Key-El v. State

709 A.2d 1305, 349 Md. 811, 1998 Md. LEXIS 402

• Court: Court of Appeals of Maryland
• Decided: May 26, 1998
• Docket: 5, Sept. Term, 1997
• Status: Published

Opinions

ROBERT L. KARWACKI, Judge (retired),

Specially-Assigned.

We issued a writ of certiorari in this criminal case to determine whether the trial court properly admitted rebuttal evidence regarding the defendant’s pre-arrest silence when his wife, in the presence of a police officer, accused the defendant of battering her. We shall hold that the court did not abuse its discretion in admitting that evidence as a tacit admission by the defendant under the circumstances present in the instant case.

I.

On August 19, 1994, at approximately 10 p.m. a telephone call was placed to the emergency telephone number, 911, but the caller hung up before speaking with the operator. Nevertheless, the operator was able to determine from her terminal the name of the subscriber to the telephone used for the call and that telephone’s number. The operator then called that number. A woman answered and the operator heard a man’s voice yelling in the background. Concerned by what she heard, the operator dispatched both the police and an ambulance to the address where the woman to whom she had spoken was located.

Officer John Johnson of the Baltimore County Police Department was the first to arrive. Philip Key-El, the Petitioner, answered Officer Johnson’s knock on his door. The officer “asked if anybody had called 911 from this location [and] if there was a problem.” Petitioner answered “no”, but a woman in the next room, later identified as Petitioner’s wife, answered “yes”. The officer walked into the room where Mrs. Key-El was standing. She was crying and her left eye was bruised and swollen. With the Petitioner standing an “arm’s length away”, Officer Johnson asked Mrs. Key-El what had happened to her, and she responded that she had gotten into an argument with her husband and that he pulled her by her hair and punched her in the face. Despite the fact that she spoke with enough volume for the Petitioner to hear her statement, “he didn’t say anything at all” according to Officer Johnson. Subsequently, Officer Johnson decided to arrest the Petitioner.

At trial, however, Mrs. Key-El changed her story. Testifying for the defense, she denied that Petitioner had struck her but blamed her injury of August 19, 1994, on a girlfriend of her husband’s. Mrs. Key-El testified that when she returned to their apartment that evening, she found her husband with a girlfriend. She claimed that she and the unidentified girlfriend argued and then exchanged blows. She further stated that after the Petitioner was successful in getting his friend out of the apartment, she continued to argue with him. According to Mrs. Key-El, when Petitioner refused to identify his girlfriend and explain what she was doing in their apartment, she called the police and accused Petitioner of battering her. She further testified that she falsely accused her husband that night in order to hurt Petitioner “the way that he hurt me.”

On cross examination, Mrs. Key-El admitted that after August 19, 1994, she had received a letter from the Office of the State’s Attorney requesting that she complete a victim impact statement. When Petitioner saw the letter, he became angry and threw it away. She testified that later, however, she wrote a letter to the person who had corresponded with her from the State’s Attorney’s office in which she repeated her accusation that Petitioner struck her in the eye with his fist on August 19,1994.

The State recalled Officer Johnson as a rebuttal witness. The following testimony was offered and admitted:

“Q. When you asked Mrs. Key-El what happened to her and she told you that her husband struck her where was the defendant standing then?

A. When she said that he struck her?

Q. Yes.

A. She was standing in the kitchen.

Q. She was in the kitchen; where was he?

A. He was standing behind me in the dining room.

Q. Again approximately how many feet away from you?

A. From me? Maybe three or four.

Q. Did you have any difficulty hearing what she said?

A. No.

Q. Was it said with enough volume that a person in the position of the defendant would have been able to hear that statement?

A. Yes.

MR. KATZ: Objection.

THE COURT: Overruled.

A. Yes.

Q. When she said my husband hit me did the defendant deny that statement?

MR. KATZ: Objection. May we approach?

THE COURT: Anything new than what we already argued?

MR. KATZ: No, Your Honor.

THE COURT: Objection is overruled but noted for the record.

