Johnson v. State

• Citation: 360 Md. 250,757 A.2d 796
• Decision Date: 18 August 2000
• Docket Number: No. 102,102
• Parties: Larry Marcus JOHNSON v. STATE of Maryland.
• Court: Court of Appeals of Maryland

757 A.2d 796

360 Md. 250

Larry Marcus JOHNSON v. STATE of Maryland.

No. 102, Sept. Term, 1999.

Court of Appeals of Maryland.

August 18, 2000.

Peter F. Rose and Julia Doyle Bernhardt, Assistant Public Defenders (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Steven L. Holcomb, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.

HARRELL, Judge.

Larry Marcus Johnson, Petitioner, was convicted in the Circuit Court for Anne Arundel County of fourteen counts of theft over $300. He appealed to the Court of Special Appeals, arguing that the Circuit Court erred because it refused to compel the State to provide the defense with a copy of Petitioner's pre-trial recorded statement¹ and yet permitted the State, over Petitioner's objection, to adduce at trial the testimony of one of Petitioner's police interrogators concerning his version of the inculpatory content of that statement. The intermediate appellate court rejected Petitioner's argument and affirmed his convictions. We granted certiorari² to consider the following questions posed by Petitioner:

I. Whether the State is required to provide to the defense the defendant's recorded statement where, instead of introducing the recording at trial, it adduces the substance of the statement through the testimony of a police officer.

II. Whether, where the State has failed to provide to the defense the defendant's recorded statement, it may introduce the substance of that statement at trial through a police officer.

III. Whether the Court of Special Appeals erred in this case in holding that the admission of the oral summary at trial was not error under Maryland Rules 5-1002 and 5-1004.

We hold that the State was required to furnish the defense with Petitioner's recorded statement under Maryland Rule 4-263(b)(2)(A) and reverse. We need not, and do not, decide any other aspect of Petitioner's questions.

I.

On the evening of 2 August 1996, Officers Lewis J. Mangione, Jr. and Zachary Miller, of the Bel Air Police Department, responded to a call for a burglary at a house on Old Orchard Road in Harford County. Officer Mangione chased one suspect running from the house. During that pursuit, Officer Mangione noticed a vehicle speeding away with its headlights off and signaled Officer Miller to stop the car.³

Officer Miller pursued the vehicle, stopped it, and arrested Petitioner, who was the driver and sole occupant of the vehicle. According to Officer Miller, Petitioner was visibly nervous and explained his unusual operation of the motor vehicle by stating that he became concerned when he realized he was driving the wrong way on Rock Spring Road.⁴ On the backseat of the vehicle, Officer Miller observed a large knife, screwdriver, and various household goods. These items were subsequently inventoried at the Bel Air Police Department and identified as stolen property taken from various locations in Harford County and elsewhere.

Corporal John Baker interviewed Petitioner on 2 August 1996, advised him of his Miranda⁵ rights, and obtained his signature on an advice-of-rights form. It is not entirely clear from the record whether this interrogation was recorded. Corporal Baker conducted a second interrogation in the presence of Petitioner's then counsel,⁶ on 14 August 1996, at the Harford County Sheriff's Department. The second interrogation apparently was videotaped. Subsequently, Corporal Baker obtained warrants to search Petitioner's home, a bedroom in Petitioner's parents' home where he sometimes stayed, and his booth at Pilgrim's Variety, a flea market. The searches resulted in the seizure of hundreds of stolen items. Petitioner was ultimately charged in the instant case on 23 January 1998 by criminal information in the Circuit Court for Anne Arundel County with first-degree burglary and fourteen counts of theft over $300 as to those recovered items taken from Anne Arundel County victims.

Before trial, Petitioner's counsel requested discovery of a copy of the State's recording of Petitioner's statement. Petitioner's counsel reasoned that the recorded statement was vital for possible suppression purposes⁷ and to prepare cross-examination of Corporal Baker should he testify, as expected. The following courtroom exchange on 24 July 1998 captures the ebb-and-flow on this subject:

[DEFENDANT'S COUNSEL]: Well, Your Honor, there are motions on the table with respect to the warrants, but if I can address one other issue. I made several requests of the State for access to the videotape statements of my client.

