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Gary Baynor v. State of Maryland, No. 145, September Term, 1998.

[Criminal Practice and Procedure - Evidence. Held: (1) Under Maryland Rule 4-263 (Discovery in circuit court) State was not required to furnish to defense the substance of the unrecorded portion of an oral interrogation by police consisting of exculpatory statements that the State did not intend to use. (2) Cross-examination of police officers on voluntariness of confession not so restricted as to abuse judicial discretion.]

Circuit Court for Baltimore City Case # 196299003-4

IN THE COURT OF APPEALS OF MARYLAND No. 145 September Term, 1998 _________________________________________

GARY BAYNOR

v.

STATE OF MARYLAND

_________________________________________ Bell, C.J. Eldridge Rodowsky Raker Wilner Cathell Karwacki, Robert L. (retired, specially assigned), JJ. _________________________________________ Opinion by Rodowsky, J. Bell, C.J., Eldridge and Raker, JJ., dissent. ________________________________________ Filed: August 31, 1999

The petitioner, Gary Baynor (Baynor), here seeks reversal of his conviction for murder and other offenses, contending that the State failed to furnish discoverable information concerning Baynor's confession and that the trial court abused its discretion in circumscribing, both at the suppression hearing and at Baynor's jury trial, the defense examination of the detectives who obtained the confession.1

Under Maryland non-constitutional law there is a two tiered approach to determining the voluntariness of a confession. "The trial court makes the threshold voluntariness determination, a mixed question of law and fact. Examining the totality of the circumstances, it assesses whether the confession was voluntarily made. If the trial court determines that the statement was not made voluntarily, it will declare it inadmissible. That completely resolves the issue; it never becomes one for the jury. If, on the other hand, the court finds the statement voluntary, it will admit it and its voluntariness then becomes an issue which the jury must ultimately resolve. "The jury's voluntariness determination also requires consideration of the totality of the circumstances surrounding the making of the statement. If it finds the statement to have been voluntarily made, it considers it along with the other evidence in the case in resolving the merits. If, however, it decides that the statement was not voluntary, it disregards the statement. "When the confession is challenged, both at the threshold, before the trial court, and, ultimately, before the jury, the burden is on the State to prove its voluntariness; it is the 'government [which] shoulders the responsibility of showing affirmatively that the inculpatory statement was freely and voluntarily made and thus was the product of neither a promise nor a threat.' Hillard [v. State, 286 Md. 145, 151, 406 A.2d. 415, 418-19 (1979)]. Maryland, like the majority of the states, holds that the State's threshold burden is to establish the voluntariness of the confession by a preponderance of the evidence. The State's ultimate burden, however, is to prove voluntariness to the jury, beyond a reasonable doubt." Hof v. State, 337 Md. 581, 605-06, 655 A.2d 370, 382 (1995) (citations omitted).

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On the evening of February 1, 1996, Dion Williams (Williams) and Marvin Nock (Nock) were shot while standing at the 3300 block of Edgewood Street in Baltimore City. Williams was struck four times and later died from a gunshot wound to his chest. Nock was struck three times, in his chest, hip, and foot, and survived. After Nock was discharged from the hospital, he assisted homicide detectives from the Baltimore City Police Department in preparing a composite of two shooting suspects. As a result of their investigation the homicide detectives ultimately were able to present Nock with an array of six photographs from which he identified Baynor as one of the shooters. On September 26, 1996, Baynor, then nineteen years old, was arrested on charges of death-eligible, first degree murder, attempted first degree murder, assault with intent to murder, and the use of a handgun in the commission of a crime of violence. He was interviewed about noon that day by Homicide Detectives Michael Glenn and Wayne Jones in a room in the Homicide Unit at the Police Headquarters. Baynor asked why he was brought to the Homicide Unit, and Detective Glenn told him that he was charged with murder. Baynor then asked what penalty could he receive for murder, and Detective Glenn responded that he could receive either life imprisonment or the death penalty.2

On examination by the defense at the suppression hearing, Detective Glenn gave two versions of this statement. The first statement was as follows: "Q. It's true there was a question posed to you by my client in a hypothetical fashion, isn't that correct? (continued...)