A. He didn’t say anything at all.”

The Petitioner was found guilty by a jury in the Circuit Court for Baltimore County of battery and was sentenced to five years imprisonment consecutive to a sentence which he was already serving for an unrelated crime. After the Court of Special Appeals affirmed that judgment, we issued our writ of certiorari on the petition of Mr. Key-El.

Petitioner contends that evidence of his pre-arrest silence in the presence of a police officer should be per se inadmissable under the law of evidence of this State; and if not, then this evidence when admitted on the issue of guilt or innocence impermissibly infringes upon his right against compelled self-incrimination protected by the Fifth Amendment to the U.S.

Constitution and Article 22 of our Declaration of Rights. We shall address those contentions separately.

II.

Maryland has long recognized so called “tacit admissions” by a party-opponent in both civil and criminal actions as an exception to the hearsay rule under common law. See Henry v. State, 324 Md. 204, 242, 596 A.2d 1024 (1991); Briggeman v. Albert, 322 Md. 133, 138, 586 A.2d 15 (1991); Miller v. State, 231 Md. 215, 218, 189 A.2d 635 (1963); Ewell v. State, 228 Md. 615, 618, 180 A.2d 857 (1962); Secor v. Brown, 221 Md. 119, 124, 156 A.2d 225 (1959); Zink v. Zink, 215 Md. 197, 202-03, 137 A.2d 139 (1957); Barber v. State, 191 Md. 555, 564-65, 62 A.2d 616 (1948); Kelly v. State, 151 Md. 87, 97, 133 A. 899 (1926); Brandon v. Molesworth, 104 Md.App. 167, 198, 655 A.2d 1292 (1995); Burgess v. State, 89 Md.App. 522, 536-37, 598 A.2d 830 (1991); Wills v. State, 82 Md.App. 669, 677, 573 A.2d 80 (1990); Duncan v. State, 64 Md.App. 45, 51, 494 A.2d 235 (1985); Ellison v. State, 56 Md.App. 567, 582, 468 A.2d 413 (1983); Williams v. State, 4 Md.App. 342, 348, 242 A.2d 813 (1968). Barnes v. State, 1 Md.App. 123, 125, 227 A.2d 763 (1967). This common law was codified as Maryland Rule 5-803(a)(2) which took effect on July 1, 1994. In our order adopting the. rules of evidence as Title 5 of the Maryland Rules, we provided:

“the Rules in Title 5 and the other rules changes hereby adopted by this Court shall govern the courts of this State and all parties and their attorneys in . all actions and proceedings therein, except as otherwise provided in such Rules; they shall take effect July 1, 1994 and shall apply in all trials and hearings commenced on or after that date; provided, however, that (1) any trial or hearing commenced prior to July 1, 1994 shall continue to be governed by the law and Rules in effect on June 30,1994, and (2) no evidence shall be admitted against a defendant in a criminal action in proof of á crime committed prior to July 1, 1994, unless that evidence would have been admissible under the law and Rules in effect on June 30, 1994.... ” See Graves v. State, 834 Md. 30, 36-7 n. 2, 637 A.2d 1197, 1201 n. 2 (1994).¹

We have observed that “[a] tacit admission occurs when one remains silent in the face of accusations that, if untrue, would naturally rouse the accused to speak in his or her defense.” Henry v. State, 324 Md. at 241, 596 A.2d at 1043. We also explained in Henry:

“In order for the other’s statement to be considered the party’s tacit admission, the following prerequisite must be satisfied: (1) the party heard and understood the other person’s statement; (2) at the time, the party had an opportunity to respond; (3) under the circumstances, a reasonable person in the party’s position, who disagreed with the statement, would have voiced that disagreement. The party must have had first-hand knowledge of the matter addressed in the statement.”

Id. at 241-42, 596 A.2d 1024 (quoting Lynn McLain, Maryland Evidence, see 801(4).3 at 312-13 (1987)).

