Shope v. State

• Decision Date: 11 January 1979
• Docket Number: No. 455,455
• Citation: 396 A.2d 282,41 Md.App. 161
• Parties: Raymond Grady SHOPE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 161

41 Md.App. 161

396 A.2d 282

Raymond Grady SHOPE v. STATE of Maryland.

No. 455.

Court of Special Appeals of Maryland.

Jan. 11, 1979.

Stanley M. Dietz, Gaithersburg, for appellant.

Stephen B. Caplis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew Sonner State's Atty. for Montgomery County, and Thomas B. Cooke, Asst. State's Atty. for Montgomery County, on the brief, for appellee.

Argued before MOORE, LOWE and WILNER, JJ.

LOWE, Judge.

two sizes too small

Lori Michelle O'Callaghan visually epitomized "what little girls are made of" if one could have seen her beyond her bruises and welts. Raymond Grady Shope (who lived with Lori's mother) having caused those bruises and welts on six-year-old Lori, was convicted by a jury in the Montgomery County Circuit Court of child abuse.

At approximately 3:45 on the morning of May 12, 1977, a neighbor in an apartment under appellant's heard

"someone very small running across the bedroom floor above me followed by a larger person, heavier person running behind the child and I heard banging around and I heard a man lecturing loudly, something to the effect, 'I have told you time and time again not to take it there; you didn't listen to me, you lied to me.' I heard what I thought was someone beating against something rather hard above me and then I heard what seemed to be like furniture being hurled across the room, hitting the wall and falling to the floor.

After I heard the beatings, I heard a small child screaming as if it was in pain. Not the kind of screaming that one would hear if they awakened in the middle of the night from a bad dream or something.

After I heard the child scream I heard what appeared to be something being thrown across the room, hitting the wall and falling to the floor."

Neighbors in the apartment above were also awakened by noise and heard crying and screaming during the melee which subsided at about 4:00 a. m. with "a child whining . . . it sounded like a wounded animal."

Distraught with having lost at the race track from which he had returned with his family after midnight, appellant argued and fought with Lori's mother over "problems" that he had had with Lori. Whatever those problems may have been, his corrective measures brought on a police inquiry at the instance of his neighbors whose repose had been disturbed by Shope's choice of punishment.

Upon observing some of Lori's injuries including contusions so severe they bled the police requested appellant and Mrs. O'Callaghan to take Lori to a hospital. As a result of the medical examination and Lori's statement to an officer, Shope and Mrs. O'Callaghan were arrested.

Shope has appealed his subsequent conviction raising three issues, one of which compels reversal. An inculpatory statement was erroneously admitted. Finding, upon review of the record, sufficient evidence to sustain the conviction despite the preclusion of that statement, we will remand for retrial. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Mackall v. State, 283 Md. 100, 387 A.2d 762 (1978). To assist the court at retrial, we will address all issues raised on this appeal.

sufficiency of the evidence

Lori's testimony was, of itself, sufficient to provide evidence that Shope had caused her injuries by not only hitting and squeezing the petite child with his hands, but also using a belt proliferate with metal studded holes, which she identified. The additional testimony of visual and auditory observations by the neighbors, and by Mrs. O'Callaghan, amply supplemented the evidence from which inferences could have been drawn of the severity of the beating administered by Shope.

The "injuries" were vividly preserved by photographs introduced into evidence. Those pictures clearly indicate the result of "damages, harms or hurts" far in excess of permissible corporal punishment. See State v. Fabritz, 276 Md. 416, 424, 348 A.2d 275 (1975). Furthermore, contrary to appellant's contention, there was medical testimony that indicated that some of the injuries had occurred within four hours of the medical examination on the morning of May 12, 1977 "on or about" which date the indictment had charged the injuries had been inflicted. Appellant's sufficiency argument is specious.

without unnecessary delay

Following his arrest at 6:45 a. m., appellant was held at the Wheaton-Glenmont Police Station from his arrival at 7:50 a. m. until 7:00 p. m., when he was first taken before a commissioner and apprised of his charges pursuant to M.D.R. 723. Although actually interrogated only 45 minutes, during which he gave a formal, primarily exculpatory statement, he was kept handcuffed to a table in the interrogation room throughout the entire day. It was conceded at argument that the District Court sits from 9:00 a. m. until 5:00 p. m. daily at that location. It is also conceded that there is a commissioner available at the station 24 hours a day, 7 days a week.

Fifteen minutes before the police presented appellant to a commissioner, an officer overheard appellant make an incriminating admission to his common-law wife. The facts leading to that statement were described by the officer there present. ¹

"Raymond Shope had made a request of me that he have certain medicine that Toni O'Callaghan had in her possession. I was very reluctant because the prescription did not have any name or identifying marks on it. I was very reluctant to give it to him. Our procedure is not to allow anything such as that to occur in passing it. I took the chance that they were being honest and frank with me. And rather than pass the medication to him, I allowed Raymond Shope to come into the room with Toni O'Callaghan.

At that time they had a limited conversation in my presence. The conversation was of several things that were said concerning the medication, et cetera. Other things were said, and one of the things Raymond Shope said, 'I did wrong and I have got to pay for it.' Toni Shope's response was, 'I did wrong too. I was there.' "

the per se exclusion

A preliminary motion to suppress that statement and a subsequent objection at trial, asserting that appellant had not been before a commissioner prior to making the statement, were both overruled. This was an error, but not one chargeable to the trial judge. It is one the blame for which we must assume. In May of 1977, we held in Johnson v. State, 36 Md.App. 162, 373 A.2d 300 (1977), that M.D.R. 723.a. was directory not mandatory. The rule directs that:

"A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than the earlier of (1) 24 hours after arrest or (2) the first session of court after the defendant's arrest upon a warrant or, where an arrest has been made without a warrant, the first session of court after the charging document is filed. A charging document shall be filed promptly after arrest if not already filed."

We were wrong, and the judge below was misled by our misinterpretation.

On April 6, 1978 (the same day Shope was sentenced), we were reversed by the Court of Appeals (Johnson v. State, 282 Md. 314, 384 A.2d 709 (1978)), and told not only that M.D.R. 723.a. was mandatory, but also that the sanction for violating it was to be the per se exclusion of any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer. 282 Md. at 328-329, 384 A.2d at 717.

"We therefore hold 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. A statement is automatically excludible if, at the time it was obtained from the defendant, he had not been produced before a commissioner for his initial appearance within the earlier of 24 hours after arrest or the first session of court following arrest, irrespective of the reason for the delay." Id. at 328-329, 384 A.2d at 717, (emphasis added). ²

The State does not dispute that there was a violation of the rule as interpreted by the Court of Appeals. It argues that Johnson is not retroactive and, even if it is, its holding is irrelevant because the statement here was in the nature of a " 'blurt out' " type statement which it interprets as "exempted" by the Court of Appeals. Neither argument has merit.

retroactivity

Despite the carefully reasoned argument that Johnson is not retroactive when measured against the Supreme Court test in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), that question is not an applicable issue in this case. Since Johnson, like Linkletter, addressed the retroactivity of the exclusionary sanction to be applied to a violation of a rule, rather than the retroactivity of the rule itself, the argument appeared at first blush most persuasive. It was given strength more recently by the Supreme Court's observation in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975).

"(I)n every case in which the Court has addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the factfinding process, the Court has concluded that any such new constitutional principle would be accorded only prospective application. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Stovall v. Denno, supra (388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)); Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); ...