Johnson v. State

• Decision Date: 17 May 1977
• Docket Number: No. 950,950
• Citation: 36 Md.App. 162,373 A.2d 300
• Parties: Wade Iglehart JOHNSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 162

36 Md.App. 162

373 A.2d 300

Wade Iglehart JOHNSON v. STATE of Maryland.

No. 950.

Court of Special Appeals of Maryland.

May 17, 1977.

James M. Kramon, Assigned Public Defender, Baltimore, with whom were Kramon & Graham, Baltimore, on the brief, for appellant.

Stephen B. Caplis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen. and Warren B. Duckett, State's Atty. for Anne Arundel County, on the brief, for appellee.

Argued before POWERS, MASON and LISS, JJ.

LISS, Judge.

The appellant, Wade Iglehart Johnson, was indicted in Anne Arundel County, Maryland, in three cases charging the robbery of an employee of Rainbow Cleaners in Annapolis during the course of which the employee was shot and seriously injured, and the robbery and assault of an employee of the Acme Market in Annapolis. The cases were removed for trial to the Circuit Court for Carroll County and were tried before a judge and jury. The jury found the appellant guilty of one or more counts in each of the indictments. Concurrent terms of imprisonment were imposed and it is from these judgments that the instant appeal was filed.

We shall refrain from detailing at length the evidence given at the trial which for the most part is not material to the issues raised by this appeal. We shall, instead, highlight the portions of the evidence which pertain to the legal questions raised by the appellant. He raises the following questions to be determined in this appeal.

I. Did the trial court err in refusing to grant appellant's motion to suppress his extrajudicial, inculpatory statement because (a) the statement was the product of an unlawful arrest, and (b) the statement was involuntary?

II. Did the trial court err in failing to exclude the in-court identifications of the appellant on the ground that such identifications were the product of impermissibly suggestive prior photographic identifications?

III. Did the trial judge err in refusing to declare a mistrial because of inflammatory and prejudicial arguments to the jury by the prosecutor?

We answer each of these queries in the negative for the reasons we shall hereafter elucidate and shall affirm the judgments of the trial court.

I(a).

We have carefully reviewed the voluminous record of the suppression hearing and from the testimony have distilled the following factual chronology of the events. The robberies occurred on January 13 and January 24, 1975. An arrest warrant was obtained for the appellant on January 25, and the police in several trips to his home advised his family that they wished to talk to him about one of the robberies. On January 30 at 3:15 p. m., the appellant, accompanied by several members of his family, surrendered himself at the Annapolis police headquarters. He was advised at that time that the police had a warrant for his arrest for the robbery of the Acme Market. He was turned over to one of the officers for processing (i. e., fingerprinting and photographing) and then delivered to two officers for interrogation. The accused was given his Miranda rights, each of which was read to him; he was asked whether he understood each of them after they were read to him and he indicated that he did; then he placed his initials after each of the rights read to him and signed his name at the bottom of the sheet indicating that he had been read his rights, that he understood them, that there were no threats or inducements, that he waived his right to an attorney and that he was prepared to make a statement.

At this point in the proceedings, the appellant advised the officers that he was feeling sick because of a number of pills, prescribed by a doctor, which he had taken shortly before he came to the station. The officers asked if he wanted treatment at a hospital and started to make arrangements for his transfer to the Anne Arundel General Hospital, but the accused changed his mind and asked for some time for a rest. The officers noted that he appeared glassyeyed and that his lips were very wet. The officers immediately terminated the interrogations and returned the accused to the police lockup.

The following morning at about 9:45 a. m. the accused was taken to the interrogation room. The appellant, according to the police officers, looked alright-the glassiness of the eyes had disappeared, but his lips were still very moist. The Miranda rights procedure was repeated and the appellant again initialed each of the rights sentences and signed the rights sheet indicating that he wished to make a statement. The officers testified that during the questioning the appellant was permitted several periodic relief breaks, a coffee break, a food break and several cigarette breaks. He was also permitted to make at least two telephone calls. The appellant made an inculpatory statement as to the Acme Market robbery and interrogation was completed at 3:45 p. m. He was then taken before a commissioner where bail was set. It is conceded by the State that a commissioner was available at all times, in an adjoining building to the police headquarters, from the time of arrest of the appellant until the time that he was actually taken before the commissioner.

