Carey v. State of Md.

• Decision Date: 01 July 1985
• Docket Number: Civ. No. K-84-329.
• Parties: Daniel CAREY v. STATE OF MARYLAND.
• Court: U.S. District Court — District of Maryland

617 F. Supp. 1143

Daniel CAREY v. STATE OF MARYLAND.

Civ. No. K-84-329.

United States District Court, D. Maryland.

July 1, 1985.

Daniel F. Goldstein and Carmen D. Hermandez, Baltimore, Md., for plaintiff.

Diane G. Goldsmith, Asst. Atty. Gen., Baltimore, Md., for defendant.

FRANK A. KAUFMAN, Chief Judge.

Carey, seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254, challenges his conviction on May 18, 1976 in the Criminal Court of Baltimore City (now the Circuit Court for Baltimore City) for robbery with a deadly weapon and the use of a handgun in the commission of a violent crime. Judge Marshall A. Levin, who presided during Carey's jury trial, sentenced Carey to fourteen and one-half years imprisonment for the robbery charge and to a consecutive five-year term for the handgun violation. On August 19, 1981, plaintiff filed a petition for a writ of habeas corpus with this Court. On January 31, 1983, this Court dismissed that petition without prejudice because of lack of exhaustion of state remedies. Thereafter, after unsuccessfully seeking Maryland Post Conviction Act relief at the trial and appellate levels within the court system of the State of Maryland, plaintiff again filed a petition for a writ of habeas corpus in this Court, setting forth six claims for relief: (1) the trial court erred in permitting the prosecutor to comment on Carey's postarrest silence; (2) the trial court erred in refusing to give a requested Telfaire jury instruction; (3) by inquiring into Carey's financial situation and the disclosure thereof to Carey's defense counsel, the prosecutor infringed upon the attorney-client relationship, thereby preventing effective assistance of counsel; (4) plaintiff was not given Miranda warnings; (5) plaintiff's convictions constituted double jeopardy; (6) the trial court erred in permitting the state prosecutor to impeach his own witness.

The relevant facts are not in dispute. William L. Linthicum testified at trial that at about 8:30 a.m. on November 4, 1974, he was robbed at gunpoint of $440 while making insurance collections. The assailant escaped despite pursuit. In January, 1975, Linthicum viewed a photographic array and tentatively selected one photograph as being that of his assailant. At trial, Linthicum testified that when he selected the photograph, he told the police that it was not a positive identification, "But if I ever see him in person, I'll know him when I see him again." Trial Transcript (Tr.), May 13-14, 1976, at 36. The photograph was not that of Carey. At a subsequent line-up in which the man whose photograph Linthicum had selected and Carey both appeared, Linthicum was unable to identify his assailant.

On February 1, 1975, Linthicum was working in a shoe store when he recognized plaintiff, who was a customer in the store, as his assailant. Linthicum told a clerk to call the police and approached plaintiff. After Linthicum accused Carey of being the assailant, Carey left the store. Linthicum pursued Carey, who was subsequently apprehended by the police after a three to four block chase. A police officer testified that upon being arrested, Carey "became very belligerent, and began swinging his arms wildly." Id. at 59. At the trial, plaintiff denied being the assailant; also, during the trial, Mr. Linthicum positively identified Carey as the assailant. On cross-examination, Linthicum remained adamant that Carey was the assailant. Id. at 138-39, 153-55.

I. COMMENT ON POSTARREST SILENCE

During cross-examination by the state prosecutor of Carey, the following line of questioning ensued:

MR. KATZ: What happened when the police stopped you?

DEFENDANT CAREY: I started acting all wild and everything.

MR. KATZ: What?

DEFENDANT CAREY: I started acting all wild and everything, I was innocent and it hurt me to my heart to have them say I robbed somebody.

* * * * * *

MR. KATZ: The fact that you were that someone who had been charged with armed robbery, you are telling the ladies and gentlemen that you didn't do it and you were only scared because you are on parole, why did that make you act wild?

DEFENDANT CAREY: I was acting wild.

