Petition — Maryland v. Whitfield
Supreme Court brief1980
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MAY 13 (980
WRCHAEL RODAK, JR., CLERR
In THE
Supreme Court of the United States
OctToBER TERM, 1980
No. @9-1805
STATE OF MARYLAND,
Petitioner,
Vv.
CONRAD WHITFIELD,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF MARYLAND
STEPHEN H. Sacus,
Attorney General of Maryland,
DesoraAH K. HANDEL,
Chief, Criminal Appeals Division,
STEPHEN ROSENBAUM,
Assistant Attorney General,
One S. Calvert Building,
Baltimore, Maryland 21202,
383-3737
Attorneys for Petitioner.
The Daily Record Co., Baltimore, Md. 21202 KS
TABLE OF CONTENTS
ee cslssndes
Fe ET TETRIS UE Gl ote eRe
QUESTION PRESENTED FOR REVIEW ............ccccccceeeeeee
ConsTITUTIONAL PROVISIONS INVOLVED ............000000-
STATEMENT OF THE CASE .........c.cccccccssccsecccseccesscceeees
REASONS FOR GRANTING THE Writ:
Guidance From This Court Is Necessary
To Resolve The Conflicting Decision::
As To Whether Statements, Obtained
Without Benefit Of Miranda Warnings,
Are Admissible Is A Criminal Prosecu-
tion Where, In Emergency Situations
Such As The One In The Instant Case,
The Questioning Of Respondent Is The
Only Course Of Action Which Promises
Relief, Human Life Is At Stake, And
The Primary Purpose Of The Question-
ing Is To Ease The Emergency ............
(ES ESD ELSE DLO CR ERATE
MNS tecce tr cae ar eer re 8 RA
TABLE OF CITATIONS
Cases
Bell v. Wolfish, __. U.S. ___,, 99 S. Ct. 1861
ERIS TES RES CACTI SREY SO to a
Hillard v. State, 286 Md. 145 (1979) .............::000.
Johnson v. State, 269 N.E.2d 879 (Ind. 1971),
cert. denied, 405 U.S. 921 (1972) ...........0.0.....
Johnson v. State, 282 Md. 314 (1978) .........ce.0.0..
Lebedun v. State, 283 Md. 257 (1978) ............00...
12
la
10
10
il
PAGE
Michigan ~ Tyler, 436 U.S. 499 (1978) ...........+. )
Mincey v. Arizona, 437 U.S. 385 (1978) .............. 9
Miranda v. Arizona, 384 U.S. 436 (1966) ......... 2,5, 6, 8,9
People v. Brown, 266 N.E.2d 131 (Ill. App. 1970) 8
People v. Chestnut, 418 N.Y.S.2d 390 (App. Div.
MOTD) | cssectameins RI BESS: RED 22k eee Oe 8
People v. Mullins, 532 P.2d 733 (Colo. 1975) ..... 8
People v. Riddle, 148 Cal. Rptr. 170 (Cal. App.
1978), cert. denied, 440 U.S. 937 (1979) ....... 9
People v. Toler, 206 N.W.2d 253 (Mich. App.
a ie daa caphnbgansabencobnienacess 9
Pope v. State, 478 P.2d 801 (Alas. 1970) ............ 9
Six Companies v. Joint Highway Dist. No. 13,
BD, Re ee MOD sicinccopetncssinesncecesbesonapeonsiess 9
State v. Archible, 212 S.E.2d 44 (N.C. App. 1975)
State v. Heath, 592 P.2d 1302 (Ariz. App. 1979)
State v. Holsclaw, 257 S.E.2d 650 (N.C. App.
IID cia ciaghciiaskcaginpytasshassiieeeian save mieelesbheauonnnsaviie 8
State v. Hudson, 325 A.2d 56 (Me., 1974) ........... 8
State v. Lane, 467 P.2d 304 (Wash. 1970) .......... 9
State v. LaRue, 578 P.2d 66 (Wash. App. 1978) 8
Terry v. Ohio, 392 U.S. 1 (1968) ........ ce eeeeeeeees 8,9
Thomas v. State, 285 Md. 458 (1979) .............06+ 8
Tucker v. State, 229 S.E.2d 617 (Ga. 1976) ....... 8
United States v. Marzett, 526 F.2d 277 (5th Cir.
aod cas cccielepiensibiniglanebanbnons 8
Whitfield v. State, No. 54, Sept. Term, 1979 (Md.,
opinion by Digges, J., filed Feb. 15, 1980) .... 1,4,5,8
Whitfield v. State, 42 Md. App. 107, 400 A.2d 772
ERE SEES a CAs Ra Ene SIE 1,3, 4,7
Wolff v. McDonnell, 418 U.S. 539 (1974) ............. 12
ili
Rule, Statute, Constitutional Provisions
a Fe I Be aii ishiscciseaseatnvncsedin Sinedenvesbanteceaies
Be a, Ee UIE Csilekiade pdedhiidaien beta tesivuntncdannbelaa
Constitution of the United States, Amendment V
Constitution of the United States, Amendment
Be OR cicaticlociuen nk akon tk cecal atebbinsaplabcnicioeinvnes
APPENDIX
Opinion of the Court of Appeals of Marylanc,
Whitfield v. State, No. 54, Sept. Term, 19723
(Md., opinion by Digges, J., filed Feb. 15,
Ne a a ibathiaiadanbdoosanens
Opinion of the Court of Special Appeals of
Maryland, Whitfield v. State, 42 Md. App.
BE, Se ae OF CATED evccctidscniessccvscineisccsisnes
PAGE
In THE
Supreme Court of the United States
Octoser TERM, 1980
No.
STATE OF MARYLAND,
Petitioner,
v.
CONRAD WHITFIELD,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF MARYLAND
The State of Maryland, Petitioner, 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 Whitfield v. State, No. 54, Sept. Term,
1979 (Md., opinion by Digges, J., filed Feb. 15, 1980).
OPINIONS BELOW
The opinion of the Court of Appeals of Maryland,
Whitfield v. State, No. 54, Sept. Term, 1979 (Md., opinion
by Digges, J., filed Feb. 15, 1980), reported but not yet
printed, is included as Appendix A to this Petition. The
opinion of the Court of Special Appeals of Maryland,
reported at 42 Md. App. 107, 400 A.2d 772 (1979), is
reproduced as Appendix B.
2
JURISDICTION
The judgment of the Court of Appeals of Maryland,
which is sought to be reviewed, was filed on February 15,
1980. This Petition is filed within 90 days of that date.
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1257(3).
QUESTION PRESENTED FOR REVIEW
Are statements obtained from an inmate admissible in a
criminal prosecution where correctional officers, without
providing him with Miranda’ warnings, question the
inmate, in an effort to quell an emergency situation, (1) as
to the location within the jail of a handgun known to be in
the inmate’s control, and (2), after the retrieval of the
handgun, as to the details of an escape plan?
CONSTITUTIONAL PROVISIONS INVOLVED
Constitution of the United States, Amendment V:
“No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land of 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 proper-
ty be taken for public use, without just compensa-
tion.”
Constitution of the United States, Amendment XIV,
Section 1:
“All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
’ Miranda v. Arizona, 384 U.S. 436 1966).
3
citizens of the United States and of the State 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
Conrad Whitfield, Respondent, was, on June 22, 1977,
convicted after a jury trial in the Criminal Court of
Baltimore (Allen, J.) of conspiracy to violate the escape
laws and carrying a handgun. Respondent was sentenced
to concurrent terms of imprisonment of 10 and three years,
respectively.
A timely appeal was filed to the Court of Special
Appeals of Maryland, which, on April 11, 1979, affirmed
the judgment of the Criminal Court of Baltimore. Whit-
field v. State, 42 Md. App. 107, 400 A.2d 772 (1979). See
Appendix B.
Gn July 19, 1979, the Court of Appeals of Maryland
ordered that a a
“writ of certiorari to the Court of Special Appeals
shall issue and that review shall be limited to the
following questions: (1) in the absence of Miranda
warnings, the trial court improperly admitted incri-
minating statements made by Whitfield during inter-
rogations conducted by jail authorities; and (2) assum-
ing, arguendo, that the Court of Special Appeals
properly concluded that the issue of the admissibility
of Whitfiéld’s statements to prison officials was
preserved by Whitfield for appeal, did the Court of
Special Appeals properly conclude that Miranda
warnings were not required before eliciting state-
ments during an on-the-scene = designed
to maintain prison security. .
4
On February 15, 1980, the Court of Appeals of Maryland
reversed the judgment of the Court of Special Appeals of
Maryland and remanded the case to the Criminal Court of
Baltimore for a new trial. Whitfield v. State, No. 54, Sept.
Term, 1979 (Md., opinion by Digges, J., filed Feb. 15,
1980). See Appendix A.
The background of the instant case was summarized by
the Court of Special Appeals of Maryland:
“The factval scenario began in the spring of 1976.
From May to July of that year, Whitfield and one
Thomas Brown were involuntary residents in the
Baltimore City Jail. By happenstance, each was
represented, on unrelated criminal matters, by the
same attorney, Marshall Stewart. On July 2, 1976,
Brown was in the Southwestern District Court for a
hearing on a case there pending against him. Stewart,
who was representing Brown in that proceeding, was
also present. Brown took Stewart aside and told him
he ‘had some information about a pistol’ in the jail,
and that he wanted ‘to speak to somebody’ about it.
Stewart informed the Police Captain in charge of the
District, and Brown was taken to Central. Police
Headquarters where he gave a written statement
relative to the details of the gun’s being in the jail.”
42 Md. App. at 109, 400 A.2d at 775; Apx. B. at 34a.
The police relayed this information to the jail author-
ities, and Correctional Captain Britton and Lieutenant
Young were dispatched by Major Parks to “locate .. .
[Respondent] then and confront him with the information.”
The three correctional officers then approached Respon-
dent as he was getting off an elevator, and Young said,
“Come with me. . .” in order to “direct . . . [Respondent]
to an isolation area.” Young explained that removal to an
isolation area was necessitated “[djue to the fact other
residents were with . . . [Respondent] and we didn’t want
them to spread to the institution and lose the opportunity
perhaps of obtaining the weapon.” Young testified that his
5
approach was to confront Respondent “as if you emphatic-
ally know that they are guilty of a said situation” in order
to obtain a positive response. He described his intent as to
“{sJhock but not intimidate.”
Britton told Respondent
“that Cadet Little and some police officers from the
Baltimore City Police Department were in the Deputy
Warden’s office and knew everything about the
handgun being in the institution and it would be best
for all concerned if . . . [Respondent] would turn the
gun in and prevent anybody from getting .urt.'?!
. . . [Respondent] told me that he would have to
retrieve the gun from a given area of the institution,
and that he would have to go by himself to retrieve
the gun.”
Respondent agreed to retrieve the weapon; he was then
allowed to leave the presence of the officers, and, approxi-
mately five or ten minutes later, he returned with the gun.
Respondent was then taken to Parks’ office for further
questioning. Britton offered Respondent a cup of coffee and
told him he could contact an attorney. Britton did not
advise Respondent of the other requirements of Miranda.
Several minutes later Respondent and Britton were joined
by Stewart’s legal assistant, John Clauss. In response to
questioning by Britton, Respondent then “laid everything
out. . ., what was supposed to have transpired. . .” with
? In its decision, the Court of Appeals of Maryland hinted that
its judgment may be sustained on an independent ground of
state law, i.e., “under nonconstitutional Maryland criminal law
as recently discussed in Hillard v. State, 286 Md. 145, 150-54
. . . (1979).” Slip op. at 4 n. 4; Apx. A at 4a n. 4. In view of the
correct observation that the issue was not raised by Respondent
in any forum, the Court of Appeals of Maryland was not afforded
the opportunity to avoid deciding the constitutional issue
presented herein by resting its decision on Maryland nonconsti-
tutional law. See Hillard, 286 Md. at 150 n. 1.
6
regard to a planned escape. When Britton’s questioning
moved from the gun and the alleged escape plot into “other
problems that we had in the institution,” Clauss told
Respondent not to answer questions on these “other
areas.” Respondent was then held in Parks’ office for
one-and-a-half or two hours until he was taken to police
headquarters for further questioning.
The Court of Appeals of Maryland held that the
questioning both before and after the retrieval of the gun
constituted “custodial interrogations” such that the correc-
tional officers were required to give Respondent Miranda
warnings before the elicited statements were admissible in
a criminal prosecution. In so holding, the Court of Appeals
of Maryland rejected Petitioner’s contention that the
exigencies of the situation obviated the necessity that
Miranda warnings be given. Murphy, C.J., and Smith, J.,
concurring in part and dissenting in part, dissented only to
the extent of finding that the questioning before Respon-
dent retrieved the gun did not constitute an interrogation.
REASONS FOR GRANTING THE WRIT
GUIDANCE FROM THIS COURT IS NECESSARY TO RESOLVE THE
CONFLICTING DECISIONS AS TO WHETHER STATEMENTS,
OBTAINED WITHOUT BENEFIT OF MIRANDA WARNINGS, ARE
ADMISSIBLE IN A CRIMINAL PROSECUTION WHERE, IN EMERGEN-
CY SITUATIONS SUCH AS THE ONE IN THE INSTANT CASE, THE
QUESTIONING OF RESPONDENT IS THE ONLY COURSE OF ACTION
WHICH PROMISES RELIEF, HUMAN LIFE IS AT STAKE, AND THE
PRIMARY PURPOSE OF THE QUESTIONING IS TO EASE THE
EMERGENCY.
All three Maryland courts which have considered this
case recognized the exigencies of the situation. Speaking
for the Court of Special Appeals of Maryland, Chief Judge
Gilbert wrote:
“We hold that where, as here, correctional officers
of a penal institution are informed of the existence of
7
a weapon cached within the institution’s confines and,
consequently, presenting the possibility of an immi-
nent breach of security or a volatile situation, a
questioning of a person reasonably likely to have
knowledge of the weapon ’s whereabouts so as tw aid
the officials in removing the weapon from the institu-
tion, or which questioning is designed to secure the
safety of the prison population, is permissible. . . .
. . . Only the most unusual explosive circumstances
will excuse Miranda compliance.
Judge Allen [the trial judge] thoughtfully summed
up the situation that confronted Major Parks, Captain
Young and Lieutenant Britton when he said:
‘[A] prison is a different type of facility than
anything [else] we have in this country .
[There] different rules are followed, different
regulations for control, different anxieties arise
and reactions to those are different ....
