Jordan v. State

• Citation: 591 A.2d 875,323 Md. 151
• Decision Date: 01 September 1990
• Docket Number: No. 53,53
• Parties: , 60 USLW 2120 Brian Richard JORDAN v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 151

323 Md. 151

591 A.2d 875, 60 USLW 2120

Brian Richard JORDAN v. STATE of Maryland.

No. 53, Sept. Term, 1990.

Court of Appeals of Maryland.

June 28, 1991.

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued Before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, JJ., and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (retired), Specially Assigned.

CHASANOW, Judge.

Brian Richard Jordan (Jordan) was convicted in the Circuit Court for Carroll County of felony murder, conspiracy to commit murder, conspiracy to commit robbery, and robbery. Jordan received two life sentences and two ten-year sentences for the respective offenses, all sentences to run consecutively. ¹

The events that culminated in Jordan's arrest and trial are as follows: Jordan and two other companions, Brian Matthew Tracy (Tracy) and Dawn Torres (Torres), with an ultimate goal of running away to California, plotted an escape from the Sykesville Shelter Home, a juvenile facility where they were being detained. On November 22, 1987, they discussed a plan whereby Tracy and Jordan would kill Richard Purman (Purman) and steal his car. Later that day, Tracy called Purman and asked him to drive to the shelter and pick up Tracy, Torres and Jordan. Purman complied. Tracy instructed Purman to drive to Tracy's house, where Tracy obtained a gun. Next, Tracy directed Purman to a wooded area at Mail and Sam's Creek Roads and told Purman that he had a surprise for him. Upon their arrival and after unloading the personal belongings of the runaways into a weeded area, Tracy shot Purman to death. ² The rest of the escape scheme did not go as planned, and the three ultimately returned to the Sykesville Shelter.

On November 23, 1987, at approximately 3 a.m., Jordan, age 16, and Tracy were arrested at the Sykesville Shelter Home. Jordan was handcuffed, Miranda ³ warnings were read to him, and he then was placed under arrest. During this time, Jordan complained to the officers that the handcuffs were too tight, but no corrective measures were taken. Jordan was transported to the Westminster Barracks of the Maryland State Police. Although the temperature was 23 degrees outside and there was ice and snow on the ground, Jordan was taken wearing only a tee shirt and jeans, with no shoes or socks on his feet. Miranda warnings were read again to Jordan by Corporal James Leete. Before making a statement about the events and circumstances surrounding Richard Purman's death, Jordan asked whether he could have a lawyer but was told that none was presently available. He also was not permitted to contact his mother. Jordan subsequently made a 95 minute incriminatory statement.

A hearing was held prior to trial on a motion to suppress Jordan's statement. Jordan claimed that his statement was involuntarily made and that he did not waive his right to counsel. Several factors were asserted as to why the trial judge should find Jordan's prior statement involuntary: 1) Jordan was a juvenile being detained in a juvenile facility; 2) he complained of discomfort from the handcuffs being too tight, but was only given instructions on how to attempt to alleviate the pressure on his wrists; 3) he was inadequately dressed for the inclement weather conditions, i.e., "shoeless, sockless, hatless, and jacketless," when transported to the Maryland State Police Barracks; and 4) he was forced to walk barefoot over an icy gravel parking lot to the barracks. The trial court held that Jordan had been properly advised of his rights and that his statement was voluntarily made, but that the State had not proven by a preponderance of the evidence that Jordan had knowingly and intelligently waived his right to counsel. Therefore, when and if Jordan took the stand, his statement could only be used for the purpose of impeachment.

At trial, after the State had concluded its case, Jordan's counsel requested that the trial court reconsider its ruling on the voluntariness of Jordan's statement and proffered that the defendant would take the stand if his prior statement could not be used for impeachment purposes. The trial court declined to reconsider its ruling on the motion to suppress. Jordan elected not to testify and, after being convicted, appealed to the Court of Special Appeals. He maintained that his statement was not voluntarily given because of the conditions and circumstances that he was exposed to immediately prior to interrogation, as well as his young age at the time of arrest and his detainers' refusal to allow him to speak with his mother either at the shelter or police barracks. The State argued that the issue had not been preserved for appeal since Jordan did not testify and, therefore, the statement was never utilized or placed into evidence. The Court of Special Appeals decided that the issue was not preserved for appellate review.

