Petition — Maryland v. Kidd

eee

FILED

OCT 17 1977

In THE [_MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1977

No? = 268

STATE OF MARYLAND,

Petitioner,

Vv.

BRUCE D. KIDD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

FRANCIS B. BURCH,

Attorney General

of Maryland,

GEorRGE A. NILSON,

Deputy Attorney

General of Maryland,

CLARENCE W. SHARP,

Assistant Attorney

General of Maryland,

Chief, Criminal Division,

DEBORAH K. HANDEL,

Assistant Attorney

General of Maryland,

One South Calvert Building,

Baltimore, Maryland 21202,

383-3737,

Attorneys for Petitioner.

OT A TT

The Daily Record Co., Baltimore, Md. 21202 eS

In THE

Supreme Court of the United States

OCTOBER TERM, 1977

No.

STATE OF MARYLAND,

Petitioner,

Vv.

BRUCE D. KIDD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

Petitioner, the State of Maryland, respectfully prays

that a Writ of Certiorari be issued to review the

judgment of the Court of Appeals of Maryland, the

highest Court of the State, entered in the above entitled

case.

OPINIONS BELOW

The opinion of the Court of Appeals of Maryland,

reported at Md. , 375 A.2d 1105 (1977), is

included as Appendix A. of this Petition. The opinion of

the Court of Special Appeals, reported at 33 Md. App.

445, 336 A.2d 761 (1976), is included as Appendix B.

‘ "

JURISDICTION

The judgment of the Court of Appeals of Maryland,

which is sought to be reviewed, was filed July 18, 1977.

This Petition is filed within 90 days of that date.

The jurisdiction of this Court is invoked under 28

U.S.C., Section 1257 (3).

QUESTION PRESENTED FOR REVIEW

May Respondent’s statement to the police, perhaps

inadmissible to establish the prosecution’s case in chief

under Miranda v. Arizona, 384 U.S. 436 (1966), but not

otherwise challenged as involuntary and thus admissi-

ble to impeach his credibility under Harris v. New York,

401 U.S. 222 (1971), be used to impeach his testimony

given on cross, rather than direct, examination?

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States: Amendment V

(Rights of Accused in Criminal Proceedings)

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for

the same offense to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be taken

for public use, without just compensation.

Constitution of the United States: Amendment XIV

(Section 1, Citizenship Rights Not to Be Abridged

By States)

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

3

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to

any person within its jurisdiction the equal

protection of the laws.”

STATEMENT OF THE CASE

Bruce D. Kidd, Respondent, was charged in a two

count information with (a) possession of heroin in

sufficient quantity to reasonably indicate under all

circumstances an intent to distribute it and (b)

possession of heroin. He was arraigned on October 1,

1975, pled not guilty and elected trial by jury. He was

tried by a jury in the Criminal Court of Baltimore, the

Honorable Mary Arabian presiding, on October 1

through 3, 1975 and found guilty of the first count. On

November 3, 1975, Respondent was sentenced to a term

of eight years in the custody of the Commissioner of

Corrections.

A. TRIAL

The Petitioner’s case in chief showed that Respond-

ent, standing in a crowd on a street corner in Baltimore,

Maryland, fled upon the arrival of plainclothes police

officers in an unmarked car. He was pursued by two of

the officers, and during his flight, threw away 18 bags

of heroin. One officer apprehended Respondent; the

other recovered the contraband. Testifying in his own

defense, Respondent denied having discarded the

heroin. His explanation for his departure from the scene

was that his daughter had hurt her knee and he was

walking quickly to his car to take her to the hospital

when the officers stopped him.

Petitioner sought to impeach Respondent’s credibility

by showing that he had made a prior inconsistent

4

statement regarding his use of heroin to the arresting

officers.

On cross-examination, Respondent testified that,

although he had been a heroin user about one year prior

to trial, he was not a user at the time of trial and had

not been a user at the time of his arrest. He was then

asked if he had told one of the arresting officers that he

was a “one bag habit man.” An objection was

interposed on the ground that the police officer had

already testified.

At the ensuing bench conference, the trial judge

overruled the objection, stating:

“If there is a confession or an admission or some

statement by the Defendant that does not comply

with Miranda rules, you cannot introduce it on

direct, but you can if the Defendant takes the stand

and denies it, then you can rebut his denial by

putting on the statement that would not have been

admissible, had he not taken the stand.”

Thereafter, Respondent replied that he made no

statement to the police officer at the time of his arrest

about being a “one bag a day heroin addict.” The police

officer was called by Petitioner in rebuttal and he

testified, over objection, that Respondent admitted

being an addict and having approximately “a one bag a

day habit.” No testimony was presented that Miranda

warnings had been given or that any rights had been

waived prior to Respondent’s admission. No hearing

was requested or held on the voluntariness of the

statement. Respondent, in no manner, challenged the

voluntariness of the statement at trial.

B. DIRECT APPEAL, COURT OF SPECIAL AP-

PEALS OF MARYLAND

On direct appeal, the Court of Special Appeals of

Maryland reversed Respondent’s conviction and re-

5

manded the case for a new trial, finding that Respond-

ent’s objection was sufficient to preserve for review the

constitutional issue of the voluntariness of his state-

ment. The Court found reversible error in the failure of

the trial judge to conduct a hearing on that issue, even

though none was requested and even though Respond-

ent’s objection at trial did not raise the voluntariness

issue.

C. CERTIORARI, COURT OF APPEALS OF MARY-

LAND

After issuing a Writ of Certiorari, the Court of

Appeals of Maryland affirmed the judgment of the

Court of Special Appeals, but did so on other grounds.

The Court of Appeals determined that the grounds

stated at trial for the objection were not sufficient to

inform the trial judge that Respondent was challenging

the voluntariness of the statement. The Court found,

however, that under Harris v. New York, 401 U.S. 222

(1971) and Oregon v. Hass, 420 U.S. 714 (1975),

statements violative of Miranda could only be used to

impeach testimony given on direct examination. The

Court said:

“We construe Harris and Hass as requiring that

the issues sought to be impeached by the chal-

lenged extra judicial statement of the accused be

initiated by the accused on direct examination. The

prosecution is not permitted to use tainted evidence

to impeach an issue which it first solicited on cross-

examination. Although neither Harris nor Hass

expressly declares such a principle, each was

decided in the factual posture that the matter

sought to be impeached was brought out by the

defendant on his direct examination.

* ” * + - *

“We also construe Harris and Hass as limiting

the im] ent exception to the specific credibil-

ity of the defendant on matters as to which there is

6

a contradiction between his testimony and the

impeaching statement. The limitation of Miranda

does not extend to the defendant’s credibility

generally, but to his specific credibility arising

from a realistic contradiction between the issues he

initiated on direct examination and the impeach-

ing statement.” (emphasis added) (15a-18a.)

REASONS FOR GRANTING THE WRIT

THE DECISION OF THE COURT OF APPEALS OF MARYLAND

TO LIMIT THE USE OF STATEMENTS VIOLATIVE OF MIRANDA

TO IMPEACHMENT OF AN ACCUSED’S DIRECT EXAMINATION

TESTIMONY IS UNWARRANTED, UNNECESSARY AND AN

IMPROPER RESTRICTION ON PRIOR DECISIONS OF THIS

HONORABLE COURT.

In rendering its decision in the case sub judice, the

Court of Appeals of Maryland articulated that it was

proceeding under an analysis of this Honorable Court’s

opinions in Harris v. New York, supra, and Oregon uv.

Hass, supra. In so doing, it rested its decision on the

Fifth and Fourteenth Amendments to the United States

Constitution. No reliance is placed on the Constitution

or Laws of Maryland to support the ultimate holding.

As an interpretation of federal constitutional law,

therefore, the state court may not impose any greater

restriction on police activity than this Court imposes.

Oregon v. Hass, supra, 420 U.S. at 719. Petitioner

respectfully submits that in restricting the reach of

Harris and Hass, the Maryland Court devised an

unnecessarily narrow view and improperly circums-

cribed the use of impeachment by prior inconsistent

statements in the judicial quest for truth.

The basic rationale underlying Harris is that, while a

criminal defendant is privileged to testify in his own

defense, he is not free to commit perjury. 401 U.S. at

225. Recognizing this rationale, and balancing the

usefulness of the traditional truthtesting device (im-

peachment by prior inconsistent statements) against

7

the value of an exclusionary rule in deterring proscribed

police conduct, this Court has concluded that state-

ments violative of Miranda may be used for impeach-

ment. Harris, supra; Hass, supra. In short, “the shield

provided by Miranda cannot be perverted into a license

to use perjury by way of a defense, free from the risk of

confrontation with prior inconsistent utterances.”

Harris, supra, 401 U.S. at 226.

A witness is obligated to speak truthfully and

accurately when he takes the stand. The Court of

Appeals of Maryland recognized that this obligation

applies to direct and cross-examination alike (16a.). It

follows, therefore, that as a check against perjury, use

of prior inconsistent statements should be permissible

regardless of the stage of trial at which the allegedly

false testimony is given. It is the falsity of the trial

testimony which the government attempts to show by

use of this technique and thus is an invaluable aid to

the fact-finder in assessing credibility. This benefit

should not be lost by an unnecessarily restrictive

application of Harris, particularly in a case such as this

where resolving the credibility issue was the paramount

concern at trial.

This Court has ruled that certain improper evidence,

in the form of invalid convictions, may not be used even

for impeachment purposes. Loper v. Beto, 405 U.S. 473

(1972). However, it was carefully pointed out that the

type of impeachment attempted there was that of

damaging the defendant’s general credibility and:

“[t}his is not a case where the record of a prior

conviction was used for the purpose of directly

rebutting a specific false statement made from the

witness stand.” 405 U.S. at 482, n. 11.

It is thus the specificity of the witness’ testimony, and

the direct rebuttal thereof, which should control

8

admission of illegally obtained evidence for impeach-

ment.

In the instant case, if Petitioner had sought to use

Respondent’s statement to the police about his heroin

addiction simply to show that he was a “bad man,”

admission of that evidence would be properly denied.

However, such is not the case at bar. Respondent denied

in his trial testimony that he was a heroin user at the

time of his arrest and denied that he told the arresting

officer that he was. The impeaching evidence was in

direct contradiction to Respondent’s sworn testimony

before the jury and was highly relevant to his specific

credibility. The balance, here, as in Harris and Hass,

should tip in favor of the admissibility of the evidence.

There is nothing to be gained by exclusion of the

evidence, and much benefit to be derived from its use.

9

CONCLUSION

As the foregoing discussion indicates, the decision of

the Court of Appeals of Maryland in the instant case

directly presents the question of the proper scope of the

Harris exception to the use of statements violative of

Miranda. Petitioner respectfully urges that a Writ of

Certiorari be issued to review that decision.

Respectfully submitted,

FRANCIS B. Burcu,

Attorney General

of Maryland,

GEORGE A. NILSON,

Deputy Attorney

General of Maryland,

CLARENCE W. SHARP,

Assistant Attorney

General of Maryland,

Chief, Criminal Division,

DEBORAH K. HANDEL,

Assistant Attorney

General of Maryland,

One South Calvert Building,

Baltimore, Maryland 21202,

383-3737,

Attorneys for Petitioner.

ae

APPENDIX A

OPINION

(Filed July 18, 1977)

In The

| Court of Appeals of Maryland

No. 154

September Term, 1976

State of Maryland

v.

Bruce D. Kidd

OrtTH, J.

I.

In a criminal cause, when the prosecution introduces

an extrajudicial confession or admission! given by the

| Stewart v. State, 232 Md. 318, 323, 193 A.2d 40 (1963)

defined a confession and an admission:

A confession is a species of admission, that is to say,

an admission that says or necessarily implies that the

‘ matter confessed constitutes a crime. An admission

which is not a confession is an acknowledgment of some

fact or circumstance which, in itself, is insufficient to

authorize a conviction but which tends to establish the

ultimate fact of guilt.

Despite this “clear distinction,” Merchant v. State, 217 Md.

61, 69, 141 A.2d 487 (1958), “a real and not a fanciful

difference,” Vincent v. State, 220 Md. 232, 238, 151 A.2d 898

(1959), between a confession and an admission, it is firm!y

established that the test for the receipt in evidence against an

accused is the same for a confession and an admission.

Stewart v. State, supra, 232 Md. at 323-324. Therefore,

“statement” when used herein means “admission” and in the

context of admissibility, “confession” and “admission” are

interchangeable.

2a

defendant to the authorities, the basic rule is that it

must, upon proper challenge, establish by a preponder-

ance of the evidence that the statement was obtained (1)

voluntarily, and (2) in conformance with the dictates of

Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602

(1966).