[Whereas it might have been wise in the court-
house, for instance, to rush in with a squad of
policemen to find . . . [the] gun that had gotten
into the courthouse, I find the actions of the
officers at the Baltimore City Jail wise and
commendable in the course that they took, . . .
as quietly as possible, without exciting the other
prisoners, or without letting it be known what
was going on, to secure the dangerous situation
[in which] they found themselves ......
[T]hey went about it by quietly talking to Mr.
Whitfield, letting him know they knew he had a
gun or that he had access to a gun, directed him
to go get it rather than charge through the halls
with him to get it, recovering the gun and then
questioning Mr. Whitfield with reference to — of
the details of the alleged prison break or the
planned prison break. . . . I think it would be
stretching it a great deal if we required prison
officials acting in a very dire emergency to accord
to prisoners under their care the right guaran-
teed by the Miranda case.’” 42 Md. App. at
128-29, 400 A.2d at 785; Apx. B at 53a-54a.
8
The Court of Appeals of Maryland acknowledged that
“there is probably some validity to the State’s assertion
that in some situations they would not receive the
necessary information .. .” if Miranda warnings were
required under the circumstances of this case such that
“their ability tc adequately maintain the safety and
security of the jail would be greatly hampered.” Slip op. at
16-17; Apx. A at 14a. This acknowledgement is in keeping
with the decisions in Bell v. Wolfish, ___ U.S. __, —_, 99
S. Ct. 1861, 1877-78 (1978), and Thomas v. State, 285 Md.
458, 468 (1979), both involving curtailment of Fourth
Amendment rights in the prison setting.
When faced with emergency situations, courts from
other jurisdictions have declined to hold that Miranda
warnings must be given. There are at least seven different
theories under which Miranda has been held inapplicable,
reflecting the confusing status of the law: (1) no under-
lying rationale: United States v. Marzett, 526 F.2d 277, 278
(5th Cir. 1976); People v. Brown, 266 N.E.2d 131, 135-36
(Ill. App. 1970); (2) no interrogation: Tucker v. State, 229
S.E.2d 617, 618 (Ga. 1976); People v. Chestnut, 418
N.Y.S.2d 390, 394 (App. Div. 1979); State v. LaRue, 578
P.2d 66, 69-70 (Wash. App. 1978); (3) on-the-scene investi-
gation: Johnson v. State, 269 N.E.2d 879, 881 (Ind. 1971),
cert. denied, 405 U.S. 921 (1972); State v. Holsclaw, 257
S.E.2d 650, 653 (N.C. App. 1979); (4) no custody, no
interrogation, on-the-scene investigation: State v. Archible,
212 S.E.2d 44, 45-46 (N.C. App. 1975); (5) not violative of
Terry v. Ohio, 392 U.S. 1 (1968):* People v. Mullins, 532
* See Miranda, 384 US. at 477-78.
* With regard to the propriety of applying the Terry rationale -
to potential Miranda situations, it was observed in State v.
Hudson, 325 A.2d 56, 62 (Me. 1974):
“We have no doubt that police officers, acting in Terry
situations, may properly ask questions directed toward
ascertaining the presence of weapons which present a
danger to the officer or to others nearby. The questions,
9
P.2d 733, 735 (Colo. 1975); State v. Lane, 467 P.2d 304,
305-06 (Wash. 1970); (6) on-the-scene investigation, not
violative of Terry v. Ohio: Pope v. State, 478 P.2d 801,
804-05 (Alas. 1970); State v. Heath, 592 P.2d 1302, 1304-05
(Ariz. App. 1979); and (7) res gestae: People v. Toler, 206
N.W.2d 253, 255-56 (Mich. App. 1973).
Though the Court of Appeals of Maryland declined to
adopt it, an eighth approach, the emergency exception to
Miranda, has evolved, particularly in view of this Court’s
decisions in Mincey v. Arizona, 437 U.S. 385, 392 (1978),
and Michigan v. Tyler, 436 U.S. 499, 509 (197), and, for
the reasons infra, is the rationale most logically applicable
to the instant case. This exception was synthesized by the
Court of Appeal of California in People v. Riddle, 148 Cal.
Rptr. 170, 176-77 (Cal. App. 1978), cert. denied, 440 U.S.
937 (1979),° with respect to the question of a possible
witness to the victim’s disappearance:
“(T]he two basics of the Miranda opinion relevant
here are (1) its assumption that the purpose of
custodial interrogation is to further criminal prosecu-
however, must be strictly limited to accomplishing that
proper defensive purpose — they may not be in the nature
of fact gathering as a part of the preparation of proof to be
used against a defendant in a charge which had been
lodged against him.
But what we have before us is not a question of the right
of police officers to ask the whereabouts of a gun for their
own safety but of the use in evidence of an incriminating
admission made during custodial interrogation against a
defendant who had not been warned of his rights against
self-incrimination.” (Footnote omitted.)
* In Six Companies v. Joint Highway Dist. No. 13, 311 US.
180, 187 (1940), this Court held, as to the District Court of
Appeal of California, that “[wJhat the court said ... was a
statement of the law of California... .”
The issues presented in Riddle’s Petition for Writ of Cer-
tiorari, No. 78-5798, Oct. Term, 1978, were that his silence “in
the face of police questioning was erroneously admitted into
evidence” and that his confessions were involuntary.
See SSeS aS
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WT Tear se ih aed oh eee > 4 | Cheeks heap tei betArth sy angst hea eee tol
10
tion, and (2) its public policy to outlaw police
misconduct relating to the third degree. Neither point
is central to the question of police conduct in
emergencies, where the primary objective of police
action is to save human life. The principle of exigent
ci. :umstances was not before the Miranda court, and
the court found no need to discuss its problems.
Because the issue remains open, we construe the
Miranda opinion as not foreclosing recognition of a
limited exception to its rules of custodial interroga-
tion in order to meet emergencies affecting human
life. We conclude, therefore, that exigent circum-
stances may excuse compliance with the Miranda
rules in instances of overriding need to save human
life or to rescue persons whose lives are in danger.
What is the scope of this exception, and what
elements make up a valid instance of exigent circum-
stances?...
. . . [W]e deduce that an emergency sufficient to
excuse the Miranda requirements contains the follow-
ing elements:
1. Urgency of need in that no other course of action
promises relief;
2. The possibility of saving human life by rescuing
a person whose life is in danger;
3. Rescue as the primary purpose and motive of the
interrogators.”*
* Indeed, the Court of Appeals of Maryland has recognized an
exception to the mandatory Maryland prompt presentment rule
“to obtain information likely to be a significant aid in averting
harm to persons ... .” Johnson v. State, 282 Md. 314, 329
(1978). Later, in Lebedun v. State, 283 Md. 257, 266-78 (1978),
the Court of Appeals of Maryland carved out an emergency
exception to the search warrant requirement where police
officers, who were present in a motel room to protect paramedics
and to investigate possible criminal activity related to the use of
drugs by persons suffering from an overdose of drugs, arrested
the occupants.
11
All three elements were satisfied in the instant case.
The correctional officers knew Respondent controlled a
handgun. They indicated, and the trial judge agreed, that
to confront anyone other than Respondent with that
knowledge would have been to risk losing the opportunity
to retrieve the gun. Upon learning after the weapon’s
retrieval of the existence of a plan to escape, no other
course of action other than to question Respondent further
of the details promised relief in view of Respondent’s prior
cooperation. It is obvious that removing a weapon from an
inmate’s possession would have resulted in the “jossibility
of saving human life.” The same is true as to thwarting a
planned escape; indeed, Britton testified that Respondent
stated, while speaking of the planned escape, that “he
couldn’t see nothing happen to. . . (Correctional Officer]
Dardeen, he wasn’t going to see Mr. Dardeen get hurt.”
Young’s testimony indicates that the primary purpose of
the pre-retrieval questioning was to secure the institution
and not to prusecute Respondent. “It is inferable that the
same primary purpose servaded the post-retrieval ques-
tioning because the correctional officers were not aware of
the escape plan until after the retrieval of the gun and
could not have known without further questioning of
Respondent whether the emergency dissipated upon the
gun’s retrieval.
12
CONCLUSION
The decision of the Court of Appeals of Maryland reflects
a view which is not accepted at least by the Court of
Appeal of California, speaking for the State of California
and reflecting a trend toward emergency exceptions to
constitutional requirements, and presents a constitutional
issue of first impression for this Court. Additionally,
Petitioner respectfully urges that, in view of Sup. Ct. R. 19
(a), a Writ of Certiorari be issued to review the decision of
the Court of Appeals of Maryland because, as in Wolff v.
McDonnell, 418 U.S. 539, 542 (1974), the decision “raises
important questions concerning the administration of a
state prison.”
Respectfully submitted,
STEPHEN H. Sacus,
Attorney General of Maryland,
DesoraH K. HANDEL,
Chief, Criminal Appeals Division,
STEPHEN ROSENBAUM,
Assistant Attorney General,
One S. Calvert Building,
Baltimore, Maryland 21202,
383-3737
Attorneys for Petitioner.
la
APPENDIX A
In The
Court of Appeals of Maryland
No. 54
September Term, 1979
Conrad Whitfield and Nigel Antonio Little
v.
State of Maryland
Murphy, C.J., Smith, Digges, Eldridge, *Orth, Cole,
Davidson, JJ.
Opinion by Digges, J. Murphy, C.J., and Smith, J., concur
in part and dissent in part.
Filed: February 15, 1980
We granted certiorari in this case to address what has
been described as “probably the most difficult and fre-
quently raised question in the wake of Miranda — what
* Orth, J., participated in the hearing of the case and in the
conference in regard to its decision but retired prior to the
adoption of the opinion by the Court.
2a
constitutes the ‘in custody interrogation’ or ‘custodial
questioning’ which must be preceded by the Miranda
warnings.” Specifically, we are asked to decide: (1)
whether, in the absence of Miranda admonitions, state-
ments elicited from the petitioner, a prison inmate, during
interrogations conducted by jail officiai., in the circum-
stances present here, could properly be admitted into
evidence in a criminal prosecution of the inmate? and (2)
whether a belief by prison officials that a gun was hidden
within the jail, creates an emergency which excuses a
failure to give Miranda warnings and permits the use of
statements obtained from the questioned inmate in a
criminal prosecution against him? Because we conclude
that the inquiry occurred in the type of custodial setting
condemned by the Supreme Court in Miranda, and since
we can find no exception to its requirements in emergen-
cies such as the one that existed here, we vacate petition- '
er’s conviction and grant him a new trial.
I.
The events which give rise to this appeal took place in
the early part of July 1976. At that time, Nigel Little,’ a
cadet guard at the Baltimore City jail, surreptitiously
delivered a handgun to petitioner Conrad Whitfield, who
apparently intended to use the weapon to escape from the
prison. The petitioner’s plans were thwarted, however,
when Thomas Brown, a fellow resident at the jail, revealed
oe
' Kamisar, “‘Custodial Interrogation’ within the meaning of
Miranda,” in Criminal Law and the Constitution: Sources and
Commentaries 335 (1968). The reference to Miranda is to the
Supreme Court decision of Miranda v. Arizona, 384 U.S. 436, 16
L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
? While Little is listed as an appellant in this case, his
conviction below is not before us. At oral argument, we were
informed by the Public Defender that although Whitfield and
Little had jointly petitioned this Court for review, our grant of
certiorari restricted to the Miranda issue, in effect, dismissed
Little as a party to the appeal because only Whitfield was
claiming a violation of those rights.
3a
information concerning the presence of a pistol in the
Baltimore City jail and wished to speak with someone
about it. The attorney, who incidentally also represented
Whitfield on unrelated criminal matters, told the author-
ities about this conversation, and the police relayed the
information to the warden of the jail.
Upon learning of the gun’s presence within the jail walls
and that Whitfield was somehow connected with it,’
correctional officers Major Howard Parks, Captain Calvin
Young and Lieutenant William Britton set out “to locate
Mr. Whitfield [, who apparently was permitted to move
unescorted around portions of the jail,] and confront him
with the information.” Shortly after beginning their
search, the three officers located the petitioner as he was
alighting from a prison elevator with some fellow inmates.
Without explanation, Whitfield was directed to accompany
Officers Young and Britton to the isolation wing of the jail.
Once inside the secluded confines of this area, which at the
time was unoccupied by others, the officers immediately
confronted petitioner with the fact that they knew “that he
was in possession of a weapon within the institution.”
Captain Young testified that no Miranda warnings were
given to Whitfield prior to or during his interrogation. The
captain justified this failure by stating this his “immediate
objective” was “[t]o obtain the weapon and get it out of the
institution”; consequently, the witness explained that he
approached Whitfield in the following manner: “as if you
emphatically know that they are guilty of a said situation
. . . [so that] the shock of your presenting it to them
immediately will get a positive response.” When asked
about the gun, Whitfield at first denied having any
knowledge concerning it. Britton and Young persevered
with “that line of questioning for a few minutes,” but
petitioner continued to insist that he did not know what
they were talking about. Finally, Lt. Britton
* It is unclear from the record just how the Baltimore City jail
officials learned of the petitioner’s involvement, since both’
Brown and Stewart testified that they had not mentioned
Whitfield’s name to the authorities.
4a
told [Whitfield] that Cadet Little and some police
officers from the Baltimore City Police Department
were in the Deputy Warden’s office and knew every-
thing about the handgun being in the institution and
it would be best for all concerned if he would turn the
gun in and prevent anybody from getting hurt.‘
Whitfield responded to that statement by admitting
knowledge of the weapon and told the officers “that he
would have to retrieve the gun from a given area of the
institution, and that he wouid have to go by himself to
retrieve [it].” Permission was granted Whitfield to fetch
the gun, and upon returning five to ten minutes later to
the isolation wing he handed the weapon to Britton and
Young.
With the pistol safely in hand, Lt. Britton escorted the
petitioner to Major Park’s office for further questioning.
There, the lieutenant offered Whitfield a cup of coffee, and,
even though the full Miranda warnings were again not
given to him, petitioner was informed that “he could
contact his attorney.” The prisoner used the phone and
apparently attempted to call Mr. Stewart, but was in-
formed that at the time the attorney was not in his office.
However, almost immediately after completing the phone
call, and prior to any additional questioning, a Mr. Claus,
Mr. Stewart’s office assistant, arrived at Major Park’s
office. In Mr. Claus’s presence, the officer questioned
petitioner concerning both the already recovered gun and
the alleged escape plan. During the ensuing five to ten
minutes, Whitfield verbally “laid everything out, .. .
what was supposed to have transpired.” Subsequently he
was indicted for a handgun violation, Md. Code (1957,
1976 Repl. Vol.), Art. 27, § 36B(b), and for conspiracy to
escape, id. at § 139(a).