"The [trial] court ruled that the State's failure to prove compliance with Miranda rendered [Jordan's] statement inadmissible in the State's case in chief. On the other hand, its ruling that the statement was voluntarily made allowed the State to use it to challenge [Jordan's] credibility should he testify in his own behalf. See Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). [Jordan], as we have seen, elected not to testify; hence, the statement was never used in the case for any purpose. Therefore, the issue simply has not been properly presented for our review. See Offutt v. State, 44 Md.App. 670, 410 A.2d 611 (1980), cert. denied, 291 Md. 780 (1981). See also Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984)." (Footnote omitted.)

Jordan v. State, 82 Md.App. 225, 231, 571 A.2d 238, 241 (1990).

I. DECISION TO ADMIT JORDAN'S CONFESSION NOT PRESERVED

This Court must decide whether a trial court's ruling that the defendant's prior statement was voluntary is preserved for appeal if the defendant fails to testify on his own behalf and proffers to the court that, but for its ruling, he would have exercised his right to testify.

The fundamental constitutional right of a criminal defendant to testify in his own defense is deeply entrenched in our modern system of jurisprudence. Rock v. Arkansas, 483 U.S. 44, 49-50, 107 S.Ct. 2704, 2708, 97 L.Ed.2d 37, 44-45 (1987). "It is one of the rights that 'are essential to due process of law in a fair adversary process.' " Id. at 51 107 S.Ct. at 2708-09, 97 L.Ed.2d at 46 (quoting Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562, 572 n. 15 (1975)). Allowing a defendant to testify promotes both the " ' "detection of guilt" ' " and the " ' "protection of innocence." ' " Rock, 483 U.S. at 50, 107 S.Ct. at 2708, 97 L.Ed.2d at 45 (quoting Ferguson v. Georgia, 365 U.S. 570, 581, 81 S.Ct. 756, 762, 5 L.Ed.2d 783, 790 (1961), in turn quoting 1 Am.L.Rev. 396 (1867)).

It is axiomatic that courts have traditionally reviewed decisions that permit the admission of evidence in criminal trials only where the evidence is used to convict. We are not inclined to review a trial court's decision authorizing the State to use particular evidence when, as a result of a tactical decision by the defendant, the State ultimately was precluded from utilizing that same evidence.

Jordan's alleged injury is rather remote and speculative. If Jordan had testified, it is possible, depending on how he testified, that the State might have elected not to use his statement to impeach him and thus not open the door to the issue of voluntariness. It is also possible that Jordan might have taken the stand and given testimony consistent with his statement to the police, thus precluding use of the statement since it would have no "impeachment" value; or Jordan might have taken the stand and given testimony so similar to his statement to the police that use of the statement to impeach, even if improper, would be harmless error. ⁴

Just as Jordan's potential injury is speculative, the right he is asserting is also speculative. If we assume Jordan is correct and the trial judge erroneously ruled that the confession was voluntary, then it is not clear how Jordan's constitutional rights were violated. His right against self-incrimination was not infringed upon, as he elected not to testify. His right to take the witness stand could ultimately be preserved since, if he testified and was improperly impeached with an involuntary statement, any conviction would be reversed on appeal. What Jordan really seems to be asking for is that, when a trial judge improperly rules that an involuntary confession can be used to impeach, the defendant ought to be able to avoid the effect of the ruling by not taking the stand, but still have his conviction reversed because evidence that ultimately was never introduced should not even have been available for introduction.

In New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979), the Supreme Court held that impeachment by prior statements made to a grand jury under a grant of immunity would violate a defendant's Fifth Amendment rights. The Portash trial judge had ruled in limine that the defendant could be impeached with the grand jury testimony, and as a result, the defendant elected not to testify. The Supreme Court held that it could review the trial court's ruling since the New Jersey appellate court had considered the suppression ruling properly before it and federal law did not prohibit New Jersey from following this procedure.

In a concurring opinion joined by Justice (now Chief Justice) Rehnquist, Justice Powell acknowledged that since this was a state case, the procedural question was within the authority of the state to decide. He said, "requiring that the claim [that the confession could not be...