Kidd v. State

• Decision Date: 03 November 1976
• Docket Number: No. 45,45
• Citation: 366 A.2d 761,33 Md.App. 445
• Parties: Bruce D. KIDD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 445

33 Md.App. 445

366 A.2d 761

Bruce D. KIDD v. STATE of Maryland.

No. 45.

Court of Special Appeals of Maryland.

Nov. 3, 1976.

Certiorari Granted Jan. 27, 1977.

Harriette Cohen, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

Deborah K. Handel, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and Wayne J. Cymek, Asst. State's Atty. for Baltimore City on the brief, for appellee.

Argued before MOYLAN, MENCHINE and LOWE, JJ.

MOYLAN, Judge.

The root problem giving rise to the present appeal is the failure to appreciate that in 1966 the warning and waiver requirements mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, did not supersede preexisting constitutional law on the admissibility of confessions; the requirements of Miranda simply superimposed additional criteria for admissibility upon that preexisting law. Distracted by the glitter of this new surface layer of quasi-constitutionality, our case law has tended to ignore the substratum of pre-Miranda law which lies undisturbed in bedrock immutability beneath the more volatile overlay of Miranda.

The Factual Setting

The appellant, Bruce D. Kidd, was convicted by a Baltimore City jury of possessing heroin with intent to distribute it. Although the evidence against the appellant was legally sufficient to sustain the conviction, it was by no means overwhelming. At approximately 11 p. m. on May 9, 1975, plainclothes narcotics officers approached a large crowd in the 1700 block of Baker Street. That block was known as a 'high-density narcotics area.' The appellant, upon whom investigation had not theretofore focused, quickly left the scene. The appellant testified that he was walking toward his car quickly because his daughter had hurt her knee and he was going to take her to the hospital. One of the arriving officers suspected that the appellant was 'dirty' because he was observed running from the scene. The officer testified, 'It he wasn't dirty, he wouldn't have ran.' Another of the officers observed the appellant drop something. He searched the area and discovered 18 glassine bags of heroin. The appellant denied having discarded the glassine bags of heroin. Into this two-on-one credibility battle there intruded the damaging admission now in issue, made by the appellant to the police, that he was currently a narcotics addict. The error, if such be found, cannot be deemed harmless.

The incriminating statement was made by the appellant to Officer Winkler after the appellant had been arrested and was being booked. There was no testimony that any Miranda warnings had ever been given or that any rights had been waived. Such testimony would, indeed, have been superfluous since the State never offered the statement made to Officer Winkler during the course of its case in chief.

The issue first arose during the prosecutor's cross-examination of the appellant, while he was testifying in the course of his defense upon the merits. The triggering question was, 'Did you ever tell Officer Winkler that you were a one bag habit man?' A timely objection was interposed. The objection was overruled. A bench conference ensued, at the end of which the trial judge ruled:

'If there is a confession or an admission or some statement by the defendant that does not comply with Miranda rules, you cannot introduce it on direct, but you can if the defendant takes the stand and denied it, then you can rebut his denial by putting on the statement that would not have been admissible had he not taken the stand.'

In response to the question, the appellant denied any such conversation with Officer Winkler. In rebuttal, the State called Officer Winkler. He testified, over objection, that the appellant admitted to him that he was an addict and that he had approximately 'a one-bag-a-day habit.'

There was never a hearing, out of the presence of the jury or otherwise, on the voluntariness of this statement made to Officer Winkler. It is clear that the trial court, in making its ruling, was relying upon the case of Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed.2d 1, 4 (1971), which limited the impact of Miranda and held that a statement which might be excluded from the State's case in chief because of a Miranda violation might nonetheless be received in rebuttal for purposes of impeaching the credibility of a defendant who takes the stand and testifies in a fashion contradicted by the Miranda-violative statement:

'It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.'

In 1975, Oregon v. Hass, 420 U.S. 714, 722, 95 S.Ct. 1215, 1221, 43 L.Ed.2d 570, 577, reiterated this now undisputed limitation on the application of Miranda for purposes of total exclusion:

'As in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the prosecution's case in chief is barred for all purposes, always provided that 'the trustworthiness of the evidence satisfies legal standards."

