Key-El v. State

• Decision Date: 01 September 1997
• Docket Number: No. 5,KEY-EL,5
• Parties: Philipv. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 811

349 Md. 811

709 A.2d 1305

Philip KEY-EL v. STATE of Maryland.

No. 5, Sept. Term, 1997.

Court of Appeals of Maryland.

May 26, 1998.

Martha Weisheit, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), of Baltimore, for Petitioner.

Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), of Baltimore, for Respondent.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW and RAKER, JJ., and MARVIN H. SMITH and ROBERT L. KARWACKI, Judges (retired), Specially Assigned.

ROBERT L. KARWACKI, Judge (retired), Specially Assigned.

We issued a writ of certiorari in this criminal case to determine whether the trial court properly admitted rebuttal evidence regarding the defendant's pre-arrest silence when his wife, in the presence of a police officer, accused the defendant of battering her. We shall hold that the court did not abuse its discretion in admitting that evidence as a tacit admission by the defendant under the circumstances present in the instant case.

I.

On August 19, 1994, at approximately 10 p.m. a telephone call was placed to the emergency telephone number, 911, but the caller hung up before speaking with the operator. Nevertheless, the operator was able to determine from her terminal the name of the subscriber to the telephone used for the call and that telephone's number. The operator then called that number. A woman answered and the operator heard a man's voice yelling in the background. Concerned by what she heard, the operator dispatched both the police and an ambulance to the address where the woman to whom she had spoken was located.

Officer John Johnson of the Baltimore County Police Department was the first to arrive. Philip Key-El, the Petitioner, answered Officer Johnson's knock on his door. The officer "asked if anybody had called 911 from this location [and] if there was a problem." Petitioner answered "no", but a woman in the next room, later identified as Petitioner's wife, answered "yes". The officer walked into the room where Mrs. Key-El was standing. She was crying and her left eye was bruised and swollen. With the Petitioner standing an "arm's length away", Officer Johnson asked Mrs. Key-El what had happened to her, and she responded that she had gotten into an argument with her husband and that he pulled her by her hair and punched her in the face. Despite the fact that she spoke with enough volume for the Petitioner to hear her statement, "he didn't say anything at all" according to Officer Johnson. Subsequently, Officer Johnson decided to arrest the Petitioner.

At trial, however, Mrs. Key-El changed her story. Testifying for the defense, she denied that Petitioner had struck her but blamed her injury of August 19, 1994, on a girlfriend of her husband's. Mrs. Key-El testified that when she returned to their apartment that evening, she found her husband with a girlfriend. She claimed that she and the unidentified girlfriend argued and then exchanged blows. She further stated that after the Petitioner was successful in getting his friend out of the apartment, she continued to argue with him. According to Mrs. Key-El, when Petitioner refused to identify his girlfriend and explain what she was doing in their apartment, she called the police and accused Petitioner of battering her. She further testified that she falsely accused her husband that night in order to hurt Petitioner "the way that he hurt me."

On cross examination, Mrs. Key-El admitted that after August 19, 1994, she had received a letter from the Office of the State's Attorney requesting that she complete a victim impact statement. When Petitioner saw the letter, he became angry and threw it away. She testified that later, however, she wrote a letter to the person who had corresponded with her from the State's Attorney's office in which she repeated her accusation that Petitioner struck her in the eye with his fist on August 19, 1994.

The State recalled Officer Johnson as a rebuttal witness. The following testimony was offered and admitted:

"Q. When you asked Mrs. Key-El what happened to her and she told you that her husband struck her where was the defendant standing then?

A. When she said that he struck her?

Q. Yes.

A. She was standing in the kitchen.

Q. She was in the kitchen; where was he?

A. He was standing behind me in the dining room.

Q. Again approximately how many feet away from you?

A. From me? Maybe three or four.

Q. Did you have any difficulty hearing what she said?

A. No.

Q. Was it said with enough volume that a person in the position of the defendant would have been able to hear that statement?

A. Yes.

MR. KATZ: Objection.

THE COURT: Overruled.

A. Yes.

Q. When she said my husband hit me did the defendant deny that statement?

MR. KATZ: Objection. May we approach?

THE COURT: Anything new than what we already argued?

MR. KATZ: No, Your Honor.

THE COURT: Objection is overruled but noted for the record.

A. He didn't say anything at all."

The Petitioner was found guilty by a jury in the Circuit Court for Baltimore County of battery and was sentenced to five years imprisonment consecutive to a sentence which he was already serving for an unrelated crime. After the Court of Special Appeals affirmed that judgment, we issued our writ of certiorari on the petition of Mr. Key-El.