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At 12:41 p.m. Baynor was taken to be photographed. Between 12:48 and 12:58 p.m. the detectives obtained Baynor's identifying information. Following a brief recess,

Detectives Glenn and Jones advised Baynor of his Miranda rights from 1:10 to 1:28 p.m. With the aid of an explanation of rights form, the detectives advised Baynor that: (1) he had the absolute right to remain silent; (2) anything he said or wrote may be used against him in a court of law; (3) he had the right to talk to a lawyer at any time; (4) he had a right to have a lawyer appointed for him if he wanted one and could not afford to hire one; and (5) even if he agreed to answer questions he could stop at any time and request a lawyer and no further questions would be asked. At 1:28 p.m. Baynor completed the form and

acknowledged that he fully understood his rights and that he was freely and voluntarily willing to answer questions without having an attorney present. The interview began at 1:28 p.m. and concluded at 3:21 p.m. with an audio tape recorded statement that began at 3:12

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(...continued) "A. "Q. "A. Your client asked me what he can receive for this crime. And, what did you answer? He can be put to death summarily or life."

The second statement was as follows: "A. ... When your client was brought over to Baltimore City Police Department Homicide Unit he was -- he asked why he was brought over. I told him for a homicide. He was under arrest for a homicide. He asked me what he could receive for a homicide and I said under the State of Maryland he could receive life or the death penalty. That was it, sir."

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p.m.

In the recorded statement Baynor admitted shooting at Williams and Nock.

Specifically, Baynor stated that he and a friend had planned to rob Williams and Nock, but then either Williams or Nock pulled out a gun and began shooting.3 The transcription of Baynor's recorded statement is seven and one quarter letter size pages. The first two pages are a point by point reconfirmation by Baynor of his written waiver of rights. The inculpatory section of that transcript reads as follows: "GLENN: Okay. Mr. Baynor we're here in reference to the uh, homicide of Dion Williams which occurred on the first of February, 1996 at approximately 2158 hours. Can you tell me what happened ... ?

"BAYNOR: Well I got a hack on Edmondson Avenue and I went to go pick up a friend of mines and the hack had took us to uh, Edgewood and Liberty Heights. So we went up there to make a robbery to uh, get a friend of mine out of jail which his name is ... I can tell his name? "GLENN: Go ahead and say his name sir.

"BAYNOR: His name is uh, Billy Lowery and um, we went ... to go up there to uh, you know make a robbery to get him out of jail and when we get up there, we gets around the corner and a friend of mine pull a gun out and uh tells him, he say kicks it out. And the kid pulled out a gun and started shooting and we shoot back. So after that we ran. I ran one way he ran the other way. I gets on, I don't know the street but I gets on Garrison and he meets me on Garrison also and he calls his sister and his sister come get us and she drops me off on 13 South Carey Street and he goes about his business .... And after that we just left and when ... Billy get home I give him the gun back. And uh, that's when everything happens.

3

Insofar as the record discloses, Baynor's co-principal has never been identified.

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"JONES:

When you say everything happen, what happened to Billy after you gave him the gun back?

"BAYNOR: What happened to Billy? He gets locked up for the handgun. .... "JONES: Okay. And ... what type of weapon did you have?

"BAYNOR: A nine millimeter, sir. "JONES: What color was it, black or silver?

"BAYNOR: Black. "JONES: How many shots did you fire during the incident?

"BAYNOR: One or two shots. "JONES: How far away were you standing from the individual that you were ... attempting, you and this partner?

"BAYNOR: ... [A]cross the street. -- It's like a cross. He was on one side and I was on the other side. "JONES: In distance, approximately how far away?

"BAYNOR: It's about 50 feet. .... "GLENN: Do you know how many shots [your partner] fired?

"BAYNOR: Uh, it was a lot sir. "GLENN: Do you know how many shots the victim fired?

"BAYNOR: The victim shot ... he shot like once ... once or twice. ....

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"JONES:

Do you know what if anything was taken from the victim?

"BAYNOR: Some money sir. "JONES: Do you know how much?

"BAYNOR: No I don't sir. "JONES: .... "BAYNOR: About 20, 30, 40 dollars." Baynor was indicted, and the first appearance of his counsel was on December 11, 1996. That day, the State disclosed that Baynor had made a taped statement, and the tape and a transcript of it were made available to the defense. In January 1997, Baynor requested that the State, pursuant to Maryland Rule 4-263, furnish to him, inter alia, "any relevant material or information regarding the acquisition of statements made by the defendant," and the substance of each oral statement made by Baynor to a State agent that the State intended to use at hearing or trial. During a pretrial hearing held on September 24, 25, and 26, 1997, Baynor moved to suppress the nine-minute recorded statement. Baynor alleged that during the interrogation he initially denied involvement in the shooting. The defense position was that "the [inculpatory] statement is not voluntary, that there were promises or inducements or suggestions made by the police officer to compel [Baynor] to change his statement." Baynor also argued that the recorded statement must be suppressed because the defense was entitled Did you get any money?