* While not raised by the petitioner, we note that the promise
contained in Lt. Britton’s statement may raise questions of
voluntariness under nonconstitutional Maryland criminal law as
recently discussed in Hillard v. State, 286 Md. 145, 150-54, 406
A.2d 415, 418-20 (1979).
a
5a
A pretrial hearing was held in the Criminal Court of
Baltimore where, among other things, petitioner moved to
suppress both oral statements made because of the failure
of the jail authorities to comply with the dictates of
Miranda. The court (Allen, J.) did not determine whether
the statements sought to be suppressed were improperly
elicited during a “custodial interrogation” within the
-_ meaning of Miranda, for in its view, “it would be
stretching it a great deal if we required prison officials
acting in a very dire emergency to accord to prisoners
under their care the rights guaranteed by the Miranda
case.” When subsequently he was convicted of the hand-
gun and conspiracy charges, Whitfield appealed this ruling
to the Court of Special Appeals. That court affirmed the
trial court’s decision because it agreed that the emergency
facing the prison officials here excused compliance with
Miranda’s dictates. Whitfield v. State, 42 Md. App. 107,
125-28, 400 A.2d 772, 783-85 (1979). In an attempt to
accommodate its decision to the confines of Miranda, the
court reasoned that:
The questioning of Whitfield was not an interrogation,
looking toward prosecution, but an on-the-scene inves-
tigation for a deadly weapon which presented a threat
to the security of the jail. . . . [A] fair reading of the
record discloses that the correctional officers were
preoccupied more so with the recovery of the gun,
whether there were other guns inside the jail, and the
details of the escape attempt, than with the apprehen-
sion and punishment of Whitfield. [Jd. at 128, 400
A.2d at 784 (citation omitted) (emphasis added).]
We disagree.
Il.
In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694,
86 S. Ct. 1602 (1966), the United States Supreme Court
held:
[W]hen an individual is taken into custody or other-
wise deprived of his freedom by the authorities in any
significant way and is subjected to questioning, the
6a
privilege against self-incrimination is jeopardized.
Procedural safeguards must be employed to protect
the privilege, and unless other fully effective means
are adopted to notify the person of his right of silence
and to assure that the exercise of the right will be
scrupulously honored, the following measures are
required. He must be warned prior to any questioning
that he has the right to remain silent, that anything
he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and
that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so
desires. Opportunity to exercise these rights must be
afforded to him throughout the interrogation. After
such warnings have been given, and such opportunity
afforded him, the individual may knowingly and
intelligently waive these rights and agree to answer
questions or make a statement. But unless and until
such warnings and waiver are demonstrated by the
prosecution at trial, no evidence obtained as a result
of interrogation can be used against him. [Jd at
478-79.]
These principles stemmed from the Supreme Court’s basic
concern that the “compulsion inherent in custodial sur-
roundings” may endanger an individual’s fifth amendment
right to be free from compelled self-incrimination. Jd. at
457-58. See Beckwith v. United States, 425 U.S. 341,
345-46, 48 L. Ed. 2d 1, 96 S. Ct. 1612 (1976); Mills v. State,
278 Md. 262, 267, 363 A.2d 491, 494 (1976); Myers v. State,
3 Md. App. 534, 537, 240 A.2d 288, 291 (1968). See also
Smith, The Threshold Question in Applying Miranda:
What Constitutes Custodial Interrogation?, 25 S. Car. L.
Rev. 699, 700 (1974). While the warnings designed to
overcome that danger are only “prophylactic rules” rather
than constitutional dictates, Michigan v. Tucker, 417 US.
433, 439, 41 L. Ed. 2d 182, 94 S. Ct. 2357 (1974), the
purpose underlying these rules should nevertheless be
kept in mind when applying Miranda to any given set of
circumstances. In this regard, we observe that statements
which are obtained from a defendant during questioning
conducted without the benefit of Miranda warnings, as
ee eee
7a
concededly occurred here, need only be excluded from
evidence if they “flow from a ‘custodial interrogation’
within the meaning of Miranda.” Vines v. State, 285 Md.
369, 374, 402 A.2d 900, 903 (1979). Such interrogation is
defined by the Supreme Court as any “questioning initi-
ated 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. Arizona, supra,
384 U.S. at 444 (footnote omitted). This has been held by
that Court to include “questioning which takes place in a
prison setting during a suspect’s term of imprisonment on
a separate offense, Mathis v. United States, 391 U.S. 1, 20
L. Ed. 2d 381, 88 S. Ct. 1503 (1968), and to questioning
taking place in a suspect’s home, after he had been
arrested and is no longer free to go where he pleases,
Orozco v. Texas, 394 U.S. 324, 22 L. Ed. 2d 311, 89 S. Ct.
1095 (1969).” Oregon v. Mathiason, 429 U.S. 492, 494-95,
50 L. Ed. 2d 714, 97 S. Ct. 711 (1977) (per curiam).
In contrast to custodial inquiry is “the traditional
function of police officers in investigating crime . . . [to
conduct] [general on-the-scene questioning as to facts
surrounding a crime or other general questioning of
citizens in the fact-finding process,” which does not require
the use of the Miranda safeguards. Miranda v. Arizona,
supra, 384 U.S. at 477. An on-the-scene investigation is
normally envisioned as encompassing a general explora-
tion into suspicious circumstances in order to determine if
a crime has been committed; or as encompassing a probe
into known crime which lacks an identifiable suspect. See,
e.g., United States v. Wiggins, 509 F.2d 454, 459-60 (D.C.
Cir. 1975); United States v. Sadler, 458 F.2d 906, 908 (10th
Cir. 1972); State v. Frizzell, 207 Kan. 393, 485 P.2d 160,
163-64 (1971); Lederer, Miranda v. Arizona — The Law
Today 78 Mil. L. Rev. 107, 135-36 (1978). See generally
Annot., What Constitutes “Custodial Interrogation” Within
Rule of Miranda v. Arizona Requiring that Suspect be ~
Informed of His Federal Constitutional Rights Before
Custodial Interrogation, 31 A.L.R.3d 565 § 3 (1970 & 1979
Supp.) (citing cases). As is often the case, the parties here
8a
have characterized the questioning of Whitfield as falling
within one or the other of these mutually exclusive
categories. Thus, our primary task today is to determine
whether the questioning of petitioner by officers Britton
and Young was a “custodial interrogation.” However, prior
to addressing this issue, we need to consider the State’s
contention that Miranda is inapplicable to emergencies
such as existed at the time of the questioning in the
Baltimore City jail, for if this is so, then it will be
unnecessary for us to delineate the type of interrogation
that then occurred.
Relying on dicta in Hunt v. State, 2 Md. App. 443, 447,
234 A.2d 785, 787-88 (1967), as well as a handful of
decisions from other jurisdictions, People v. Sanchez, 65
Cal. 2d 814, 423 P.2d 800, 56 Cal. Rptr. 648 (1967); State v.
Archible, 25 N.C. App. 95, 212 S.E.2d 44 (1975); State v.
Abbott, 21 Utah 2d 307, 445 P.2d 142 (1968); State v.
Persinger, 72 Wash. 2d 561, 433 P.2d 867 (1967), cert.
denied, 393 U.S. 864 (1968); State v. LaRue, 19 Wash. App.
841, 578 P.2d 66 (1978), the Court of Special Appeals, in
upholding the trial court’s ruling, determined that com-
pliance with Miranda by prison authorities is excused by
the emergency erupting from the “unusual explosive
circumstances” of a gun in the possession of an inmate.
Whitfield v. State, supra, 42 Md. App. at 126-28, 400 A.2d
at 783-85. We find, however, that we cannot agree with
this reasoning because to do so would allow the exigency
needs of institutional security, although at the time
permissible in resolving the emergency, to be later used so
as to deprive a person of his constitutional rights in the
course of providing a fair trial when that emergency no
longer existed.
We begin our discussion of why we reach this conclusion
by noting that the United States Supreme Court itself has
not placed any per se limitation on where and when the
Miranda safeguards should be applied. In fact, they
specifically expressed just the opposite position when
explaining the need for such protections:
9a
Today, then, there can be no doubt that the Fifth
Amendment privilege is available outside of criminal
court proceedings and serves to protect persons in all
settings in which their freedom of action is curtailed
in any significant way from being compelled to
incriminate themselves. [Miranda v. Arizona, supra,
384 U.S. at 467 (emphasis added).]
Nor do we find the cases relied on by the intermediate
appellate court persuasive in resolving the issue we now
confront. While these decisions do contain broad dicta to
the effect that a threat to the security of a prison justifies
non-compliance with Miranda and the subsequc nt use of
any statements obtained in prosecuting their author, these
holdings were based on the fact that the inmate-
defendants in the situations present in those cases were
not “in custody” or had not been “interrogated.”> See
° Our research uncovered only one jurisdiction — California
— which has adopted a true emergency exception to Miranda. In
that state, the intermediate appellate court, in decisions ren-
dered post-Miranda, relying on the pre-Miranda ruling of the
California Supreme Court in People v. Modesto, 62 Cal. 2d 436,
398 P.2d 753, 42 Cal. Rptr. 417 (1965), held that, in cases
involving kidnapping, the concern of law enforcement agents in
finding a kidnapping victim outweighs the fifth amendment
rights of the kidnapper. See People v. Riddle, 83 Cal. App. 3d
563, 148 Cal. Rptr. 170, 176-78 (Ct. App. 1978), cert. denied, 440
U.S. 937 (1979); People v. Dean, 39 Cal. App. 3d 875, 114 Cal.
Rptr. 555, 559-60 (Ct. App. 1974). As the court in Dean put it:
[E]ven more basic than the right of a citizen not to be
compelled to incriminate himself is the right of a citizen to
his life... .
. . . While life hangs in the balance, there is no room to
require admonitions concerning the right to counsel and to
remain silent. ... While we do not countenance the
rubber hose to obtain the answers, we see no wrong in
asking the type of questions found herein.
The easy answer is to decide that the police are under a
duty to ask questions concerning the location of the victim
but that none of the defendant’s answers may be used
against him in a court of law. This would seem to protect
both the victim and the accused. What about the “fruit of
the poisonous tree” doctrine? Its application could well free
the accused and basic justice would be wanting.
While a premium must be placed on rescue of the victim,
this must not occur in a setting that will merely turn the
10a
People v. Sanchez, supra, 423 P.2d at 806 (pre-Miranda
decision; guard called to scene of stabbing and asked crowd
of inmates “who did this and why” — held not “in custody”
and no process of interrogation had yet been undertaken);
State v. Archible, supra, 212 S.E.2d at 46 (questioning of
guard; noncustodial inquiry into suspected criminal ac-
tivity; freedom of movement not restricted since defendant
was allowed to leave place of questioning); State uv.
Persinger, supra, 433 P.2d at 868 (defendant found on roof
of prison asked why he didn’t follow other escaping
inmate, purely “conversational inquiry,” product of “spon-
taneous, human curiosity”); State v. LaRue, supra, 578
P.2d at 69 (questioning not during accusatory stage).
Additionally, these cases, as did Hunt v. State, supra,
turned to a degree on an inappropriate interpretation of
Miranda — that whether interrogation is proscribed under
Miranda depends on the reason why the questions were
asked — one rejected by the Supreme Court in a later case.
See Mathis v. United States, 391 U.S. 1, 4, 20 L. Ed. 2d 381,
88 S. Ct. 1503 (1968). For a fuller discussion, see Kamisar,
Brewer v. Williams, Massiah, and Miranda: What is
“Interrogation”? When Does it Matter?, 67 Geo. L.J. 1, 9
(1978).
While it has often been stated that “as a general matter,
lawful detention or imprisonment ‘necessarily makes un-
available [to an inmate] many rights and privileges of the
ordinary citizen,” Thomas v. State, 285 Md. 458, 463, 404
A.2d 257, 260 (1979) (quoting from Wolff v. McDonnell,
418 U.S. 539, 555, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974)),
the only constitutional rights of an inmate which this
Court, or the United States Supreme Court, has held to “be
diminshed by the needs and exigencies of the institutional
environment” are those protected by either the first or
fourth amendments. See, e.g., Thomas v. State, supra, 285
Md. at 463, 468, 404 A.2d at 260, 263 (prison security
justified warrantless search); Bell v. Wolfish, 441 U.S. 520,
criminal loose again to work his evil upon others. The
ant must be stopped and the victim saved. [Jd. at
lla
545-47, 550-59, 60 L. Ed. 2d 447, 472-74, 476-81, 99 S. Ct.
1861, 1877-78, 1880-84 (1979) (restrictions on incoming
publications reasonable under 1st amendment; searches of
inmate living quarters reasonable under 4th amendment);
Jones v. North Carolina Prisoners’ Union, 433 U.S. 119,
129-32, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977) (1st
amendment not violated by restrictions on prisoner solici-
tations).® The limitations as to these rights of prisoners are
based on the longstanding legal and historical interpreta-
tion of such guarantees: the first amendment right of free
speech is subject to reasonable time, place and manner
restrictions, e.g., Bell v. Wolfish, supra, 441 U.S. at 552;
Grayned v. City of Rockford, 408 U.S. 104, 118-16, 33 L.
Ed. 2d 222, 92 S. Ct. 2294 (1972); and the protection of the
fourth amendment results only when a person can claim a
reasonable expectation of privacy that has been invaded by
the government, e.g., Smith v. Maryland, ___. U.S. ___.,
—__., 61 L. Ed. 2d 220, 226, 99 S. Ct. 2577 (1979); Thomas
v. State, supra. Limitations similar to these have never
been imposed on the fifth and sixth amendment rights of
citizens. Moreover, in the past, the Supreme Court has
drawn distinctions between the fourth amendment rights
of individuals and the guarantees contained in the fifth
and sixth amendments, holding that the former may be
more easily waived than the latter because
([t]here is a vast difference between those rights that
protect a fair. criminal trial and the rights guaranteed
under the Fourth Amendment... . The protections
of the Fourth Amendment are of a wholly different
order, and have nothing whatever to do with promot-
ing the fair ascertainment of truth at a criminal trial.
[Schneckloth v. Bustamonte, 412 U.S. 218, 241-42, 36
L. Ed. 2d 854, 93 S. Ct. 2041 (1973).]
Thus, the fifth amendment guarantee against compulsory
self-incrimination, being different in nature from other
constitutionally established individual liberties, should
* The procedural due process rights of prisoners have also
been restricted. See Wolff v. McDonnell, 418 U.S. 539, 561-62, 41
L. Ed. 2d 935, 94 S. Ct. 2963 (1974).
12a
not, in our opinion, be diminished by the needs of penal
administration to the extent that such statements may be
utilized in a criminal prosecution.
