Brittingham v. State

• Court: Maryland Supreme Court
• Writing for the Court: Argued before MURPHY; COUCH
• Citation: Brittingham v. State, 511 A.2d 45, 306 Md. 654 (Md. 1985)
• Decision Date: 01 September 1985
• Docket Number: No. 107,107
• Parties: James BRITTINGHAM, Jr. v. STATE of Maryland. ,

Page 654

306 Md. 654

511 A.2d 45

James BRITTINGHAM, Jr. v. STATE of Maryland.

No. 107, Sept. Term, 1985.

Court of Appeals of Maryland.

July 11, 1986.

Sally C. Chester (Roland, Walker & Walker, Rubin & Van Bavel, P.A., on brief), Baltimore, for appellant.

Deborah K. Chasanow, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

COUCH, Judge.

This case presents questions involving the admissibility of evidence concerning the voluntary nature of an otherwise inadmissible inculpatory statement introduced for the limited purpose of impeaching the defendant's credibility. Since this matter is entirely one of procedural concern, a full recitation of the facts is not necessary. ¹ Relevant facts will be incorporated herein where appropriate.

James Brittingham, Jr., petitioner, was charged in the Circuit Court for Baltimore City with various offenses, as the result of an incident which occurred on October 10, 1982. On November 17, 1983 he was found guilty of first degree rape, robbery with a deadly weapon, use of a handgun in the commission of a crime of violence, burglary and false imprisonment.

Prior to trial, Brittingham moved to suppress statements he allegedly made to two different officers, Detective Jansen and Corporal Sheldon. A suppression hearing was held and the first statement, which is not here at issue, was deemed admissible at trial as substantive evidence. The second statement, given prior to the administration of a polygraph examination, forms the basis of this appeal. It was eventually ² found to have been taken in violation of Miranda ³ and was therefore held inadmissible in the State's case in chief. In reaching this determination, the trial judge expressly concluded that the statement was voluntary. ⁴

At the trial on the merits, Brittingham took the stand on his own behalf and testified that he had not been to the victims' home on the night of the crime. This testimony directly contradicted the earlier statement given to the polygraph operator, Corporal Sheldon, wherein Brittingham admitted robbing the victims in their home but denied the rape. Under oath Brittingham denied ever telling Corporal Sheldon that he robbed the victims. In rebuttal, Corporal Sheldon was called, and he recounted the statement Brittingham had made to him. ⁵ On direct examination by the State, Sheldon testified that Brittingham had said he had been at the victims' residence on the night of the crime; he had seen the victims on that date; several articles were taken from the residence; and he left the residence in a vehicle belonging to the victims. Sheldon also testified that in his presence no one threatened, coerced, or promised anything to Brittingham in return for the statement. On cross-examination, Sheldon testified that in the statement at issue Brittingham had denied raping the female victim and that Brittingham had been advised of his rights pursuant to Miranda prior to making the statement. Defense counsel also successfully established, inter alia, that Sheldon was a polygraph operator and the statement was made just prior to the administration of a polygraph examination which had been scheduled at the defendant's request. However, the court sustained the State's objection when the defense asked Sheldon whether there had been any question about postponing the test so that Brittingham's lawyer could be present.

On surrebuttal, defense counsel sought to demonstrate that the statement to Sheldon was involuntary. A paralegal, a State's Attorney investigator, and the defendant himself were all called to establish that the defendant had requested counsel prior to making the statement and that he had been told a refusal to take the polygraph examination on the scheduled date would result in trial delays and additional expense. Despite the fact that all of these individuals had testified fully regarding the circumstances of the pre-polygraph examination statement at the suppression hearing, the trial court precluded any such questioning at the trial on the merits. Consequently, the jury was not privy to the fact that Brittingham requested counsel be present during the polygraph examination. Their view of the situation was further distorted by the fact that all State objections to questions concerning added expense or trial delays were sustained.

Based on the evidence before it, the jury found Brittingham guilty of rape in the first degree, robbery with a deadly weapon, use of a handgun in a crime of violence, burglary, and false imprisonment. He was sentenced to life imprisonment for the rape count, twenty years consecutive for the robbery with a deadly weapon charge, twenty years for the handgun offense to run concurrent with the sentence for the robbery with a deadly weapon, twenty years for the burglary offense to run concurrent with the sentence for the robbery with a deadly weapon count, and ten years for the false imprisonment count to run consecutive to the sentence for the rape.