Later in the afternoon of January 31, as a result of certain information developed by the officers, the accused was advised that they wished to discuss the Rainbow Cleaners holdup with him. At about 5:55 p. m. he was again advised of his rights and gave an inculpatory statement. That interrogation was completed at 6:55 p. m. At about 10:45 p. m., as a result of a complaint of stomach cramps, the appellant was taken to the hospital, given an injection, and then released for return to the police station.

A total of seven arrest warrants for the appellant had been obtained by the police beginning on January 25, 1975. The appellant was in custody for the first time on January 30, and the first warrant was served on January 31 at 3:45 p. m. after the Acme statement had been obtained. The remaining warrants were served on February 1 at 11:55 p. m.

Our task is to assess the correctness of the trial court's denial of the appellant's motion to suppress the in-custody extrajudicial statements made by the accused to the police. We are limited in our review to the evidence produced at the suppression hearing. Dobson v. State, 24 Md.App. 644, 335 A.2d 124 (1975).

The appellant contends that the statements obtained from him were the result of an illegal arrest and that as 'fruits of the poisonous tree' they should not have been receive into evidence. The rule upon which appellant relies was promulgated by the Supreme Court in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The Maryland courts disassociated themselves from that decision in a long line of cases in both the Court of Appeals and this Court, ¹ but reversed their position by adopting the Wong Sun rationale in the case of Everhart v. State, 274 Md 459, 337 A.2d 100 (1975), rev'g, 20 Md.App. 71, 315 A.2d 80 (1974). We followed suit in the case of Ryon v. State, 29 Md.App. 62, 349 A.2d 393 (1975), aff'd, 278 Md. 302, 363 A.2d 243 (1976).

Ryon was originally before this Court on appeal from Ryon's conviction by a jury in a case of murder in the first degree. On direct appeal this Court affirmed; certiorari was denied by the Court of Appeals. Ryon v. State, No. 376, September Term, 1973, filed 19 June 1974 (unreported), cert. denied, 272 Md. 747 (1974). The Supreme Court of the United States subsequently in a memorandum opinion did grant certiorari, Ryon v. Maryland, 422 U.S. 1054, 95 S.Ct. 2674, 45 L.Ed.2d 705 (1975), vacated the judgment of this Court and remanded the case for further consideration in light of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). In Brown the accused had been arrested without probable cause and without a warrant under circumstances indicating that the arrest was investigatory. He gave two in-custody inculpatory statements. The Illinois Supreme Court sustained a denial of a motion to suppress by the trial court on the ground that the giving of the Miranda warnings served to break the causal connection between the illegal arrest and the giving of the statements and the statements were therefore sufficiently an act of free will to purge the primary taint of the unlawful invasion.

The Supreme Court reversed on the ground that the Illinois courts erred in adopting a per se rule that the Miranda warnings, in and of themselves, were sufficient to purge the taint of the illegal arrest under the Fourth Amendment to the United States Constitution. It held that the question of whether a confession is voluntary under Wong Sun must be answered on the facts of each case and the burden of showing admissibility of in-custody statements of persons who have been illegally arrested rests on the prosecutor. We followed this reasoning in Ryon, supra, where Chief Judge Orth of this Court laid down the following guildelines:

'1) The Fourth Amendment exclusionary rule applies equally to statements and tangible evidence obtained following an illegal arrest or an otherwise illegal search and seizure.

2) Such statements are not rendered inadmissible simply because of the illegal arrest or unreasonable search and seizure.

3) Such statements are not rendered admissible simply because the Miranda warnings were fully given.

4) Admissibility of such statements, vel non, must be answered on the facts of each case, upon consideration of:

(a) the voluntariness of the statement, which is a threshold requirement;

(b) compliance with the Miranda safeguards, which is important in determining whether the statements were obtained by exploitation of the illegal conduct;

(c) other relevant factors, such a

(i) the temporal proximity of the arrest and the confession;

(ii) the presence of intervening circumstances; and

(iii) 'particularly, the purpose and flagrancy of the official misconduct." Id. 29 Md.App. at 71-72, 349 A.2d at...