The State had indicated that they were not planning to use my client's statements against him in the case in chief. However, there is still an issue as to whether or not the statements resulted in physical evidence being obtained.

I can't confidently suggest to my client whether we should waive that issue or litigate it, without having access to that videotape to see what my client said. I don't believe that I can confidently cross-examine any State's witness prior to having access to the videotape or the audiotapes in question.

Police reports from Harford County clearly indicate that the statement was in fact videotaped and/or audiotaped and it is my understanding that the Harford County Sheriff Department or the Bel Air Police Department has yet to deliver that tape to [the] State's Attorney.

THE COURT: If they are not using statements of your client in their case in chief, what right do you have to it at this point? I am missing your point.

[DEFENDANT'S COUNSEL]: I am under the impression, Your Honor, that they could also use his statements to possibly suppress any specific reference, any items I would like discovered as a result of the statements he made. Or if his statements won't be used to inculpate himself with respect to an admission or confession, those statements certainly did lead to the acquisition of physical evidence. Again, it is my impression, Your Honor, that I am entitled to seek suppression of that physical evidence through that manner.

THE COURT: What is the illegality? What is the basis for the illegality?

[DEFENDANT'S COUNSEL]: It would basically be a Miranda violation, Your Honor, and possibly a voluntary suspicion [sic].

THE COURT: State?

[THE STATE]: Your Honor, some of what was said I believe is accurate and some is inaccurate. There were statements made. At a certain point in time there was an interrogation done by the Bel Air Police in conjunction with the Harford County Sheriff's Department.

The Defendant did make several statements in reference to his participation in some things. I think it is inaccurate to say that certain statements would not be used as part of the State's evidence. I think several of the statements would not be relevant to the State's case and would not be used of course.

However, the sum and substance of what those statements were, have in fact been provided to [Petitioner's counsel]. There does—on Tuesday I said there appeared to be, I can now say with confidence that I have ascertained that there was a videotape done of this interrogation. A videotape we believe exists.

I have been in contact with the Harford County Sheriff's Office; they would have possession of it. They have individuals that are trying to find it. As recently as yesterday evening, I spoke with a Lieutenant Sandaman up there at Harford County who reasonably was confident that they could find it; they simply don't have it yet.

Certainly, in an ideal world we would have had that. It should be provided. I certainly agree that the Defense would be entitled to use it, or at least to inspect it if we were to use that particular piece of evidence. I think the significance here are the statements themselves. The sum and substance of the statements have been given to them. All the videotape is going to show is him saying it, as opposed to somebody else saying he said it.

THE COURT: All right. You answered my question. Thank you.

[THE STATE]: Okay.

THE COURT: Anything else, [Petitioner's counsel]?

[DEFENDANT'S COUNSEL]: Well, subsequent to that issue, Your Honor, again we —

THE COURT: Under the rules of discovery the State is required to give you the substance of any oral statements. The proffers have been given to you. I don't understand the purpose for the hearing.

[DEFENDANT'S COUNSEL]: The purpose of the hearing, Your Honor, would be that I have the substance of the statements. I believe the statements are possibly suppressible in themselves. As such, I believe this investigation may have gone any further. I am not aware of any independent investigation that was in effect at the time Mr. Johnson gave statements that might have led the State to any number of— might have led the State to discover his alleged complicity in any event.

For that reason, Your Honor, I believe that I am entitled to review those videotapes or that audiotapes [sic].

THE COURT: I don't understand what the issue is. I really don't. You have got the statements. You know what he said. If you are saying that somehow [ ] Miranda was violated, fine. We will have a hearing on that. If you are saying that he was coerced into giving a statement, fine. We will have a hearing on that. I want to know what your position is.

[DEFENDANT'S COUNSEL]: Based on what my client has told me, I dispute the accuracy of the substance of the statements that have been provided to me.

THE COURT: Well, that can be tested through cross-examination, the accuracy of the statements.

[DEFENDANT'S COUNSEL]: Again, I feel that I am handicapped by not having access to the tapes prior to the cross-examination. Again, I believe that—I understand what the Court is saying and I defer to the Court. But, for the record, I believe I should be entitled to access to the videotape prior to such time that I get to cross-examine any officer

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