Hall v. State

• Decision Date: 05 February 1981
• Docket Number: No. 549,549
• Citation: 425 A.2d 227,47 Md.App. 590
• Parties: Lawrence Wilbur HALL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 590

47 Md.App. 590

425 A.2d 227

Lawrence Wilbur HALL v. STATE of Maryland.

No. 549.

Court of Special Appeals of Maryland.

Feb. 5, 1981.

Gilbert H. Robinette, Assigned Public Defendant, for appellant.

Patricia E. McDonald, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County and Barry A. Hamilton, Asst. State's Atty. for Montgomery County, on brief, for appellee.

Submitted before MORTON, THOMPSON and MOORE, JJ.

THOMPSON, Judge.

Lawrence Wilbur Hall, the appellant, was convicted by the Montgomery County Circuit Court of carrying a handgun, but the jury was unable to reach a verdict on the other counts of the indictment. A presentence investigation was ordered and the appellant was sentenced. Subsequently, he was retried on those charges upon which the first jury had been unable to agree and was convicted of assault with intent to rob and use of a handgun in the commission of a felony. This appeal is from the judgments entered at the second trial.

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 black 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." Seconds later, another black 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 appellant; 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 appellant 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 the appellant standing near a bus stop. Stanley Sheppard flagged down a policeman and directed his attention to the appellant, who was at that time attempting to enter a taxicab. The policeman approached the appellant, ordered him to put his hands on top of the cab, and frisked him. The appellant 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.

The appellant testified, admitting glancing into the jewelry store but stating that he moved on after three or four seconds. He stated that he was not aware that a robbery was in progress, although he saw the robber standing inside. He denied seeing anyone come out of the store. He claimed he was attempting to catch a cab to return to his home in downtown Washington when he was arrested. He stated that he was in Bethesda on the day of the robbery in order to look for a new job and that he carried the empty briefcase to make a better impression on prospective employers. He had previously been convicted for receiving stolen property as a result of an unrelated incident.

Of crucial importance was the testimony which the appellant offered to explain why he was carrying a handgun at the time of his arrest. He claimed that he was employed as a night delivery man for a downtown pizza shop and that, during the course of his employment, he had been robbed on several occasions. He claimed that he carried the weapon while on his job for his protection and that he was carrying the gun at the time of his arrest because he had neglected to remove it from his coat pocket after working the previous night. On cross-examination, the appellant was asked whether he recalled a conversation which he had had with one Louis Monk on December 18, 1979. Initially, the appellant indicated that he did not; he then stated that he recalled the conversation but did not know the name of the man he had talked to. He was asked specifically whether he had told Monk that he had been unemployed for two months prior to his arrest; he answered that he had not. The court was advised during a bench conference that Louis Monk was the probation officer who had conducted the presentence investigation following appellant's conviction at the first trial and that Monk would testify that the appellant had made a statement, during the presentence investigation, concerning his employment history which conflicted with his testimony at trial. The state was permitted to call Mr. Monk in rebuttal and question him concerning the inconsistency. He testified that the appellant had told him that he, the appellant, had been unemployed from January through April, 1979. Although the pre-sentence report was not entered into evidence, Mr. Monk, during the course of his testimony, made the statement: "(T)his is straight from the pre-sentence investigation."

I Admission of Monk's Testimony

Appellant's first contention is constitutional in nature. He argues that permitting the state to impeach his testimony with statements he made to the probation officer conducting the presentence investigation violated his Sixth Amendment right to the assistance of counsel.

In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), where the "Court first applied the Sixth Amendment to post indictment communications between the accused and agents of the government," United States v. Henry, --- U.S. ----, ----, 100 S.Ct. 2183, 2186, 65 L.Ed.2d 115 (1980), it was held that "the petitioner was denied the basic protections of (the Sixth Amendment) when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel." 377 U.S. at 206, 84 S.Ct. at 1203. In Massiah, the petitioner's co-defendant, who had secretly agreed to cooperate with the government in its investigation, permitted a government agent to install a listening device in his car. By means of this device, the agent was able to listen to a conversation between the petitioner, who had been indicted and released on bail, and the co-defendant in which the petitioner made a number of incriminating statements. The agent testified concerning these statements at petitioner's trial. ¹

In Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the Court held inadmissible a confession extracted from a suspect who requested and was denied the opportunity to consult with his attorney during a police interrogation. The Court held "that when the process shifts from investigatory to accusatory when its focus is on the accused and its purpose is to elicit a confession our adversary system begins to operate, and under the circumstances here, the accused must be permitted to consult with his lawyer." 378 U.S. at 492, 84 S.Ct. at 1765.

In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), the facts of which were held to be "constitutionally indistinguishable from those presented in Massiah ...," 430 U.S. at 400, 97 S.Ct. at 1240, the Court again found a violation of a prisoner's Sixth Amendment Right to counsel. There, Williams, while under arrest and being transported by police, led police to the location where he had left his victim's body, as well as to the locations where he claimed to have abandoned various pieces of evidence. The court found that he did so in response to a police detective's now famous "Christian burial speech," which was "tantamount to interrogation." 430 U.S. at 400, 97 S.Ct. at 1240. This interrogation was carried out while Williams was alone in the police vehicle with two police officers, at a time when Williams had retained counsel and when the officers had agreed that they would ask Williams no questions during the drive. The Court found that the policeman "deliberately and designedly set out to elicit information from Williams ... (;) ... he purposely sought during Williams' isolation from his lawyers to obtain as much incriminating information as possible." (emphasis added). 430 U.S. at 399, 97 S.Ct. at 1239.

Most recently, in United States v. Henry, supra, the Court considered whether Henry's Sixth Amendment right to the assistance of counsel was violated by the admission at his trial of incriminating statements which he had made, after indictment and while in custody, to a fellow prisoner, an undisclosed government informant. The Court viewed the question before it as "whether under the facts of this case, a government agent 'deliberately elicited' incriminating statements from Henry within the meaning of Massiah." --- U.S. at ----, 100 S.Ct. at 2186. In its consideration of this question, the Court rejected the government's contention that Brewer had in some way modified the "deliberately elicited" test set forth in Massiah. --- U.S. at ----, 100 S.Ct. at 2187. See also, Rhode Island v. Innis, --- U.S. ---- at ---- n.4, 100 S.Ct. 1682, at 1689 n.4, 64 L.Ed.2d 297 (1980). The majority concluded: "By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the government violated Henry's Sixth Amendment right to counsel." (footnote omitted). --- U.S. at ----, 100 S.Ct. at 2189. ²

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