At the suppression hearing in the trial court in this case,
the State asserted that its position was not that the
exigencies of prison life justified the extraction of incrimi-
nating information from inmates; rather, it urged that the
appropriate test to be employed in determining if it may be
used in the criminal prosecution was whether the state-
ment had been voluntarily made, and not whether there
was technical adherence to the warning requirements of
Miranda. This argument, however, ignores one of the chief
underpinnings of the Supreme Court’s rationale for requir-
ing the warnings — statements made during an in-custody
interrogation are inherently untrustworthy and “[uJnless
adequate protective devices are employed to dispel the
compulsion . . ., no statement obtained from the defen-
dant can truly, be the product of his free choice.” Miranda
v. Arizona, supra, 384 U.S. at 457-58. See State v. Kidd,
281 Md. 32, 36, 375 A.2d 1105, 1108, cert. denied, 434 U.S.
1002 (1977) (“Miranda impressed procedural safeguards on
the traditional test of voluntariness”).
Finally, the State attempts to justify an extension of the
balance struck in Thomas v. State, supra, to interrogations
by contending that if it was required to inform an inmate,
such as Whitfield in the circumstances here, that he had a
right to remain silent and consult with an attorney, then
their ability to adequately maintain the safety and
security of the jail would be greatly hampered. While there
is probably some validity to the State’s assertion that in
some situations they would not receive the necessary
information, we find it is unpersuasive. Implicit in their
argument is the assumption that criminal prosecution of
an inmate, following the end of the emergency, is also
imperative to maintain prison security. While we recog-
nize that prison security may be enhanced through
prosecution of those who attempt to penetrate it, this
objective cannot..ke allowed to destroy the constitutional
sil Maka ali
13a
protections designed to ensure a fair trial. If the State feels
that the emergency before it requires the use of the
psychological techniques of persuasion employed here in
order to obtain immediate information, then it may do so,
but at the cost of foregoing the affirmative use of this
information at a subsequent criminal trial. While this
result to some may seem harsh, we believe it is necessary
if we are to protect the fifth amendment rights of
prisoners. Moreover, the choice which confronts the State
here is no different from that which it makes when
granting immunity — letting one individual go unprose-
cuted in order to obtain evidence to prosecute another
individual or to accomplish some other societal benefit.
This analysis is similar to that followed by many of our
sister states in attempting to accommodate the constitution-
al rights of prisoners and the law enforcement interests of
the state when the facts of a case constitute both a
violation of prison rules and a crime, i.e., permitting the
State to discipline the inmate and also criminally prose-
cute him, while fully protecting his right to defend himself
at the disciplinary hearing and yet maintain his fifth
amendment right against self-incrimination. See, e.g.,
Avant v. Clifford, 67 NJ. 496, 341 A.2d 629 (1975)
(excellent discussion of the many court decisions around
the country, as well as the issues involved in cases of this
type). See generally Turner and Daniel, Miranda in Prison:
The Dilemma of Prison Discipline and Intramural Crime,
21 Buffalo L. Rev. 759 (1972). Thus, we hold that Miranda
applies to prison inmates to the same extent that it does to
all other citizens. Having reached this conclusion, we now
turn to the question of whether Whitfield was subjected to
custodial interrogation within the meaning of that Su-
preme Court decision.
Il.
A determination of whether custodial questioning has
occurred requires, in the first instance, a finding that the
defendant was in “custody,” as that term is defined in the
Miranda opinion. This is by far the most litigated aspect of
14a
Miranda, and an issue on which the Supreme Court has
provided little guidance. Compare Oregon v. Mathiason,
supra, 429 U.S. at 494-95 (parolee questioned at police
station not in custody because he was free to leave) and
Beckwith v. United States, supra, 425 U.S. at 347 (suspect
in tax fraud investigation questioned at a private home
where he occasionally stayed was not in custody) with
Orozco v. Texas, 394 U.S. 324, 327, 22 L. Ed. 2d 311, 89 S.
Ct. 1095 (1969) (suspect questioned in his bedroom was
under arrest, not free to leave, and thus in custody) and
Mathis v. United States, supra, 391 U.S. at 4-5 (suspect
questioned about tax fraud while imprisoned on another
charge was in custody). Petitioner contends, however, that
one of these decisions — Mathis, supra — is dispositive on
the issue of his custody within the meaning of Miranda,
but, as we view Whitfield’s situation, it is unnecessary to
so characterize the Mathis holding.
In Mathis, the defendant was questioned by an agent of
the Internal Revenue Service while he was in state prison
serving a sentence on an unrelated matter, and his
statements, made without receiving the Miranda warn-
ings, were subsequently admitted against him in a crimin-
al tax prosecution. In reversing the conviction, the Su-
preme Court held that (1) “custody” under Miranda was not
dependent on the reason why the person questioned was in
custody, and (2) the warnings are required to be given
even if the interrogation that was conducted lacks prosecu-
torial intent at the time. Jd. at 4-5. Petitioner argues that
a fair reading of Mathis requires a reversal of his
conviction because, in his view, it stands for the proposi-
tion that being incaracerated, in and of itself, is sufficient
restraint to require the Miranda warnings whenever any
questions are asked of an inmate. Lav decisions by the
Supreme Court seem to support this interpretation, for
when they discuss Mathis and the custody concept, the
Court states that it “squarely grounded its holding on the
custodial aspects of the situation,” i.e., being in prison.
Beckwith v. United States, supra, 425 U.S. at 347. See
Oregon v. Mathiason, supra, 429 U.S. at 494. While a few
15a
courts have been willing to interpret Mathis in this broad
fashion — that prison confinement equals custody — see
United States v. Redfield, 402 F.2d 454, 455 (4th Cir. 1968)
(per curiam); Blyden v. Hogan, 320 F. Supp. 513, 519 (S.D.
N.Y. 1970); People v. Woodberry, 265 Cal. App. 2d 351, 71
Cal. Rptr. 165, 168 (Dist. Ct. App. 1968); People uv.
Faulkner, 90 Mich. App. 520, 282 N.W.2d 377, 379 (1979);
State v. LaRue, 19 Wash. App. 841, 578 P.2d 66, 69 (1978);
see generally, Inmates of Attica Correctional Facility v.
Rockefeller, 404 U.S. 809, 30 L. Ed. 2d 40, 92 S. Ct. 35
(1971) (Douglas dissent from denial of temporary restrain-
ing order); Lederer, Miranda v. Arizona — The L iw Today
78 Mil. L. Rev. 107, 129 n. 82 (1978); Smith, supra, 25 S.
Car. L. Rev. at 725-28, we find that it is unnecessary to do
so here since under the general test to be utlized in
deciding when one is in “custody,” which we announce
today, it is clear that Whitfield was “deprived of his
freedom of action” in the Miranda sense at the time of
questioning, without regard to the fact that he was
otherwise incarcerated when it occurred. .
Deciding when a person has been significantly deprived
of his freedom of action so as to be in custody within the
meaning of Miranda depends on the factual setting
surrounding the interrogation in each case. This issue has
frequently been confronted by the courts of this country,
and a variety of tests have been developed as an aid for
making that decision. See, e.g., United States v. Gibson,
392 F.2d 373, 376 (4th Cir. 1968) (subjective intent of
interrogating officer to arrest suspect); Windsor v. United
States, 389 F.2d 530, 534 (5th Cir. 1968) (degree of focus);
State v. Intogna, 101 Ariz. 275, 419 P.2d 59, 65 (1966)
(subjective belief of suspect); Reeves v. State, 258 Ark. 788,
528 S.W.2d 924, 926-27 (1975) (objective); People v. P
(Anonymous), 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d
255, 260 (1967) (reasonable belief); see generally Lederer,
supra, 78 Mil. L. Rev. at 130-33. The majority of courts
which have explicitly addressed this question, however,
have adopted an objective reasonable person approach to
determining custody. See, e.g., Borodine v. Douzanis, 592
ty
16a
F.2d 1202, 1206 (1st Cir. 1979); United States v. Luther,
521 F.2d 408, 410 (9th Cir. 1975) (per curiam); Iverson v.
State of North Dakota, 480 F.2d 414, 422 (8th Cir.), cert.
denied, 414 U.S. 1044 (1973); United States v. Hall, 421
F.2d 540, 545 (2d Cir. 1969); Hunter v. State, 590 P.2d 888,
894-95 (Alaska 1979); State v. Mumbaugh, 107 Ariz. 589,
491 P.2d 443, 448 (1971) (en banc); People v. Arnold, 66
Cal. 2d 438, 58 Cal. Rptr. 115, 426 P.2d 515, 521 (1967);
People v. Parada, 533 P.2d 1121, 1123 (Colo. 1975) (en
banc); State v. Lewis, 373 A.2d 603, 607 (Me. 1977); Beason
v. State, 453 P.2d 283, 286 (Okla. Cr. 1969); State v. Paz,
31 Or. App. 851, 572 P.2d 1036, 1040 (1977) (en banc);
Commonwealth of Pennsylvania v. Fisher, 466 Pa. 216, 352
A.2d 26, 28 (1976); State v. Hohman, 136 Vt. 341, 392 A.2d
935, 940 (1978). See also Annot., What Constitutes “Custo-
dial Interrogation” within Rule of Miranda v. Arizona
Requiring that Suspect be Informed of his Federal Consti-
tutional Rights Before Custodial Interrogation, 31 A.L.R.
3d 565 (1970 & 1979 Supp.), where most, if not all cases on
this question are catalogued; 1 B. George, Criminal
Procedure Sourcebook 361 (1976); Smith, supra, 25 S. Car.
L. Rev. at 711-13. Under this test:
[C]ustody occurs if a suspect is led to believe, as a
reasonable person, that he is being deprived or
restricted of his freedom of action or movement under
pressures of official authority. * * * [T]he custody
requirement of Miranda does not depend on the
subjective intent of the law enforcement officer-
interrogator but upon whether the suspect is physical-
ly deprived of his freedom of action in any significant
way or is placed in a situation in which he reasonably
' believes that his freedom of action or movement is
restricted by such interrogation. * * * [Myers v. State,
3 Md. App. 534, 537, 240 A.2d 288, 290 (1968).]
The general inquiry to be made, as expressed in a
frequently quoted opinion by the Second Circuit, is
whether
in the absence of actual arrest something [is] said or
done by the authorities, either in their manner of
17a
approach or in the tone or extent of their questioning,
which indicates that they would not have heeded a
request to depart or to allow the suspect to do so.
[United States v. Hall, supra, 421 F.2d at 545.]
Thus, some actual indication of custody must exist, such
that a reasonable person would feel he was not free to
leave and break off police questioning. See Cervantes v.
Walker, 589 F.2d 424, 428 (9th Cir. 1978). In making this
factual evaluation, a court should look to
those facts intrinsic to the interrogation: when and
where it occurred, how long it lasted, how many police
were present, what the officers and the defeadant said
and did, the presence of actual physical restraint on
the defendant or things equivalent to actual restraint
such as drawn weapons or a guard stationed at the
door, and whether the defendant was being ques-
tioned as a suspect or as a witness. Facts pertaining to
events before the interrogation are also relevant,
especially how the defendant got to the place of
questioning — whether he came completely on his
own, in response to a police request, or escorted by
police officers. Finally, what happened after the
interrogation — whether the defendant left freely,
was detained or arrested — may assist the court in
determining whether the defendant, as a reasonable
person, would have felt free to break off the question-
ing. [Hunter v. State, supra, 590 P.2d at 895 (footnote
omitted). ]
See, e.g., Cervantes v. Walker, supra, 589 F.2d at 427-28
(factors include “the language used to summon him, the
physical surroundings of the interrogation, the extent to
which he is confronted with evidence of his guilt, and
pressure exerted to detain him”).
Turning now specifically to the case at hand, we find
that the circumstances surrounding the questioning of °
Whitfield at both interrogations lead to the conclusion that
they were conducted while he was in “Miranda custody.”
At the interrogation in the isolation wing, where he
confirmed the existence of the gun, the following conceded-
18a
ly took place: Whitfield, as the prime suspect, was the only
inmate questioned; the guards separated him from his
fellow inmates and directed that he accompany them; he
was taken to the isolation wing of the jail to be alone with
his interrogators; the testimony of the officers was that the
petitioner was immediately confronted with knowledge of
his guilt in order to “shock” the necessary information out
of him; when their first line of questioning did not reveal
the gun’s whereabouts, the officers switched tactics and
informed petitioner of the evidence amassed against him
so as to demonstrate the futility of his position; and while
Whitfield was permitted to leave the interrogation scene
at its conclusion (a key factor mentioned by the Supreme
Court in Oregon v. Mathiason, supra) he was only given
his freedom in order to retrieve the weapon, and once he
had done that, he was again deprived of his freedom of
movement. By the time the second interrogation took place
in Major Park’s office, Whitfield was clearly in custody and
was being questioned simply to obtain additional informa-
tion concerning the presence of the weapon within the
prison walls. Thus, we believe it apparent that during both
sets of questioning Whitfield was in “Miranda custody.”
Once such custody is established, a court must still
determine whether an “interrogation” took place before a
violation of Miranda exists. “Interrogation,” like “cus-
tody,” is not easily defined, although in its usual sense, it
“refers to police questioning designed to elicit a response
from a suspect.” Lederer, supra, 78 Mil. L. Rev. at 134. Of
course, not all questioning by law enforcement officials of
one in custody is tantamount to an interrogation in
the Miranda sense. See Vines v. State, 285 Md. 369,
375-76, 402 A.2d 900, 903-04 (1979). For example, in a
recent opinion by Judge Orth, this Court noted: “There
seems to be general agreement. . . that Miranda does not
apply to ‘administrative questioning,’ the routine ques-
tions asked of all arrestees who are ‘booked’ or otherwise
processed.” Jd. at 376, 402 A.2d at 904. However, except.
for this type of questioning, if custody is found to exist,
19a 3
then any examination likely to lead to incriminating
statements will be a “Miranda interrogation.”
The State responds to this assertion by urging that even
if there was custody under Miranda, there existed in both
questionings no Miranda interrogation of Whitfield be-
cause the officers’ primary concern when they examined
the petitioner was to secure the prison area by locating the
gun, and and not an attempt to elicit statements for
criminal prosecution. While we have no doubt that the
principle purpose of the guards, at least at first, in
conducting these interrogations was to locate and remove
the weapon and any others that may have been involved
from the institution, we do not believe that the subjective
intent, albeit the primary objective, of the examiner
should control the determination of when interrogation
within the meaning of Miranda has occurred. The Su-
preme Court has rejected a similar argument to that made
here by the State in Mathis v. United States, supra.