(1)

The first requisite is bottomed upon constitutional

grounds. In Bram v. United States, 168 U.S. 532, 542, 18

S. Ct. 183 (1897), the Supreme Court of the United

States declared:

In criminal trials, in the courts of the United

States, wherever a question arises whether a

confession is incompetent because not voluntary,

the issue is controlled by that portion of the fifth

amendment to the constitution of the United States

commanding that no person “shall be compelled in

any criminal case to be a witness against himself.”

Any doubt that the admissibility in a state criminal

prosecution is tested by the same standard, applied in

federal prosecutions since 1897 under the Bram hold-

ing,? was laid to rest by Malloy v. Hogan, 378 U.S.1, 84

2 Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461 (1936)

was the first case in which the Supreme Court held that the

Due Process Clause prohibited the states from using the

accused’s coerced confessions against him. At the time,

according to Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489

(1964), it felt impelled in the light of Twining v. New Jersey,

211 U.S. 78, 29 S. Ct. 14 (1908) to say that its conclusion did

not involve the privilege against self-incrimination. But,

Malloy observed, 378 U.S. at 6-7, this distinction was soon

abandoned. See Jackson v. Denno, 378 U.S. 368, 380-388, 84

S. Ct. 1774 (1964) for a discussion of the “short-lived

departure from the prior views of the Court” expressed in

Bram v. United States, 168 U.S. 532, 18 S. Ct. 183 (1897).

With res to the voluntariness rule in federal prosecu-

tions and the privilege against self-incrimination as it related

to confessions under the common law, see Dennis v. Warden,

6 Md. App. 295, 297-300, 251 A.2d 909, cert. denied, 255 Md.

740 (1969).

ee ee

3a

S. Ct. 1489 (1964): “(T]he person must not have been

compelled to incriminate himself. . . . Governments,

state and federal, are thus constitutionally compelled to

establish guilt by evidence independently and freely

secured, and may not by coercion prove a charge

against an accused out of his own mouth. ... The

Fourteenth Amendment secures against state invasion

the same privilege that the Fifth Amendment guaran-

tees against federal infringement — the right of a

person to remain silent unless he chooses to speak in

the unfettered exercise of his own will, and to suffer no

penalty .. . for such silence.” Jd. at 7-8.

The imposition upon the state of the federal constitu-

tional prohibition against compelled self-incrimination

effected no change in the voluntariness requirement

followed by Maryland for the admissibility of confes-

sions and admissions. More than a century ago, in

Nicholson v. State, 38 Md. 141, 153 (1873) this Court

said that “it is very clear upon all the authorities, that

if the confession of the [accused] had been induced by

any threat of harm, or promise of worldly advantage

held out to him. . . it ought to be excluded.” The crucial

test was succinctly put in Taylor v. State, 238 Md. 424,

429, 209 A.2d 595 (1965): “If freely and voluntarily

given, it is admissible; if not, it is inadmissible.” For a

statement to be the free and voluntary act of an

accused, it must be obtained without force applied,

coercion used, hope held out or promise made on the

part of the authorities. Abbott v. State, 231 Md. 462,

465, 190 A.2d 797 (1963). In other words, a confession or

admission is not “voluntary” if it is the product of

physical or psychological coercion. This test has been

referred to as voluntariness in the traditional sense,

and we shall so refer to it here.

(2)

Miranda v. State of Arizona, supra, 384 U.S. at 478,

expressly affirmed that “[alny statement given freely

and voluntarily without any compelling influences is, of

4a

course, admissible in evidence. . . . Volunteered state-

ments of any kind are not barred by the Fifth

Amendment... .” The Supreme Court said in Davis v.

State of North Carolina, 384 U.S. 737, 740, 86 S. Ct.

1761 (1966): “The review of voluntariness in cases in

which the trial was held prior to our decisions in

Escobedo {v. State of Illinois, 378 U.S. 478, 84 S. Ct.

1758 (1964)] and Miranda is not limited in any manner

by these decisions [Davis and Johnson v. New Jersey,

384 U.S. 719, 86 S. Ct. 1772 (1966) in which Miranda

was held to be applied prospectively only].”

Miranda held:

the prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custo-

dial interrogation of the defendant unless it

demonstrates the use of procedural safeguards

effective to secure the privilege against self-

incrimination.’ Id. at 444.

Thus, Miranda impressed procedural safeguards on the

traditional test of voluntariness. The procedural safe-

guards are warnings to be given. They were expressly

set out and explained in detail in Miranda, supra, 384

U.S. at 444 and 479, and their familiarity in the law

makes it unnecessary to repeat them here. These

warnings are not in themselves rights protected by the

Constitution but are instead measures to insure that the

privilege against compulsory self-incrimination is

protected. Michigan v. Tucker, 417 U.S. 433, 444, 94 S.

Ct. 2357 (1974). Thus, they have no constitutional basis,

but are prophylactic rules created by judicial decision to

safeguard that constitutional privilege. Jd. at 445-446.

The defendant may waive effectuation of the Miranda

safeguards, provided the waiver is made voluntarily,

knowingly and intelligently, but until such warnings

3 “Custodial interrogation” was said by the Court to mean

“questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of

his freedom of action in any significant way.” Miranda v.

State of Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602 (1966).

5a

and waiver are demonstrated by the prosecution at

trial, no evidence obtained through an interrogation

can be used against him. Miranda uv. State of Arizona,

supra, 384 U.S. at 449 and 479.

As we have indicated, the burden is on the State of

proving that a confession or admission is voluntary in

the traditional sense and that there has been com-

pliance with the Miranda safeguards. “It is now

axiomatic that a defendant in a criminal case is

deprived of due process of law if his conviction is

founded, in whole or in part, upon an involuntary

confession, without regard for the truth or falsity of the

confession. ... Equally clear is the defendant’s

constitutional right at some stage in the proceeding to

object to the use of the confession and to have a fair

hearing and a reliable determination on the issue of

voluntariness, a determination uninfluenced by the

truth or falsity of the confession.” Jackson v. Denno,

378 U.S. 368, 376-377, 84 S. Ct. 1774 (1964). This

determination must “appear from the record with

unmistakable clarity.” Sims v. Georgia, 385 U.S. 538,

544, 87 S. Ct. 639 (1967). In Maryland, two steps are

involved in this procedure, which is applicable to a case

tried before a jury, Day v. State, 196 Md. 384, 399, 76

A.2d 729 (1950), and without a jury, Ralph v. State, 226

Md. 480, 487, 174 A.2d 163 (1961), cert. denied, 369 U.S.

813 (1962). The trier of fact passes on traditional

voluntariness only after the judge, upon a hearing, out

of the presence of the jury, has fully and independently

resolved the issues against the accused. Jackson v.

Denno, supra, 378 U.S. at 378. See Dempsey uv. State,

277 Md. 134, 143-146, 355 A.2d 455 (1976); Gill v. State,

265 Md. 350, 357-358, 289 A.2d 575 (1972); Sabatini v.

State, 14 Md. App. 431, 449-451, 287 A.2d 511, cert.

denied, 265 Md. 742 (1972); Mulligan v. State, 10 Md.

App. 429, 431-433, 271 A.2d 385 (1970); Murphy v. State,

8 Md. App. 430, 436-437, 260 A.2d 357 (1970); Barnhart

uv. State, 5 Md. App. 222, 223-227, 246 A.2d 280 (1968).

The federal constitutional test wiih respect to the

judge’s preliminary decision is that of a preponderance

6a

of the evidence, Lego v. Twomey, 404 U.S. 477, 92 S. Ct.

619 (1972), and the test with respect to the final

determination by the trier of fact is beyond a reasona-

ble doubt, Linkins v. State, 202 Md. 212, 223, 96 A.2d

246 (1953).

The burden upon the State to establish affirmatively

the admissibility of the confession or admission arises

upon proper objection. Wainwright v. Sykes, _— U.S.

. , 97 S. Ct. 2497 (1977. See Jackson v. Denno,

supra, 378 U.S. at 380; Tucker v. State, 237 Md. 422, 425,

206 A.2d 691 (1965); Gaudio and Bucci v. State, 1 Md.

App. 455, 463, 230 A.2d 700 (1967). The requirement of a

proper challenge applies to both aspects of admissibil-

ity — constitutional voluntariness and compliance with

Miranda’s prophylactic safeguards. Fundamental

rights can be waived by an accused, State v. McKay,

mn ' , 375 A.2d 228 (1977) [No. 108,

September Term, 1976, decided 5 July 1977], and the

right to a hearing and determination by the trial judge

of the admissibility of a confession or admission

provides no exception. State procedural requirements

governing agsertion and pursuance of direct and

collateral constitutional challenges to criminal proseeu-

tions must be respected. Mapp v. Ohio, 367 U.S. 643,

658, n. 9, 81 S. Ct. 1684 (1961). See Porter v. State, 230

Md. 535, 536-537, 187 A.2d 870 (1963).

In Maryland, objection to the admission of evidence

is governed by Maryland Rule 522d, made applicable to

criminal causes by Rule 725 f. The Rule encompasses

the admissibility of confessions and admissions.

Objection to the admission of evidence is treated as

waived unless made at the time when such evidence is

offered, or as soon thereafter as the objection to its

admissibility shall have become apparent, Rule 522 d 2,

end unless requested by the court, it is not necessary to

state the grounds for the objection, Rule 522 d 1. Thus,

“where the trial court does not request a statement of

the grounds for an objection, a general objection is

7a

sufficient to preserve all grounds which may exist... .”

von Lusch v. State, 279 Md. 255, 262-263, 368 A.2d 468

(1977). “On the other hand, where the trial court does

request specific grounds for an objection, the objector is

bound by the grounds he states, and he normally is

deemed to have waived any objection to the evidence on

a ground not stated.” Jd. at 263, citing Wilt v. Wilt, 242

Md. 129, 218 A.2d 180 (1966); Eckhart v. Ayres, 240 Md.

153, 213 A.2d 493 (1965). This principle was extended by

judicial decision, so that “where one objecting to the

admission of evidence, although not requested by the

court to state his grounds, goes ahead and delineates

specific grounds for his objection he will be bound by

those grounds and will ordinarily be deemed to have

waived other grounds not mentioned.” von Lusch v.

State, supra, 279 Md. at 262-263.

Prior to Miranda, the opinions of this Court reflected

no distinction as to the rules regarding admissibility

between confessions or admissions of a defendant

offered by the prosecution to prove its case in chief and

those offered to impeach a defendant’s testimony at

trial. Miranda appeared to buttress this notion with

respect to its safeguards. The Court of Special Appeals

of Maryland, the appellate courts of 13 other states, and

six federal courts of appeals read Miranda as forbid-

ding the use by the prosecution of statements by an

accused, be they confessions or admissions, inculpatory

or exculpatory, stemming from custodial interrogation,

unless there was compliance with the requirements of

Miranda.‘ See Harris v. New York, 401 U.S. 222, 231, n.

* Miranda v. State of Arizona, 384 U.S. 436, 476, 86 S. Ct.

1601 (1966), asserted that the warnings required, together

with a waiver of the safeguards, must be shown as

“prerequisites to the admissibility of any statement made by

a defendant.” (emphasis added). It drew no distinction

between confessions and admissions, or between inculpatory

statements and statements alleged to be merely exculpatory.

Id. at 476. It explained:

If a statement made were in fact truly exculpatory it

would, of course, never be used by the prosecution. In

,

8a

4,91 S. Ct. 643 (1971) (Mr. Justice Brennan dissenting).

The Court of Special Appeals flatly held in Franklin v.

State, 6 Md. App. 572, 578, 252 A.2d 487, cert. denied,

255 Md. 741 (1969), 399 U.S. 912 (1970) that “[tJhe fact

that [a defendant’s] admissions may have been used for

the purpose of impeaching his credibility as a witness,

rather than as substantive evidence of guilt, does not,

in our judgment, dispense with the requirement that the

State affirmatively show on the record that the

statement was in compliance with the requirements of

Miranda... .” Harris v. New York, supra, as affirmed

and explicated in Oregon v. Hass, 420 U.S. 714, 95 S. Ct.

1215 (1975) dispelled this view.

The issue decided in Franklin was presented to the

Supreme Court in Harris under circumstances which, as

recounted in Hass at 720-721, were as follows:

[TJhe defendant was charged by the State in a

two-count indictment with twice selling heroin to

an undercover police officer. The prosecution

introduced evidence of the two sales. Harris took

the stand in his own defense. He denied the first

sale and described the second as one of baking

powder utilized as part of a scheme to defraud the

purchaser. On cross-examination, Harris was

asked whether he had made specified statements to

the police immediately following his arrest; the

statements partially contradicted Harris’ testi-

mony. In response, Harris testified that he could

not remember the questions or answers recited by

the prosecutor. The trial court instructed the jury

fact, statements merely intended to be exculpatory by

the defendant are often used to impeach his testimony at

trial or to demonstrate untruths in the statement given

under interrogation and thus to prove guilt by implica-

tion. These statements are incriminating in any mean-

ingful sense of the word and may not be used without the

full warnings and effective waiver required for any other

statement. (emphasis added). Id. at 477.

