Porter v. State , 47 Md. App. 96 ( 1980 )

Fisher, J.,

delivered the opinion of the Court. Moylan, J., filed a concurring opinion at page 105 infra.

John Robert Culb was shot and killed in the late evening hours of November 1,1978, during the course of a robbery of the Myersville Gulf station in Myersville, Maryland, where he was employed. Appellant, James Thomas Porter, was convicted of the first degree felony murder of Mr. Culb, robbery with a deadly weapon and two counts of the use of a handgun in the commission of a felony. He was sentenced to life imprisonment, and fifty years, to be served consecutively.

On appeal, Mr. Porter’s major contention involves the application of M.D.R. 723 a, which requires that an arrested person be presented "without unnecessary delay” before a judicial officer.¹

Relying on the authority of Johnson v. State, 282 Md. 314, 384 A.2d 709 (1978), appellant contends that statements obtained in interrogations by the police after his arrest and during a period of detention should have been suppressed as being the product of an unnecessary delay in presenting him before a District Court commissioner. However, at the conclusion of the hearing on the Motion to Suppress, Judge Childs found, in his denial of the motion, that ". . . the Johnson Doctrine is strictly for cases which approach the outer limits of twenty-four hours and . . . that, under the circumstances of this case wherein it was a Court holiday and the Court was not in session ... that Rule 723 a was not violated and the statements will not be excluded ...”

The trail that led to Mr. Porter’s arrest and his conviction, although circuitous, can be briefly set forth. On November 4, 1978, appellant made a telephone call to the Culb home, identifying himself and informing Mrs. Culb, the widow of the victim, and her brother-in-law, that he was in possession of Mr. Culb’s wallet. He was told to contact the Maryland State Police. Mrs. Culb’s brother-in-law did inform the Maryland State Police, but it appears Mr. Porter did not. Instead Mr. Porter contacted Montgomery County Police Officer Plant, for whom Mr. Porter had served as a police informant. Mr. Porter met with Officer Plant on November 6,1978, at which time he gave Officer Plant the wallet and an "explanation” of how it came to be in his possession. Plant met with Porter again the next day, and, unknown to Porter, had photographs taken of him. On November 9, 1978, one or more of those photographs was included in a photographic array presented to Mr. Aaron Hane, an attendant at the Myersville Exxon station. Hane identified Mr. Porter, from the array, as the person who had visited his station and bought a quart of oil from him in the late evening hours of November 1st, and who Hane observed walking toward the Myersville Gulf station after leaving his Exxon station. Later that day, the State Police presented this accumulated evidence to District Court Commissioner Barber, and obtained from him warrants to arrest Mr. Porter and search his home and automobile.

Porter was arrested at approximately 8:00 a.m. the next morning, November 10, 1978, at his home in Silver Spring by a team of officers, both uniformed and plain-clothed. He was handcuffed, informed of the charges against him,² and removed to a waiting police cruiser. Both a Waiver of Prompt Presentment form and a Constitutional Rights form (.Miranda warnings) ³ were read to him. Neither form was signed because of the handcuffs. Except for a brief stop to adjust Mr. Porter’s handcuffs, he was driven directly to the Frederick State Police Barracks, arriving there at approximately 9:00 a.m. Mr. Porter was placed in a holding cell. He was neither processed nor presented to a commissioner, notwithstanding the fact that Commissioner Barber, who was also advised that the warrants would be executed on November 10th, called the Frederick Barracks shortly after Mr. Porter’s arrival inquiring if anyone needed to be presented. Trooper Herring advised that Porter was in custody. Commissioner Barber informed the officer he would be available at his home for the next 30 to 45 minutes. When a subsequent call was made to Commissioner Barber’s home, approximately 45 to 60 minutes later, he had already gone. No other attempt was made to contact a commissioner, although the record discloses that three or four were available in the Frederick area.

At approximately 10:15 a.m., Mr. Porter had his first interrogation session with the officers. He signed a Waiver of Rights form, but he refused to sign a Waiver of Prompt Presentment form.⁴ The interrogation lasted until approximately noon. The substance of Mr. Porter’s first statement concerned how he received the wallet, his phone calls to the Culb home and to Officer Plant.