Consequently, it seems to us, in the words of Professor
Kamisar
that so long as the police conduct is likely to elicit
incriminating statements and thus endanger the
privilege, it is police “interrogation” regardless of its
primary purpose or motivation, and that if it otherwise
qualifies as “interrogation,” it does not become some-
thing else because the interrogator’s main purpose is
{something other] than the procuring of incriminating
statements, even though self-incrimination may be
foreseen as a windfall. [Kamisar, Brewer v. Williams,
Massiah, and Miranda: What is “Interrogation”?
When does it Matter?, 67 Geo. L.J. 1, 9 (1978) (footnote
omitted) (emphasis in original). ]
Accord, Proctor v. United States, 404 F.2d 819, 820-21
(D.C. Cir. 1968). It follows from what we have just said
that the mere fact that Officers Britton and Young did not
intend to elicit incriminating information from Whitfield
for prosecutorial purposes does not mean that they did not
interrogate him in the Miranda sense.
20a
Finally, the State maintains that this questioning was
part of a general on-the-scene investigation rather than a
custodial interrogation. This argument also fails. As we
indicated earlier in this opinion, the concepts of on-the-
scene questioning and custody are mutually exclusive; if
custody exists, as it does on the facts here, then an
on-the-scene investigation cannot be said to have occurred.
Such a scene investigation involves a general fact-finding
mission, without significantly interferring with the right
of movement of the person or persons to whom the
questions are directed. See, e.g., Lowe v. United States, 407
F.2d 1391, 1394-96 (9th Cir. 1969). In this case, the jail
authorities had established the need for police action and
their attention had been focused on Whitfield as the one
who most likely was criminally responsible. Thus, the
inquiry here, from its inception, was not an on-the-scene
factual investigation, but a custodial interrogation requir-
ing that the Miranda warnings be given.
We conclude, therefore, that, since the Miranda warn-
ings should have preceded any interrogation by the jail
officials, all statements made by Whitfield prior to these
warnings were improperly admitted at his trial, and a new
one is required.
Judgment of the Court of Special
Appeals reversed and case remand-
ed to it with direction to reverse the
judgement of the Criminal Court of
Baltimore and remand the case to
that court for a new trial. Pursuant
to Maryland Rule 882 f, costs are
not reallocated as part of the judg-
ment of this court.
2la
APPENDIX B
In The
Court of Appeals of Maryland
No. 54
September Term, 1979
Conrad Whitfield and Nigel Antonio Little
v.
State of Maryland
Murphy, C.J. Smith, Digges, Eldridge, *Orth, Cole,
Davidson, JJ.
Opinion by Murphy, C.J., concurring in part and dissent-
ing in part, in which Smith, J., concurs.
Filed: February 15, 1980
Murphy, C.J., concurring in part and dissenting in part:
The Court holds that the jail officials’ initial confronta-
tion with Whitfield, i.e., when they first accosted him as he
emerged from the jail elevator and brought him to the
* Orth, J., participated in the hearing of the case and in the
conference in regard to its decision but retired prior to the
adoption of the opinion by the Court.
22a
isolation room in an effort to ascertain the whereabouts of
the gun, constituted a “custodial interrogation” within the
contemplation of Miranda; and that absent Miranda
warnings Whitfield’s first oral admission that he had
knowledge of the weapon, and his subsequent act in
retrieving the gun and turning it over to the authorities,
was inadmissible in evidence. I do not agree with that
conclusion and, therefore, dissent from that part of the
majority holding which would exclude this evidence from
being introduced upon retrial of the cuse.
Mathis v. United States, 391 U.S. 1, 88 S. Ct. 1503, 20 L.
Ed. 2d 381 (1968), makes clear that the principles of
Miranda apply to a custodial interrogation conducted in a
prison and that it makes no difference that the interroga-
tors are correctional officials, rather than police officers. I
agree that Whitfield’s initial oral statement admitting
knowledge of the weapon was made while he was in
“custody” in a Miranda sense, i.e., he was deprived or
restricted of his normal freedom of action or movement
within the jail under pressure of official authority. I do not
agree, however that the oral statement made at that
initial confrontation was responsive to an “interrogation”
within the contemplation of Miranda since the inquiry was
not made to elicit evidence of a crime but rather as part of
an investigation limited in purpose to the location of a
weapon which presented a real threat to the internal
security of the prison. An individual may be in custody,
but not subjected to an “interrogation” in the Miranda
sense, as the majority recognizes. Nothing in Mathis or in
Miranda itself supports the majority’s position that any
custodial examination that has the potential to lead to an
incriminating statement is a Miranda-type interrogation;
nor does either of those cases equate an “interrogation”
with an inquiry of an inmate concerning suspected
breaches of internal prison security, and this is so even
though the suspected breach may also, if established,
constitute evidence of a crime. In effect, the Court has
extended Miranda to foreclose an inquiry concerning the
maintenance of internal prison security unless the inmate
nn ey Ee,
gp a aaa
23a
is first given the full panoply of Miranda warnings,
including the admonition that he may refuse to talk to
prison authorities about the matter and may have a
lawyer present with him if any such inquiry is actually
conducted.
The majority seemingly recognizes that the concern of
the jail authorities in the initial confrontation with
Whitfield was to obtain knowledge of the gun’s location in
order to secure the safety of the jail, rather than to elicit
admissions for use at a criminal prosecution. In this
regard, it should be noted that there was no questioning of
Whitfield at that time concerning his alleged escape plan;
rather the inquiry was limited and singular in purpose —
to locate the gun and thus to reestablish prison security
and discipline. In these circumstances, it makes no sense
to conclude, as the majority does, that no inquiry may be
made of a prisoner without prior Miranda warnings if
there is a possibility that evidence relevant to a criminal
prosecution may result. The majority’s conclusion that the
State may make the inquiry without giving Miranda
warnings but must forego use of that relevant evidence is
both an unwarranted extension of Miranda’s holding and a
needless price to exact in order to maintain internal prison
security and discipline.
The cases supporting the proposition that inquiry of the
type and for the singular purpose initially conducted in
this case does not constitute “interrogation” within the
meaning of Miranda, upon which the Court of Special
Appeals relied in its opinion below — but which the
majority finds unpersuasive — make good sense to me and
are not at variance with the fundamental import of the
Miranda decision. Representative of these cases is State v.
LaRue, 19 Wash. App. 84, 578 P.2d 66 (1978). In that case,
LaRue, a prison inmate, was questioned by a correctional
officer in a segregation cell immediateiy following the
stabbing of another inmate with a knife. Miranda warn-
ings were not given. LaRue was asked as to the location of
the knife and he gave an incriminating answer. The guard
testified that his purpose in questioning LaRue was to
Oo
24a
locate the weapon and secure the prison, rather than to
investigate the stabbing. The court held that Miranda
warnings need not be given in these circumstances
because the primary purpose vf the inquiry was to find and
remove a dangerous weapon from the prison and not to
pursue a criminal investigation, i.e., there was no “interro-
gation” in the Miranda sense. Similarly, as the Court of
Special Appeals said in Hunt v. State, 2 Md. App. 443, 447,
234 A.2d 785 (1967), “interrogation by prison officials with
relation to the maintenance of internal security and
discipline and to the rules and regulations of the prison,
where the thrust and purpose of the interrogation does not
relate to the prosecution for any crime, does not fall within
the ambit of the Miranda decision.”
Closely allied with the line of cases represented by
LaRue and Hunt are those which hold that Miranda does
not foreclose recognition of a limited exception)to its rules
of custodial interrogation in order to meet emergencies
seriously affecting the safety of human life where the
intent in making the inquiry and taking the statement is
nonprosecutorial at the time. See e.g. United States v.
Castellano, 500 F.2d 325 (5th Cir. 1975); People v. Riddle,
83 Cal. App. 3d. 563, 148 Cal. Rptr. 170 (1978), cert.
denied, 440 U.S. 937, 99 S. Ct. 1283, 59 L. Ed. 2d 496
(1979); People v. Dean, 38 Cal. App. 3d 875, 114 Cal. Rptr.
555 (1974). The lives and safety of many individuals
within a prison are placed in serious jeopardy by the
presence of a gun within the institution particularly
where, as here, the gun is thought to be associated with an
escape plan.’ As Chief Judge Gilbert so cogently observed
for the intermediate appellate court in this case (Whitfield
uv. State, 42 Md. App. at 125-126, 128):
‘In this case, testimony revealed that the pistol was an
integral part in an escape plan which was scheduled for Sunday,
July 5, only a short time after the prison authorities located the
gun. The plan was to “get the drop” on a guard armed with a
shot gun down by the gate on the ground level. Once the
inmates had his gun, they intended to “make their way” out of
the gate and over a small wall.
25a
“Unequivocally, knowledge by prison or jail officials
of a gun’s being in the hands of an inmate creates an
emergency with which they must cope immediately.
The situation demands prompt and drastic action. The
gun’s presence in the penal institution is a ‘bell
ringer’ that an escape attempt is imminent, with the
strong possibility that one or more homicides may
occur. It behooves the officials to move with alacrity
to locate the weapon and confiscate it in order to
protect their own lives, the lives of the prison
populace, visitors who might be in the institution at
the time, and the public generally.”
* * * * * *
“, .. The questioning of Whitfield was not an
interrogation, looking toward prosecution, but an
on-the-scene investigation for a deadiy weapon which
presented a threat to the security of the jail. State v.
LaRue, supra. Moreover, a fair reading of the record
discloses that the correctional officers were preoccu-
pied more so with the recovery of the gun, whether
there were other guns inside the jail, and the details
of the escape attempt, than with the apprehension
and punishment of Whitfield.”
* * * * * *
“We hold that where, as here, correctional officers
of a penal institution are informed of the existence of
a weapon cached within the institution’s confines and,
consequently, presenting the possibility of an immi-
nent breach of security or a volatile situation, a
questioning of a person reasonably likely to have
knowledge of the weapon’s whereabouts so as to aid
the officials in removing the weapon from the institu-
tion, or which questioning is designed to secure the
safety of the prison population, is permissible. Incri-
minating statements made by any party involved in
the immediate scope of the investigation may, within
the sound discretion of the trial judge, be admitted in
evidence even though the declarant was not afforded
proper Miranda warnings before questioning.
“We are not to be understood as sanctioning a carte
blanc, sans Miranda interrogation by correctional
FL
26a
officials of prison inmates. Prisoners do not surrender
all of their constitutional rights when they enter a
penal institution. Miranda is normally applicable to
them as well as to the general populace. Only the
most unusual explosive circumstances will excuse
Miranda compliance.”
To hold that Miranda precepts were violated at Whit-
field’s first custodial confrontation with jail officials, and
that the incriminatory evidence that flowed from that
session was inadmissible in evidence, is to lose sight of
overriding institutional needs and objectives, and unneces-
sarily, and unwisely, to weaken the control of prison
officials over the maintenance of prison security and
discipline. See Baxter v. Palmigiano, 425 U.S. 308, 96 S.
Ct. 1551, 47 L. Ed. 2d 810 (1976), declining to hold that
the strictures of Miranda were applicable in non-criminal
prison disciplinary proceedings. I do, however, fully agree
with the Court that the second confrontation between
Whitfield and the jail authorities, i.e., that which occurred
after the gun had been retrieved and prison security
reestablished, constituted a custodial interrogation square-:
ly within the contemplation of Miranda and that oral
statements obtained at that time from Whitfield were not
properly admissible in evidence, since the Miranda warn-
ings admittedly were not given to him prior to the
interrogation.
Judge Smith authorizes me to say that he concurs in the
views here expressed.
27a
In The
Court of Appeals of Maryland
No. 54
September Term, 1979
Conrad Whitfield and Nigel Antonio Little
v.
State of Maryland
MANDATE
To Tue Honoras.e Tue Jupces Or Tue Court Or Sprcia.
AppeaLs Or MaryLanp: |
Wuereas the case of Conrad Whitfield and N igel Antonio
Little v. State of Maryland came before you and wherein
the judgment of the said Court of Special Appeals of
Maryland was duly entered on the eleventh day of April,
1979 as appears from the transcript of the record of the
said Court of Special Appeals of Maryland which was
brought into the Court of Appeals of Maryland by virtue of
a writ of certiorari dated July 19, 1979;
Wuereas in the September Term, 1979 the said cause
came on to be heard before the Court of Appeals of
Maryland;
On ConsiperaTION WuerEor, it was ordered and ad-
judged on February 15, 1980 by this Court that the
judgment of the Court of Special Appeals as to Conrad
Whitfield be reversed and case remanded to it with
direction to reverse the judgment of the Criminal Court of
28a
Baltimore and remand the case to that Court for a new
trial. Pursuant to Maryland Rule 882 f, costs are not
reallocated as part of the judgment of this Court; and it
was further ordered and adjudged on February 15, 1980 by
this Court that the writ of certiorari as to Nigel Antonio
Little be dismissed, petition having been improvidently
granted.
Now, THEREFORE, THis Cause Is Remanpep to you in
order that such proceedings may be had in the said cause
in conformity with the judgment of this Court above
stated, as accord with right and justice, and the Constitu-
tion and laws of Maryland, the said writ notwithstanding.
Witness the Honorable Robert C. Murphy, Chief Judge
of the Court of Appeals of Maryland this seventeenth day
of March, 1980.
James H. Norris, Jr.
Clerk,
Court of Appeals of Maryland.
No costs supplied.
February 15, 1980: Opinion by Murphy, C.J., concurring in
part and dissenting in part, in which
Smith, J., concurs.
29a
In The
Court of Appeals of Maryland
No. 54
September Term, 1979
Nigel Antonio Little
v.
State of Maryland
ORDER
The petition for writ of certiorari as to Nigel Antonio
Little having been granted and heard, it is this 15th day of
February, 1980
OrpERED, by the Court of Appeals of Maryland, that the
writ of certiorari be, and it is hereby, dismissed, petition
having been improvidently granted.
Rospert C. Murpuy
Chief Judge
30a
APPENDIX B
WHITFIELD v. STATE 107
107) Svllabus.
CONRAD WHITFIELD AnD NIGEL ANTONIO LITTLE
v. STATE OF MARYLAND
[No. 792, September Term, 197%.]
Decided April 11, 1979.