It made the flat declaration that unless and until the required

warnings and effective waiver are demonstrated by the

prosecution at trial “no evidence obtained as a result of

interrogation can be used against him.” Id. at 479.

9a

that the statements attributed to Harris could be

used only in passing on his credibility and not as

evidence of guilt. The jury returned a verdict of

guilty on the second count of the indictment.

Harris made no claim that the statements made to the

police were coerced or involuntary, but the prosecution

had not sought to use them in its case in chief, for it

conceded that they were inadmissible under Miranda

because Harris had not been advised of his rights to

appointed counsel. A majority of the Court in Harris

recognized that “[slome comments in the Miranda

opinion can indeed be read as indicating a bar to use of

an uncounseled statement for any purpose,” but those

comments were disposed of simply by asserting that

“discussion of the issue was not at all necessary to the

Court’s holding and cannot be regarded as controlling.”

Harris v. New York, supra, 401 U.S. at 224. The opinion

of the Court declared:

It does not follow from Miranda that evidence

inadmissible against an accused in the prosecu-

tion’s case in chief is barred for all purposes,

provided of course that the trustworthiness of the

evidence satisfies legal standards. Id. at 224.

It held that Harris’s “credibility was appropriately

impeached by use of his earlier conflicting statements.”

Id. at 226.5

In Oregon v. Hass, supra, a majority of the Court

affirmed the position it had taken in Harris. The only

factual distinction between the two cases was that in

5 The holding was based on Walder v. United States, 347

U.S. 62, 74 S. Ct. 354 (1954). The rationale of the decision may

be found in the observations that “{a]ssuming that the

exclusionary rule has a deterrent effect on proscribed police

conduct, sufficient deterrence flows when the evidence in

question is made unavailable to the prosecution in its case in

chief,” Harris v. New York, 401 U.S. 222, 225, 91 S. Ct. 643

(1971), and “{tJhe shield provided by Miranda cannot be

perverted into a license to use perjury by way of a defense,

free from the risk of confrontation with prior inconsistent

utterances,” id. at 226.

10a

Harris the Miranda warnings given were defective and

in Hass they were proper but the police ufficer obtained

inculpatory statements after Hass said he would like to

telephone his attorney and was told he could do so “as

soon as we got to the office.” There was no evidence that

the statements thereafter obtained were involuntary or

coerced. Hass took the stand at his criminal trial and

gave testimony at variance with the statements

previously given the police after he said he wanted to

see an attorney. Hass knew that those statements had

been ruled inadmissible for the prosecution’s case in

chief. Oregon v. Hass, supra, 420 U.S. at 715-719 and

720-722. In rebuttal the prosecution offered and the trial

court admitted the statements which previously had

been held inadmissible, and the court instructed the

jury that the evidence went only to credibility and not

to proof of guilt. The Oregon Court of Appeals held that

the statements were improperly used to impeach Hass’s

testimony and the Supreme Court of Oregon affirmed.

The majority opinion of the Supreme Court of the

United States reversed, holding that the Oregon

appellate courts were in error when they ruled that the

rebuttal testimony was inadmissible on the Fifth and

Fourteenth Amendment grounds for purposes of Hass’s

impeachment. Id. at 723-724. It said:

As in Harris, it does not follow from Miranda

that evidence inadmissible against Hass in the

prosecution’s case in chief is barred for all

purposes, always provided that “the trustworthi-

ness of the evidence satisfies legal standards.” 401

U.S. at 224, 91 S. Ct., at 645. ain, the impeaching

material would provide valuable aid to the jury in

assessing the defendant’s credibility; again, “the

benefits of this process should not be lost,” id., at

225, 91 S. Ct., at 645; and again, making the

deterrent-effect assumption, there is sufficient

deterrence when the evidence in question is made

unavailable to the prosecution in its case in chief.

If all this suffi for the result in Hurris, it

supports and demands a like result in Hass’ case.

Here, too, the shield provided by Miranda is not to

lla

be perverted to a license to testify inconsistently, or

even perjuriously, free from the risk of confronta-

tion with prior inconsistent utterances.

We are, after all, always engaged in a search for

truth in a criminal case so long as the search is

surrounded with the safeguards provided by our

Constitution.® Id. at 722.

The full impact of Harris has not previously been

squarely before the appellate courts of this State. This

Court has not considered the Harris holding, affirmed

and extended in Hass, and the Court of Special

Appeals, although presented with issues relating to

Harris in Cooper v. State, 14 Md. App. 106, 286 A.2d 579

(1972), Layman v. State, 14 Md. App. 215, 286 A.2d 559

(1972) and Sabatini v. State, supra, found in each case

that it was not necessary to reach the many unans-

wered questions posed by Harris. Cooper, supra, 14 Md.

App. at 116, n. 4 listed some of these questions, but left

their determination for a time when they would be

squarely before the court. See Kidd v. State, supra, 33

Md. App. at 449. The case sub judice requires that some

of the questions be resolved.

6 The majority in Oregon v. Hass, 420 U.S. 714, 723, 95 S.

Ct. 1215 (1975), noting that “{iJn any event, the balance was

struck in Harris,” and declaring “we are not disposed to

change it now,” explained:

One might concede that when proper Miranda warn-

ings have been given, and the officer then continued his

interrogation after the suspect asks for an attorney, the

officer may be said to have little to lose and perhaps

something to gain by way of possibly uncovering

impeachment material. This speculative possibility,

however, is even greater where the warnings are

defective and the defect is now known to the officer.

It gave a caveat:

If, in a given case, the officer’s conduct amounts to an

abuse, that case, like those involving coercion or duress,

may be taken care of when it arises measured by the

traditional standards for evaluating voluntariness and

trustworthiness. Jd. at 723.

12a

Il.

Bruce D. Kidd, charged by a criminal information

with the statutory offenses of possessing heroin in

sufficient quantity to indicate reasonably an intent to

manufacture and distribute (lst count) and with

ing that controlled dangerous substance (2nd

count), was found guilty under the 1st count by a jury in

the Criminal Court of Baltimore and sentenced to

imprisonment for a term of eight years. Neither the

evidence adduced by the State to prove the charges nor

that presented by Kidd in his defense was complicated

or subtle. The State’s case in chief showed that Kidd, a

member of a crowd standing on a corner, fled upon the

arrival of police officers in plainclothes driving an

unmarked car. He was pursued by two of the officers,

Alvin Winkler and William B. Smith, and during his

flight, threw away 18 bags of heroin. Winkler appre-

hended Kidd; Smith recovered the contraband. In his

defense, Kidd denied having discarded the heroin. His

explanation for his departure from the scene was that

his daughter had hurt her knee and he was walking

quickly to his car to take her to the hospital when the

officers stopped him. This direct conflict between the

State’s evidence and the defendant’s evidence was for

the trier of fact to resolve. If the jury believed the

State’s witnesses, the evidence was sufficient in law for

it to find Kidd guilty of the crimes charged. On the

other hand, if they believed Kidd, a verdict of not guilty

was called for, the evidence not being legally sufficient

to convict. See Thomas v. State, 277 Md. 314, 320, 353

A.2d 256 (1976); Williams v. State, 5 Md. App. 450, 459,.

247 A.2d 731 (1968). Therefore, the credibility of the

witnesses was of primary importance. Obviously

recognizing this, the State attempted to impeach Kidd’s

credibility. On cross-examination the prosecutor asked:

“Did you ever tell Officer Winkler that you were a one

bag habit man?” Kidd objected and after argument at a

bench conference, the objection was overruled. In

response to the question, [Kidd] denied any such

conversation with Winkler. He denied that he was a

ee een ee ee

13a

user on May 9, 1975, but admitted that he had been a

heroin user a year previous to the incident.” The State

called Winkler in rebuttal. “He testified, over objection,

that [Kidd] admitted to him that he was an addict and

that he had approximately ‘a one-bag-a-day habit.’

There was no testimony that the Miranda warnings

had been given or that any rights had been waived.

There was never a hearing, out of the presence of the

jury or otherwise, on the voluntariness of this statement

made to Officer Winkler.’”’ It is not disputed that Kidd’s

statement constituted an “admission” within the

definition of that term, and that it was obtained during

a “custodial interrogation.” According to Officer

Winkler, Kidd made the statement at the police station

after he had been arrested and while he was being

questioned in order to complete an “addict form.”

On direct appeal, the Court of Special Appeals,

holding that the trial judge erred in admitting the

statement Kidd was alleged to have made to Winkler,

reversed the judgment and remanded the case for a new

trial, Kidd v. State, 33 Md. App. 445, 336 A.2d 761

(1976).

Upon petition by the State we certified the case for

review. We affirm the judgment of the Court of Special

Appeals. We agree that the trial court erred in

admitting the statement and that the error, not being

harmless, required reversal of the judgment. See Dorsey

uv. State, 276 Md. 638, 659, 350 A.2d 665 (1976). We reach

that result, however, by following a different path than

that travelled by the Court of Special Appeals.

As we read the opinion of the Court of Special

Appeals, it accepted that Kidd’s statement was within

’ This compendium of the evidence and quotations are

from an agreed statement of facts included in the State’s

brief pursuant to Maryland Rule 828 g. The State also

included in an appendix to its brief a portion of the transcript

of the proceedings setting out the testimony of Kidd on cross-

examination and of Winkler in rebuttal. We proceed to

decision on the agreed statement of facts and the appended

transcript of testimony.

ee

l4a

the Harris-Hass limitation so that any failure with

respect to the Miranda safeguards would not preclude

its receipt in evidence for the purpose of impeachment.

Recognizing that a defendant’s constitutional right to

have a fair hearing and reliable determination of the

admissibility of his confession or admission is predi-

cated upon a proper challenge, Kidd v. State, supra, 33

Md. App. at 456-457, it proceeded on the premise that

Kidd interposed a general objection to the introduction

of his statement which was sufficient to present the

issue of its voluntariness in the constitutional sense. It

found reversible error in the failure of the trial judge to

conduct a hearing on that issue. Id. at 474-475.

On the agreed statement of facts and record extract

placed before us, we think that Kidd did not make a

general objection to the admission of his statement and

that the reasons he specified for the objections he did

make were not sufficient, in the circumstances, to make

known to the trial judge that he challenged its

voluntariness. Therefore, he waived that issue, so that

no hearing on voluntariness in the traditional sense

was required. It is perfectly clear, however, that,

although Harris v. New York, supra, was not mentioned

by name, the admissibility of the statement was argued

under the objection made on the basis of the Harris

holding and admitted under the trial judge’s interpreta-

tion of that holding. The trial judge said at the bench

conference relating to the admission of the statement:

If there is a confession or an admission or some

statement by the defendant that does not comply

with Miranda [v. State of Arizona, 384 U.S. 435, 86

S. Ct. 1602 (1966)] rules, you cannot introduce it on

direct, but you can if the defendant takes the stand

and denies it, then you can rebut his denial by

putting on the statement that would not have been

admissible had he not taken the stand.®

8 We observe that the general rule is that the credit to be

given a witness may be impeached by showing that he has

made statements which contradict his testimony in respect to

material facts (but not in respect to facts which are collateral,

irrelevant or immaterial), provided a proper foundation has

15a

At the culmination of the bench conference, the judge

again asserted that even if a statement were inadmissi-

ble under Miranda in the State’s case in chief, “once the

defendant takes the stand, if he did give a statement,

although not in compliance with Miranda, it can be

introduced if he denies it.”” We do not find the Harris

holding to be that broad.

We construe Harris and Hass as requiring that the

issues sought to be impeached by the challenged

extrajudicial statement of the accused be initiated by

the accused on direct examination. The prosecution is

not permitted to use tainted evidence to impeach an

issue which it first solicited on cross-examination.

Although neither Harris nor Hass expressly declares

such a principle, each was decided in the factual

posture that the matter sought to be impeached was

brought out by the defendant on his direct examination.

been laid. Smith v. State, 273 Md. 152, 157-160, 328 A.2d 274

(1974); Joppy v. Hopkins, 231 Md. 52, 56, 188 A.2d 545 (1963),

and cases cited therein; Kantor v. Ash, 215 Md. 285, 290, 137

A.2d 661 (1958); Mahan v. State, 172 Md. 373, 380, 191 A. 575

(1937); Davis v. State, 38 Md. 15, 50 (1873). The foundation is

laid by interrogating the witness as to the time and place at

which and person to whom such contradictory statements

were made. This is but fair and just in order that the witness

may be enabled to refresh his recollection in regard to such

statements, and be afforded the opportunity of making such

explanation as he may deem necessary and proper. Balto.

Transit Co. v. Castranda, 194 Md. 421, 439, 71 A.2d 442

(1950); O’Brien v. State, 126 Md. 270, 285, 94 A. 1034 (1915);

Brown v. State, 72 Md. 468, 475, 20 A. 186 (1890). If the

witness denies making the designated statement or asserts

that he does not remember whether he made it, the

foundation contemplated by the general rule for the introduc-

tion of the statement has been satisfied. See Campbell, etc. v.

