Kennedy v. State

Decision Date12 November 1980
Docket NumberNo. 12,12
Citation421 A.2d 1376,289 Md. 54
PartiesBurandous KENNEDY v. STATE of Maryland.
CourtMaryland Court of Appeals

Michael R. Malloy, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

F. Ford Loker, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellee.

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

SMITH, Judge.

We are involved in this case with the proper application of the non-constitutional per se exclusionary rule enunciated in Johnson v. State, 282 Md. 314, 384 A.2d 709 (1978), concerning a statement taken from an accused in violation of M.D.R. 723 a. 1 We shall hold that statements made by appellant Burandous Kennedy subsequent to his appearance before a judicial officer are not the "tainted fruit of a poisonous tree" and hence are admissible in evidence against him notwithstanding the delay in initially bringing him before such a judicial officer. The record clearly demonstrates that he was not interrogated relative to the crimes here at issue prior to his appearance before a judicial officer. We likewise shall hold that his contentions relative to loss of stenographic notes pertaining to his waiver of a jury trial in one case are not grounds for reversal. Hence, we shall affirm the judgments of the Court of Special Appeals in Kennedy v. State, 44 Md.App. 662, 410 A.2d 1097 (1980), and three unreported cases. 2

In four separate trials Kennedy was convicted in the Circuit Court for Montgomery County of second degree rape (case No. 1); second degree rape and burglary (case No. 2); first degree rape (case No. 3-the case before the Court of Special Appeals which was reported); and first degree rape, first degree sexual offense, and statutory nighttime housebreaking (case No. 4). Motions to suppress statements made by Kennedy were denied in each case. The four cases were heard by three different judges. For purposes of the appeal here the only question is whether they should have been excluded under Johnson. No issue is taken with the finding by the trial judges that each of these statements was voluntarily made. Kennedy's position is that the statements are inadmissible since there was a delay of nearly twelve hours between his initial arrest and his appearance before a judicial officer.

The facts here will be better understood by reference to the following time table as gleaned from the agreed statement of facts:

August 23, 1977

8:20 a. m.-Kennedy was surprised at the scene of an alleged rape in progress in Takoma Park. He was captured by police after a brief foot race. When he attempted to blurt out to his captor that someone "made (him) do it," he was advised not to say anything more and to keep quiet. He continued to speak. He was read his Miranda rights. He interrupted twice saying he knew his rights. Advice as to those rights was completed, however 9:00 a. m.-Kennedy was transported to the Takoma Park police station and placed in a holding cell.

1:00 p. m.-Detective Wortman of the Takoma Park police arrived at the police station. He orally advised Kennedy of his Miranda rights which Kennedy waived.

1:30 p. m.-Kennedy was taken to an interview room and again advised of his Miranda rights. A written waiver form was executed. A summary was given of the ongoing investigation of Kennedy in connection with rapes in the Takoma Park area. Rapes involved in cases No. 1, 2, and 3 here were among the eight cases discussed. However, the officer did not question Kennedy about these three rapes at that time. Kennedy mentioned rape No. 2 but could not remember its location. The officer told him that prior to his arrest his picture had been identified by the victims of two sexual assaults not involved in this appeal. He then made three self-incriminating statements, none of which referred to the charges at issue in this appeal. The interrogation lasted about two hours.

5:45 p. m.-Detective Brown of the Washington, D. C., police arrived as the result of advice from Detective Wortman that Kennedy was in custody.

6:50 p. m.-7:24 p. m.-Kennedy waived Miranda rights as given by Detective Brown and was questioned further.

7:45 p. m.-Kennedy was transported to the Silver Spring police station.

8:10 p. m.-Kennedy appeared before a commissioner. Charging documents were filed in three cases. No charging document in the four cases involved in this appeal were filed at that time. Advice was given to Kennedy as to his rights under M.D.R. 723 a. A preliminary hearing date was set. Bail was denied. He was transported back to the Takoma Park police station.

11:00 p. m.-Kennedy received clothes from his girl friend and spoke with her. He had called her at 3:00 p. m.

11:20 p. m.-Kennedy was again advised of his Miranda rights which he waived. He was questioned by Detectives Stone and Toomey of the Montgomery County Police Department. Incriminating statements were made about certain sexual assaults. None of those are involved in this appeal. He may have made an inexact reference to the rape involved in case No. 4. The detectives did not deem this reference significant at that time.

August 24, 1977

2:30 a. m.-Kennedy was transported by Detective Wortman to Adventist Hospital so that blood and hair samples might be taken.

4:00 a. m.-Kennedy was transferred to Montgomery County Detention Center.

Undisclosed hour in morning-Kennedy was taken before a District Court judge to be charged on cases not involved here and also for a bond review.

3:30 p. m.-Detective Stone removed Kennedy from the detention center and took him to the Silver Spring police station. He was again given Miranda warnings and again waived his rights thereunder. He was interrogated by Detectives Stone and Toomey. 5:45 p. m.-Kennedy was interrogated about and made a self-incriminating statement relative to case No. 4. After this statement he was offered immunity for and questioned about certain other incidents.