The Questions Before Us

We are called upon to decide whether the latitude countenanced by Harris v. New York with respect to a Miranda violation extends also to a violation of deeper import. What is meant by the qualifying phrase in Harris v. New York: 'provided of course that the trustworthiness of the evidence satisfies legal standards'? If there is a deeper problem lurking beneath Miranda's surface, how shall it be raised and litigated? Are a hearing and ruling required? What is the relevant test? What is the burden of proof? Who has the burden?

Earlier Intimations

On three earlier occasions, similar storm warnings were raised but the crisis passed over with no more than threatening skies. In Cooper v. State, 14 Md.App. 106, 110-116, 286 A.2d 579, the issue first loomed (albeit in the context of the possible retroactivity of Harris v. New York) but it became unnecessary for us to resolve it because, notwithstanding having laid a foundation, the State never offered the arguably infirm prior inconsistent statement. In Layman v. State, 14 Md.App. 215, 224-231, 286 A.2d 559, a question arose about using for impeachment purposes a prior inconsistent statement which allegedly ran afoul of traditional voluntariness requirements. The issue there arose, however, in the context of whether the judge was required to give a defendant an anticipatory ruling. We held that he was not so required. The present question was never faced. Finally, in Sabatini v. State, 14 Md.App. 431, 287 A.2d 511, we did not have to face squarely the issue of whether a hearing is required when the challenged statement is offered for impeachment purposes. Although in that case a preliminary hearing was not held out of the presence of the jury, the evidence bearing on the question of traditional voluntariness was offered before the court and jury alike. We held that in ruling the statement admissible, the judge 'at least implicitly' found traditional voluntariness. We further held, upon our independent, constitutional review, that the challenged statement was indeed voluntary. The risk that inheres when the matter is not explored preliminarily out of the presence of the jury did not, therefore, materialize under the circumstances of that case.

The Doctrinal Analysis of Harris v. New York

The issue now, however, is squarely before us. Indispensable to a principled resolution of the issue, and of the various sub-questions involved therewith, is an understanding of Harris v. New York not in terms of its surface operation but in terms of its doctrinal legitimacy.

If we were dealing with Miranda in a vacuum, the trial judge would be correct and we should affirm. As we pointed out in Bartram v. State, 33 Md.App. 115, 364 A.2d 1119 (filed October 5, 1976), 'Miranda v. Arizona is in definite disfavor with the strong majority of the present membership of the institution charged with interpreting the law of the land,' and has been significantly eroded in a variety of ways by Harris v. New York, supra; by Oregon v. Hass, supra; by Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); by Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), and by United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976). Miranda, however, is not coextensive with the fundamental constitutional right under the Fifth and Fourteenth Amendments against compelled self-incrimination. The erosion or demeaning of Miranda by no means implies the erosion or demeaning of the fundamental constitutional right itself. That right stands as it stood before Miranda was ever promulgated. Neither Harris v. New York nor Oregon v. Hass has eroded it in any sense.

As limiting agents upon the exclusionary power of Miranda, Harris v. New York and Oregon v. Hass themselves have limitations. A Miranda-violative statement may, indeed, be used for impeachment purposes-'provided of course that the trustworthiness of the evidence satisfies legal standards.' The limitation has a limitation.

What is required conceptually is the appreciation of the difference between a 'mere Miranda' violation and a more fundamental constitutional violation. See Bartram v. State, supra (Part 2A). To understand fully not only 1) the correctness of the Harris v. New York limitation upon Miranda but also 2) the limited scope of that limitation, one must turn to the deeper doctrinal analysis of Michigan v. Tucker, supra.

In Michigan v. Tucker, a statement had been taken from a defendant in clear violation of Miranda. That statement led the police to a witness ultimately used by the prosecution in proving its case. The Supreme Court had to come to grips with the problem of whether a Miranda violation could serve as...