Patton, 227 Md. 125, 141, 175 A.2d 761 (1961); Moxley v.

State, 205 Md. 507, 516-517, 109 A.2d 370 (1954); Myers v.

State, 137 Md. 482, 490, 113 A. 87 (1921); Leister v. State, 136

Md. 518, 523, 111 A. 78 (1920). See generally Cooper v. State,

14 Md. App. 106, 110-111, 286 A.2d 579 (1972); Sanders v.

State, 1 Md. App. 630, 640-641, 232 A.2d 255 (1967).

No question was raised in the case sub judice, below or on

appeal, regarding the laying of the foundation for the

introduction of the impeaching statement.

ee

l6a

In Walder v. United States, 347 U.S. 62, 74 S. Ct. 354

(1954), on which Harris was bottomed, the impeach-

ment was as to matters included in the direct examina-

tion, and there is suggestion in Walder that it be so

restricted. Agnello v. United States, 269 U.S. 20, 46 S.

Ct. 4 (1925) prohibited the impeachment of statements

made on cross-examination and has not been explicitly

overruled. “This cross/direct distinction requires the

witness himself to open the door to his own impeach-

ment and is consistent with the purpose underlying the

impeachment exception — to prevent a witness from

capitalizing on the prosecution’s inability to rebut

perjurious statements with illegally obtained evidence.

Comment, 73 Colum. L. Rev. 1476, 1485 (1973); see

Walder v. United States, supra, 347 U.S. at 65. Harris,

supra, 401 U.S. at 225, asserted that a defendant,

“thjaving voluntarily taken the stand, . . . was under

an obligation to speak truthfully and accurately. Loe

But this obligation extends also to cross-examination.

The Maryland rule is that “{a] witness generally may

be cross-examined on any matter relevant to the issues,

and the witness’s credibility is always relevant.” Smith

vu. State, 273 Md. 152, 157, 328 A.2d 274 (1974). J.

Weinstein & M. Berger, Weinstein’s Evidence, 4607(09]

(1975) however, observes, at pages 607-89:

If impeachment by illegally obtained evidence is

then allowed to impeach the defendant’s general

credibility regardless of what he testified to on

direct, no way remains for a defendant who takes

the stand to avoid having the suppressed evidence

come to the jury’s attention. nsequently the

defendant would be deterred from taking the stand

if he fears that evidence might be used to impeach

him even though his testimony could provide

valuable aid to the jury in ascertaining the truth.

Weinstein suggests, and we agree, that this result seems

unwarranted:

The Court in Harris stressed the jury’s need to

assess credibility, but the jury’s opportunity to hear

all of the relevant evidence is highly significant in

17a

accurate and just determinations. If the defend-

ant’s right to take the stand and his right to have

illegally obtained evidence suppressed are to have

any significance at all, Harris should be restricted

to instances where defendant on direct examina-

tion initiated the issue to which impeachment is

directed. Id. at page 607-90.

For cases tending to support this proposition see United

States v. Caron, 474 F.2d 506, 508 (5th Cir. 1973):

United States ex rel. Wright v. LaVallee, 471 F.2d 123,

125-127 (2nd Cir. 1972); United States v. Keilly, 445 F.2d

1285, 1289 (2nd Cir. 1971); United States ex rel. Walker

uv. Follette, 443 F.2d 167, 170 (2nd Cir. 1971); Cowan v.

United States, 331 A.2d 323, 325 (D.C.C.A. 1975); People

uv. Brown, 353 N.E.2d 244, 247 (Ill. App. 1976); People v.

Hearn, 341 N.E.2d 129, 130 (Ill. App. 1976); Davis v.

State, 271 N.E.2d 893, 895 (Ind. 1971). Compare Walls v.

State, 279 So. 2d 95, 96 (Fla. App. 1973).

People v. Taylor, 501 P.2d 918 (Cal. 1972), cert. denied,

414 U.S. 863 (1973), appears to be the first post-Harris

case to pass directly on the issue. The majority

concluded in the circumstances of the case that it was

error of constitutional dimension to allow the prosecu-

tor to inquire on cross-examination whether the

defendant had ever been arrested with a balloon of

heroin in his possession, and to prove that fact over the

defendant’s denial by the introduction of the testimony

of a police officer as to a conflicting statement made by

the defendant obtained in violation of Miranda, id. at

925. The court unanimously agreed (the dissenters

concurred with the majority on this point) that Harris

required that the testimony sought to be impeached by

illegally obtained evidence be volunteered on direct

examination. Jd. at 924-925 (majority opinion) and at

928-929 (dissenting opinion). See the comment added to

the published version of Cannito v. Sigler, 321 F.

Supp. 798, 802, n. 1 (D. Neb. 1971), noting that the

subsequently announced Harris decision required that

the matter sought to be impeached must first have been

made on direct examination.

18a

’We also construe Harris and Hass as limiting the

impeachment exception to the specific credibility of the

defendant on matters as to which there is a contradic-

tion between his testimony and the impeaching

statement. The limitation of Miranda does not extend to

the defendant’s credibility generally, but to his specific

credibility arising from a realistic contradiction be-

tween the issues he initiated on direct examination and

the impeaching statement. “The sine qua non of

impeaching a witness’ specific credibility is that the

proffered evidence contradict statements made during

his testimony. While the contradiction need not be a di-

rect one, the [trier of fact] must be able to reasonably in-

fer some inconsistency between the witness’ testimony

and the impeaching evidence.” Comment 73 Colum.

L. Rev. 1476, 1485 (1973). Weinstein at page 607-90

points out that this has been done by lower federal

courts which have restricted use of statements obtained

through unconstitutional means to contradiction of a

specific false statement made by the defendant on

direct examination. He lists the cases in note 27 at page

607-90. See also United States v. Trejo, 501 F.2d 138, 145

(9th Cir. 1974); People v. Taylor, supra, 501 P.2d at 923;

Dornau v. State, 306 So. 2d 167, 170 (Fla. App. 1974),

cert. denied, 422 U.S. 1011 (1975); Commonwealth v.

Woods, 312 A.2d 357, 359 (Pa. 1973), cert. denied, 419

U.S. 880 (1974).

It follows from what we have said that the trial judge

was wrong in admitting the challenged statement into

evidence under the Harris-Hass impeachment exception

to the Miranda requirements because the exception was

not applicable. The State sought to impeach by Kidd’s

extrajudicial statement his denial on cross-examination

that he was a user of heroin at the time of his arrest.

According to the agreed statement of facts and the

record extract placed before us, the issue whether Kidd

was a user of heroin at the time of his arrest was first

introduced by the State on cross-examination of Kidd.

On direct examination Kidd made no reference to using

19a

heroin; he simply made a bare denial of the allegation

of the police officers that he had thrown away 18 bags

of heroin shortly before his apprehension on 9 May

1975. We see no reasonable inference of inconsistency,

sufficient to invoke the impeachment exception of

Harris-Hass, between Kidd’s direct testimony and the

impeaching statement attributed to him. One of the

controlling rationales of Harris was that, although it is

the privilege of every criminal defendant to testify in

his own defense, that privilege cannot be construed to

include the right to commit perjury. Harris v. New

York, supra, 401 U.S. at 224. Certainly, even if Kidd had

admitted in testifying that he was a user of heroin at

the time of his arrest, that testimony would not be in

such conflict with his denial that he threw away 18

bags of heroin as to require the jury to conclude that he

had committed perjury. The reasonable inference which

marked the inconsistency between the defendant’s

direct testimony and the impeaching statement in each

of Harris and Hass was not present here.

The Harris limitation upon the Miranda requirements

not being applicable, and there being no suggestion

that the Miranda warnings were given and the rights

thereunder effectively waived, Miranda’s strictures

precluded the admission of the statement into evidence

regardless of its voluntariness vel non in the traditional

sense. The short of it is that the judgment entered in the

trial court must be reversed because the challenged

statement was admitted by the trial judge on the basis

that it was within the Harris-Hass limitation of

20a

Miranda when, on the facts before us, it was not.

Therefore, the judgment of the Court of Special Appeals

is affirmed.?®

Judgment of the Court of

Special Appeals Affirmed;

Costs to be Paid by the

Mayor and City Council of

Baltimore.

® Left unanswered is the obvious question of the meaning

of the phrase “the trustworthiness of the evidence satisfies

legal standards” in the proviso to which admissibility of a

statement otherwise within the impeachment exception is

subject. The resolution of that question is not necessary for

decision of this appeal and we leave it for future considera-

tion.

2la

APPENDIX B

BRUCE D. KIDD v. STATE OF MARYLAND

(No. 45, September Term, 1976.)

Decided November 8, 1976.

Criminal Law — Evipence — Admissibility Of Statement Of Accused To

Impeach Credibility — Involuntary Statement Of Accused — Admissibility

Of For Any Purpose — Burden Of Proof — Fundamentally, Dictates Of

Miranda Holding Insofar As It Related To Warning And Waiver

Requirements Do Not Supersede Preeristing Constitutional Law On

Admissibility Of Confessions Its Net Effect Being The Imposition Of

Additional Criteria For Admissibility Upon That Preeristing Law —

Impact Of Harris v. New York Was One Of Limiting The Exclusionary

Power Of Miranda To The End That A Miranda-Violative Statement Could

Be Used For Impeachment Purposes Provided However That The

Trustworthiness Of The Evidence Satisfied Legal Standards — Where The

Initial Infirmity Is Constitutional Involuntariness Itself And Not Mere

Non-Compliance with Suggested Prophylactic Rules Of Miranda.

Involuntary Statement As Such Would Be Inadmissible Even For Purposes

Of Impeachment In Rebuttal — Procedurally, Defendant Required To Make

General Objection To Admission Of Statement _y Him Whether Offered

Upon Merits Or For More Limited Purpose With Burden Upon State To

Prove By Preponderance Of Evidence Statement Is Admissible — Where

State Demonstrates Compliance With Miranda Together With Traditional

Voluntariness Standards Statement Admissible Upon Merits Or For Any

Other Relevant Purpose — Failure Of State To Demonstrate Compliance

With Miranda But Compliance With Traditional Voluntariness Standards,

Statement Not Admissible Upon Merits But Only For Limited Purpose Of

Impeaching Credibility Of Accused Who Testifies In Manner Contradicted

By Statement — Statement Of Accused Not Admissible For Any Purpose

Regardless Of Whether Miranda Has Been Complied With Or Not Where

State Fails To Demonstrate Compliance With Traditional Standards Of

Voluntariness. pp. 446, 448, 450, 453, 455-457,

459, 462, 465, 469, 471, 474475

H. E. F.

Appea! from the Criminal Court of Baltimore (ARABIAN,

J.).

Bruce D. Kidd was convicted in a trial by jury of

possessing heroin with intent to distribute and from

judgment entered thereon, he appeals.

Judgment reversed; case remanded for new trial. Costs to

be paid by Mavor and City Council of Baltimore.

22a

The cause was argued before Moyvian, MENCHINE and

Lowes, JJ.

Harriette Cohen, Assistant Public Defender, with whom

was Alan H. Murrell, Public Defender, on the brief, for

appellant.

Deborah K. Handel, Assistant Attorney General, with

whom were Francis B. Burch, Attorney General, William A.

Swisher, State's Attorney for Baltimore City, and Wayne

Cymek, Assistant State's Attorney for Baltimore City, on

the brief, for appellee.

Moy an, J., delivered the opinion of the Court.

The root problem giving rise to the present appeal is the

failure to appreciate that in 1966 the warning and waiver

requirements mandated by Miranda v. Arizona, 384 U. S.

436, 86 S. Ct. 1602, 16 L.Ed.2d 694, did not supersede

preexisting constitutional law on the admissibility of

confessions; the requirements of Miranda simply super-

imposed additional criteria for admissibility upon that pre-

existing law. Distracted by the glitter of this new surface

laver of quasi-constitutionality, our case law has tended to

ignore the substratum of pre-Miranda law which lies

undisturbed in bedrock immutability beneath the more

volatile overlay of Miranda.

The Factual Setting

The appellant, Bruce D. Kidd, was convicted by a

Baltimore City jury of possessing heroin with intent to

distribute it. Although the evidence against the appellant

was legally sufficient to sustain the conviction, it was by no

means overwhelming. At approximately 11 p.m. on May 9,

1975, plainclothes narcotics officers approached a large

crowd in the 1700 block of Baker Street. That block was

known as a “high-density narcotics area.” The appellant,

upon whom investigation had not theretofore focused,

quickly left the scene. The appellant testified that he was

walking toward his car quickly because his daughter had

23a

hurt her knee and he was going to take her to the hospital.

One of the arriving officers suspected that the appellant was

“dirty” because he was observed running from the scene.