Dous Le JEOPARDY — Prosecutorial Overreaching — Bar Against Double
Jeopardy Does Not Prevent Retrial Where Prosecutor's Commission Or
Omission, Absent Intent To Cause Mistrial, Amounts To Mere Exercise Of
Poor Judgment. The Court Ae/d that although facts, in case at bar, are
indicative of poor judgment on prosecutor's part no discernible intentional
misconduct nor gross negligence found sufficient to activate double jeopardy
bar to retrial and that violation of professional disciplinary rules not
necessarily tantamount to gross negligence or intentional misconduct.
pp. 114-115
CRIMINAL LAW — EVIDENCE — Admissibility Of Other Crimes — Common
Scheme Exception To General Rule That Evidence Of Unrelated Crime Is
Inadmissible At Trial For Particular Crime — Criteria Necessary To
Establish — Evidence Found Sufficient To Meet i:equirements Of Common
Scheme Or Plan Exception To General Rule For Crimes, Including That
Charged In Instant Case, Were So Related To Each Other That Proof Of One
Tended To Establish Other. Evidence adduced clearly established causal
relation or natural connection between furtive transporting of narcotics to
inmates of city jail (uncharged crime) and present charge of smuggling a
deadly weapon into same institution so as to allow rational inference that
dealings were a continuing transaction. pp. 120-121, 123
CRIMINAL LAW — EVIDENCE — Admissibility Of Other Crimes — Common
Scheme Or Plan Exception To General Rule — Evidence Of Uncharged
Crimes Held To Be Sufficiently Established By Clear And Convincing Proof
To Demonstrate Common Scheme — Claim That Probative Value Of
Common Scheme Evidence Was Outweighed By Prejudicial Effect Held
Without Merit For Although Evidence Of Prior Criminal Acts By Accused
Not Charged In Matter For Which He Was Being Presently Tried Was
Prejudicial, It Was Clear That Evidence Adduced Was Properly Balanced By
Trial Judge And His Finding That Probative Value Outweighed Prejudicial
Effect Was Not Erroneous. pp. 121, 123
CRIMINAL LAW —- EVIDENCE — Admission Of Inculpatory Statement —
Miranda Warning — Applicability Of Miranda To On-The-Spot Prison
Interrogation To Foil Escape — Where, As Here, Questioning Of Prisoner
Was Designed To Secure Safety Of Prison Population After Authorities
Were Advised Of Potential Weapon Being Cached Within Confines Of
Institution, Any Incriminating Statements Made By Party Involved In
3la
108 WHITFIELD v. STATE .
Opinion of the Court. {42 Md. App.
Immediate Scope Of Investigation Is Admissible Despite Lack Of Miranda
Warning To Declarant Before Interrogation — Admission Is Within Sound
Discretion Of Trial Judge — Such Holding Held Not To Constitute Carte
Blanc Sanction By Correctional Officials To Interrogate Inmates For
Prisoners Do Not Relinquish Basic Constitutional Rights Upon Entering
Institution — Admission Of Inculpatory Statements Held Not Erroneous.
p. 128
H. E. F.
Appeal from the Criminal Court of Baltimore (ALLEN, J.).
Conrad Whitfield was found guilty by a jury of conspiracy
and handgun violation and Nigel Antonio Little was found
guilty of handgun violation and contraband violation and
from judgments entered thereon, they appeal.
Judgments affirmed. Costs to be paid by appellants.
The cause was submitted on briefs to GILBERT, C. J., and
MOORE and WILNER.
Submitted by Arnold M. Zerwitz and Michael S. Elder for
appellants.
Submitted by Stephen H. Sachs, Attorney General, Stephen
Rosenbaum, Assistant Attorney General, William A. Swisher,
State's Attorney for Baltimore City, and Harvey Greenberg,
Assistant State’s Attorney for Baltimore City, for appellee.
GILBERT, C. J., delivered the opinion of the Court.
A cadet guard at the Baltimore City Jail surreptitiously
carried a handgun into the jail and delivered it to an inmate
who intended to use the weapon to effect an escape. The plot
was revealed before the escape occurred. As a result, the
appellants, Conrad Whitfield (Whitfield), Nigel Little (Little),
and Peteta Davis (Davis) ' were indicted by the Grand Jury
for Baltimore City and charged with conspiracy to violate the
Maryland statute proscribing escape from jail. Md. Ann. Code
art. 27, § 139(a).? Whitfield, a then jail inmate, and Little, a
1. Ms. is i i
2. That section " oft the erimaa! — by oy recently much attacked on
the ground that it is unconstitutional. The Court of Appeals and this Court
32a
WHITFIELD v. STATE 109
107] Opinion of the Court
then cadet guard, were also charged with a handgun
violation, Md. Ann. Code art. 27, § 36B(b). Little was
additionally charged with delivering ‘one .25 caliber
automatic pistol” to Whitfield. All three accused pleaded not
guilty to the indictments, and the case proceeded to a trial by
jury on March 29, 1977. On the second day of trial, Judge
David Ross declared a mistrial.
Three months later, June 22, 1977, a new jury, presided
over by Judge Milton Allen, was sworn and the three
defendants were retried. After a protracted trial, the jury
found: 1) Whitfield guilty of the conspiracy and handgun
charges, 2) Little guilty of the handgun and contraband
charges but not guilty of conspiracy, and 3) Davis guilty of
conspiracy.
The factual scenario began in the spring of 1976. From May
to July of that year, Whitfield and one Thomas Brown were
involuntary residents in the Baltimore City Jail. By
happenstance, each was represented, on unrelated criminal
matters, by the same attorney, Marshall Stewart. On July 2,
1976, Brown was in the Southwestern District Court for a
hearing on a case there pending against him. Stewart, who
was representing Brown in that proceeding, was also present.
Brown took Stewart aside and told him he ‘had some
information about a pistol” in the jail, and that he wanted ‘‘to
speak to somebody” about it. Stewart informed the Police
Captain in charge of the District, and Brown was taken to
Central Police Headquarters where he gave a written
statement relative to the details of the gun’s being in the jail.
Shortly thereafter, the police alerted the Warden of the jail
that a pistol had been carried into the institution, and that
Whitfield and Cadet Little knew where it was. Correctional
Major Howard Parks, joined by Captain Calvin Young and
Lieutenant William Britton, accosted Whitfield in a
passageway of the jail and ordered him to accompany them
to a secluded section. There, Young and Britton confronted
Whitfield with the fact that they knew “that he was in
State, Md. (No. 72, September Term, 1978, filed January 5, 1979);
State vo Rogers, 10 Md. App. 573, 392 A. 2d LL86 (1978).
have, however, upheld the constitutionality of the statute. See Clark v.
33a
110 WHITFIELD ». STATE
Opinion of the Court 142 Md. App.
possession of a weapon within the institution.” No Mirand: ®
warnings were given prior to the confrontation or subsequent
interrogation. In the words of Major Parks, the objective was
“to obtain the weapon and get it out of the institution.”
Whitfield admitted knowledge of the pistol and was sent,
unaccompanied, to retrieve it. He returned with the gun which
was wrapped in a shirt. Britton then took him to Parks’s office
for further questioning. Whitfield was told “he could contact
his attorney,” but no other rights were read to him. Whitfield
then used the phone, apparently to call Stewart.
Several minutes later, a Mr. Clauss, Stewart’s “legal
assistant,” arrived. Under renewed interrogation by Lt.
Britton, with Clauss present, “Whitfield laid everything out
. what was supposed to have transpired.” Whitfield’s
statement implicated Little and Davis. Indictment and trial
followed.
On appeal to this Court, Whitfield and Little pose three
contentions. We shall discuss each in the order raised by the
appellants, adding such additional facts as may be necessary
for a better understanding of the resolution of the issue.
I.
“The retrial of the present cases was barred by the
Double Jeopardy Clause'*) as a result of
prosecutorial overreaching.”
Appellants argue that:
“The failure of the prosecutor in the present case
to disclose to Judge Ross that Whitfield and Davis
were being represented by an attorney who had
worked out an arrangement for leniency for the
State's chief witness [Brown] and who was also a
potential witness against his clients was clearly
prosecutorial overreaching under either the
3. Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L..Ed.2d 294 (1966).
4. The Fifth Amendment Double Jeopardy clause mandates that, “No
pe ag pny ak dR for the same offense to be twice put in jeopardy
34a
WHITFIELD v. STATE 11]
107] Opinion of the Court.
intentional misconduct or gross negligence
standards.” (Footnote omitted.)
An analysis of those standards leads us to the opposite
conclusion. ;
When the case was first called to trial on March 29, 1977,
before Judge Ross and a jury, Whitfield and Davis were
represented by Mr. Stewart. On the second day of the trial,
Whitfield made known to Judge Ross that Stewart was “still
representing Mr. Brown,” who was the principal prosecution
witness. Whitfield said that Stewart was “trying to get...
[Brown] off of the hook, and I feel as though ... I am not
getting fair representation by the attorney representing me.”
A bench conference before Judge Ross disclosed that
Stewart had, in fact, represented Brown, Whitfield, and Davis
in separate matters prior to the disclosure by Brown, at
Southwestern Police Station, of the gun’s presence in the jail.
Stewart had told Whitfield that he, Stewart, would not be
representing Brown during Whitfield’s current trial. Stewart
admitted, however, that he had negotiated with the State for
leniency for Brown in return for Brown’s cooperation in the
case against Whitfield, Little and Davis. The prosecutor said
that he knew about Stewart’s involvement with both Brown
and Whitfield “for quite sometime” but had been assured by
Stewart that Stewart “had had no contact with Mr. Brown
since” the revelation about the gun on July 2, 1976. After
hearing from all the parties, and with the express concurrence
of all three defendants, Judge Ross declared a mistrial. He
based his declaration on the ground that it was of “manifest
necessity, under the total circumstances,” to avoid forcing
Whitfield to trial in view of Whitfield’s feelings toward
Stewart and the apparent conflict of interest.
Prior to the commencement of the second trial, a hearing
was held on the defense motions to dismiss the indictments
and to suppress oral and written statements made by
Whitfield and Davis. The motions averred that a retrial would
subject the defendants to double jeopardy because of
prosecutorial misconduct in failing to disclose Stewart's
conflict of interest to the court. It was also argued that the
statements taken by police from Whitfield and Davis should
35a
112 WHITFIELD v. STATE
Opinion of the Court. {42 Md. App
have been suppressed because of ineffective assistance of
counsel caused by Stewart's conflict of interest.
The trial court granted the motion to suppress the
statements made by Whitfield and Davis at police
headquarters. All other defense motions, including the motion
to suppress the oral statements made by Whitfield to Young
and Britton in the City Jail, were denied.
Recently, in Thompson v. State, 38 Md. App. 499, 381 A. 2d
704 (1978), we discussed prosecutorial overreaching in
relation to double jeopardy. We said:
“Although the double jeopardy clause is designed
to protect the defendant against multiple
punishments or repeated prosecutions for the same
offense, United States v. Dinitz, 424 U. S. 600, 96
S. Ct. 1075, 47 L.Ed.2d 267 (1976), a request by a
defendant for a mistrial ordinarily removes any bar
to reprosecution even though the motion was
necessitated by prosecutorial or judicial error. Lee
v. United States, 432 U. S. 23, 97 S. Ct. 2141, 53
L.Ed.2d 80 (1977); United States v. Dinitz, supra.
This rule is not absolute and where a mistrial is the
product of prosecutorial or judicial overreaching, the
double jeopardy clause prevents a retrial. Lee v.
United States, supra; United States v. Jorn, 400 U.
S. 470, 91S. Ct. 547, 27 L.Ed.2d 543 (1971). The exact
boundaries of prosecutorial overreaching, necessary
to bar retrial, have not been specifically delineated
by the Supreme Court. Other courts which have
considered the point generally hold that
prosecutorial error attributable to negligence does
not amount to overreaching, People v. Baca, Colo.,
562 P. 2d 411 (1977), while intentional misconduct
calculated to gain a more favorable chance for
conviction or to abort a trial that is going badly
prevents reprosecution. United States v. Kessler,
530 F. 2d 1246 (5th Cir. 1976). The appellant argues
that prosecutorial overreaching is not confined to
intentional misconduct but encompasses gross
negligence as well. Commonwealth v. Bolden, 472
36a
WHITFIELD »v. STATE 113
107] Opinion of the Court.
Pa. 602, 373 A. 2d 90 (1977). Although in Bo/den, the
Court noted that it is unclear from the decisions of
the Supreme Court whether overreaching is limited
to intentional misconduct or whether it extends to
gross negligence on the part of the prosecutor or
judge, it concluded gross negligence was
encompassed in the term after an examination of the
purposes underlying the double jeopardy clause. The
Court stated:
‘A defendant forced to request a mistrial by
conduct which conspicuously fails to satisfy
professional standards should not be
required to bear the heavy burdens incident
to reprosecution.’ 373 A. 2d at 109.” 38 Md.
App. at 502, 381 A. 2d at 705-06.
While the precise perimeters of the term, “prosecutorial
overreaching” have not, as Thompson points out, been drawn
by the Supreme Court or the Maryland Court of Appeals,
Judge Moylan shed some light on the subject in Loveless v.
State, 39 Md. App. 563, 387 A. 2d 311 (1978),5 when he stated:
“Except in those rare instances where the
prosecution or the court has deliberately sabotaged
a trial that was going badly, the available redress
where an irremedial error is recognized in mid-trial
is the declaration of a mistrial followed by a
retrial. ...
The only time that a retrial is barred under double
jeopardy principles is when there has been such
prosecutorial or judicial overreaching as to have
mounted to a deliberate and intentional sabotaging
of the earlier trial.” (Citations omitted.) 39 Md. App.
at 565-66, 387 A. 2d at 313.
Thompson and Loveless allude to the possibility that the
gross negligence standard may be encompassed within the
term “prosecutorial overreaching,” Thompson v. State, 38
5. Certiorari denied October 20, 1978.
37a
114 WHITFIELD v. STATE
Opinion of the Court. [42 Md. App.
Md. App. at 504, 381 A. 2d at 706, Loveless v. State, 39 Md.
App. at 569, 387 A. 2d at 315, but we did not so hold. It was
unnecessary for us to decide that question because the facts
were insufficient to create an issue of gross negligence.
The bar against double jeopardy does not prevent a retrial
where the prosecution’s commission or omission, absent an
intent to cause a mistrial, amounts, at most, to the exercise
of poor judgment. Loveless v. State, supra; Thompson v.
State, supra; Commonwealth v. Bolden, 472 Pa. 602, 373 A.