Petitioner does not assert that he did not hear or understand his wife’s accusation that he pulled her hair and struck her or that he did not have the opportunity to respond. Rather, he contends that whenever a police officer is present, pre-arrest silence of a person who is the subject of an incriminating statement is at best ambiguous because of the wide spread knowledge of the Fifth Amendment right to remain silent. Alternatively, he asserts that even if we should hold that no per se rule be adopted, we should conclude that under the circumstances of the instant case the trial judge erred in admitting the evidence because his silence was too ambiguous such that its slight probative value was clearly outweighed by possible prejudice to him.

When considering the limits placed upon the use of a defendant’s silence as evidence, the Supreme Court of the United States, this Court and the Court of Special Appeals have distinguished between pre-arrest and post-arrest silence. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (The Court held that the use of pre-arrest silence of the defendant to impeach his testimony at trial did not improperly burden his Fifth Amendment right to remain silent nor deny him the fundamental fairness guaranteed by the due process clause of the Fourteenth Amendment); Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976) (Federal due process guarantees violated by using defendant’s silence for impeachment purposes where defendant had been arrested and advised of his right to remain silent); Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965) (Comment by prosecution on defendant’s election not to testify at trial and instruction that such election is evidence, of guilt violated Fifth Amendment); Williams v. State, 4 Md.App. 342, 242 A.2d 813 (1968) (Pre-arrest silence admitted as evidence of a tacit admission when defendant remained silent in the face of an accusation by a third party in the presence of a police officer); Younie v. State, 272 Md. 233, 244-45, 322 A.2d 211 (1974) (Where there is custodial interrogation, silence in face of accusations is presumed to be exercise of privilege against compelled self incrimination); Zemo v. State, 101 Md.App. 303, 316, 646 A.2d 1050 (1994) (Error to advise jury that defendant remained silent after he was advised of his right to remain silent pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Wills v. State, 82 Md.App. 669, 677, 573 A.2d 80 (1990) (Improper to admit evidence of defendant’s post-arrest, preMiranda advice silence for impeachment purposes because potential for prejudice outweighs probative value)).

The uncontradicted evidence in the instant case shows that at the time of Petitioner’s silence from which his tacit admission was inferred, he had every opportunity to respond to his wife’s accusation, he was not in custody, he was not being interrogated by Officer Johnson, he had not been arrested and he had not been told of his Miranda right to remain silent. This is a text-book example of the wisdom of judging the effect of pre-arrest silence on a case by case basis. As a threshold question for the trial court, the admissibility of such silence should depend on an evaluation of the required prerequisites for the use of the tacit admission that have been established over the years by this Court, ie., did the defendant hear and understand the other party’s statement, did the defendant have the opportunity to respond; and under the circumstances would a reasonable person in the defendant’s position, who disagreed with the statement, have voiced that disagreement. These same factors would then be evaluated by the jury and the tacit admission given the weight that the jury believes it to be worth. Where such an evaluation by the court discloses that the police officer’s presence together with the other circumstances demonstrate that a reasonable person in the defendant’s position would not be expected to deny or explain the accusation, then the defendant’s silence would be excluded from evidence.

The Court of Special Appeals has approved the admission of a tacit admission of a defendant where his pre-arrest silence in the face of an accusation by a third party occurred in the presence of a police officer. Williams v. State, 4 Md.App, 342, 242 A.2d 813 (1968). In that case the defendant and another were standing on a public sidewalk showing garments which they carried in shopping bags to a woman. A police officer approached them and asked what was going on. The woman said that she was going to buy one of the garments from the defendant. The defendant remained silent. When the defendant admitted that he had no peddler’s license, he was arrested. At his trial, defendant asserted that he did not have to say anything when the woman made the statement accusing him of selling goods on the street. Emphasizing that the defendant was not in custody, the court held that his silence as a tacit admission that he was engaged in selling goods was substantive evidence of his guilt of peddling without a license.

The appellate courts of our sister states have not agreed on the issue of whether pre-arrest silence in response to an accusation can ever give rise to a tacit admission by the accused where a police officer is present. In State v. Helgeson, 303 N.W.2d 342 (N.D., 1981) and Commonwealth v. Ferrara, 31 Mass.App.Ct. 648, 582 N.E.2d 961 (1991) the courts upheld the admission of such evidence. In People v. DeGeorge, 73 N.Y.2d 614, 543 N.Y.S.2d 11, 541 N.E.2d 11 (1989), and Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967) the use of the accused’s tacit admission was held to be reversible error. The rule in Michigan is not clear. Cf. People v. Cetlinski, 435 Mich. 742, 460 N.W.2d 534 (1990); People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973), and People v. Schollaert, 194 Mich.App. 158, 486 N.W.2d 312 (1992).