The officer testified, “If he wasn’t dirty, he wouldn’t have

ran.” Another of the officers observed the appellant drop

something. He searched the area and discovered 18 glassine

bags of heroin. The appellant denied having discarded the

glassine bags of heroin. Into this two-on-one credibility

battle there intruded the damaging admission now in issue,

made by the appellant to the police, that he was currently a

narcotics addict. The error, if such be found, cannot be

deemed harmless.

The incriminating statement was made by the appellant

to Officer Winkler after the appellant had been arrested « nd

was being booked. There was no testimony that any Miraxda

warnings had ever been given or that any rights had been

waived. Such testimony would, indeed, have been

superfluous since the State never offered the statement

made to Cfficer Winkler during the course of its case in

chief.

The issue first arose during the prosecutor’s cross-

examination of the appellant, while he was testifying

in the course of his defense upon the merits. The triggering

question was, “Did you ever tell Officer Winkler that you

were a one bag habit man?” A timely objection was

interposed. The objection was overruled. A bench conference

ensued, at the end of which the trial judge ruled:

“If there is a confession or an admission or some

statement by the defendant that does not comply

with Miranda rules, you cannot introduce it on

direct, but you can if the defendant takes the stand

and denied it, then you can rebut his denial by

putting on the statement that ‘vould not have been

admissible had he not taken t!.e stand.”

In response to the question, tle appellant denied any such

conversation with Officer Winkler. In rebuttal, the State

called Officer Winkler. He testified, over objection, that the

24a

appellant admitted to him that he was an addict and that he

had approximately “a one-bag-a-day habit.”

There was never a hearing, out of the presence of the jury

or otherwise, on the voluntariness of this statement made to

Officer Winkler. It is clear that the trial court, in making its

ruling, was relying upon the case of Harris v. New York, 401

U. S. 222, 224, 91 S. Ct. 643, 28 L.Ed.2d 1, 4 (1971), which

limited the impact of Miranda and held that a statement

which might be excluded from the State’s case in chief

because of a Miranda violation might nonetheless be

received in rebuttal for purposes of impeaching the

credibility of a defendant who takes the stand and testifies

in a fashion contradicted by the Miranda-violative

statement:

“It does not follow from Miranda that evidence

inadmissible against an accused in the prose-

cution’s case in chief is barred for all purposes,

provided of course that the trustworthiness of

the evidence satisfies legal] standards.”

In 1975, Oregon v. Hass, 420 U. S. 714, 722, 95 S. Ct. 1215,

43 L.Ed.2d 570, 577, reiterated this now undisputed

limitation on the application of Miranda for purposes of

total exclusion: .

“As in Harris, it does not follow from Miranda

that evidence inadmissible against Hass in the

prosecution’s case in chief is barred for all

purposes, always provided that ‘the trustworthi-

ness of the evidence satisfies legal standards.’ ”

The Questions Before Us

We are called upon to decide whether the latitude

countenanced by Harris v. New York with vespect to a

Miranda violation extends also to a violation of deeper

import. What is meant by the qualifying phrase in Harris v.

New York: “provided of course that the trustworthiness of

the evidence satisfies legal standards”? If there is a deeper

problem lurking beneath Miranda’s surface, how shall it be

25a

raised and litigated? Are a hearing and ruling required?

What is the relevant test? What is the burden of proof? Who

has the burden?

Earlier Intimations

On three earlier occasions, similar storm warnings were

raised but the crisis passed over with no more than

threatening skies. In Cooper v. State, 14 Md. App. 106,

110-116, 286 A. 2d 579, the issue first loomed (albeit in the

context uf the possible retroactivity of Harris v. New York)

but it became unnecessary for us to resolve it because,

notwithstanding having laid a foundation, the State never

offered the arguably infirm prior inconsistent statement. In

Layman v. State, 14 Md. App. 215, 224-231, 286 A. 2d 559, a

question arose about using for impeachment purposes a

prior inconsistent statement which allegedly ran afoul of

traditional voluntariness requirements. The issue there

arose, however, in the context of whether the judge was

required to give a defendant an anticipatory ruling. We held

that he was not so required. The present question was never

faced. Finally, in Sabatini v. State, 14 Md. App. 431, 287 A.

2d 511, we did not have to face squarely the issue of whether

a hearing is required when the challenged statement is

offered for impeachment purposes. Although in that case a

preliminary hearing was not held out of the presence of the

jury, the evidence bearing on the question of traditional

voluntariness was offered before the court and jury alike.

We held that in ruling the statement admissible, the-judge

“at least implicitly” found traditional voluntariness. We

further held, upon our independent, constitutional review,

that the challenged statement was indeed voluntary. The

risk that inheres when the matter is not explored

preliminarily out of the presence of the jury did not,

therefore, materialize under the circumstances of that case.

The Doctrinal Analysis of Harris v. New York

The issue now, however, is squarely before us.

Indispensable to a principled resolution of the issue, and of

the various sub-questions involved therewith, is an

26a

understanding of Harris v. New York not in terms of its

surface operation but in terms of its doctrinal legitimacy.

If we were dealing with Miranda in a vacuum, the trial

judge would be correct and we should affirm. As we pointed

out in Bartram v. State, 33 Md. App. 115, 364 A. 2d 1119

(1976), “Miranda v. Arizona is in definite disfavor with the

strong majority of the present membership of the institution

charged with interpreting the law of the land,” and has been

significantly eroded in a variety of ways by Harms v. New

York. supra; by Oregon v. Hass, supra; by Michigan v.

Tucker, 417 U. S. 433, 94 S. Ct. 2357, 41 L.Ed.2d 182 (1974);

by Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L.Ed.2d

313 (1975), and by United States v. Mandujano, it aa

96 S. Ct. 1768, 48 L.Ed.2d 212 (1976). Miranda, however, is

not coextensive with the fundamental constitutional right

under the Fifth and Fourteenth Amendments against

compelled self-incrimination. The erosion or demeaning of

Miranda by no means implies the erosion or demeaning of

the fundamental constitutional right itself. That right

stands as it stood before Miranda was ever promulgated.

Neither Harris v. New York nor Oregon v. Hass has eroded

it in any sense.

As limiting agents upon the exclusionary power of

Miranda, Harris v. New York and Oregon v. Hass

themselves have limitations. A Miranda-violative statement

may, indeed, be used for impeachment purposes —

“provided of course that the trustworthiness of the evidence

satisfies legal standards.” The limitation has a limitation.

What is equired conceptually is the appreciation of the

difference between a “mere Miranda” violation and a more

fundamental constitutional violation. See Bartram v. State,

supra (Part 2A). To understand fully not only 1) the

correctness of the Harris v. New York limitation upon

Miranda but also 2) the limited scope of that limitation, one

must turn to the deeper doctrinal analysis of Michigan v.

Tucker, supra.

In Michigan v. Tucker, a statement had been taken from a

defendant in clear violation of Miranda. That statement led

the police to a witness ultimately used by the prosecution in

27a

proving its case. The Supreme Court had to come to grips

with the problem of whether a Miranda violation could serve

as the “primary illegality” which would trigger the “fruit of

the poisonous tree” doctrine. In holding that a “mere

Miranda” violation would not trigger the operation of that

doctrine, it was necessary for the Supreme Court to hold

that Miranda itself was not of constitutional dimensions. It

denigrated the Miranda rules from the constitutional sta-

tus of being part and parcel of the right against

self-incrimination, treating them rather as “only the

prophylactic rules developed to protect that right,” 417 U. S.

at 439; as a “series of recommended ‘procedural

safeguards,” 417 U. S. at 443; as “suggested safeguards,”

417 U. S. at 444; as “only ... the prophylactic standards

later laid down by this Court in Miranda to safeguard that

privilege,” 417 U. S. at 446. The Supreme Court held, as was

necessary to its decision, that the fundamental privilege

against compulsory self-incrimination as such had not been

violated:

“The Court recognized that these procedural

safeguards were not themselves rights protected by

the Constitution but were instead measures to

insure that the right against compulsory self-

incrimination was protected.

[T}he police conduct here did not deprive

respondent of his privilege against compulsory

self-incrimination as such, but rather failed to

make available to him the full measure of

procedural safeguards associated with that right

since Miranda.” 417 U. S. at 444.

It then raised the question of whether a “mere Miranda”

violation would trigger the “fruit of the poisonous tree”

doctrine, while suggesting strongly that a violation of the

right against compulsory self-incrimination would most

certainly trigger that doctrine:

“Our determination that the interrogation in this

case invoived no compulsion sufficient to breach the

28a

right against compulsory self-incrimination does

not mean there was not a disregard, albeit an

inadvertent disregard, of the procedural rules later

established in Miranda. The question for decision is

how sweeping the judicially imposed consequences

of this disregard shall be.” 417 U. S. at 445.

Although its holding dealt with the obverse side of the

present coin, the holding necessarily implied that a violation

of the basic constitutional privilege itself will bar not only

the direct use but any indirect use — “the fruits” — of such

unconstitutionality:

“This Court has also said, in Wong Sun v. United

States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407

(1963), that the ‘fruits’ of police conduct which

actually infringed a defendant’s Fourth

Amendment rights must be suppressed. But we

have already concluded that the police conduct

at issue here did not abridge respondent's

constitutional privilege against compulsory self-

incrimination, but departed only from the

prophylactic standards later laid down by this

Court in Miranda to safeguard that privilege.” 417

U.S. at 445-446.

In Bartram v. State, supra, we pointed out that “[t}he

distinction between a ‘mere Miranda’ violation, the product

of which may be used in rebuttal or for collateral purposes,

and a ‘primary illegality’ of constitutional dimensions under

the ‘fruit of the poisonous tree’ doctrine is very clear.” See

also Ryon v. State, 29 Md. App. 62, 349 A. 2d 393. In Jn Re

Appeal No. 245, Term 1975, 29 Md. App. 131, 349 A. 2d 434,

Chief Judge Orth wrote for this Court, at 29 Md. App. 149,

150:

“In both Harris and Tucker, the misconduct of the

police violated only the prophylactic rules

developed by Miranda to protect the right against

self-incrimination.... In the instant case, we do

not have official action pursued in complete good

faith, with the confession rendered inadmissible by

29a

the mere inadvertent omission of one of the

prophylactic Miranda warnings.... The rationale

of the holdings in Harris and Tucker does not apply

to make admissible the tangible evidence obtained

here, any more than it would apply to make

admissible evidence derived from a confession not

voluntary in the traditional sense.”

In Re Appeal No. 245, supra, is a beacon light of

precedential guidance in this regard because of the clear

contrast contained within it. A contested statement was

taken from a juvenile. That statement was found to be in-

firm by both the trial cuurt and by this Court for two

distinct reasons. In the first place, there was not an

adequate waiver under Miranda. At an even more funda-

mental level, it was held to he se ne in the con-

stitutional sense because it was the direct and proximate

effect of an illegal detention. Quite properly, the con-

fession was suppressed. The confession, however, gave

the police a lead to a pair of binoculars, which were

ultimately recovered by them and offered in evidence.'

We held that, under the teaching of Harris v. New York

and Michigan v. Tucker, the “mere Miranda” violation would

not prohibit the use of the Miranda-violative statement to

furnish informational leads to the police and that the

binoculars would not be suppressed because of the Miranda

violation. Moving on to matters of more constitutional

magnitude, however, we held that when the raw nerve of the

right against compulsory self-incrimination was improperly

touched by unlawful police action, the gears of the “fruit of

the poisonous tree” doctrine were fully engaged and that the

binoculars must be suppressed for the basic constitutional

violation,? even where suppression was not called for for the

“mere Miranda” violation.

1. “{Wje can only conclude that the deputies were led to the

binoculars by what appellant told them. There was no evidence

sufficient to establish that the deputies learned of the binoculars

from a source independent of the confession.” 29 Md. App. at 146.

2. “(The detention led to the confession and the confession led to the

binoculars. Each was the immediate, direct and proximate cause of

the other with no break in the causal connection by time or

i i

es yd ~~ aes

30a

It is now undisputed that a violation of the Fifth

Amendment right against compelled self-incrimination can

trigger the “fruit of the poisonous tree” doctrine. Michigan v.

Tucker, supra; In Re Appeal No. 245, supra; Ryon v. State,

supra; Bartram v. State, supra. Cf. Garrison v. State, 28 Md.

App. 257, 345 A. 2d 86; Everhart v. State, 274 Md. 459, 337 A.

2d 100; Carter v. State, 274 Md. 411, 337 A. 2d 415. It is also

undisputed that once the “fruit of the poisonous tree”

doctrine comes into play, the use of a tainted “fruit” would

be barred for all purposes, for impeachment purposes in

rebuttal just as surely as for more directly inculpatory

purposes in the case in chief. The heart of the doctrine was

expressed by Justice Holmes in the case that gave birth to

the doctrine, Silverthorne Lumber Co. v. United States, 251

U. S. 385, 392, 40 S. Ct. 182, 64 L. Ed. 319 (1920):

“The essence of a provision forbidding the

acquisition of evidence in a certain way is that not

merely evidence so acquired shall not be used

before the Court but that it shall not be used at all.”