2d 90 (1977). While the facts before us indicate poor judgment
on the part of the prosecution, we discern no intentional
misconduct or gross negligence.
Appellants place heavy reliance upon the Code of
Professional Responsibility as the standard by which to
measure the Assistant State’s Attorney’s conduct in the
matter sub judice. They refer us to DR 1-103,* DR 5-102,’ and
DR 5-105.* Violations of the disciplinary rules, however, are
not necessarily tantamount to gross negligence or intentional
misconduct.
From the facts in this case, we cannot infer intentional
misconduct on the part of the prosecution. He admitted to the
court that he had been aware of the representation by Mr.
Stewart of Brown, Whitfield and Davis, but said he had
discussed the possible conflict with both defense attorneys,
Stewart and the counsel for Little, prior to the aborted first
trial. The prosecutor stated that based on those discussions,
he did not feel there would be a dispute of fact requiring Mr.
Stewart’s testimony. Therefore, the Assistant State’s
Attorney saw no need to inform the court of Stewart's
representation of possible conflicting interests. There was no
indication by Whitfield prior to, or during, the first day of the
short-circuited first trial that he was dissatisfied with
Stewart’s services. .
__ 6. DR 1-103 requires a lawyer to report violations of disciplinary rules to
the nthe Y
7. DR F102 prohibits the representation of a client where the lawyer is
& potential witness in the same case.
an ee representation of multiple clients with conflicting
in ‘
38a
WHITFIELD v. STATE 115
107] Opinion of the Court.
Whitfield became alarmed after he had observed Stewart
associating with Brown and Brown’s family during recesses
in the trial proceedings. Whitfield knew from the outset of
the case of Stewart’s relationship with Brown, but he had
apparently decided to proceed with the status quo. Moreover,
it is clear from the record that after the initial incident
concerning & gun being in the jail on July 2, 1976, Stewart did
not act as counsel for Brown. Stewart did, however, become
Whitfield’s and Davis’s attorney for the escape and related
offenses case, with no further dealings with Brown on the
matter.
The Assistant State’s Attorney vigorously argued against
a mistrial. That fact, while not conclusive, at least suggests
that there was no intent to “sabotage” the trial in the hope
of gaining a more favorable chance of conviction or abort it
because it was going badly.®
Under the particular facts of this case, we perceive no
prosecutorial overreaching in the form of gross negligence
or intentional misconduct which would serve to activate the
double jeopardy clause bar to the retrial of appellants.
II.
“Evidence of other crimes was improperly admitted
into evidence.
A. The State’s evidence was insufficient to permit
this Court to determine that evidence of ot} -r
crimes was admissible under the common
scheme exception.
B. The State failed to present clear and convincing
evidence that the other crimes were committed
and that Whitfield and Little had committed
them.
C. Evidence of other crimes should have been
excluded on the ground that its probative value
was far outweighed by its prejudicial effect.”
9. The State’s opposition to the mistrial in the case now before us, arising
in point of time as it did, negates the idea of the trial “going badly.”
39a
116 WHITFIELD v. STATE
Opinion of the Court. {42 Md. App.
During its case in chief, the prosecution sought to introduce
a written statement given by Brown to the police on July 3,
1976. The statement set out in detail the manner in which the
defendants passed the gun into the jail via Davis, to Little,
to Whitfield. According to the text of the writing, Cadet Little
brought “in packages of narcotics” for Brown, Whitfield and
other inmates on occasions previous to the date the gun was
smuggled by Little past the other guards and into the
institution.
Little’s attorney objected to that part of the statement
dealing with the narcotics. The prosecutor proffered that the
statement was admissible under the “common scheme”
exception to the rule that evidence of other unrelated crimes
is inadmissible at trial of a particular crime. Judge Allen
overruled the objection, saying, “I think it is a common
scheme and design . . . to bring contraband into the jail. I will
admit it.” Thereafter, the statement was read to the jury in
toto, and testimony was furnished by Brown concerning both
the charged and uncharged “other crimes.” Oddly, only
Whitfield objected to the oral testimony regarding the
uncharged crimes, and he was overruled on the “common
scheme theory.” Only Whitfield’s argument as to the oral
testimony was thus preserved for appeal, Hyson v. State, 225
Md. 140, 169 A. 2d 449 (1961). Little has no standing to raise
the issue. Nevertheless, pursuant to Md. Rule 1085, we shall
consider the issue with respect to both appellants because the
oral testimony did not appreciably add to the written
statement.
The Court of Appeals, in Ross v. State, 276 Md. 664, 350
A. 2d 680 (1976), supplied a definitive analysis of the
evidentiary rule pertaining to the use of prior offenses or
prior convictions against an accused who is on trial for
different or unrelated acts. The Court said:
“The frequently enunciated general rule in this
state, followed uniformly elsewhere, is that in a
prosecution for a particular crime, evidence which in
any manner shows or tends to show that the accused
has committed another crime wholly independent of
107]
40a
WHITFIELD v. STATE
Opinion of the Court.
that for which he is on trial, even though it be a crime
of the same type, is irrelevant and inadmissible. This
principle is merely an application of the policy rule
prohibiting the initial introduction by the prosecution
of evidence of bad character. Thus, the state may not
present evidence of other criminal acts of the
accused unless the evidence is ‘substantially
relevant for some other purpose than to show a
probability that he committed the crime on trial
because he is a man of criminal character.’ C.
McCormick, Evidence, § 190 (2d ed. 1972).
...[A]part from the fundamental proposition that
an accused may be convicted only by evidence which
shows that he is guilty of the offense charged, and
not by evidence which indicates his guilt of entirely
unrelated crimes, there are additional reasons
underlying the general rule. Evidence of other
crimes may tend to confuse the jurors or prejudice
their minds against the accused and to predispose
them to a belief in his guilt. Finally, unless he knows
in advance that evidence of other crimes is to be used
against him, the accused will be unprepared to
defend against such evidence.
There are exceptions to this general exclusionary
rule which, perhaps, are equally well-recognized.
Thus, evidence of other crimes may be admitted
when it tends to establish (1) motive, (2) intent, (3)
absence of mistake, (4) a common scheme or plan
embracing the commission of two or more crimes so
related to each other that proof of one tends to
establish the other, and (5) the identity of the person
charged with the commission of a crime on trial.
Additional exceptions have also been recognized:
When the several offenses are so connected in point
of time or circumstances that one cannot be fully
shown without proving the other, and to show a
passion or propensity for illicit sexual relations with
the particular person concerned in the crime on trial,
and to prove other like crimes by the accused so
117
4la
118 WHITFIELD v. STATE
Opinion of the Court. {42 Md. App.
nearly identical in method as to earmark them as the
handiwork of the accused.” 276 Md. at 669-70, 350
A. 2d at 684. (Emphasis supplied.) (Citations
omitted.)
Accord, Cross v. State, 282 Md. 468, 386 A. 2d 757 (1973);
McKnight v. State, 280 Md. 604, 375 A. 2d 551 (1977); Martin
v. State, 40 Md. App. 248, 389 A. 2d 1374 (1978). See also
Worthen v. State,41Md. App. _ (No. 499, September Term,
1978, filed March 22, 1979).
There are, as the Court stated in Cross v. State, supra, at
473, 386 A. 2d at 761, exceptions which “appear to swallow
the rule.” Judge Digges, writing for the Court, said:
“As a general rule, in order to gain the admission
of evidence of other criminal acts under the common
scheme or plan exception it is necessary that the
crimes, including the crime charged, so relate to each
other that proof of one tends to establish the other.
Moreover, there must be ‘not merely a similarity in
the results, but such a concurrence of common
features that the various acts are naturally to be
explained as caused by a general plan of which they
are the individual manifestations.’ 2 J. Wigmore,
Evidence § 304, at 202 (3d ed. 1940) (emphasis in
original). The concurrence of common features
under this exception, however, must be more than
simply a manner of operation, which is pussessed to
some extent by most criminal recidivists. A method
of operation is not, by itself, a common scheme, but
merely a repetitive pattern. Thus, evidence of other
crimes can be introduced under the common scheme
exception only when the relationship between the
time, place, circumstances or parties involved in the
crimes is such that the uncharged crime or crimes
‘support the inference that there exists a single
inseparable plan encompassing both the charged and
uncharged crimes, typically, but not exclusively,
embracing uncharged crimes committed in order to
effect the primary crime for which the accused has
42a
WHITFIELD v. STATE 119
107] Opinion of the Court.
been indicted.’ 312 N.E.2d at 177, 356 N.Y.S.2d at
42-43.” 282 Md. at 475-76, 386 A. 2d at 762.
The prosecutor, in answer to the objections by the defense,
made the following proffer:
“I submit in this case this evidence of other crimes
is admissible and tends to show a common scheme,
a plan which deals with a bringing into the Baltimore
City Jail contraband, a weapon, in the Baltimore City
Jail by a guard. I said to the jury in my opening
statement, how does an inmate just go up to a guard,
he doesn’t just go up to a guard and say, hey, get
in a gun for me. There has to be some handling of
it, something that he has over the guard or some
prior connection with the guard in other criminal
activities which makes the guard susceptible to a
part of a general scheme and the plan to make the
guard be able to not submit, but make the guard
subject to bringing in that contraband. I submit to
the Court that the evidence will be that this guard
was continuing to bring to inmates contraband other
than weapons, explaining the intent of the activities
of bring [s/c] in pieces of contraband, a weapon, part
of the same common scheme and design as bringing
previous narcotics in and that’s why he was able to
be approached. It’s an essential part of the State’s
case, if I can show to the jury why it is that they
picked this particular guard over all the others.”
To underpin their argument that the State’s proffer of
evidence was insufficient to allow the court to admit it under
the common scheme exception, appellants rely on Cross v.
State, supra; McKnight v. State, supra; and Jones v. State,
38 Md. App. 432, 381 A. 2d 317 (1978), aff'd, State v. Jones,
Md. __, (No. 7, September Term, 1978, filed January 4,
1979). We think those cases to be inapposite.
The State’s evidence, offered in Cross under the common
scheme exception, consisted merely of a blue car having been
seen in front of two residences where break-ins had occurred
on a particular day. The defendant was charged with one of
43a
120 WHITFIELD «& STATE
Opinion of the Court 112 Md. App
the break-ins, and evidence concerning the other break-in
was admitted against him. The Court of Appeals, in reversing
this Court, Cross v. State, 36 Md. App. 502, 374 A. 2d 620
(1977), held the evidence “clearly inadequate to show any kind
of systematic scheme or plan sufficient to allow admission of
the evidence of the other crime.”’ 282 Md. at 476, 386 A. 2d
at 762.
McKnight was jointly tried on four charges of robbery
aliegedly committed within the time span of one month. The
Court, in rejecting the State’s argument that joinder of the
four cases was justified under the “signature or handiwork”
exception, declared that “such similarities as existed here ‘fit
into an obvious tactical pattern which would suggest itself to
almost anyone disposed to commit a depredation of this
sort.’ ’’ 280 Md. at 614, 375 A. 2d at 557.
Similarly, this Court, in Jones, reversed the conviction of
a defendant who had been tried jointly upon indictments
charging the commission of three armed robberies on the
same day. We rejected the State’s reliance upon the common
scheme exception and observed, “All that we .. . [had before
us was] a series of similar but unrelated robberies which do
not have the common features necessary to establish a
common scheme.” 38 Md. App. at 439, 381 A. 2d at 322.
Our review of the record in the instant case leads us to
conclude that the evidence proffered and admitted by the
State was sufficient to meet the requirements of the common
scheme or plan exception to the general rule. Ross v. State,
supra; Cross v. State, supra; Martin v. State, supra. “{T}he
crimes, including the crime charged, so relate to each other
that proof of one tends to establish the other.” Cross v. State,
supra, 282 Md. at 475, 386 A. 2d at 762. It is apparent that
Judge Allen was able to observe sufficient “relationship
between the time, place, circumstances or parties involved in
the crimes” so as to permit the introduction of the evidence
as being part of a common scheme. /d. Paraphrasing the
Court in State v. Jones, supra, the evidence adduced by the
State in the case at Bar showed a “causal relation or logical
or natural connection,” between the furtive transporting of —
narcotics to inmates in the City Jail and the smuggling of the
44a
WHITFIELD v. STATE 121
107] Opinion of the Court.
weapon into the same institution, so as to allow a rational
inference that the dealings were a “continuing transaction.”
Appellants also maintain that the State failed to
demonstrate by clear and convincing evidence that the ‘“‘other
crimes” were committed, and that Whitfield and Little
committed them.
The rule is that the accused's involvement in an uncharged
crime must be established by clear and convincing proof.
Cross v. State, supra, 282 Md. at 478, 386 A. 2d at 764;
Brafman v. State, 38 Md. App. 465, 474, 381 A. 2d 687, 691-92
(1978). The Court, in Cross, n. 7, opined:
“The preferred method for submitting any
evidence of other crimes to the court during trial
would be by way of a proffer to the trial judge
outside the presence or hearing of the jury. Such a
proffer not only protects the jury from immediate
prejudice, but also allows the trial judge to
determine whether there is any way to limit the
prejudicial aspects of the evidence while retaining its
probative character and whether the evidence should
properly be introduced at that time. See United
States v. Bailey, 505 F. 2d 417, 420 (D.C. Cir. 1974),
cert. denied, 420 U. S. 961 (1975).” 282 Md. at 478,
386 A. 2d at 764. (Emphasis supplied.)
We think the trial judge in the instant case was presented
with a sufficient proffer by the State te establish a factual
question regarding the common scheme involvement among
Little, Whitfield and Brown. The written statement and the
oral testimony tended to establish that Whitfield, Brown and
Davis used Little as a conduit for the carrying of narcotics
into the jail without subjecting the contraband to search and
seizure by the other custodial personnel. The same method
that was employed in the smuggling of the narcotics was used
to secrete the weapon.
Brown testified that he was present on numerous occasions
when plans were discussed between Little and Whitfield.
relative to carrying narcotics into the jail. That evidence
established the appellants’ involvement in the other crimes,
45a
122 WHITFIELD v. STATE .
Opinion of the Court 142 Md. App.
Cross v. State, supra, and satisfied the burden of proof
shouldered by the State. Jd.
Appellants next attack the common scheme evidence by
asserting that its probative value was outweighed by its
prejudicial effect.
