovereign, other than Maryland, have been involved in investigating the case. Following Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, reh'g denied, 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 (1961), modified, United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), motions by defendants in criminal cases to suppress potential evidence have to a great extent rested on alleged violations of federal constitutional rights and on an invocation of the exclusionary rule as the remedy. From the standpoint of suppression it is immaterial whether a violation of a federal constitutional right was committed by an agent of Maryland or by an agent of some other sovereign. ² If, as the State contends here, § b excludes the agents of a sovereign other than Maryland, the State would be obliged by § a to disclose the circumstances surrounding the obtaining of a statement, but the accused could not obtain the substance of that statement under § b. Thus, in cases involving agents of other sovereigns, counsel for the accused might not, until trial, have the information needed for a decision whether to move to suppress. This result conflicts with the design of Md.R. 741 to minimize suppression motions during the course of trial.

In its brief the State refers to provisions of the Jencks Act which currently require production of certain statements of witnesses "in the possession of the United States" and which formerly required production of such statements only if made to "an agent of the Government." See 18 U.S.C. § 3500 (1982) (original version in Act of September 2, 1957, Pub.L. No. 85-269, 71 Stat. 595). The State sees relevance to the issue before us of decisions holding that, for purposes of the Jencks Act, statements in possession of state authorities are not "in the possession of the United States" or that statements to state authorities are not made to "agents of the Government." See, e.g., United States v. Cagnina, 697 F.2d 915 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983); United States v. Escobar, 674 F.2d 469 (5th Cir.1982); United States v. Higginbotham, 539 F.2d 17 (9th Cir.1976); United States v. Smith, 433 F.2d 1266 (5th Cir.1970), cert. denied, 401 U.S. 977, 91 S.Ct. 1206, 28 L.Ed.2d 328 (1971); United States v. Harris, 368 F.Supp. 697 (E.D.Pa.1973), aff'd, 498 F.2d 1164 (3d Cir.), cert. denied, 419 U.S. 1069, 95 S.Ct. 655, 42 L.Ed.2d 665 (1974). The scope proviso in Md.R. 741 a 3 fleshes out "State agents" in Md.R. 741 b 2 and thereby undermines the analogy to the Jencks Act cases.

It should also be pointed out that present Md.R. 4-263 presents the scope proviso as § (g), which speaks of "[t]he obligations of the State's Attorney under this Rule," while former Md.R. 741 had presented the scope note under § a and had spoken of "[t]he State's Attorney's obligations under this section...." This change merely presents more clearly the intent of the predecessor, Md.R. 741 a, and does not represent an enlargement of the obligations of a State's Attorney in furnishing disclosure.

The State next argues that the trial court did not abuse its discretion in deciding to admit Jenkins' testimony and in permitting reference to it in the State's opening statement. The fallacy in this argument is that here the trial court ruled that there was no discovery violation so that it never reached the questions of whether a sanction should be applied and, if so, what that sanction should be. In this respect the instant case is like Colter v. State, 297 Md. 423, 466 A.2d 1286 (1983), which involved that portion of the discovery rule requiring disclosure of the identity of alibi witnesses and of...