See also Nardone v. United States, 308 U. S. 338, 60 S. Ct.

266, 84 L. Ed. 307 (1939), and Wong Sun v. United States,

371 U. S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963). The

Court of Appeals spoke very clearly to this point in Everhart

r. State. supra, at 274 Md. 481-482:

“The doctrine of the ‘fruit of the poisonous tree’

extends the scope of the exclusionary rule to bar not

only evidence directly seized, but also evidence

indirectly obtained as a result of information

learned or leads obtained in the unlawful search;

in its broudest sense it prohibits the prosecution

from using in any manner, prejudicial to the ac-

cused, information derived from facts learned

as a result of the unlawful acts of law enforce-

ment agents.” (Emphasis supplied)

circumstances. The primary taint flowed down to the confession

and from it to the binoculars. The State did not establish that the

binoculars were come at by means sufficiently distinguishable to

be — of the primary taint. Under the Wong Sun doctrine, the

binoculars were inadmissible in the hearing on the delinquency of

appellant, and we so hold.” 29 Md. App. at 147.

3la

It follows ineluctably that if an involuntary statement

cannot be used for even so remote a purpose as supplying a

lead to further investigation, it may not be used more

directly to impeach credibility. Harris v. New York and

Oregon v. Hass do not, therefore, authorize such use of a

questioned statement, even for the limited purpose of

impeachment in rebuttal, when the initial infirmity is

constitutional involuntariness itself and not mere

non-compliance with the suggested prophylactic rules of

Miranda.

The analysis has been pursved perhaps to the point of

tedium. A conceptual grasp of the crucial distinction

between the natures of the violations, however, is

indispensable to a principled resolution of the attendant

procedural questions. With the distinction now firmly fixed

in mind, we are equipped to consider the procedural

sequelae.

The Procedural Questions

Since Harris v. New York cannot immunize even for

limited purposes a statement made to the police where the

contagion is of constitutional virulence, attention must be

focused upon the procedural requirements for diagnosing

such constitutional contagion. When the State seeks to use a

statement against a defendant, even for the more limited

purpose of impeachment, must the State show anything

absent an objection? Is more required of a defendant by way

of challenge than a bare objection? Is a judicial

determination required? Once the issue is raised, what is the

test? What is the burden of proof? To whom is the burden

allocated?

The clue to the solution is that we are not addressing a

new problem but rather an o!d problem which we have

tended to neglect in the rush of more topical recent events.

We must look beneath the transient sod into the abiding

subsoil. The answers are what they have always been since

Maryland began litigating the subject of voluntariness in

1873 with Nicholson rv. State, 38 Md. 140, and since the

Supreme Court began litigating the subject of voluntariness

a

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By

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32a

in 1936 with Brown v. Mississippi, 297 U. S. 278, 56 S. Ct.

461, 80 L. Ed. 682. Upon this massive body of case law,

Miranda was superimposed by the Supreme Court in 1966 as

an additional set of “procedural safeguards.” Miranda was

not a substitute for the earlier and more fundamental

safeguards and did not work any change with respect to

them. It simply superimposed a veneer of additional

prophylaxis. The effect of Harris v. New York is simply

upon that prophylactic layer and does not alter the

constitutional substratum which remains, procedurally as

well as substantively, what it has always been.

1. Must the Defendant Interpose an Objection? — Yes.

With respect to that substratum, it is and always has been

clear that no issue arising out of the admissibility of a

confession, for any purpose, will be preserved for appellate

review absent an objection by the defendant at the time the

confession is offered. Maryland Rule 1085; Tucker v. State,

237 Md. 422, 425, 206 A. 2d 691; Gaudio and Bucci v. State, 1

Md. App. 455, 462-463, 230 A. 2d 700; Kleinbart v. State, 2

Md. App. 183, 209, 234 A. 2d 288; Bitzer v. State, 4 Md. App.

415, 419, 243 A. 2d 33; Hall v. State, 6 Md. App. 356, 360-361,

251 A. 2d 219. Neither Miranda nor the Harms v. New York

limitation upon Miranda had any effect upon this basic

procedural rule. :

2. Is a Bare Objection Enough? — Yes.

With further respect to that substratum, it is and always

has been clear “that general objection ... to the admission

of the confession, is sufficient ... and that grounds

for the objection need not be stated unless requested by the

court, Maryland Rule 522 d 1, made applicable to criminal

causes by Rule 725 f.”* Bates v. State, 32 Md. App. 108,

112-113, 359 A. 2d 106. See also Robert v. State, 220 Md. 159,

167-168, 151 A. 2d 737, 741; Giles v. State, 10 Md. App. 593,

598, 271 A. 2d 766, 769. Neither Miranda nor the Harris vr.

3. “We think that the objection may he regarded as

encompassing both the voluntariness of the confession and the

taint derived from the ill arrest.” Judge Singley (specially

assigned), speaking for this Court, at 32 Md. App. 113.

33a

New York limitation upon Miranda had any effect upon this

basic procedural rule.

3. Area Hearing and a Judicial Ruling Required? — Yes.

With further respect to that substratum, it is and always

has been clear that when a defendant makes timely

objection to the admission of a statement taken from him by

the police, the trial judge must conduct a hearing and must

determine as a matter of law whether the challenged

statement will or will not be admitted into evidence. As we

said in Mulligan v. State, 10 Md. App. 429, 432, 271 A. 2d

383:

“The trial judge’s conclusion that the confession was

voluntary must appear from the record with

unmistakable clarity.”

We spoke to a similar effect in Barnhart v. State, 5 Md. App.

222, 226, 246 A. 2d 280:

“A defendant’s constitutional rights are violated

when his challenged confession is introduced

without the preliminary decision by the trial judge

of its voluntariness after an adequate hearing.

Jackson v. Denno, 378 U.S. 368.”

As Chief Judge Murphy very forcefully said for this Court in

the appropriately named case of Murphy v. State, 8 Md.

App. 430, 436-437, 260 A. 2d 357:

“But, as heretofore indicated, the appellant later

entered a timely general objection to the

admissibility of the confession which had the effect

of challenging the confession on the broader

constitutional ground that it was not freely and

voluntarily made. See Maryland Rules 522 and

725f. Under Jackson v. Denno, supra, it was

‘incumbent upon the trial judge to make a

preliminary finding of voluntariness before

admitting the confession in evidence, and that

finding must, under Sims v. Georgia, supra, ‘appear

from the record with unmistakable clarity.’ The ra-

34a

tionale of these cases is plainly such that the trial

judge must do more than, as here, simply overrule

the objection — his conclusion that the confession ©

was voluntary must, we repeat, appear from the

record ‘with unmistakable clarity.’ And this is so

even where, as here, the only evidence in the case

pertaining to the voluntariness of the statement

showed that it was freely and voluntarily made; the

trial judge still must indicate ‘with unmistakable

clarity, that he believes such evidence and

therefore finds the confession to be a voluntary

one.

See also Lynch v. State, 9 Md. App. 441, 443, 265 A. 2d 283.

Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L.Ed.2d

908 (1964), is the constitutional wellspring for the procedural

requirements surrounding the issue of voluntariness. That a

hearing is required is clear:

“Equally clear is the defendant’s constitutional right

at some stage in the proceedings to object to the use

of the confession and to have a fair hearing and a

reliable determination on the issue of vol-

untariness, a determination uninfluenced hy the

truth or falsity of the confession.” 378 U. S. at

376-377.

In Sims v. Georgia, 385 U. S. 538, 87 S. Ct. 639, 17 L.Ed.2d

593 (1967), the trial judge there, as the trial judge here,

overruled a defense objection and admitted a confession into

evidence. There, as here, there was no determination of the

question of voluntariness. In reversing, the Supreme Court

said, at 385 U. S. 544:

“Although the judge need not make formal findings

of fact or write an opinion, his conclusion that the

confession is voluntary must appear from the

record with unmistakable clarity. Here there has

been absolutely no ruling on that issue...”

See also Boles v. Stevenson, 379 U.S. 43, 85 S. Ctr. 174. 13

35a

L.Ed.2d 109 (1964) And see Mulligun v. State, 10 Md. App.

429, 432, 271 A. 2d 385.

In Jackson v. Denno, the Supreme Court pointed out that

a fair hearing and a judicial ruling are required both to

insure that the jury never hears the substance of or

knows of the existence of an involuntary confession and to

put upon the record the necessary material for later

judicial review:

“In jurisdictions following the orthodox rule,

under which the judge himself solely and finally

determines the voluntariness of the confession, or

those following the Massachusetts procedure, under

which the jury passes on voluntariness only after

the judge has fully and independently resolved the

issue against the accused, the judge’s conclusions

are clearly evident from the record since he either

admits the confession into evidence if it is vol-

untary or rejects it if involuntary. Moreover, his

findings upon disputed issues of fact are expressly

stated or may be ascertainable from the record.”

378 U.S. at 378-379.

Neither Miranda nor the Harris v. New York limitation

upon Miranda had any effect upon this basic procedural

requirement.

4. What is the Constitutional Test? — Voluntariness.

With further respect to that substratum, it is and always

has been clear that, above and beyond any latter-day

catechism of explicit warnings, a statement made by a

defendant to the authorities must be voluntary, to wit, not

“compelled” within the contemplation of the Fifth

Amendment to the United States Constitution or Article 22

of the Mary!and Declaration of Rights. The Maryland test

for voluntariness was well stated by the Court of Appeals ir

Smith v. State, 189 Md. 596, 603-604, 56 A. 2d 818:

“The law regarding the admissibility of a

confession has been stated by this court many

times. We wil! restate the rule. Before a confession

36a

can be admitted in evidence, the State must show,

to the satisfaction of the court. [*) that it was the

free and voluntary act of an accused; that no force

or coercion was exercised by the officers obtaining

the confession, to cause the accused to confess; that

no hope or promise was held out to an accused for

the purpose of inducing him to confess.”

See also Linkins v. State, 202 Md. 212, 222, 96 A. 2d 246; Hall

v. State, 223 Md. 158, 169, 162 A. 2d 751; Ralph v. State, 226

Md. 480, 487, 174 A. 2d 163. The same test was well

articulated for this Court by then Chief Judge Murphy in

Robinson v. State, 3 Md. App. 666, 670-671, 240 A. 2d 638:

“It is well settled that in order for a confession to be

admissible into evidence against an accused, the

State must prove that it was voluntary and not the

product of force, threats, promises or inducements.

Abbott v. State, 231 Md. 462: Cooper v. State, 1 Md.

App. 190. Otherwise stated, to be voluntary, a

statement cannot be ‘extracted by any sort of

threats or violence, nor obtained by any direct or

implied promises, however slight, nor by the

exertion of any improper influence.” Malloy r.

Hogan, 378 U. S. 1, 7; Lyter v. State, 2 Md. App,

654.”

See also Wiggins v. State, 4 Md. App. 95, 105-106, 241 A. 2d

424; Barnhart v. State, supra, at 5 Md. App. 224-225; Bates .

State, supra, at 32 Md. App. 113-114.

Federal constitutional law, as interpreted by the Supreme ©

Court, points unmistakably in the same direction. A

voluntary statement (subject only to the additional

requirements of Miranda when offered in chief) is always

admissible for all purposes. The pivotal criterion of

voluntariness was always rooted in the Fifth Amendment

proscription against compulsory self-incrimination in cases

arising in the federal courts. In state cases, there has been

4. It is now, of course, clear since Legu + Twomey, 404U.S. 477,925 Ct.

619, 30 L.Ed.2d 618 (1972), that the burden is that of a preponderance of the

evidence and not that of demonstrating to tne satisfaction of :he court.

37a

an evolution in the constitutional predicate for applying the

test but no fundamental change in the test itself. Beginning

with Brown v. Mississippi, 297 U. S. 278, 56 S. Ct. 461, 80 L.

Ed. 682, in 1936, and continuing over the course of some 28

years involving the consideration of some 35 cases,

constitutional review of the admissibility of confessions in

state cases was grounded in the due process clause of the

Fourteenth Amendment. The decision of the Supreme Court

in Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9

L.Ed.2d 799 (1963), that the right to counsel provision of the

Sixth Amendment was applicable to the states through the

due process clause presented the Supreme Court with the

opportunity to shift its review of confession cases in state

courts to a more specific launching pad. For a brief period in

1964, it experimented with the right to counsel provision of

the Sixth Amendment as the appropriate constitutional

lever in Massieh v. United States, 377 U. S. 201, 84 S. Ct.

1199, 12 L.Ed.2d 246 (1964), and Escobedo v. Illinois, 378 U.