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to a copy of his unrecorded exculpatory statements under Maryland Rule 4-263(b)(2)(B) and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In essence, Baynor argued that, without a report of the substance of the exculpatory oral statements, the hearing court and the trial jury could not properly assess the voluntariness of the recorded inculpatory statement. Detectives Glenn and Jones and the defendant were examined by the defense at the suppression hearing. The court denied the motion to suppress, finding that "the State has satisfied its burden of proof that the statements made by the Defendant were made completely voluntarily and that they were made with appropriate advice as to his right to speak or not to speak." The case was tried before a jury over four days in October 1997. On October 9, the jury returned its verdict against Baynor, finding him guilty of the second degree murder of Williams, the attempted second degree murder of Nock, two counts of the use of a handgun in the commission of a crime of violence, and two counts of unlawful possession of a handgun. On December 18, 1997, the circuit court sentenced Baynor to a total of one hundred years incarceration. Baynor appealed to the Court of Special Appeals which affirmed in an unreported opinion. We granted Baynor's petition for a writ of certiorari. The following questions are presented for review: "1. Whether a criminal defendant [A] is entitled to pre-trial disclosure of the entire circumstances of an interrogation, including exculpatory statements, and [B] is entitled, at a hearing on a motion to

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suppress a statement as involuntary, to adduce evidence of the same where the state seeks to introduce a statement that resulted from that interrogation. "2. Whether, at trial, a criminal defendant is entitled to place before the jury, as evidence relevant to voluntariness of a confession, a complete portrayal of the nature and circumstances of the interrogation, including evidence that a police officer told him at the beginning of the interrogation that he could be 'put summarily to death' for murder and that he gave several exculpatory statements before confessing." We shall address issue 1.A in Part I, infra, and issues 1.B and 2 in Part II, infra. I Baynor initially relies on Maryland Rule 4-263 in arguing that he was entitled to pretrial disclosure of "the entire circumstances" of his statement, including exculpatory statements. Rule 4-263 provides in relevant part: "(a) Disclosure without request. Without the necessity of a request, the State's Attorney shall furnish to the defendant: "(1) Any material or information tending to negate or mitigate the guilt or punishment of the defendant as to the offense charged; "(2) Any relevant material or information regarding: (A) specific searches and seizures, wire taps or eavesdropping, (B) the acquisition of statements made by the defendant to a State agent that the State intends to use at a hearing or trial, and (C) pretrial identification of the defendant by a witness for the State." (Emphasis added).

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Subsection (a)(2)(B) of this rule derives from former Rule 741 a 2(b), which was created in the 1977 revisions to the Criminal Causes title of the Maryland Rules.4 "[T]he purpose of Rule 741 a 2 is to force the defendant to file certain motions before trial, including a motion to suppress an unlawfully obtained statement." White v. State, 300 Md. 719, 734, 481 A.2d 201, 208 (1984), cert. denied, 470 U.S. 1062, 105 S. Ct. 1779, 84 L. Ed. 2d 837 (1985). Under this subsection "material or information dealing with the circumstances in which a statement was obtained from the accused by a State agent was to be automatically oproduced by the State, in order to trigger the running of the time for filing a motion to suppress, while the statement made to the State agent was produceable only on request by the accused." Id. at 736, 481 A.2d at 209. Accord Bailey v. State, 303 Md. 650, 655, 496 A.2d 665, 667 (1985) ("Our prior cases have explained that ... the automatic disclosure required by [Rule 741 a] is designed to force the accused to file any motions to suppress in advance of trial on the merits."). Thus, under Rule 4-263(a)(2)(B) the State must disclose to the defense the circumstances by which the State obtained a statement from the defendant, if the State intends to use it at trial. There are at least three limitations on the State's obligation under Rule 4-263(a)(2). "First, Md. R. [4-263(a)(2)] is concerned only with the subjects specified in parts [(A), (B), and (C)]. Second, Md. R. [4-263(g)] limits that which is discoverable under Md. R. [4-263(a)(2)] to 'material and information in the

Maryland Rule 741 a 2(b) provided: "Without the necessity of a request by the defendant, the State's Attorney shall furnish to the defendant ... [a]ny relevant material or information regarding ... the acquisition of statements made by the defendant ...." No similar provision existed in the Rules prior to 1977. See former Maryland Rule 728.

