Wills v. State

• Decision Date: 01 September 1989
• Docket Number: No. 1253,1253
• Citation: 82 Md.App. 669,573 A.2d 80
• Parties: , 58 USLW 2719 Joseph Greenfield WILLS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 669

82 Md.App. 669

573 A.2d 80, 58 USLW 2719

Joseph Greenfield WILLS v. STATE of Maryland.

No. 1253, Sept. Term, 1989.

Court of Special Appeals of Maryland.

May 7, 1990.

Gary S. Bernstein (William H. Murphy, Jr., on brief), Baltimore, for appellant.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Richard A. Cooper, State's Atty., for Charles County, La Plata, on brief), for appellee.

Argued before GARRITY, ALPERT and KARWACKI, JJ.

KARWACKI, Judge.

Joseph Greenfield Wills, the appellant, was convicted by a jury in the Circuit Court for Charles County of distributing cocaine. The court sentenced him to ten years imprisonment. He seeks reversal of that judgment, contending that the court erred in permitting the State to cross-examine him pertaining to his post-arrest silence.

At trial, Detective William Winters of the Charles County Sheriff's Department testified that, while working undercover at 7:49 p.m. on June 17, 1988, he and two police informants, Deanna Carmody and Elizabeth Butler, went to the home of appellant in order to purchase cocaine. Winters related that once inside the home Carmody and Butler left the room while he purchased three bags of crack cocaine, which appellant produced from a zippered pouch. After this purchase, Carmody and Butler returned to the room, and the three left the premises and met with a police backup team. Winters also testified that appellant's wife was in the home when the purchase was made. Carmody and Butler testified to essentially the same facts.

Appellant's wife testified that appellant was not home on the evening of June 17, 1988, and that no one came to their home that night. Robert A. Jones, a friend of appellant, testified that on the evening of June 17, 1988, he met appellant at the Old Dominion automobile drag racing track in Manassas, Virginia, "roughly around quarter to seven or seven o'clock." He stated that he left the racetrack at "about quarter after 11 or 11:30" and that appellant was still there. ¹

Appellant testified in his own defense. He denied selling cocaine to Winters on June 17, 1988, explaining that on that evening he was at the Old Dominion Racetrack from approximately 5:00 p.m. until after midnight. On cross-examination, the following exchange took place:

STATE'S ATTORNEY: You never told the police that you were drag racing on June 17th, did you?

DEFENSE COUNSEL: Objection.

THE COURT: Overruled.

APPELLANT: No. I did not tell the police I was drag racing.

Corporal William Brown and Detective Dale Scheider, of the Charles County Sheriff's Department, were called as rebuttal witnesses by the State. Both testified that they were in an unmarked police car as members of the backup team working with Detective Winters on June 17, 1988. Both stated that they saw appellant standing outside his home a few minutes after hearing on their police radio that Winters, Carmody and Butler had left appellant's home.

The record reveals that appellant was not charged with selling cocaine on June 17, 1988, until he was arrested 11 days later. That arrest was pursuant to a warrant issued on June 27, 1988 at 4:20 p.m. by a district court commissioner on the application of Detective Winters. The warrant was executed at 12:50 a.m. on the following morning. Appellant was detained at the Charles County Detention Center until he was presented to a district court commissioner at 9:45 a.m. that morning and released on bail. The record does not reflect that he was given Miranda ² warnings or interrogated while in police custody.

Appellant challenges, on two grounds, the prosecution's attempt to impeach his alibi by inquiring into why he did not assert it when first charged with the crime of which he stands convicted. ³ He asserts that by permitting this cross-examination concerning his silence in face of the accusations made against him the court denied him the fundamental fairness guaranteed an accused under the due process clause of the Fourteenth Amendment. He also contends that under the law of this State, the evidence was inadmissible. We shall discuss these arguments in turn.