Judge Digges, in Cross, supra, said:
“In many instances, the breadth of these exceptions
will present the prosecution with little difficuity in
‘pigeonholing’ the evidence within one of them. But
it should be remembered that, though the evidence
may fall within one or more of the exceptions, the
trial judge still possesses discretion as to whether it
should be received. In the judicious determination of
this issue he should carefully weigh the necessity for
and probativeness of the evidence, concerning the
collateral criminal act against the untoward
prejudice which is likely to be the consequence of its
admission. Harris v. United States, 366 A. 2d 461,
463-64 (D.C. 1976); see McKnight v. State, supra at
612-13 [556]. See generally McCormick on Evidence,
supra, § 190, at 453-54. In some cases, this may
require that evidence of the criminal actions of the
defendant be totally excluded; in others, admission
of portions or all of the evidence of the defendant’s
specific criminal actions may be permissible.” 282
Md. at 474, 386 A. 2d at 761.
See also Brafman v. State, supra, 38 Md. App. at 474-75, 381
A. 2d at 692-93.
The problem in cases such as that now before us is one of
balancing the probative value of the evidence against its
prejudicial effect. The balancing process is described by
McCormick in his Handbook of the Law of Evidence § 190 at
453 (2d Ed. 1972), where it is said:
“{SJome of the wiser opinions . . . recognize that the
problem is . . . one of balancing, on the one side, the
actual need for the other-crimes evidence in light of
the issues and the other evidence available to the
prosecution, the convincingness of the evidence that
46a
WHITFIELD v. STATE 123
107] Opinion of the Court.
the other crimes were committed and that the
accused was the actor, and the strength or weakness
of the other crimes evidence in supporting the issue,
and on the other, the degree to which the jury will
probably be roused by the evidence to overmastering
hostility.” (Footnotes omitted.)
See Brafman v. State, 38 Md. App. 465, 475-76, 381 A. 2d at
693 (1978).
Appellants argue that “introduction of the other crimes
evidence served no legitimate need” and that “it was
unnecessary for the State to prove Little’s motive in order to
prove its case on the crime charged.” '° See Martin v. State,
supra, 40 Md. App. at 255, 389 A. 2d at 1377 (1978). We view
the matter ina different light. As we see it, aside from Brown,
there was no other known witness who could have testified
as to the conversations and the machinations that took place
among Little, Whitfield and Davis. Brown’s testimony was
absolutely crucial to the State’s case on the issue of whether
a conspiracy was extant to get a gun into the jail and use it
to effect an escape. The prior dealings leading up to the time
the weapon was smuggled into the jail were, in our view,
material to the showing of the existence of a conspiracy.
Brown’s evidence was probative on the issue of Little’s
involvement as the perdu of the other two co-conspirators.''
Although evidence of prior criminal acts by a defendant, not
charged in the matter for which he is on trial, is prejudicial
to a defendant, we believe that the evidence educed by the
State in the case sub judice was properly balanced by Judge
Allen, and that he correctly found that its probative value
outweighed its prejudicial effect. We perceive no error.
III.
Appellants seek to invoke Miranda": and thereby exclude
10. It was necessary for the State to show that Little changed sides.
Instead of guarding the inmates, the job he was hired to do, he became an
ally of Whitfield, Davis and Brown. ;
11. Little proved to be the kind of guard against whom other guards
guard,
12. Seen. 3, supra.
47a
124 WHITFIELD v. STATE
Opinion of the Court 142 Md. App.
from the evidence Whitfield’s inculpatory oral statement
which was made to the correctional officers, Captain Young
and Lieutenant Britton. Appellants asseverate that
“(bjecause Miranda warnings were not given, the trial court
improperly admitted incriminating statements made by
Whitfield during interrogations conducted by jail
authorities.” Appellants had raised this issue by way of a
pretrial motion to suppress, but Judge Allen denied that
motion. At trial, they failed to object to the testimony
establishing that the incriminating statements were made by
Whitfield.
The State asserts that the issue has not been preserved for
our review because the record shows no objection was voiced
by Whitfield when testimony concerning his retrieving the
gun and his statement that “he wasn’t going to see Mr.
Dardeen [another jail employee] get hurt” was introduced.
Inasmuch as those two answers went to the very viscera of
Whitfield’s oral admission, the State reasons that the
admissibility ve/ non of the oral statement, as such, is not
preserved. In short, the State says that the failure to object
to the questions which drew the damaging response
constitutes a waiver of the earlier motion to suppress. Of
course, Little has no standing to raise the Miranda issue. The
privilege against self-incrimination is highly personal and
may not be vicariously utilized. Butz v. State, 221 Md. 68, 156
A. 2d 423 (1959). Little may not seek refuge under Whitfield’s
constitutional umbrella.
The difficulty with the State’s position relative to Whitfield
is that it seems to overlook Md. Rule 736, which provides that
a motion asserting that an “omission, statement or
confession” was unlawfully obtained must be raised before
the trial. Md. Rules 736 a 4 and 736 b. If the hearing court
denies the motion to suppress, that ruling “is reviewable on
a motion for a new trial or on appeal of a conviction.” Md.
Rule 736 g 2. The rule became effective July 1, 1977, the day
after the testimony that the State thinks constitutes a waiver.
The order of the Court of Appeals adopting the new rules of
criminal procedure states:
“ORDERED, that the Rules and Forms hereby
48a
WHITFIELD v. STATE 125
107] Opinion of the Court.
adopted by this Court shall govern the courts of this
State and all parties and their counsel in all actions
and proceedings; and shall take effect and apply to
all proceedings commenced on and after July 1, 1977,
and insofar as practicable, to all proceedings then
pending. ...”
There is, we believe, no practical reason for not applying
Rule 736 to the instant case. Therefore, we hold that the issue
of the applicability ve/ non of Miranda has been properly
preserved. Md. Rule 736 g 2.
Miranda proscribes_ custodial interrogations unless
specified warnings are first furnished to an accused and then
knowingly and intelligently waived by him. It is undisputed
that the questioning of Whitfield in the City Jail by Captain
Young and Lieutenant Britton was not preceded by Miranda
admonitions, nor, apparently, was Miranda even mentioned.
The record is clear that when the two guards stopped
Whitfield, led him to a secured area, and demanded that he
surrender the gun, he at first denied knowledge of it, but
shortly thereafter went to the place where he had hidden the
pistol and then carried it to Young and Britton. Whitfield was
then taken to Major Parks’s office for further questioning.
Once there, Britton informed Whitfield that Whitfield could
contact an attorney. No other warnings were given. Whitfield
requested counsel, and the interrogation was halted. By
coincidence, Mr. Clauss '* was in the City Jail visiting another
prisoner. Clauss consulted with Whitfield. Thereafter
Whitfield “laid everything out.”’ Whitfield contends “that
inasmuch as his statements flowed from questioning initiated
by Young and Britton after they accosted him and took him
to a secluded part of the jail, the custodial interrogation
requirement of Miranda is met and the oral statement made
by him were [sic] inadmissible at his trial.”
Unequivocally, knowledge by prison or jail officials of a
gun’s being in the hands of an inmate creates an emergency
with which they must cope immediately. The situation
13. The record is unclear as to Clauss’ status except that he worked for
Marshall Stewart. He was described as an investigator and as an associate.
49a
126 WHITFIELD © STATE
Ohinion of the Court 142 Mad App
demands prompt and drastic action. The gun's presence in the
penal institution is a “bell ringer” that an escape attempt is
imminent, with the strong possibility that one or more
homicides may occur. It behooves the officials to move with
alacrity to locate the weapon and confiscate it in order to
protect their own lives, the lives of the prison populace,
visitors who might be in the institution at the time, and the
public generally.
Without question, an inmate’s possession of a gun is a
breach of prison discipline. In that connection, this Court,
speaking through then Chief Judge Murphy, stated in Hunt
v. State, 2 Md. App. 443, 447, 234 A. 2d 785, 787-88 (1967):
- “Inmates must of necessity surrender some of their
constitutional rights so that proper prison
administration and discipline may prevail. In Stewart
v. State, 1 Md. App. 309, 316, [229 A. 2d 727, 731
(1967)], and Smith v. State, 1 Md. App. 297, 301, [229
A. 2d 723, 725 (1967)], we held that searches of
inmates by prison authorities were reasonably
necessary in the fulfillment of the custodian’s
administrative duties. Similarly, interrogation by
prison officials with relation to the maintenance
of internal security and discipline and to the rules
and regulations of the prison, where the thrust and
purpose of the interrogation does not relate to a
prosecution for any crime, does not fall within the
ambit of the Miranda decision.” (Footnote omitted.)
Appellants rely on Mathis v. U. S., 391 U.S. 1, 88S. Ct. 1503,
20 L.Ed.2d 381 (1968), and its siblings. See, eg, U. S. v.
Redfield, 402 F. 2d 454 (4th Cir. 1968); State v. Harris, 576
P. 2d 257 (Mont. 1978); State v. Davis, 67 N. J. 222, 337 A. 2d
33 (1974). In Mathis, the defendant was interrogated by a tax
investigator while Mathis was serving a prison senence for
an unrelated offense. Statements made by Mathis, without
benefit of Miranda warnings, were subsequently admitted
against him in a criminal prosecution for filing false tax
refund claims. The Supreme Court held that even though the
interrogation was not conducted in furtherance of criminal
proceedings, such investigations frequently lead to criminal
50a
WHITFIELD «. STATE 127
107] Opinion of the Court
charges and that possibility, itself, was sufficient to warrant
that Miranda warnings be given. Cf, State v. Davis, supra,
(interrogation by a parole officer). The United States Court
of Appeals for the Fourth Circuit reversed a conviction of a
prison inmate on marijuana charges because statements used
by the prosecution at trial against the defendant were elicited
from the defendant by a warden at a disciplinary hearing
without the Miranda warnings having been given. The Court
held that Mathis precluded the use of statements obtained by
prison officials without Miranda warnings even where the
intent is nonprosecutorial at the time of questioning. United
States v. Redfield, supra.
The Mathis reasoning has been followed in other cases.
Baxter v. Palmigiano, 425 U.S. 308, 96S. Ct. 1551, 47 L.Fd.2d
$10 (1976); Sands v. Wainwright, 357 F. Supp. 1062, 1093, n.
76 (M.D. Fla. 1973), vacated on other grounds, 491 F. 2d 417
(5th Cir. 1973); State v. Harris, supra. See generally Biddy v.
State, 127 Ga. App. 212, 193 S.E.2d 31 (1972); Annot., 31
A.L.R.3d 565, 666 (1970). The State, however, argues that
such cases are “all factually inapposite in that they involve
either post-emergency disciplinary hearings or investigations
which do not deal with possible imminent breaches of prison
security.”
Hunt v. State, supra, upon which the State relies, is the sole
Maryland case to ever address the issue, although a number
of other jurisdictions have had the occasion to speak on the
subject. People v. Sanchez, 65 Cal. 2d 814, 423 P. 2d 800 (1967)
(statements admissible due to apprehension of safety for
prison by guard); State v. Archible, 25 N. C. App. 95, 212
S.E.2d 44 (1975) (interrogation of prison guard held
non-custodial); State v. Abbott, 21 Utah 2d 307, 445 P. 2d 142
(1968) (interrogation immediately after stabbing to find
owner of knife); State v. Persinger, 72 Wash. 2d 561, 433 P.
2d 867 (1967), cert. denied, 393 U. S. 864 (1968) (statement
taken during course of escape); State v. LaRue, 19 Wash. App.
841, 578P.2d 66 (1978)(on-thescene investigation for
weapon).
We agree with the State that the above-cited cases more
aptly apply to the circumstances surrounding the
incriminating statements made by Whitfield, than do those
5la
12x WHITFIELD «. STATE .
Opinion of the Court 142 Md. App.
which journey to an opposite end. The questioning of
Whitfield was not an interrogation, looking toward
prosecution, but an on-the-scene investigation for a deadly
weapon which presented a threat to the security of the jail.
State v. LaRue, supra. Moreover, a fair reading of the record
discloses that the correctional officers were preoccupied more
so with the recovery of the gun, whether there were other
guns inside the jail, and the details of the escape attempt, than
with the apprehension and punishment of Whitfield.
* Appellants aver that Mathis, decided after Hunt, “severely
eroded” Hunt's dicta as “precedental value.” We disagree.
Mathis and its progeny were concerned with totally different
circumstances, a factual dissimilarity which distinguishes the
Mathis-Redfield rationale from the case sub judice. The
value of the dicta in Hunt as a guiding light for cases of this
genre has not been extinguished, nor has its illumination been
dimmed.
We hold that where, as here, correctional officers of a
penal institution are informed of the existence of a weapon
cached within the institution’s confines and, consequently,
presenting the possibility of an imminent breach of security
or a volatile situation, a questioning of a person reasonably
likely to have knowledge of the weapon’s whereabouts so as
to aid the officials in removing the weapon from the
institution, or which questioning is designed to secure the
safety of the prison population, is permissible. Incriminating
statements made by any party involved in the immediate
scope of the investigation may, within the sound discretion
of the trial judge, be admitted in evidence even though the
declarant was not afforded proper Miranda warnings before
questioning.
We are not to be understood as sanctioning a carte blanc,
sans Miranda interrogation by correctional officials of prison
inmates. Prisoners do not surrender all of their constitutional
rights when they enter a penal institution. Miranda is
normally applicable to them as well as to the general
populace. Only the most unusual explosive circumstances will
excuse Miranda compliance.
Judge Allen thoughtfully summed up the situation that
52a
WHITFIELD v. STATE
107] Opinion of the Court.
‘{A] prison is a different type of facility than
anything [else] we have in this country. . . . [There]
different rules are followed, different regulations
for control, different anxieties arise and reactions to
those are different. . . .[WJhereas it might have been
wise in the courthouse, for instance, to rush in with
a squad of policemen to find . . . [the] gun that had
gotten into the courthouse, I find the actions of the
officers at the Baltimore City Jail wise and
commendable in the course that they took, ... as
quietly as possible, without exciting the other
prisoners, or without letting it be known what was
going on, to secure the dangerous situation [in
which] they found themselves....... [T]hey went
about it by quietly talking to Mr. Whitfield, letting
him know they knew he had a gun or that he had
access to a gun, directed him to go get it rather than
charge through the halls with him to get it,
recovering the gun and then questioning Mr.
Whitfield with reference to — of the details of the
alleged prison break or the planned prison break. . . .
I think it would be stretching it a great deal if we
required prison officials acting in a very dire
emergency to accord to prisoners under their care
the right guaranteed by the Miranda case.”’
We agree.
129
confronted Major Parks, Captain Young and Lieutenant
Britton when he said:
Judgments affirmed; costs to be paid
by appellants.
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