State v. Raithel

• Decision Date: 20 July 1979
• Docket Number: No. 56,56
• Citation: 404 A.2d 264,285 Md. 478
• Parties: STATE of Maryland v. Thomas Leonard RAITHEL.
• Court: Maryland Court of Appeals

Page 478

285 Md. 478

404 A.2d 264

STATE of Maryland v. Thomas Leonard RAITHEL.

No. 56.

Court of Appeals of Maryland.

July 20, 1979.

Deborah K. Handel, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Victoria A. Salner, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE and COLE, JJ.

ELDRIDGE, Judge.

The single question before the Court is whether a trial court's use of an accused's silence at a prior suppression hearing to impeach his credibility when the defendant subsequently testifies at a second suppression hearing is permissible.

On July 5, 1974, a female patron was found stabbed outside a restroom in a restaurant in Prince George's County, Maryland. Although the actual stabbing was unwitnessed, the defendant Thomas Leonard Raithel became the prime suspect based on circumstantial evidence. At the request of the police, the defendant, accompanied by his father, visited the police station in an effort to clear up any suspicion. A confession was obtained from defendant at that time, and subsequently he was charged with murder, assault with intent to rape, and carrying a dangerous and deadly weapon openly with intent to injure. The defendant pled not guilty, not guilty by reason of insanity, and he challenged his competency to stand trial. During the trial in the Circuit Court for Prince George's County the defendant objected to the State's attempted introduction of his confession on the ground that it was involuntary, and a suppression hearing was held outside of the jury's presence. Apparently on the advice of counsel the defendant did not testify at the suppression hearing. The judge ruled that the confession was admissible, and later the jury found the defendant sane and guilty of murder, assault with intent to rape and carrying a dangerous and deadly weapon with intent to injure. He was sentenced to two life terms for the convictions of murder and assault with intent to rape, and a three year term for carrying a dangerous and deadly weapon with intent to injure, the sentences to be served consecutively.

The Court of Special Appeals affirmed, but this Court reversed and remanded the case for a new trial, holding that the trial court had failed to properly resolve the issue of Raithel's competency to stand trial. Raithel v. State, 280 Md. 291, 372 A.2d 1069 (1977).

On retrial Raithel, represented by new counsel, abandoned the issue of his competency to stand trial but continued to maintain that he was not guilty and not guilty by reason of insanity. During the course of the second trial, the State again offered into evidence the defendant's alleged confession. Raithel again objected on the ground that the statements were not voluntary. Upon the defendant's motion to suppress the confession, a hearing was again held out of the jury's presence. Since the trial judge had also presided in the first trial and remembered the testimony, he suggested that the motion be decided on the basis of the previous testimony along with any additional testimony the parties wished to present, and this procedure was agreeable to counsel for both sides.

At the suppression hearing the prior testimony of two police officers was introduced. The policemen's version of what happened was as follows. Raithel, upon the officers' suggestion, voluntarily went to the police station accompanied by his father. The officers suggested to the defendant's father than a polygraph examination would be the best means of resolving any suspicion, and, after discussing the matter with his father, Raithel agreed to take the test. He was given Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), although he was also informed that he was free to leave at any time. Raithel was connected to the polygraph machine, was asked some preliminary questions, and then stated that he did not want to take the test. One of the police officers suggested to Raithel that he could not take the test because he had committed the crime. The officer went on to suggest that the killing had been accidental, and Raithel agreed that the killing was in fact accidental. Then, the policeman told Raithel he did not believe him, and Raithel admitted how the killing actually occurred. According to the police officers, his statements were made without any threats, inducements, or coercion.

At the second suppression hearing, the defendant, for the first time, testified in support of his motion and gave a different version of what happened than the police officers. Raithel testified that his father had urged him to take the polygraph test and that he only initially consented because he "couldn't refuse (his) father." According to Raithel, after he was disconnected from the polygraph machine he tried to leave the room, but the police officer told him that he was not free to leave the building because the officer knew Raithel was guilty. Raithel claimed that he then asked to see his father but was told that his father had left the station to get something to eat. Raithel testified that when he attempted to leave the room to wait outside for his father, the police officer stood up in a threatening manner and told him to sit down. He finally confessed after several hours of interrogation. ¹

In ruling on the voluntariness of the confession, and, in that connection, in determining the credibility of the witnesses, the trial judge relied on the failure of the defendant and his father to take the stand and offer their testimony at the first suppression hearing. The judge stated that their failure to testify at the first suppression hearing "frankly . . . does have some bearing on the credibility issue to the court." Defense counsel responded by stating that he could not speak for what Raithel's attorney had done at the prior hearing, that he did not have the benefit of the earlier lawyer's thoughts, and that "counsel make tactical decisions for all kinds of reasons." The trial judge, although saying that he understood what defense counsel was arguing, reiterated that the failure of the defendant and his father to testify at the prior suppression hearing "does have some bearing on the court's mental process." The trial judge went on to note that if the defendant's testimony were to be believed, "probably the State hasn't met the burden of" showing voluntariness by a preponderance of the evidence. The trial judge subsequently found the confession to be voluntary and admitted it into evidence.

Raithel was again found guilty by the jury on all three charges. The convictions for assault with intent to rape and for murder were merged, and Raithel was sentenced to one term of life imprisonment. He was also sentenced to three years' imprisonment for carrying a dangerous and deadly weapon. The terms were to be served consecutively.

Upon appeal, the Court of Special Appeals reversed and remanded for a new trial, Raithel v. State, 40 Md.App. 107, 388 A.2d 161 (1978). The court held that the privilege against self-incrimination prevents an accused's silence at a prior hearing from being considered in assessing his credibility. The Court of Special Appeals also rejected the State's argument that the defendant had not preserved this issue for appellate review.

The State filed a petition for a writ of certiorari raising two questions: 1. whether the Court of Special Appeals erred in holding that the issue concerning the defendant's silence was properly preserved for appellate review; 2. assuming that the issue was properly before the Court of Special Appeals, whether that court erred in holding that the trial judge at the second suppression hearing improperly relied upon the defendant's prior silence. We granted certiorari limited to the second question; consequently, the merits of the trial court's action is the only matter before us. Maryland Rule 813a. We agree with the Court of Special Appeals that it was impermissible for the trial court to use the defendant's silence at the first suppression hearing against him when assessing his credibility at the second suppression hearing, although we rest our decision on somewhat different reasoning than adopted by the Court of Special Appeals.

In arriving at its conclusion, the Court of Special Appeals appeared to proceed upon the unstated assumption that, absent a constitutional bar, the defendant's prior silence could as a matter of Maryland criminal evidence law be used to impeach his credibility as a prior inconsistent statement. The Court of Special Appeals began its discussion by stating: "The constitutional question to be decided is whether an accused who testifies waives his right not to be cross-examined as to his silence in a prior proceeding." 40 Md.App. at 113, 388 A.2d at 165. The court then discussed Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), involving a situation where an accused did not testify at his first trial despite accusations made by a government agent, but did testify at his second trial, and the Supreme Court held that the Fifth Amendment did not preclude cross-examination of the defendant at the second trial concerning his prior silence. The Supreme Court's reasoning in Raffel was that the defendant, by testifying at the second trial, completely waived his privilege against self-incrimination. After discussing Raffel v. United States, supra, the Court of Special Appeals in the instant case went on to consider several more recent Supreme Court cases which, according to the Court of Special Appeals, left Raffel's "present validity . . . a matter of considerable doubt." 40 Md.App. at 114, 388 A.2d at 165. Those cases are Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14...