Officer Plant conducted the second interrogation, which began at approximately 2:00 p.m., after a waiver of Miranda rights form was read to and signed by Mr. Porter. This session lasted approximately one hour. Although Mr. Porter continued to deny direct involvement with the murder and robbery of Mr. Culb, he gave Officer Plant a different version of how he obtained the wallet and admitted being in the Myersville area at the time of the incident. He also told Officer Plant that the gun, the subject of a previously unsuccessful search, was located in his basement bedroom.

At approximately 3:30 p.m. it was determined that a commissioner would soon be available at the Frederick District Courthouse. Mr. Porter had his initial appearance at approximately 4:30' p.m. Following his appearance before the commissioner, Mr. Porter was transported back to the barracks. At approximately 6:00 p.m., after hie signed a waiver of Miranda rights form, he gave a third statement which was video-taped. This session lasted approximately one hour.

Appellant argues that the three statements, two before and one following his initial appearance, should have been suppressed, the first two because of a violation of M.D.R. 723 a, the third because it was tainted by the primary illegal detention.

In Johnson v. State, supra, the Court of Appeals made crystal clear that the requirements of M.D.R. 723 a were mandatory, embodying a "sine qua non in any scheme of civil liberties”, supra, at 321, and that "any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer, thereby violating M.D.R. 723 a, is subject to exclusion when offered into evidence against the defendant as part of the prosecution’s case-in-chief.” Supra, at 328-29. If the delay exceeds the outer limits prescribed by the Rule (at the time, 24 hours or the first session of court), the statement is "automatically excludible. . . irrespective of the reason for the delay.” Id. Where, as here, the delay is within those outer limits, "it is incumbent upon the trial court to determine whether the State has met its burden of showing that the delay was necessary under the circumstances of the particular case.” Id.

We are concerned here with one narrow issue: Did the State sustain its burden of proving that the eight and one-half hour delay in this case was a necessary one? If it did not, the statements were inadmissible.

In this regard, and as a preliminary comment, it is evident that the court erred in its conclusion that "the Johnson Doctrine is strictly for cases which approach the outer limits of twenty-four hours. . . That is not at all what the Court of Appeals said, or implied, or intended.

Not every delay, of course, will suffice to render intervening statements inadmissible, only those that are "unnecessary.” In Johnson, the Court gave as examples of "necessary” delay those required:

. . . 1) to carry out reasonable routine administrative procedures such as recording, fingerprinting and photographing; 2) to determine whether a charging document should be issued accusing the arrestee of a crime; 3) to verify the commission of the crimes specified in the charging document; 4) to obtain information likely to be a significant aid in adverting harm to persons or loss to property of substantial value; 5) to obtain relevant nontestimonial information likely to be significant in discovering the identity or location of other persons who may have been associated with the arrestee in the commission of the offense for which he was apprehended, or in preventing the loss, alteration or destruction of evidence relating to such crime. Supra, at 329.

It would be specious to suggest that the delay in this case was for any of those reasons, or for a reason similar to them. Porter was not "processed” or held pending the imminent reception of other material evidence. Knowing that November 10 was a holiday, and that Commissioner Barber would only be available until about 10:00 a.m., the police held Porter in his cell seemingly to circumvent the Rule and create an opportunity to interrogate the prisoner in clear derogation of its requirements.

The trooper testified as follows:

Q. Now, prior to your discussion with him at 10:15, what if any effort did you make when you arrived at the Frederick Barracks to take Mr. Porter before a commissioner for a hearing?

A. This particular date was a Court Holiday, 10th of Novembér, and I knew that a Commissioner should be at the Courthouse at approximately 9:00 a.m. I asked TFC Herring to make a phone call and to locate a commissioner. He later reported to me he was unable to contact the Commissioner, later being in approximately 15 or 20 minutes. . .

Q. You testified that you received a call from Commissioner Barber that morning?

A. Yes sir.

Q. Was Commissioner Barber returning a call of yours or was he just calling the MD. State Police Barracks?

A. He was just calling the Barracks.

Q. Does he normally do that as a routine matter?

A. Yes, all of them do that as a routine matter, and the purpose for that is to find out if you have anybody there that needs to be presented to a Commissioner.