The Supreme Court was confronted with this interplay between the law of evidence and a criminal defendant's constitutional protection from compelled self-incrimination in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The court there held that it was fundamentally unfair and a deprivation of due process to allow an arrested person's silence to be used to impeach his explanation of his allegedly criminal conduct offered at his trial where he had remained silent after receiving Miranda warnings. ⁴ While the Court's ruling was based on its application of the Due Process Clause of the Fourteenth Amendment, the following passage from Justice Powell's majority opinion demonstrates that the Court also questioned the probative value of a defendant's post-arrest silence:

Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.

Id., 426 U.S. at 617-18, 96 S.Ct. at 2244-45, 49 L.Ed.2d at 97-98 (citation and footnote omitted). Four years later in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Court was asked to expand Doyle to prohibit the use for impeachment of a defendant's silence prior to arrest. The Court refused, explaining that because "[t]he failure to speak occurred before the petitioner was taken into custody and given Miranda warnings ... the fundamental unfairness present in Doyle is not present in this case." Id., 426 U.S. at 240, 100 S.Ct. at 2130, 65 L.Ed.2d at 96. Still later, in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the Court was faced with the same question that is presented in the instant case: whether to allow a prosecutor to impeach a defendant with his post-arrest silence where there is no evidence that he was ever given Miranda warnings. In a per curiam opinion, the Court limited the Doyle holding to those cases where the defendant's silence followed Miranda warnings and held that the use of a defendant's post-arrest pre-Miranda warning, silence does not offend due process if offered "[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings." Id., 455 U.S. at 607, 102 S.Ct. at 1312, 71 L.Ed.2d at 494. The states, the Court concluded, are entitled "to leave to the judge and jury under its own rules of evidence the resolution of the extent to which post-arrest silence may be deemed to impeach a criminal defendant's own testimony." Id. Thus, the use of a criminal defendant's post-arrest, pre-Miranda warning, silence to impeach does not offend the due process clause of the Fourteenth Amendment; however, each state must determine whether its own rules of evidence preclude the admission of this evidence.

Since Fletcher, a number of our sister states have ruled on this question, but no consensus has emerged. Most of the state courts that have adopted Fletcher and allow the admission of this evidence either do so with little or no discussion of the merits of their position, Lanham v. State, 184 Ga.App. 554, 362 S.E.2d 131, 132 (1987); Beach v. State, 512 N.E.2d 440, 442-43 (Ind.App.1987); State v. Brown, 128 N.H. 606, 517 A.2d 831, 835-36 (1986), or because they find no authority in that state's common law for adopting a broader interpretation of due process than that offered by the Supreme Court. People v. Givens, 135 Ill.App.3d 810, 90 Ill.Dec. 504, 482 N.E.2d 211, 221 (1985) ("Illinois has consistently followed the Supreme Court of the United States in situations concerning the application of a more restrictive view of an individual's constitutional rights than previously enjoyed"); State v. Hunt, 72 N.C.App. 59, 323 S.E.2d 490, 492 (1984) ("We are not aware of any decision of the Supreme Court of North Carolina that would place more or heavier burdens on the State's right to cross-examine a testifying defendant than those imposed by the Supreme Court of the United States."). Only Wisconsin has decided to admit this evidence in light of its own principles of evidence. The Supreme Court of Wisconsin did so in State v. Sorenson, 143 Wis.2d 226, 421 N.W.2d 77 (1988), citing the need to prevent defendants from having their silence excluded when it was not induced by Miranda warnings. The court explained: A contrary position would allow defendants, who have not been induced by government action to remain silent, to wrongfully manipulate the rules of evidence, and cripple the state's ability to address all the evidence presented by the defendant at trial. Moreover, once a defendant elects to take the stand, any comment by the prosecution regarding defendant's pre-Miranda silence may be explored and explained by defendant's own counsel on redirect. This protection more than adequately shields against any potentially misleading inference which might be drawn from the prosecution's references.

Id., 421 N.W.2d at 90.

Of those courts that exclude evidence of a defendant's post-arrest, pre-Miranda warning silence, a majority do so because they construe their state constitutions as providing criminal defendants with greater protection than the Federal Constitution. Nelson v. State, 691 P.2d 1056, 1059 (Alaska App.1984) ("We therefore conclude that under Article I, § 9 of the Alaska Constitution, a person who is under arrest for a crime cannot normally be impeached by the...