Bruno v. State

• Decision Date: 01 September 1991
• Docket Number: 1675,Nos. 1451,s. 1451
• Parties: Michael Anthony BRUNO v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 501

93 Md.App. 501

613 A.2d 440

Michael Anthony BRUNO v. STATE of Maryland.

Nos. 1451, 1675, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Oct. 1, 1992.

James Wyda, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

David. P. Kennedy, Asst. Atty. Gen., Baltimore (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Joseph I. Cassily, State's Atty. for Harford County, Bel Air, on the brief), for appellee.

Argued before WILNER, C.J., and ALPERT and HARRELL, JJ.

WILNER, Chief Judge.

This is a consolidated appeal of two criminal cases tried in the Circuit Court for Harford County. On July 31, 1991, appellant was convicted by the court, on what was intended to be stipulated evidence, of first degree rape, for which he was sentenced to life in prison with all but 20 years suspended. A week later, he was convicted by a jury of solicitation to commit murder and obstruction of justice, for which he was given additional sentences, to run concurrently with the sentence imposed on the rape conviction.

Appellant complains in this appeal that the court erred:

(1) in both cases, by denying his motion to suppress certain admissions made by him to State agents; and

(2) in the solicitation/obstruction of justice case,

(i) by allowing his indictment with respect to the rape charges to be put into evidence in the solicitation case;

(ii) in commenting on the evidence;

(iii) in failing to instruct the jury on entrapment; and

(iv) in limiting his impeachment evidence.

Finding no reversible error, we shall affirm the judgments entered below.

The Facts

In the early morning hours of March 29, 1990, the victim, Kimberly Wilhoit, met appellant and several of his friends at a bar and eventually left the bar with the group in appellant's limousine. Sometime during the ensuing ride through Baltimore and Harford Counties, two of the men left the group, following which appellant parked the car and the three men remaining demanded sexual favors from Ms. Wilhoit. When she refused, two of the men held her down while appellant began to remove her clothing. Upon her protest, appellant used a stun gun to shock her. Thereafter, he, and apparently the others, engaged in several acts of vaginal intercourse and sodomy with Ms. Wilhoit, forcibly and without her consent. When this was over, they drove to a restaurant to have breakfast. Ms. Wilhoit complained to a waitress, and the police were summoned.

After his arrest, appellant was placed in the Harford County Detention Center to await trial. While there, he admitted to a fellow inmate, Norman Smith, that he had raped a woman--that he had forced a girl to have sex with him after a night of partying. Mr. Smith, either out of new-found religious convictions or in an effort to assist himself with respect to a pending violation of probation charge, relayed this information to Assistant State's Attorney Mark Nelson. Appellant later told Smith that he (appellant) "was trying to find a way of having the girl knocked off," to "[p]ut a hit man on her." Smith relayed that information as well to Mr. Nelson.

Upon receipt of this last piece of information, Nelson contacted Corporal Joseph Ryan of the Maryland State Police. Corporal Ryan called Smith, who told him that appellant was trying to get out of the detention center on reduced bond "to kill the girl who brought rape charges against him." Ryan told Smith to inform appellant that "you know a guy that would do the job." Corporal Ryan then made contact with Corporal Frank Walters, who worked with the "murder for hire unit" of the State Police. Walters told Ryan that, fortuitously, one Curtis Mack, who had served as an informant in a similar situation arising in one of the State correctional institutions, was in the process of being transferred to the Harford County Detention Center for his own protection. Arrangements were made to have Mack placed in the same cell block as appellant.

When Mack arrived at the detention center, he was told by Corporal Walters to keep his eyes and ears open but not to put any ideas into appellant's head. If appellant expressed interest in carrying out his plan to kill Ms. Wilhoit, Mack was to respond that he knew someone who could do the job. Mack was provided with a telephone number where Corporal Walters, using an alias, could be reached. In due time, appellant did indeed approach Mack regarding a plan to kill Ms. Wilhoit "to prevent her from coming to Court to testify against him." Mack told him to think about it for a few days, "to make sure this was what he wanted to do." When appellant confirmed his desire a few days later, Mack gave him Corporal Walters' number. Appellant eventually called Walters who, as planned, recorded the conversation. Appellant repeated his desire to have Ms. Wilhoit killed and a price of $1,500 was discussed.

Suppression of Admissions

Appellant moved in both cases to suppress his statements to Norman Smith, Curtis Mack, and Frank Walters on the ground that they were obtained in violation of his Sixth Amendment right to counsel. In pressing this argument, appellant relies on Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985) and some of its progeny. As we shall see in discussing those cases, a distinction needs to be made between admissions relating to the solicitation and obstruction of justice charges and those relating to the sex offenses.

In Maine v. Moulton, two defendants, Moulton and Colson, were charged by indictment with four counts of theft. Those charges were based on assertions that they had received and retained three vehicles knowing that the vehicles had been stolen. Both entered pleas of not guilty and were released on bond pending trial. After allegedly receiving certain anonymous threats, Colson decided to cooperate with the police. In a conversation with detectives, he admitted not only the offenses with which he and Moulton were then charged but also several other offenses. In addition, Colson recorded three telephone conversations with Moulton and turned the tapes over to the police. Some of these conversations concerned the pending charges. Through a body wire, Colson later recorded an extended face-to-face conversation with Moulton in which the pending charges and the facts underlying them were discussed in considerable detail--"what actually had occurred, what the State's evidence would show, and what Moulton and Colson should do to obtain a verdict of acquittal." 474 U.S. at 165, 106 S.Ct. at 481. At one point in the conversation, the notion of "eliminating witnesses" was briefly mentioned but discarded quickly as unworkable; concocting false alibis was also considered.

Based upon these admissions, the State amended the indictment against Moulton to add some of the additional offenses he and Colson had discussed. Moulton moved unsuccessfully to suppress the recorded statements. At trial, the State offered only those statements recorded through the body wire that involved "direct discussion of the thefts for which Moulton was originally indicted" or discussion "about developing false testimony." Id. at 167, 106 S.Ct. at 482.

Citing its earlier pronouncements in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1958), and United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), the Court confirmed, 474 U.S. at 176, 106 S.Ct. at 487, the general principle that "the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent." Applying that principle, it held that the State violated Moulton's right when it arranged to record conversations between him and its undercover informant, Colson. Addressing then the Solicitor General's argument as amicus that the statements should be admissible because the State had other, valid reasons for eavesdropping on the conversation between Colson and Moulton--namely, to investigate Moulton's alleged plan to kill a witness and to insure Colson's safety--the Court agreed that the police have an interest in investigating both "crimes for which formal charges have already been filed" and "new or additional crimes." Id. at 179, 106 S.Ct. at 489. It understood as well that, in investigating a person suspected of committing one crime and formally charged with committing another, the police "obviously seek to discover evidence useful at a trial of either crime," but concluded nonetheless that "[i]n seeking evidence pertaining to pending charges, however, the Government's investigative powers are limited by the Sixth Amendment rights of the accused." Id. at 179-80, 106 S.Ct. at 489. In that regard, the Court continued, at 180, 106 S.Ct. at 489;

"To allow the admission of evidence obtained from the accused in violation of his Sixth Amendment rights whenever the police assert an alternative, legitimate reason for their surveillance invites abuse by law enforcement personnel.... On the other hand, to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities. Consequently, incriminating statements pertaining to pending charges are inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused's right to the assistance of counsel."

(Emphasis added.)

In an important footnote to that last sentence, the Court added, "[i]ncriminating statements pertaining to other crimes, as to which the Sixth...