8:15 p. m.-Kennedy was advised by Wortman that his photograph had been identified earlier in the day by a rape victim. He then made the confession at issue in case No. 3.

11:00 p. m.-Kennedy was returned to the detention center.

August 25, 1977

3:00 p. m.-Wortman and another detective took Kennedy out of the detention center. He was given Miranda warnings, which he again waived. The detectives drove him around Takoma Park to the scenes of certain sexual assaults. He made further self-incriminating statements concerning the rape involved in case No. 3. He also made the self-incriminating statement at issue in case No. 1.

4:00 p. m.-Kennedy made a self-incriminating statement in case No. 2.

August 26, 1977

Kennedy was taken to the District of Columbia for questioning by police there.

9:00 a. m.-An arrest warrant was obtained for Kennedy in connection with case No. 3. The warrant was not served because it was decided to initiate proceedings against him by indictment. The warrant was filed as a detainer against Kennedy.

To summarize, Kennedy appeared before a commissioner at 8:10 p. m. on August 23 and before a district judge at an undisclosed hour prior to 3:30 p. m. on August 24. He made the statement in case No. 4 in an interrogation that began at 5:45 p. m. on August 24. His statement at issue in case No. 3 stemmed from interrogation beginning at 8:15 p. m. on August 24. His self-incriminating statement in case No. 1 came at an interrogation that began at 3:00 p. m. on August 25. His statement in case No. 2 was made at 4:00 p. m. on that date.

I

In Johnson we adopted a non-constitutional per se exclusionary rule holding "that any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer, thereby violating M.D.R. 723 a, is subject to exclusion when offered into evidence against the defendant as part of the prosecution's case-in-chief." Id. 282 Md. at 328-29, 384 A.2d 709. In that case the defendant had been held for more than twenty-four hours after his arrest without appearance before a judicial officer, despite the availability of a commissioner at all times. The State contended in Johnson that the provisions of M.D.R. 723 a were directory only. We held them to be mandatory. We recognized that our rule was a Maryland embodiment of the so-called McNabb-Mallory rule which stemmed from Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 (1948); and McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). Id. at 323, 384 A.2d 709. We likewise recognized that the rule enunciated in those cases had been placed in Federal Criminal Rule 5(a). Judge Orth pointed out for the dissenters that, quoting from 2 G. Liebmann, Maryland District Court Law and Practice § 941 at 142 (1976),

"As originally proposed, the (Maryland) rule would have directly tracked the provisions of Rule 5 (a) of the Federal Rules of Criminal Procedure which as construed constitutes the so-called Mallory Rule. The language of the first sentence of M.D.R. 709 (a) following 'without unnecessary delay' was added to supply an interpretive gloss following vigorous objection to the earlier draft by Police Commissioner Pomerleau of Baltimore City and by the State's Attorneys' Association." (Id. at 338, 384 A.2d 709.)

Federal Criminal Rule 5(a) was supplanted by the passage of Title II of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 3501. It provides in subsection (c) that a confession is not inadmissible solely because of delay in bringing a person before a commissioner if the trial judge finds that the confession was voluntarily made, if the weight to be given to it is left to the jury, and if the confession was made within six hours following arrest. Since our rule is modeled on that prevailing in the ...

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7 cases
  • Logan v. State
    • United States
    • Maryland Court of Appeals
    • February 11, 1981
    ...a defendant be taken before a commissioner without unnecessary delay is not required by the federal constitution, see Kennedy v. State, --- Md. ---, 421 A.2d 1376 (1980) Johnson v. State, 282 Md. 314, 323, 384 A.2d 709, 714 (1978), we have seen that the initial appearance requirement protec......
  • Perez v. State
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    • Court of Special Appeals of Maryland
    • February 3, 2004
    ...would not necessarily be tainted. See Oregon v. Elstad, 470 U.S. 298, 314, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); Kennedy v. State, 289 Md. 54, 68-69, 421 A.2d 1376 (1980) (a confession obtained after presentment to two different commissioners held voluntary, despite earlier violation of pr......
  • Smith v. State
    • United States
    • Maryland Court of Appeals
    • August 26, 1981
    ...made to conform to the truth. Our inquiry focuses upon whether the result in the instant case should parallel that of Kennedy v. State, 289 Md. 54, 421 A.2d 1376 (1980). In Kennedy, we held, inter alia, that where a court reporter had destroyed stenographic notes of the hearing at which the......
  • Keith W., In re
    • United States
    • Maryland Court of Appeals
    • September 1, 1986
    ...made [in this case] to have the record reconstructed by, for example, [obtaining] an affidavit from the master. Cf. Kennedy v. State, 289 Md. 54, 71-72, 421 A.2d 1376 (1980)."2 The record does not indicate whether the State was at fault for the witness's failure to appear.3 Rule 746 was sub......
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