Furthermore, we reject Petitioner’s alternative argument under Maryland evidence law that we should hold that the trial court abused its discretion in admitting the evidence as a tacit admission. We noted earlier that of all of the threshold factors the court was required to consider in determining admissibility, the only factor contested was whether the Petitioner would have been expected to deny his wife’s accusation made in the presence of a police officer. Considering the fact that Petitioner was in Ms own home at the time that his wife made what she later testified was a false accusation of battery against him, the accusation could very well be construed as that kind of statement which naturally should have provoked an immediate denial from the Petitioner. The fact that Petitioner remained silent was possibly highly probative in the eyes of the jury when reaching a conclusion as to whether or not the story that Pamela Key-El told at trial was credible. The trial court did not abuse its discretion in allowing the jury to determine the weight to be accorded the tacit admission.

III.

Finally, the Petitioner contends that the use of his prearrest silence as a tacit admission impermissibly burdens his right against compelled self-incrimination protected by the Fifth Amendment.² The Supreme Court of the United States has never decided the question presented to us in the instant case, but the Court has considered evidence of an accused’s silence in other situations which provides assistance in the resolution of the issue.

In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) the Court held that the Fifth Amendment forbids either comment by the prosecutor on the accused’s failure to testify at his trial or instructions by the court that such silence is evidence of guilt. Nevertheless, in United States v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988), the Court declined to extend its holding in Griffin to prevent a prosecutor from referring to the defendant’s silence at trial where defense counsel argued in his closing argument that the defendant had not been allowed by the Government to give his side of the story. The Court explained in Robinson:

“The broad dicta in Griffin to the effect that the Fifth Amendment ‘forbids ... comment by the prosecution on the accused’s silence,’ ... must be taken in the light of the facts of that case. It is one thing to hold, as we did in Griffin, that the prosecutor may not treat a defendant’s exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would prohibit the prosecutor from fairly responding to an argument of the defendant by adverting to that silence. There may be some ‘cost’ to the defendant in having remained silent in each situation, but we decline to expand Griffin to preclude a fair response by the prosecutor in situations such as the present one.”

Id. 485 U.S. at 33-4, 108 S.Ct. at 869-70, 99 L.Ed.2d. at 32.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court considered whether the prosecution could permissibly use the defendant’s silence after he had received his Miranda warnings at the time of his arrest in cross examination of the defendant about his exculpatory story, told for the first time at trial. The Court held that such use of post-arrest and Miranda warnings silence was fundamentally unfair and prohibited by the Due Process Clause of the Fourteenth Amendment. The Court reasoned:

“The warnings mandated by that [Miranda ] case, as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444 [94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d 182] (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale [422 U.S. 171], 177 [95 S.Ct. 2133, 2137, 45 L.Ed.2d 99 (1975)]. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who received the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” (Footnote omitted).

Nevertheless, in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) the Court held that the use of pre-arrest silence of the defendant to impeach his testimony at trial did not improperly burden his Fifth Amendment right to remain silent nor deny him the fundamental fairness guaranteed by the due process clause of the Fourteenth Amendment. Concluding that there was no Fifth Amendment violation the Court reasoned:

“It can be argued that a person facing arrest will not remain silent if his failure to speak later can be used to impeach him. But the Constitution does not forbid ‘every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.’ ” ... The “ ‘threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.’ ”

447 U.S. at 236, 100 S.Ct. at 2128, 65 L.Ed.2d at 93. And in explaining why it held that there was no breach of Fourteenth Amendment due process, the Court said:

“In this case, no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case. We hold that impeachment by use of prearrest silence does not violate the Fourteenth Amendment.”