S. 478, 84 S. Ct. 1758, 12 L.Ed.2d 977 (1964). That experiment

was short-lived. Malloy v. Hogan, 378 U.S. 1, 84S. Ct. 1489,

12 L.Ed.2d 653, also decided in 1964, held for the first time

that the privilege against compelled self-incrimination

under the Fifth Amendment was also binding upon the

states through the due process clause of the Fourteenth

Amendment. With that far more appropriate point of

departure then available, coupled with the opportunity to

base the federal and the state confession cases upon the

same constitutional footing, the Supreme Court by 1966

hegan grounding its review of confession cases in state

courts in the compulsory self-incrimination clause

specifically rather than in the due process clause generally

or in the now abandoned ground of the right to counsel

clause.® Throughout all of the shifts in the basis for review,

5. The status of Massiah and Escobedo as evolutionary relics that were

tried and failed is clear from an overview of subsequent Supreme Court

activity in the area. They are like the mother’s two proverbial sons, one of

whom ran off to sea and the other of whom became Vice-President and

neither of whom was ever heard from in. Neither Massich nor

Escobedo, to be sure, was ever cleanly overruled. They did not have to be.

Like Japanese garrisons bypassed in the leapf ing strategy in the South

Pacific, they simply withered upon an untended vine. Or they sleep, like

Dracula. net alive put vet undead. When they arise periodically in lonely

38a

however, the criterion upon review remained

“voluntariness.” See generally Schneckloth v. Bustamonte,

412 U. S. 218, 223-227, 93 S. Ct. 2041, 36 L.Ed.2d 854, 860-862

(1973).

There can be no doubt that the crucial constitutional

standard is voluntariness. Some of the very early case law,

in the Supreme Court and locally, did speak of

untrustworthiness as the thing to be feared and guarded

against when heavy-handed methods of interrogation were

employed. See Stein v. New York, 346 U. S. 156, 172, 73 S.

Ct. 1077, 97 L. Ed. 1522, 1536 (1953). On some occasions, the

terms “voluntariness” and “trustworthiness” were used with

loose and uncritical interchangeability. Indeed, the critical

qualifying phrase for present purposes from Harris v. New

York uses “trustworthiness” — “. . . provided of course that

the trustworthiness of the evidence satisfies legal

standards.” Notwithstanding semantic lapses, it is

inescapably clear that to the extent to which there is any

difference between “voluntariness” and “trustworthiness,”

the indisputable and inescapable constitutional standard is

“voluntariness.” Culombe v. Connecticut, 367 U.S. 568, 602,

81 S. Ct. 1860, 6 L.Ed.2d 1037 (1961), was unequivocal:

“The ultimate test remains that which has been the

only clearly established test in Anglo-American

courts for two hundred years: the test of

voluntariness. Is the confession the product of an

essentially free and unconstrained choice by its

maker’ If it is, if he has willed to confess, it may be

used against him. If it is not, if his will has been

juridical byways, they are very disturbing. One longs for a clean stake to

the neart.

Massiah has never been mentioned again. Fate has not been so kind tw

Escobedo. “{T}he Court has limited the hoiding of Escobedo to its owr

facts.” Kirby v. /inots, 406 U. S. 682, 689, 92 S Ct. 1877, 32 L.Ed.2a 411

417 (1972). “As we have noted previously. Escobedo is not to be broadis

extended beyond the facts of that particular case.” Michigan v. Tucker, 417

U. S. 433, 438, 94 S. Ct. 2357, 41 L.Ed.2d 182, 189 (1974). also Jonnson 1

New Jersey, 334 U. $8. 719, 733-734. 86 S. Ci. 172. 16 L Bd.2d ss2, sez

(1966), and F’raner v. Cupp. 394 U.S. 731, 739, 89 S. Ct. 1420, 22 L_Ed.2d 684

(1969). a elrgd is the comment of Professor Max Radin that when

courts note that another case “stood or its own facts.” the courts are

“administering euthanasia to their nonviable progeny.” 6 St. John’s Law

Qu. Rev. 157.

39a

overborne and his capacity for self-determination

critically impaired, the use of his confession offends

due process.”

Justice Frankfurter was equally explicit in pinpointing the

standard in Rogers v. Richmond, 365 U.S. 534, 540-541, 81 S.

Ct. 735, 5 L.Ed.2d 760 (1961):

“Our decisions under that Amendment have

made clear that convictions following the admission

into evidence of confessions which are involuntary,

i.e., the product of coercion, either physical or

psychological, cannot stand. This is so not because

such confessions are unlikely to be true but because

the methods used to extract them offend an

underlying principle in the enforcement of our

criminal] law: that ours is an accusatorial and not

an inquisitorial system — a system in which the

State must establish guilt by evidence in-

dependently and freely secured and may not by

coercion prove its charge against an accused out of

his own mouth.”

The notion that the relevant concern might be

trustworthiness rather than voluntariness was met squarely

in Jackson v. Denno, 378 U. S. 368, 383-386, 84 S. Ct. 1774, 12

L.Ed.2d 908, 919-921 (1964), and was buried:

“(T}he premise underlying the Stein opinion that the

exclusion of involuntary confessions is con-

stitutionally required solely because of the

inherent untrustworthiness of a coerced confession.

It followed from this premise that a reliable or true

confession need not be rejected as involuntary and

that evidence corroborating the truth or falsity of

the confession and the guilt or innocence of the

accused is indeed pertinent to the determination of

the coercion issue... .

This underpinning of Stein ... was unequivocally

put to rest in Rogers v. Richmond, supra, where it

was held that the reliability of a confession has

Ee es ee ee eee eee

40a

nothing to do with its voluntariness — proof that a

defendant committed the act with which he is

charged and to which he has confessed is not to be

_ considered when deciding whether a defendant's

will has been overborne. .. .

It is now inescapably clear that the Fourteenth

Amendment forbids the use of involuntary

confessions not only because of the probable

unreliability of confessions that are obtained in a

manner deemed coercive, but also because of the

‘strongly felt attitude of our society that important

human values are sacrificed where an agency of the

government, in the course of securing a conviction,

wrings a confession out of an accused against his

will’. . .” (Citations omitted)

As recently as 1972, Lego v. Twomey. 404 U. S. 477, 484-485,

92 S. Ct. 619, 30 L.Ed.2d 618, 624-625, spoke to the same

point:

“We noted in Jackson that there may be a

relationship between the involurtariness of @ con-

fession and its unreliability. But our decision was

not based in the slightest on the fear that juries

mignt misjudge the accuracy of confessions and

arrive at erroneous determinations of guiit or

innocence. That case was not aimed at reducing the

possibility of convicting innocent men.

Quite the contrary, we feared =nat the reliability

and truthfulness of even coerced confessions could

impermissibly influence a jury's judgment as to

voluntariness. The use of coerced confessions,

whether true or false, is forbidden because the

method used to extract them offends constitutionai

principles. Rogers v. Richmond ... The procedure

we established in Jackson was designed to

safeguard the right of an individual. entire!s apart

from his guilt or innocence, not to be compelied to

condemn himself by his own utterances.”

17

Neither Miranda nor the Harrs » New York limitatior

4la

upon Miranda had any effect upon this basic formulation of

the applicable test.

5. What is the Burden of Proof? — A Preponderance of the

Evidence.

With further respect to that substratum, it is and always

has been clear (at least since Lego v. Twomey, 404 U. 8. 471,

92 S. Ct. 619, 30 L.Ed.2d 618, in 1972) that the burden of

proof on the admissibility issue, either pretrial or during

trial in or out of the presence of the jury, is that of a

preponderance of the evidence. Mulligan v. State, 18 Md.

App. 588, 597-602, 308 A. 2d 418; Ponds v. State, 25 Md. App.

162, 335 A. 2d 162; Felde v. State, 26 Md. App. 15, 20-23, 336

A. 2d 823; Hebb v. State, 31 Md. App. 493, 356 A. 2d 583;

Bates v. State, supra, at 32 Md. App. 113. Neither Miranda

nor the Harns v. New York limitation upon Miranda had

any effect upon this basic procedural rule.

6. To Whom is the Burden Allocated? — The State.

With final respect to that substratum, it is and always has

been clear that the burden of proving voluntariness is

allocated to the State. In the archetypal case of Nicholson v.

State, 38 Md. 140, the Court of Appeals said as early as 1873,

at 153: ,

“The law is also well settled that the ons is upon

the prosecutor, to show affirmatively, that the

confession proposed to be offered was not made in

consequence of an improper inducement.”

The allocation was clearly stated by the Court of Appeals in

Peters and Demby v. State, 187 Md. 7, 14, 48 A. 2d 586:

“The burden of proof is, of course, upon the State to

show that any confession is freeiy and voluntarily

made, and is not obtained by threats or in-

ducements.”

The Court of Appeals restated the allocation of the burden,

as it had stated it many times before and has restated it

42a

many times since, in Jones v. State, 188 Md. 263, 270, 52 A.

2d 484:

“In Maryland the burden of proof is on the State

to show affirmatively that a confession was freely

and voluntarily made, and was not obtained by any

improper inducements. Hammond v. State, 174 Md.

347, 198 A. 704; Wright v. State. 177 Md. 230, 9 A.

2d 253; Taylor v. State, 187 Md. 306, 49 A. 2d 787.”

This Court has consistently followed suit. See, among many

others, Robinson v. State, supra, at 3 Md. App. 670-671,

Wiggins v. State, supra, at 4 Md. App. 105; Barnhart v.

State, supra, at 5 Md. App. 224; Edwards v. State, supra, at

7 Md. App. 113; Murphy v. State, supra, at 8 Md. App. 434.

With respect to that hearing on voluntariness mandated

by Jackson v. Denno, Lego v. Twomey, supra, went on to

establish that the burden of proof is that of a preponderance

of the evidence and furthermore that the burden is allocated

to the state, holding at 404 U. S. 489:

“To reiterate what we said in Jackson: when a

confession challenged as involuntary is sought to be

used against a criminal defendant at his trial, he is

entitled to a reliable and clear-cut determination

that the confession was in fact voluntarily

rendered. Thus, the prosecution must prove at least

by a preponderance of the evidence that the

confession was voluntary.” (Emphasis supplied)

Neither Miranda nor the Harms v. New York limitation

upon Miranda had any effect upon this basic allocation of

the burden of proof.

Voluntariness Hearing Not Obriated by Miranda

It is furthermore clear that tne demonstration of

voluntariness as a prerequisite t the admission of a

challenged statement was not obviated by the additional

“warning and waiver” examination mandated by Mirwedla

nor was the more basic test superseded by or subsumed into

its implementary additive. Judge-Powers well articu.ated

43a

the distinctness of the criteria in Greenwell v. State, 32 Md.

App. 579, 363 A. 2d 555, 537:

“Two different constitutional principles may

bear, simultaneously, or independently of each

other, on the question of admissibility of that

evidence. One is that it must be shown that the

statement was not induced by force, threats, or

promises, but was made freely and voluntarily. The

other is that when the statement stems from a

custodial interrogation, it must be shown that the

accused knew and understood that he had a

constitutional right not to be compelled to be a

witness against himself, and that he voluntarily,

knowingly, and intelligently waived his rights.”

We made it clear in Edwards v. State, 7 Md. App. 108, 113,

253 A. 2d 764, that even following an examination under

Miranda, the more basic issue must still be addressed as a

precondition for admissibility:

“Of course, when a confession is challenged, the

State is additionally required to adduce proof of

traditional voluntariness, viz., that the statement

was not obtained by force, violence, threats,

inducements or promises.”

See also Robinson v. State, supra, at 3 Md. App. 671;

‘iggins v. State, supra, at 4 Md. App. 105; Barnhart r.

State, supra, at 5 Md. App. 224-225; Murphy v. State-supra,

at 8 Md. App. 434-435. As Judge Singley pointed out for this

Court in Bates v. State, supra, the satisfaction of Miranda is

by no means all that is required by way of legitimating a

challenged statement, saying at 32 Md. App. 113-114:

“At the suppression hearing, the trial court

determined, from a preponderance of the evidence,

that Bates was given his Miranda warnings and the

confession to the Weaver’s Texaco break-in was

voluntary. There was, however, no finding that the

illegal arrest did or did not taint the confession.

44a

The trial court’s inquiry at the suppression

hearing, however, is not completed upon a finding

that Miranda warnings were given and the

confession was voluntarily made... .

What we propose to do in the present case is to

reverse Bates’ conviction, for we are convinced that

the State failed to satisfy its burden of showing, at

the suppression hearing, that the confession did not

result from exploitation of the illegal arrest... .”

No Distinction Between Using a Statement Upon the Ments

and Using it to Impeach Credibility

In the present case, it is undisputed that a statement

made by the appellant to the police was received in evidence

against him at his trial for the purpose of impeaching his

credibility. It is undisputed that he objected to the

introduction of that statement and that his objection was

overruled. It is undisputed that hé was afforded no hearing

whatsoever upon the issue of voluntariness. It is undisputed

that the trial judge did not rule, and indeed had nothing

upon which to rule, on the subject of voluntariness. It is

undisputed that the State did not carry its burden of proving

voluntariness by any standard.