* * * * * *

DEFENDANT CAREY: I think anybody would act wild when somebody would tell you to get your hands up against the wall and you're on parole.

MR. KATZ: As a matter of fact, you are on parole until 1980?

A Yes.

Q And because you are on parole you started fighting the police?

A I didn't fight them, they didn't say I fought them in the statement.

MR. KATZ: What was the reason you were swinging your arms?

DEFENDANT CAREY: I didn't want them to put handcuffs on me.

MR. KATZ: Why were you swinging your arms?

DEFENDANT CAREY: I wasn't swinging my arms exactly.

MR. KATZ: Why didn't you want them to put handcuffs on you?

* * * * * *

DEFENDANT CAREY: I was staying away, I wasn't swinging at them, but I didn't want them to put handcuffs on me. It would have been something different if I was trying to go up beside their heads and threw uppercuts and jabs, something like that.

MR. KATZ: Was Mr. Linthicum there?

DEFENDANT CAREY: Yes, he was there.

MR. KATZ: How many officers were there?

DEFENDANT CAREY: I think before the cruiser there was three or four.

MR. KATZ: You have quite a temper, don't you, Mr. Carey?

* * * * * *

DEFENDANT CAREY: No, I don't have no temper, sir.

MR. KATZ: Why didn't you just stand there and tell the officers you hadn't done anything?

MR. MURPHY: Objection, Your Honor.

Tr., May 17, 1976, at 68-70.

Defense counsel timely objected to the final question, and thereupon moved for a mistrial on the grounds that the question impermissibly sought to have the jury draw the inference that an innocent person would not have remained silent at the time of arrest. The state's position is that the question was not substantively directed at guilt, but rather at impeachment of the immediately preceeding explanation offered by the defendant for his conduct at the time of the arrest.

The prosecution may not use, as substantive evidence, a defendant's postarrest silence in the exercise of "his Fifth Amendment privilege when he is under police custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1625 n. 37, 16 L.Ed.2d 694 (1966). However, such silence may, under certain circumstances, be used as the basis of attempted impeachment of a defendant by the prosecutor.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), Justice Powell cited to cases including Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), in which the Supreme Court "permitted use for impeachment purposes of post-arrest statements that were inadmissible as evidence of guilt because of an officer's failure to follow Miranda's dictates." Doyle, 426 U.S. at 617, 96 S.Ct. at 2244. In Doyle, Justice Powell held that:

while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.

Id. at 618, 96 S.Ct. at 2245 (footnote omitted). Subsequently, in Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980), Justice Powell, in the course of permitting the use of prearrest, pre-Miranda silence to impeach an exculpatory story offered for the first time at trial, wrote

Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.... Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative.

In Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 1311, 71 L.Ed.2d 490 (1982), the Court noted in a per curiam opinion that it had characterized "Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him," and held:

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant's own testimony.

Id. at 607, 102 S.Ct. at 1312.

In this litigation, the question arises as to whether the purpose of the prosecutor's use of Carey's silence was to impeach trial testimony of Carey, or, as Carey contends, was elicited by the prosecutor to establish substantive evidence of guilt.¹ Both the trial court and the Court of Special Appeals of Maryland concluded that "the purpose for which the question was asked was not to impinge on Carey's Fifth Amendment right to silence but was to rebut his assertion that he ran solely because he was afraid about his parole." State v. Carey, No. 1190, slip op. at 3-4 (Md.Ct.Spec.App. Mar. 18, 1981) (per curiam), cert. denied, by the Md.Ct.App. No. 70, slip order (Md. May 27, 1981). The record sufficiently supports that conclusion. A review of the record indicates that, as the Maryland trial and appellate courts have determined, the question to which Carey objects was directed at Carey's explanation of his departure from the store. In Fletcher, the Supreme Court reversed the Sixth Circuit's holding that it was a violation of due process for the prosecution three times to question the defendant as to why he did not go to the police with an exculpatory story directed at the merits of the offense. See Fletcher, 658 F.2d 1126, 1129 n. 5 (1981), rev'd, 455 U.S. at 603, ...