Hall v. State

• Decision Date: 24 February 1982
• Docket Number: No. 24,24
• Parties: Lawrence Wilbur HALL v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 683

292 Md. 683

441 A.2d 708

Lawrence Wilbur HALL v. STATE of Maryland.

No. 24.

Court of Appeals of Maryland.

Feb. 24, 1982.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Patricia E. McDonald, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES ^*, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

COLE, Judge.

In this case the issue we shall decide is whether a statement made by the accused to a probation officer conducting a presentence investigation at the direction of the trial court is admissible in a subsequent trial for purposes of impeachment.

The parties agreed upon the pertinent facts. On March 6, 1979, Willard and Lorraine Sheppard, along with their son, Stanley, were present in their Bethesda jewelry store, when, at about 11:15 a. m., a well-dressed man came to the door. The door, which was equipped with a lock operated by means of a buzzer, was opened by Stanley Sheppard and the man entered the store. Once inside, the man produced a pistol and announced "This is a holdup." Moments later, a second man, identified at trial as the appellant, walked up to the door and stood there, looking in. The man inside the store, while pointing his weapon at the Sheppards, backed towards the door and attempted unsuccessfully to open it. He then demanded that the Sheppards press the buzzer to release the lock and admit the second man; the Sheppards refused. Apparently while the gunman was distracted by his attempt to open the door, Stanley Sheppard escaped to the basement beneath the store. Willard Sheppard then seized a pistol which was hidden in a cabinet and fled towards the basement. As he did so, the man inside the store fired his pistol, wounding Mr. Sheppard in the back. Mrs. Sheppard then pressed the buzzer, releasing the lock and the gunman went out the front door. Mrs. Sheppard testified that the gunman, after stepping outside, paused for a moment with the second man who had remained standing at the door throughout the incident. The two then turned and walked in opposite directions.

Willard and Stanley Sheppard emerged from the basement and went in search of the robbers. Approximately a block away, they observed Lawrence Wilbur Hall standing near a bus stop. Stanley Sheppard flagged down a policeman and directed his attention to Hall, who was at that time attempting to enter a taxicab. The policeman approached Hall, ordered him to put his hands on top of the cab, and frisked him. Hall was carrying an empty briefcase and had a fully loaded revolver in the pocket of his coat. His alleged accomplice in the robbery, the man who entered the store and shot Mr. Sheppard, was neither apprehended nor identified.

Lawrence Wilbur Hall was tried by a jury in the Circuit Court for Montgomery County for assault with intent to rob, use of a handgun in the commission of a felony, carrying a handgun, and related offenses. The jury found Hall guilty of the crime of carrying the handgun. However, the jury was unable to reach a verdict as to the remaining charges and as to these charges a new trial was scheduled.

After Hall's conviction on the handgun charge and prior to the second trial, the court ordered a presentence investigation report. Pursuant to this order Hall was interviewed by Louis S. Monk, Jr., a probation officer. The presentence report was filed and Hall was sentenced.

At the second trial Hall took the witness stand and testified that at the time of the offense he was employed by Adreana's Pizzeria as a night delivery man and had been robbed before. He further testified that at the suggestion of his boss he carried the handgun to protect himself while working, that he had been working the night before his arrest, and that he had forgotten to take the handgun out of his coat pocket before leaving the house on the day he was arrested.

The prosecutor, on cross examination, asked Hall questions regarding his employment at Adreana's. Hall continued to maintain that he was employed the night before and that this was the reason the gun was in his coat pocket. Thereafter, the prosecutor called Monk as a rebuttal witness to testify on the limited question of Hall's employment. Defense counsel objected. In a hearing outside the presence of the jury, the trial court ruled Monk's testimony admissible for purposes of impeachment. Monk testified before the jury that during the presentence interview Hall said that he was unemployed from January through March 6, 1979. Defense counsel did not request an instruction that Monk's testimony be admitted solely for purposes of impeaching Hall's credibility nor did the trial court offer such instruction on its own motion. Hall was convicted.

The Court of Special Appeals affirmed the judgment of the trial court in Hall v. State, 47 Md.App. 590, 425 A.2d 227 (1981). The intermediate appellate court rested its decision on the premise that there was no violation of Hall's Fifth Amendment protection against self-incrimination, as his statement was not compelled, and that there was no violation of his Sixth Amendment right to counsel because there had been no deliberate elicitation of incriminating statements by the State. We agree with the judgment reached by the Court of Special Appeals but rest our decision upon a different basis. ¹

Before us, Hall contends that the Court of Special Appeals erred in its consideration of his Fifth and Sixth Amendment rights, citing Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866 68 L.Ed.2d 359 (1981), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1980), as dispositive. Hall also maintains that because the trial judge did not give a limiting instruction regarding Monk's testimony, the evidence was substantive and not restricted to its impeachment effect. Hall further argues that eliciting testimony on the presentence report in open court violated Maryland Code (1971, 1981 Cum.Supp.), Art. 41, § 124(b), providing for the confidentiality of presentence investigation reports.

As we noted, the Court of Special Appeals found that there had been no violations of Hall's Fifth and Sixth Amendment rights. However, assuming, arguendo, that Miranda warnings were constitutionally required and the statement given to Monk was not preceded by Miranda warnings, ² and that the defendant's counsel was not present at the interview, the statement would still be admissible for purposes of impeachment.

In Franklin v. State, 281 Md. 51, 375 A.2d 116 (1977), cert. denied, 434 U.S. 1018, 98 S.Ct. 739, 54 L.Ed.2d 764 (1978), we addressed the propriety of the admission of an extrajudicial statement where we assumed the statement was obtained without complying with the mandates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We held that

a statement may be received in evidence at the criminal trial of the declarer for the purpose of impeaching his credibility, not generally, but specifically with regard to a contradiction, reasonably inferred, between issues initiated by him on direct examination and the impeaching statement, provided the trustworthiness of the evidence satisfies legal standards. This is so even though the statement was obtained during a custodial interrogation without the warnings by Miranda being given, or defectively given, or, if properly given, not effectively waived. (281 Md. at 58, 375 A.2d 116.)

Franklin followed the Supreme Court cases of Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) and Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). In Harris an extrajudicial statement made by the accused was admitted into evidence to impeach testimony given by the accused on direct examination. The evidence was not admissible substantively because the accused had not been properly advised of his rights in the manner prescribed by Miranda and at the trial the court instructed the jury that the evidence regarding the out-of-court statements was to be considered only for its impeachment value. The Supreme Court ruled that even though the technical requirements of Miranda and the Fifth Amendment had not been met when the statement was obtained, the evidence was properly admitted. The reasoning was that "(t)he impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner's credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby." 401 U.S. at 225, 91 S.Ct. at 645.

This precept was reiterated in Oregon v. Hass, supra. In Hass statements obtained after the defendant had asked for a lawyer were used to impeach testimony elicited on direct examination. The jury was instructed that the evidence was to be considered only for whatever impact it had on the defendant's credibility. The Supreme Court found Harris to be controlling and added that "the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances." 420 U.S. at 722, 95 S.Ct. at 1220.

Examining the circumstances in the instant case under the rules established by this Court in Franklin and the Supreme Court in Harris and Hass it is obvious that Hall cannot prevail on his contention that the statement he made to Monk, the probation officer, was inadmissible because it was obtained without Miranda warnings. The prior inconsistent statement was admitted to impeach Hall's credibility. It related specifically to the statement made by Hall on direct examination that he was employed at the time he was arrested and directly contradicted that assertion. Hall does not claim that the evidence was coerced nor does the record reflect such foul play. Under these...