Pappaconstantinou v. State, 29

• Decision Date: 11 December 1998
• Docket Number: No. 29,29
• Citation: 721 A.2d 241,352 Md. 167
• Parties: Michael J. PAPPACONSTANTINOU v. STATE of Maryland.
• Court: Maryland Court of Appeals

721 A.2d 241

352 Md. 167

Michael J. PAPPACONSTANTINOU v. STATE of Maryland.

No. 29, Sept. Term, 1998.

Court of Appeals of Maryland.

December 11, 1998.

Tucker V. Clagett (Andrews, Schick, Bongar & Starkey, P.A., on brief), Waldorf, for petitioner.

Regina Hollins Lewis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

RAKER, Judge.

The question we must consider in this case is whether a confession elicited by a private individual is subject to Maryland's common law requirement of voluntariness. We shall hold that Maryland's common law voluntariness requirement does not apply to confessions elicited purely by private individuals.

I.

Michael Pappaconstantinou (also known as Pappas) was employed with Auto Row Auto Parts (Auto Row) in Waldorf, Maryland for approximately three years until the company terminated him because it suspected that he had been stealing from the company. Following his termination, Pappas met with several Auto Row employees and signed the following statement:

I, Michael John Pappas wrongfully took merchandise and money from Auto Row Auto Parts. I realize that I was correctly terminated from this establishment. Property was destroyed and incorrectly marked as return item [sic]. I realize that what I did was wrong and I unjustly cause [sic] a lot of difficulties to the members of Auto Row Auto Parts.

Auto Row initiated criminal charges, and Pappas was found guilty by a jury of twelve counts of theft under $300 and one count of theft over $300 in violation of Maryland Code (1957, 1996 Repl.Vol., 1997 Supp.), Article 27, § 342.

Pappas filed a pre-trial motion to suppress his confession, claiming that it was extracted both by threats and by promises not to prosecute, and was therefore involuntary and inadmissible. The trial court declined to address the issue pre-trial, but at the trial, when Pappas renewed his motion to suppress his handwritten confession, the court held a hearing outside the presence of the jury. The trial court concluded that Pappas' statement, in the nature of an admission, was not "inherently unreliable." The trial court concluded that under the circumstances of the case, the statement was freely given, constituted competent evidence, and hence, was admissible in evidence. Pappas was convicted by the jury.

Pappas noted a timely appeal to the Court of Special Appeals, arguing that his confession was involuntary under Maryland's common law voluntariness requirement. The intermediate appellate court affirmed, holding that the common law voluntariness test, as enunciated by appellant, was "inapplicable in cases in which a private party has elicited a confession, which is later offered and received in evidence in a criminal prosecution of the confessor." Pappaconstantinou v. State, 118 Md.App. 668, 677, 703 A.2d 1295, 1299 (1998). The court reasoned that "privately-extracted confessions should be viewed like any other hearsay statement, such as a declaration against penal interest, and that the test, therefore, should be whether the statement is inherently trustworthy." Id. at 677, 703 A.2d at 1299. We agree with the Court of Special Appeals, and shall affirm.

II.

Pappas argues before this Court that his confession was the result of an improper inducement because his former employers, representatives of Auto Row, promised not to prosecute him. Pappas concedes that there were no state actors involved in eliciting his confession, and as such, no federal constitutional principles are implicated. See Colorado v. Connelly, 479 U.S. 157, 166, 107 S.Ct. 515, 521, 93 L.Ed.2d 473 (1986)

(holding that governmental or state action is a necessary requirement to exclude evidence under the Due Process Clause); Reynolds v. State, 327 Md. 494, 504, 610 A.2d 782, 786 (1992) (recognizing that "coercion by government agents is a necessary ingredient to a determination that a defendant's confession should be suppressed because the defendant's constitutional due process rights have been violated"). Instead, Pappas argues that his statement was involuntary under Maryland's common law voluntariness doctrine. He urges this Court to draw no distinction between those statements made to private individuals, on the one hand, and those statements made to government agents. He advocates a rule that would exclude from evidence all involuntary statements on the grounds that Maryland's non-constitutional doctrine of voluntariness does not require state action to trigger the rule of exclusion. In the alternative, he suggests that if the application of Maryland's voluntariness doctrine is limited to those confessions elicited by "persons in authority," then "persons in authority" should include those persons having the actual power to carry out an inducement. In Pappas' view, this class would include employers, security guards and alleged victims.