Of immediate concern to us is the question of whether this

constitutional criterion of voluntariness applies to al!

statements taken from a defendant by the police rather than

to only those statements offered in chief upon the issue of

guilt or innocence. Miranda itself is instructive here.

Although its recommended procedural safeguards to defang

the potentially deadly element of compulsion have been

significantly neutralized, its definition of what constitutes

self-incrimination stands undisturbed. In this regard, it said

at 384 U. S. 477:

“(Njo distinction may be drawn _ between

inculpatory statements and statements alleged to

be merely ‘exculpatory.’ If a statement made were

in fact truly exculpatory it would. of course, never

be used by the prosecution. In fact, statements

45a

merely intended to be exculpatory by the defendant

are often used to impeach his testimony at trial or

to demonstrate untruths in the statement given

under interrogation and thus to prove guilt by

implication. These statements are incriminating in

any meaningful sense of the word... .”

What is there made explicit in Miranda is implicit in the

clear command of Jackson ». Denno, at 378 U.S. 376:

“It is now axiomatic that a defendant in a crimi-

nal case is deprived of due process of law if his con-

viction is founded, in whole or in part. upon an

involuntary confession, without regard for the truth

or falsity of the confession, Rogers v. Richmond,

365 U. S. 334, 5 L.Ed.2d 760, 81 S. Ct. 735, and

even though there is ample evidence aside from the

confession to support the conviction.” (Emphasis

supplied)

The federal constitutional law has never drawn a

distinction between using an unconstitutionally obtained

Statement on the merits of guilt or innocence and using it

tangentially to influence that decision upon the merits. The

massive and immemorial body of Maryland common law —

much of it grounded directly in Article 22 of the Declaration

of Rights proscribing compelled self-incrimination and the

remainder of it interpreting and applying parailel federal

provisions — has never drawn a distinction between using

an unconstitutionally obtained statement on the merits of

guilt or innocence and using it tangentially to influence that

decision upon the merits. When the basic constitutional

right is involved, we see no logical distinction that could be

drawn.

Nor do we see any thing logically persuasive in the

suggestion by the State that the appellant must specify that

he is objecting on the grounds of traditional involuntariness

before he is entitled to a hearing on that issue.* Although the

case law, here and elsewhere, has of late been almost totally

6. See Bailey v State, 263 Md. 424, 428, 283 A. 2d 360.

46a

monopolized by Miranda considerations, the more basic

criteria have not been superseded or obliterated. When a

defendant objects to a statement offered against him in

chief, he is not required to specify that he is objecting on

basic constitutional grounds rather than objecting

exclusively upon Miranda grounds. A general objection has

always been enough to put the State to its burden of proving

admissibility. Miranda has not preempted the field when a

statement is offered upon the merits, neither has it

preempted the field when a statement is offered for

impeachment purposes. An objection to admissibility is all

that is required to put the State to its proof.

The State’s effort to disengage the statement here in

question from the constitutional obligations otherwise

binding on statements made to the police is unavailing for

two reasons.

1. Differing Uses of the Statement Do Not Support

Differing Examinations of the Privilege

The State would have us believe that because a prior

inconsistent statement is considered by the jury for the

limited purpose of impeaching credibility, there is not

inherent in the jury’s hearing of the statement that same

potential for residual harm as when they hear an

involuntary statement upon the merits. This argument

attributes more sophistication to the jury than the Supreme

Court is willing to credit. Jackson v. Denno discounted the

ability of a jury to factor out an involuntary confession even

under clear instructions from the Court to do so, saying at

378 U.S. 388:

“Under the New York procedure, the fact of a

defendant’s confession is solidly implanted in the

jury’s mind, for it has not only heard the

confession, but it has been instructed to consider

and judge its voluntariness.... If it finds the

confession involuntary, does the jury — indeed, can

it — then disregard the confession in accordance

with its instructions? If there are lingering doubts

about the sufficiency of the other evidence, does the

47a

jury unconsciously lay them to rest by resort to the

confession? Will uncertainty about the sufficiency

of the other evidence to prove guilt beyond a

reasonable doubt actually result in acquittal when

the jury knows the defendant has given a truthful

confession.”

Indeed, in Bruton v. United States, 391 U.S. 123, 88 S. Ct.

1620, 20 L.Ed.2d 476 (1968), the Supreme Court recognized

“the substantial risk that the jury, despite instructions to

the contrary, looked to the incriminating extrajudicial

statements in determining petitioner’s guilt,” and held that

instructions from the court cannot cure the judicial harm

flowing from a jury’s knowledge of a defendant’s confession.

The Court said at 391 U.S. 128-129:

“Delli Paoli assumed that this encroachment on

the right to confrontation could be avoided by the

instruction to the jury to disregard the inadmissible

hearsay evidence. But, as we have said, that

assumption has since been effectively repudi-

ated.... [W]e expressly rejected the proposition

that a jury, when determining the confessor’s guilt,

could be relied on to ignore his confession of guilt

should it find the confession involuntary.”

It went on to hold at 391 U. S. 135:

“(T}here are some contexts in which the risk that the

jury will not, or cannot, follow instructions is se

great, and the consequences of failure so vital to the

defendant, that the practical and human

limitations of the jury system cannot be ignored.”

Both Jackson v. Denno and Bruton quoted with approval

from the dissenting opinion of Justice Frankfurter in Delli

Paoli v. United States, 352 U. S. 232, 248, 77 S. Ct. 294, 1

L.Ed.2d 278, 289 (1957), where he put the proposition

squarely:

“The Government should not have the windfall of

having the jury be influenced by evidence against a

48a

defendant which, as a matter of law, they should

not consider but which they cannot put out of their

minds.”

Both Jackson v. Denno and Bruton also quoted with

approval from the concurring opinion of Justice Jackson in

Krulewitch v. United States, 336 U. S. 440, 453, 69 S. Ct. 716,

93 L. Ed. 790, 799 (1949), where he stated even more

forcefully:

“The naive assumption that prejudicial effects can

be overcome by instructions to the jury ... all

practicing lawyers know to be unmitigated fiction.”

As recently as Lego v. Twomey, supra, the Supreme Court

reaffirmed its conviction that a jury could not be relied upon

to factor out of its decision-making process a confession

which may have been constitutionally tainted, saying at 404

U.S. 483:

“Precisely because confessions of guilt, whether

coerced or freely given, may be truthful and potent

evidence, we did not elieve a jury could be called

upon to ignore the probative value of a truthful but

coerced confession... .”

We hold that the mere fact that a challenged admission

has been offered for impeachment purposes rather than

upon the merits does not diminish its potential for harm. It

is now firmly established, under our own case law as we!! as

that of the Supreme Court, that if a jury even hears of the

fact of a confession which the judge rules inadmissible, a

judge’s instructions to them to disregard it entirely cannot

be relied upon to vitiate the potential taint. A judge's

instructions to disregard utterly the confession of a

non-tesifying codefendant similarly may not be relied

upon.’ A fortion, an instruction to consider a possibly

7. As to the inefficacy of instructions to foreclose the damage when a

sensitive constitutional nerve has been touched, Bruton quoted with

approval several judicial observations of Ju Learned Hand. In Nash v-.

United States, 54 F. 2d 1006, 1007, Judge nd referred to a limiting

‘nstruction as a “recommendation to the jury of a mental gymnastic which

is beyond, not only their powers, but anybody else's.” [n Delli Paoli »

49a

unconstitutional admission for limited purposes of

impeaching credibility cannot be relied upon as a guarantee

that the unconstitutional taint will not affect the judgment

upon the merits. If an instruction to disregard utterly will

not suffice, an instruction to compartmentalize and

disregard in part is even more clearly ineffectual.

In Hutchinson v. State, 9 Md. App. 41, 45-47, 262 A. 2d

321, we held that neither a jury nor a judge sitting as a jury

could be relied upon to disregard an unconstitutionally

obtained confession. In overturning that decision, the Court

of Appeals in State v. Hutchinson, 260 Md. 227, 271 A. 2d

641, did not disagree with our statement that a jury could

not so be relied upon, but proceeded to distinguish a judge as

fact finder from a lay jury of fact finders. Although dealing

with the other side of the coin, the full import of the Court of

Appeals’ decision in State v. Hutchinson is that a lay jury,

unlike a legally trained judge, cannot factor out of its

decision-making process the knowledge of a constitutionally

tainted confession.

Indeed, in Franklin v. State, 6 Md. App. 572, 578, 252 A. 2d

487, we refused to distinguish between what is required for

offering an admission upon the merits and what is required

for offering it for the limited purpose of impeachment:

“The fact that appellant’s admissions may have

been used for the purpose of impeaching his

credibility as a witness, rather than as substantive

evidence of his guilt, does not, in our judgment.

dispense with the requirement that the State

affirmatively show on the record that the

statement was in compliance with the requirements

of [the Constitution].”

In Franklin, to be sure, we were relying upon the mandace of

United States, 229 F. 2d 319, 321, Judge Hand referred to a limiting

instruction as a “placebo,” medically defined as “a medicinal lie.”

In “Some Problems of Proof under the Anglo-Amencun System of

Litigation,” (1956), Professor Edmund Morgan suggests, at 105, that the use

of limiting instructions fosters an inconsistent attitude toward juries by

“treating them at times as a group of low-grade morons and at other times

as - endowed with a superhuman ability to control their emotions and

intellect.”

50a

Miranda. If, however, even the prophylactic command of

Miranda compelled such a conclusion on our part, how

infinitely more so would the underlying constitutional verity

of which Miranda is but a surface guarantee. And see Smith

v. State, 189 Md. 596, 606, 56 A. 2d 818.

2. The Harns v. New York Distinction Has No

Constitutional Footing

The second thrust of the State’s argument that the full

procedural safeguards are not mandated when the

challenged statement is offered for the more limited purpose

is a straight and uncritical reliance upon Harris v. New

York. The argument, based upon analogy, is that if a

statement which offends Miranda may nonetheless be used

to impeach credibility, so may a statement which offends

the traditional voluntariness requirement. The argument

ignores the doctrinal underpinnings of Harris v. New York,

more fully explained in Michigan v. Tucker. As we have

already more fully discussed, Michigan v. Tucker predicates

the Harris v. New York limitation on Miranda upon the fact

that a “mere Miranda” violation is not constitutional in

dimension. It is the unmistakable import of Michigan rv.

Tucker that if a challenged statement failed to pass basic

constitutional muster, it could not be offered even for the

limited purpose of impeaching credibility. If the

Constitution itself were offended, the “fruit of the poisonous

tree” doctrine would be fully operational. If a constitutional

issue were involved, all of the procedural guarantees of

Jackson v. Denno and Lego v. Twomey would be fully

applicable. That distinction is the sine qua non of Harns vr.

New York. Notwithstanding a surface similarity, the

analogy of the present case, involving a_ possible

constitutional violation, to a Harris v. New York situation,

involving a “mere Miranda” violation, is simply inapt. See

Bartram v. State, supra; Ryon v. Stete, supra; In Re Appeal

No. 245, September Term, 1975, supra.

In summation, the law is:

1. When a defendant makes a general objection to the

admission of a statement by him to the police, whether

5la

offered upon the merits or for a more limited purpose, the

State has the affirmative burden of proving by a

preponderance of the evidence that the statement is

admissible. Prudence would dictate that a hearing on the

issue of admissibility be conducted out of the presence of the

jury, but a reversal will not be called for, notwithstanding

the risk, if the statement is ultimately ruled to be

admissible.

2. With respect to the variety of determinations that may

be made by the judge at the admissibility hearing, the

Jollowtng results are possible:

a. If the State has demonstrated compliance irith

Miranda as well as compliance with traditional

voluntariness standards, the challenged statement will be

ad mitted upon the merits or for any other relevant purpose:

b. If the State has fuiled to demonstrate compliance

with Miranda but has demonstrated compliance with

traditional voluntariness standards, the statement will not

be admitted upon the merits but may under appropriate

circumstances, ax vutlined in Harris v. New York, be

ulmitted sor the limited purpose of impeaching the

credibility of a defendant who testifies in a manner

contradicted by the statement;

c. If the State has failed to demonstrate compliance

with traditional standards of voluntariness, the statement

will not be admitted for any purpose, regardless of whether

Miranda has been complied with or not.

Under the command of Gil/ v. State, 265 Md. 350, 289 A.

2d 575, we must reverse the conviction in this case and

remand for a new trial. But see Jackson v. Denno, supra, at

378 U. S. 394-96 and Boles v. Stevenson, supra, at 379 U. S.

45-46. Under the circumstances, it is unnecessary to deal

with the other contention raised by the appellant.

Judgment reversed: case re-

manded for new trial.

Costs to be paid by Mayor and

City Conneil of Baltimore.