Timely appeal was taken to the Court of Special Appeals. The intermediate appellate court affirmed the trial court. Brittingham v. State, 63 Md.App. 164, 492 A.2d 354 (1985).

Brittingham petitioned this Court for a writ of certiorari to the Court of Special Appeals. The State responded by filing a conditional cross-petition. Overall, four issues are raised by these petitions:

I) Whether the admission into evidence for impeachment purposes of an oral confession allegedly made by petitioner pursuant to a polygraph examination violated petitioner's due process rights because such confession was made involuntarily. (raised by petitioner).

II) Whether petitioner's allegation that the confession was involuntary as a matter of law and thus also inadmissible for impeachment purposes is preserved for appellate review. (raised by State).

III) Where a trial judge has determined that a statement taken in violation of Miranda is both voluntary and trustworthy, and thus admissible on rebuttal for impeachment purposes under Harris v. New York ⁶ and Oregon v. Hass ⁷, must the jury also consider the issue of that statement's voluntariness? (raised by State).

IV) Whether the trial court's exclusion of evidence proffered by petitioner on the issue of the voluntariness of his alleged confession was erroneous. (raised by petitioner).

We granted both the petition and cross-petition to address questions of public importance.

Because we find the trial court proceedings infirm on nonconstitutional grounds (Issue IV), we reverse the judgments of the lower courts. In so doing, we adhere to well-established principles and decline to unnecessarily decide the constitutional issues raised. See Simms v. State, 288 Md. 712, 421 A.2d 957 (1980). Constitutional issues should be addressed only after a determination that the activity complained of comports with the requirements of this State's nonconstitutional law. Hillard v. State, 286 Md. 145, 150 n. 1, 406 A.2d 415, 418 n. 1 (1979); Finke v. State, 56 Md.App. 450, 482, 468 A.2d 353 (1983), cert. denied, 299 Md. 425, 474 A.2d 218 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 529, 83 L.Ed.2d 416 (1984). In the case sub judice, this preliminary hurdle has not been overcome.

Initially, we find, despite the State's assertions to the contrary, that the issue concerning the voluntariness of petitioner's statement to Corporal Sheldon is preserved for review. Prior to trial, in compliance with then Md. Rule 736, ⁸ Brittingham challenged the admissibility of the confession in a motion to suppress. The motion was couched in very general terms. The record of the suppression hearing reflects that petitioner's counsel orally argued for suppression of the statement solely on the bases that it was taken in violation of Miranda and was part of an inadmissible polygraph examination. The trial judge granted the motion to suppress on the basis of the Miranda violation. However, in so doing, she clearly ruled the statement was voluntarily made. Subsequently, when the State sought to introduce it at trial for impeachment purposes, defense counsel lodged a general objection to its admission.

The State now argues that this objection was "too little and too late." According to the State, petitioner should have presented all arguments relating to traditional voluntariness at the suppression hearing, despite the fact that he had succeeded in having the statement suppressed on independent, unrelated grounds, namely the Miranda violation. We disagree.

When the State sought to introduce the statement, defense counsel made a general objection. In light of the motion to suppress and the pre-trial ruling that the statement was voluntary, this general objection was sufficient to preserve all grounds for review in accordance with then Md. Rules 522 d and 736 a and b. ⁹ Thus, the circumstances which constitute improper influences so as to make the confession inadmissible are subject to review by this Court. Jones v. State, 188 Md. 263, 271, 52 A.2d 484, 488 (1947). Accordingly, we address the merits of the parties' contentions.

Md. Rule 736 g 2, ¹⁰ in effect at the time of this trial, states, "... [S]uppressed evidence may be used in accordance with law for impeachment purposes." ¹¹ Hence, the admission of Brittingham's prior statement to the polygraph operator, wherein he admitted robbing the victims, to cast doubt upon the credibility of his trial testimony was proper only if done "in accordance with law."

Under Maryland criminal law, no confession or other significantly incriminating remark allegedly made by a defendant can be used as evidence against him, "unless it first be shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary." Hillard v. State, 286 Md. at 150, 406 A.2d at 418 (1979) (footnote omitted); see Scott v....