Petitioner contends that evidence of his pre-arrest silence in the presence of a police officer should be per se inadmissable under the law of evidence of this State; and if not, then this evidence when admitted on the issue of guilt or innocence impermissibly infringes upon his right against compelled self-incrimination protected by the Fifth Amendment to the U.S Constitution and Article 22 of our Declaration of Rights. We shall address those contentions separately.

II.

Maryland has long recognized so called "tacit admissions" by a party-opponent in both civil and criminal actions as an exception to the hearsay rule under common law. See Henry v. State, 324 Md. 204, 242, 596 A.2d 1024 (1991); Briggeman v. Albert, 322 Md. 133, 138, 586 A.2d 15 (1991); Miller v. State, 231 Md. 215, 218, 189 A.2d 635 (1963); Ewell v. State, 228 Md. 615, 618, 180 A.2d 857 (1962); Secor v. Brown, 221 Md. 119, 124, 156 A.2d 225 (1959); Zink v. Zink, 215 Md. 197, 202-03, 137 A.2d 139 (1957); Barber v. State, 191 Md. 555, 564-65, 62 A.2d 616 (1948); Kelly v. State, 151 Md. 87, 97, 133 A. 899 (1926); Brandon v. Molesworth, 104 Md.App. 167, 198, 655 A.2d 1292 (1995); Burgess v. State, 89 Md.App. 522, 536-37, 598 A.2d 830 (1991); Wills v. State, 82 Md.App. 669, 677, 573 A.2d 80 (1990); Duncan v. State, 64 Md.App. 45, 51, 494 A.2d 235 (1985); Ellison v. State, 56 Md.App. 567, 582, 468 A.2d 413 (1983); Williams v. State, 4 Md.App. 342, 348, 242 A.2d 813 (1968). Barnes v. State, 1 Md.App. 123, 125, 227 A.2d 763 (1967). This common law was codified as Maryland Rule 5-803(a)(2) which took effect on July 1, 1994. In our order adopting the rules of evidence as Title 5 of the Maryland Rules, we provided:

"the Rules in Title 5 and the other rules changes hereby adopted by this Court shall govern the courts of this State and all parties and their attorneys in all actions and proceedings therein, except as otherwise provided in such Rules; they shall take effect July 1, 1994 and shall apply in all trials and hearings commenced on or after that date; provided, however, that (1) any trial or hearing commenced prior to July 1, 1994 shall continue to be governed by the law and Rules in effect on June 30, 1994, and (2) no evidence shall be admitted against a defendant in a criminal action in proof of a crime committed prior to July 1, 1994, unless that evidence would have been admissible under the law and Rules in effect on June 30, 1994...." See Graves v. State 334 Md. 30, 36-7 n. 2, 637 A.2d 1197, 1201 n. 2 (1994). ¹

We have observed that "[a] tacit admission occurs when one remains silent in the face of accusations that, if untrue, would naturally rouse the accused to speak in his or her defense." Henry v. State, 324 Md. at 241, 596 A.2d at 1043. We also explained in Henry:

"In order for the other's statement to be considered the party's tacit admission, the following prerequisite must be satisfied: (1) the party heard and understood the other person's statement; (2) at the time, the party had an opportunity to respond; (3) under the circumstances, a reasonable person in the party's position, who disagreed with the statement, would have voiced that disagreement. The party must have had first-hand knowledge of the matter addressed in the statement."

Id. at 241-42, 596 A.2d 1024 (quoting Lynn McLain, MARYLAND EVIDENCE, see 801(4). 3 at 312-13 (1987)).

Petitioner does not assert that he did not hear or understand his wife's accusation that he pulled her hair and struck her or that he did not have the opportunity to respond. Rather, he contends that whenever a police officer is present, pre-arrest silence of a person who is the subject of an incriminating statement is at best ambiguous because of the wide spread knowledge of the Fifth Amendment right to remain silent. Alternatively, he asserts that even if we should hold that no per se rule be adopted, we should conclude that under the circumstances of the instant case the trial judge erred in admitting the evidence because his silence was too ambiguous such that its slight probative value was clearly outweighed by possible prejudice to him.

When considering the limits placed upon the use of a defendant's silence as evidence, the Supreme Court of the United States, this Court and the Court of Special Appeals have distinguished between pre-arrest and post-arrest silence. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (The Court held that the use of pre- arrest silence of the defendant to impeach his testimony at trial did not improperly burden his Fifth Amendment right to remain silent nor deny him the fundamental...