The State's position is not complicated. The State argues that the Court of Special Appeals properly rejected Pappas' contention that Maryland's common law voluntariness test and hence, the Maryland common law rule of exclusion, applies when the defendant confesses to a private person rather than a government agent. The State maintains that the proper standard for determining the admissibility of statements made to private individuals is an evidentiary test, i.e., whether the statement manifests sufficient indicia of reliability.

III.

A confession is admissible in evidence against an accused if it is "(1) voluntary under Maryland non-constitutional law, (2) voluntary under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article 22 of the Maryland Declaration of Rights, and (3) elicited in conformance with the mandates of Miranda." Ball v. State, 347 Md. 156, 173-74, 699 A.2d 1170, 1178 (1997), cert. denied, ___ U.S. ___, 118 S.Ct. 866, 139 L.Ed.2d 763 (1998) (quoting Hoey v. State, 311 Md. 473, 480, 536 A.2d 622, 625 (1988)). Thus, the "voluntariness" of a confession can be determined by the application of state evidentiary rules as well as a constitutional due process analysis. See Reynolds, 327 Md. at 503,

610 A.2d at 786 (1992) (citing 1 McCORMICK ON EVIDENCE §§ 146-47, at 564-74 (4th ed.1992)).

It is only the first requirement for admissibility that is in issue in this case—the admissibility of a statement under Maryland non-constitutional law. Considerations of federal Due Process and Miranda warnings are not implicated when, as here, the defendant is not in police custody, and the confession is elicited through purely private action. See Connelly, 479 U.S. at 166,

107 S.Ct. at 521. The Supreme Court held in Colorado v. Connelly that "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Id. at 167, 107 S.Ct. at 522. The Court reasoned that "[t]he aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false." Id. at 167, 107 S.Ct. at 522 (quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941)). Even "[t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause." Id. at 166, 107 S.Ct. at 521. The Court then left to the states to determine, under evidentiary laws of the forum, the reliability of confessions not involving coercive police activity.¹

Id. at 167, 107 S.Ct. at 521.

It has long been the law in this State that before confessions may be admitted in evidence, "that they be not induced by threats or by promise of advantage to be derived from making them; and the burden of showing affirmatively that they were not so induced to be made in any given case is upon the prosecutor." Green v. State, 96 Md. 384, 386, 54 A. 104, 104 (1903); Nicholson v. State, 38 Md. 140 (1873). The seminal case in Maryland on the common law voluntariness of confessions is Nicholson v. State. In that case, our predecessors considered the admissibility in evidence of a confession made to a police detective by the accused while in police custody. Id. at 143. The defendant contended that the police detective Crone used language to induce his confession that would not otherwise have been made. Id. Before the detective was permitted to testify to the details of the confession, the trial court examined the circumstances under which the confession was given to determine whether any promise, threat or inducement had been made to the prisoner that would render the confession involuntary, and hence inadmissible. Id. Concluding that the statement was competent evidence and admissible evidence to be presented to the jury, writing for the Court, Chief Judge Bartol stated:

[I]t is very clear upon all the authorities, that if the confession of the appellant had been induced by any threat of harm, or promise of worldly advantage held out to him by Crone, or by his authority, or in his presence and with his sanction, it ought to be excluded.

Id. at 153 (emphasis added).

In the case of Biscoe v. State, 67 Md. 6, 8 A. 571 (1887), the Court reversed the murder conviction because the confession made by the prisoner to the committing magistrate was not voluntary. The magistrate, believing it was his duty to elicit a confession from the prisoner, visited the prisoner five times. Id. at 7, 8 A. at 571. On the last visit, the magistrate told the prisoner "that it would be better for him to tell the truth, and have no more trouble about it"; the prisoner confessed. Id. at 7, 8 A. at 571. The Court noted that at the time of the confession, the defendant was in the custody of the law and was pressed by one in authority. Id. at 8, 8 A. at 571-72. The...