Q. And did you tell Commissioner Barber that you did in fact have Mr. Porter in custody?

A. Y es (It should be noted here that Commissioner Barber signed the arrest and search warrants and was fully apprised that the warrants would probably be executed on November 10th) . . .

Q. When you arrested Mr. Porter on November 10th at 8:00 . . . was it your intention then to interrogate him about the crime?

A. My normal procedure after I arrest somebody is to talk to them, yes sir. . .

Q. How long has the Maryland State Police used the waiver of prompt presentment form?

A. It hadn’t been too awfully long, probably within 2 months of that time that the form came into being.

Q. Were there any instructions given to the Maryland State Police Officers as to when this form is to be used and under what circumstances?

A. Yes sir.

Q. Could you tell me briefly what that instruction is?

A. Basically when the subject is placed under arrest, he’s in custody it should be read to the subject prior to any questioning if you don’t take him to the Commissioner immediately.

Q. Well, aren’t you supposed to take him to the Commissioner immediately?

A. I don’t really understand what you’re asking .. .

Q. Why was it that Mr. Porter was not processed immediately when you returned him to the Frederick Barrack?

A. I saw no need to process him right at that time.

Q. You mean you didn’t photograph or fingerprint him or in any way get ready to have him presented to the commissioner or to have bond set, did you?

A. I don’t have to in a situation such as this. I knew that he would not be getting out on bond and I was in no particular rush as far as preparing him . . .

We view the above as flagrant disregard for the rights of an accused while under the coercive conditions of custodial interrogation. It is the clearest example of the very type of police misconduct intended to be deterred by M.D.R. 723. That November 10 was a holiday, under the circumstances of this case, is an absolute irrelevancy. A commissioner was available, and there was no justification whatsoever for not presenting appellant before him.

Accordingly, we find that any statements by the defendant in the instant case prior to the presentment should have been ruled inadmissible against him as part of the prosecution’s case-in-chief.

To determine whether statements made after presentment were admissible, the Court must make an independent evaluation of all the circumstances surrounding the statement including, but not limited to, the time, place and manner of its taking, intervening events, its content compared to prior statements given, and any other factors that will lead to a determination of whether the post-presentment statement was a product of free will and deliberate reflection and therefore free from the taint of the preceding illegal detention. Johnson, supra, at 330, Meyer v. State, 43 Md. App. 427, 438 (1979). The burden for this proof rests on the State. Kennedy v. State, 44 Md. App. 662, 665-67 (1980).

There really can be little doubt as to the taint in this case. After giving two severely incriminating statements concerning his possession of the victim’s wallet and the location in his home of the murder weapon, the third statement, taken three hours later can hardly be considered as free from the taint of the illegal detention that preceded it. It was inadmissible.

For the guidance of the trial court upon remand, we shall also address, and note our agreement with, appellant’s contention that the gun, located in appellant’s home as the result of his unlawfully obtained statements, was also inadmissible. It is not necessary to consider appellant’s final complaint, which has to do with the sentence he received.

Judgments reversed; case remanded for new trial.

Costs to be paid by Anne Arundel County.

1 . The full text of M.D.R. 723 a states:

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

Effective July 1, 1979 M.D.R. 723 a has been amended to read:

A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than 24 hours after arrest. A charging document shall be filed promptly after arrest if not already filed.

All references to M.D.R. 723 a in this opinion are to the former version of the rule.

2 . There were several conflicts between the police officers and the appellant in the testimony presented at the pretrial suppression hearing. Mr. Porter testified that he was not informed of the charges against him until he reached the Frederick Barracks; that he was offered a deal for his cooperation; that his statement was videotaped before he was presented before a commissioner; and that he believed this to be a "sham” arrest similar to one he participated in as a police informant with Officer Plant. The court obviously did not credit that testimony.

3 . Miranda v. Arizona, 384 U.S. 436 (1966).

4 . This form had been in use since approximately two months after it came into being, with instructions to the police to read it to detainees in the same manner as the Miranda warnings.