Robeson v. State
| Decision Date | 12 May 1978 |
| Docket Number | No. 997,997 |
| Citation | 386 A.2d 795,39 Md.App. 365 |
| Parties | Dythian Theolaef ROBESON a/k/a Dykie v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Alan H. Murrell, Public Defender and Mark Colvin, Asst. Public Defender, for appellant.
Francis B. Burch, Atty. Gen., Diane G. Goldsmith, Asst. Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and Roy Breslow, Asst. State's Atty. for Baltimore City, for appellee.
Before LISS, WILNER and COUCH, JJ.
Appellant, Dythian Theolaef Robeson, a/k/a Dykie was convicted by a jury in the Criminal Court of Baltimore of first degree murder, assault with intent to murder and two counts of the use of a handgun in the commission of a crime of violence. Sentences were imposed and it is from these judgments that this appeal was filed.
Appellant raises six contentions on appeal which he states as follows:
We find no merit in any of these contentions and shall affirm.
The evidence produced at trial indicated that on December 27, 1976 Officer Thomas Wade responded to a call in the 800 block of George Street to investigate a shooting. On his arrival at the scene he observed three persons standing near a station wagon, the right side window of which had been shattered. A spent bullet was found in the door on the driver's side. Lying in the gutter face down was a dead black male later identifed as Stilton Jones, nicknamed "Cookie." Harry Johnson, the owner of the station wagon, testified that on that day he went to 851 George Street to purchase $25 worth of heroin from the appellant but was advised that he could only buy a $50 packet. Johnson saw Cookie there as a customer, and although he had never seen Cookie before, he suggested that they pool their funds and buy a $50 packet of heroin. Cookie agreed and the transaction was completed. Johnson, Cookie and a friend of Cookie's named McEachin then went to a nearby apartment and injected the heroin. They were disappointed with the quality of the heroin and returned to the appellant's apartment to complain. Cookie and Johnson went in and Johnson left to return to his vehicle. McEachin was seated in the back of the car. Cookie came out and got into the front passenger's seat. Appellant came out of the building and motioned to Cookie to come to him. Cookie walked toward the appellant and Johnson heard two shots. A second or two later the appellant was at the front passenger's side of the car and shot Johnson in the head. Johnson was able to drive to the hospital where he was treated. Johnson stated he did not actually see the appellant shoot Cookie.
McEachin's testimony was essentially the same as Johnson's except that McEachin stated that he saw Jones and the appellant together, heard one or two shots and then saw Cookie fall to the ground. He saw the second shot fired and saw the appellant holding the gun. His testimony as to the shooting of Johnson was identical to that of Johnson himself.
Appellant, supported by his girl friend as a witness, testified on his own behalf that he knew Cookie as a narcotics pusher and that on the night in question he and his girl friend were leaving his apartment preparing to go to a restaurant when he heard two shots, then heard a car speeding away. He stated that he arranged for an ambulance to be called for Cookie and was still on the scene when the police arrived. He denied shooting Cookie, denied selling narcotics and said he did not have a gun.
On cross-examination the prosecutor, over objection was permitted to question the appellant as to whether he had advised the police of this alleged sequence of events. Appellant contends that he had a right under the Fifth Amendment to the United States Constitution to pre-arrest silence and that the State violated this right by eliciting from him, during his cross-examination, the fact that he had failed to contact the police and advise them of his knowledge of the events surrounding the murder.
We do not believe, under the circumstances in this case, that the appellant's actions in not communicating with the police amount to "silence" in the constitutional sense of that word. "Silence" in the constitutional sense is the Fifth Amendment right to remain silent when confronted by one's accusers following an arrest or in a custodial interrogation setting. Evidence of a defendant's silence under those circumstances is not admissible because: (1) the admission of such evidence would infringe upon his Fifth Amendment right to remain silent, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Younie v. State, 272 Md. 233, 322 A.2d 211 (1974); Sutton v. State, 25 Md.App. 309, 334 A.2d 126 (1975); and (2) silence at the time of arrest lacks significant probative value and carries with it too great a potential for prejudice, United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975).
The question presented here for the first time to a Maryland appellate court, is whether the identical restrictions apply to cross-examination concerning "pre-arrest silence" with respect to exculpatory testimony offered by a defendant for the first time at the trial on the merits.
We believe it is necessary to set out in detail the cross-examination which is questioned by this appeal and here reproduce it as follows:
"Q (By assistant state's attorney.) Did you move out of your house?
A (By appellant) Yes, I did.
Q You were hiding from the police, weren't you?
A Not really hiding.
Q Well, you knew a warrant was out for your arrest, didn't you?
A Yes, I did.
Q You were hiding?
A I was.
Q Had you your suitcases there?
A Yes, I did.
Q You had all your clothes there?
A Yes, I did.
Q In a separate room; didn't you?
A From hers.
Q In her house?
A Yes, I did.
Q There was a bed in that room, wasn't there?
A Yes, it was.
Q You were hiding from the police?
A I was staying there temporarily until, you know, I could hear the, you know, the results of this, you know. Because I knew I didn't do it, and I wasn't the only one that they said did it at the time, because the police come into the restaurant and said they had a warrant for someone else for it. And then I heard they had a warrant for me for a period. And I didn't want to get arrested for no homicide I know I didn't do it. So, I did, you know, leave my mother's house.
Q Until January 3rd, until you were arrested; right?
A Yes.
Q (BY MR. BRESLOW) Did you ever tell the police what happened?
Q (BY MR. BRESLOW) You didn't call the police and tell them that you were innocent?
A No, I didn't.
Q You didn't know why the warrant was out for your arrest?
A No, I didn't.
Q You were with Rose Munford, you didn't tell them that?
A No, I didn't.
Q That you were having tea?
A No, I didn't.
Q You didn't tell the police that; did you?
A No, I didn't.
Q Why not?
A I didn't tell them that until after I was apprehended. The reason I didn't call before was because, you know, I knew I would get locked up.
Q Because you did it?
A No, no, no.
Q Then why didn't you tell them?
A Why don't I call voluntarily?
Q And tell them?
A Because, you know, it was Christmas, a holiday. I didn't want to be locked up I would have been locked up any way.
Q Because you committed this crime?
A Not because I committed the crime.
Q Why did you know you would be locked up?
A Because I know the procedure you go through.
Q Yes, when you commit a crime they arrest you?
A No, that's not the reason.
Q Well, what is the reason; I'm asking you?
A Because I didn't want to be locked up.
Q During the Christmas holidays?
A Right.
Q But the Christmas holidays were over.
A The New Year's.
Q Well, you were out for New Year's; weren't you?
A Yes, I was.
Q Did you call the police on January 2nd?
A No, I didn't.
A No, that was the day I got locked up. That was the day they caught me."
Doyle v. Ohio, supra, and its progeny, stand for the proposition that a defendant has an absolute right to remain silent after arrest and the giving of the rights prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the use of his silence for impeachment purposes under these circumstances is violative of the Due Process Clause of the Fourteenth Amendment. See: Reid v. Riddle, 550 F.2d 1003 (4th Cir. 1977). Similarly, as stated in Younie v. State, supra, and Sutton v. State, supra, a prosecutor may not comment on defendant's silence during police custodial interrogation. Appellant urges this Court to extend the holding in Doyle and to declare that he has a constitutional right to remain silent prior to arrest and prior to receiving Miranda warnings and that that right was violated by the cross-examination in this case.
In support of this proposition the appellant relies primarily on a...
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