Id. 447 U.S. at 240, 100 S.Ct. at 2130, 65 L.Ed.2d at 96.³ Also in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the Supreme Court ruled that a State court did not deny an accused due process in permitting cross-examination of him as to his post-arrest silence in the absence of Miranda warnings or similar assurances as to his right to remain silent.

The federal circuit courts have not agreed on the issue of permissible use of pre-arrest, pre-Miranda warnings silence as substantive evidence against the accused. It was not permitted in United States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir.1991), cert. denied, 503 U.S. 997, 112 S.Ct. 1702, 118 L.Ed.2d 411 (1992); Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st. Cir.), cert. denied, 493 U.S. 969, 110 S.Ct. 418, 107 L.Ed.2d 383 (1989); and United States ex rel. Savory v. Lane, 832 F.2d 1011, 1018 (7th Cir.1987). The Seventh Circuit has since limited its holding in Lane and permitted comment by the prosecutor upon an accused’s pre-arrest silence when the accused selectively responded to an investigator’s questions. The Eleventh Circuit, United States v. Rivera, 944 F.2d 1563, (11th Cir.1991) and the Fifth Circuit, United States v. Zanabria, 74 F.3d 590, 593 (5th Cir.1996) have permitted prosecutorial comment upon accused’s pre-arrest silence.

When silence of a defendant in response to an incriminatory accusation , is used by the prosecution as the basis for an inference of a tacit admission, the defendant can not validly assert that the privilege against compelled self-incrimination has been violated. As Justice Stevens wrote in his concurring opinion in Jenkins v. Anderson:

‘When a citizen is under no official compulsion whatever, whether to speak or to remain silent, I see no reason why his voluntary decision to do one or the other should raise any issue under the Fifth Amendment! ] For in determining whether the privilege is applicable, the question is whether petitioner was in a position to have his testimony compelled and then asserted his privilege, not simply whether he was silent. A different view ignores the clear words of the Fifth Amendment---- Consequently, I would simply hold that the admissibility of petitioner’s failure to come forward with the excuse of self-defense shortly. after the stabbing raised a routine evidentiary question that turns on the probative significance of that evidence and presented no issue under the Federal Constitution.”

447 U.S. at 243—44, 100 S.Ct. at 2132, 65 L.Ed.2d at 98. See also Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986) (“The sole concern of the Fifth Amendment on which Miranda was based, is government coercion”); Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394 [2397], 110 L.Ed.2d 243 (1990) (Rationale behind Miranda is that danger of coercion results from “interaction of custody and official interrogation”); United States v. Robinson, 485 U.S. at 31-32, 108 S.Ct. at 868, 99 L.Ed.2d at 31 (declining to give Griffin “broad reading” because that “would be quite inconsistent with the Fifth Amendment, which protects against compulsory self-incrimination”). Petitioner in the instant case was not in custody and was not being interrogated when he remained silent despite his wife’s accusation. Although a police officer was present, Petitioner was under no official compulsion to speak or remain silent. His silence gave rise to a permissible inference. The use of it in evidence did not burden his Fifth Amendment privilege.

JUDGMENT AFFIRMED WITH COSTS.

Dissenting opinion by RAKER, J., in which BELL, C.J., and ELDRIDGE, J., join.

1 . The petitioner was tried on February 6 and 7, 1995, for the offense giving rise to this case which occurred on August 19, 1994. Consequently, the admission of the evidence at issue in the instant case is governed by Md. Rule 5-803(a)(2).

2 . Article 22 of our Declaration of Rights also protects against compelled self-incrimination. It has generally been held to be in pari materia with the Fifth Amendment, Hof v. State, 337 Md. 581, 586 n. 3, 655 A.2d 370 (1995) and the Petitioner makes no argument that the issue in the case sub judice should be resolved any differently under Art. 22 of the Declaration of Rights.

3 . Petitioner in the present case only asserts that the usé of his pre-arrest pre-Miranda warnings silence as substantive evidence from which a tacit admission could be inferred impermissibly burdened his Fifth Amendment right against compelled self-incrimination. No fundamental unfairness resulting in a denial of due process under the Fourteenth Amendment is claimed.