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possession or control of [the State's Attorney, of] members of his staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office.' Third, the information must be relevant. This is the same limitation which courts traditionally apply and which turns on the legal issues under the facts and circumstances of the case." Warrick v. State, 302 Md. 162, 170-71, 486 A.2d 189, 193 (1985). Additionally, the State's Attorney's disclosure under this rule "need only be a simple but fair statement of the relevant information." Id. at 171, 486 A.2d at 193. In this case the statement that the State intended to use at hearing or trial was the recorded inculpatory statement. Obviously the State did not intend to use the exculpatory statements initially given by Baynor, which the police did not believe, and the police had recorded only the inculpatory statement that the State did intend to use. The "relevant material or information regarding ... the acquisition" of that statement, within the meaning of Rule 4-263(a)(2)(B), was sufficiently reflected in the copy of the recorded statement furnished to Baynor. It disclosed when and where the statement was taken and the persons present when the statement was taken. It contained a recitation of Baynor's waiver of rights, including the right to counsel. The content of exculpatory statements that Baynor had recanted simply would not be relevant to the statement that the State actually intended to use. Although disclosure of "relevant material or information regarding ... the acquisition" of a statement that the State intends to use would include disclosure of any threats or inducements made to the person giving the statement, the absence of any such information from the

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discovery furnished by the State in the instant matter meant that the State agents did not consider that there had been any threats or inducements. Baynor, however, in effect argues that the required disclosure must be of the entire interrogation; otherwise, it would not be possible for a trier of fact to consider the totality of the circumstances on the issue of the voluntariness. At oral argument in this Court, when asked what information was not disclosed by the State, Baynor's counsel replied, "The questions that were asked in the interrogation of the defendant before the tape recording was turned on, his responses thereto, and the manner in which they were asked." The language of Rule 4-263(a)(2)(B), however, does not support so broad a reading, and in adopting the Rule this Court did not intend to place so great a burden on the State. There is no requirement that the State disclose essentially a verbatim account of a custodial interrogation that ultimately results in an oral inculpatory statement. Compare Rule 4-263(b)(2)(B) (providing that if the State intends to use an oral statement made by the defendant at a hearing or trial, it must disclose upon request "the substance of each oral statement and a copy of all reports of each oral statement," but not the questions asked, the manner in which they were asked, and the responses (emphasis added)). Baynor's argument intimates that all custodial interrogations must be recorded for a trier of fact to be able to determine the totality of the circumstances related to the voluntariness of a confession. A majority of state courts have rejected a requirement that custodial interrogations be recorded for a confession to be considered voluntary. See, e.g., People v. Holt, 15 Cal. 4th 619, 663, 63 Cal. Rptr. 2d 782, 811, 937 P.2d 213, 242 (rejecting

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the defendant's argument that tape recording of statement made during a custodial interrogation is required to ensure fundamental fairness because "a confession may not be the voluntary 'product of a rational intellect and a free will,' and the need to test the voluntariness of a confession on the basis of 'the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation'") (citation omitted), cert. denied, ___ U.S. ___, 118 S. Ct. 606, 139 L. Ed. 2d 493 (1997); People v. Raibon, 843 P.2d 46, 48 (Colo. Ct. App. 1992) (rejecting the defendant's argument "that the investigators' failure to videotape or audiotape his initial interview violated his rights under the due process clause of the Colorado Constitution"); Coleman v. State, 189 Ga. App. 366, 366, 375 S.E.2d 663, 664 (1988) (rejecting the defendant's argument "that the court erred in admitting into evidence a custodial statement, urging that the failure to record the statement electronically violated the constitutional guarantees of due process, right to counsel, right to a fair trial, and right not to incriminate oneself"); State v. Kekona, 77 Haw. 403, 407-08, 886 P.2d 740, 744-45 (1994) (rejecting the defendant's argument "that in order for the State to meet its burden of proving that he validly waived his constitutional rights, the police were required to tape record all of his oral statements"); State v. Rhoades, 119 Idaho 594, 601, 809 P.2d 455, 462 (1991) ("[W]e cannot accept the contention that in order to be admissible, statements made in custody must be tape recorded by the police."); State v. Buzzell, 617 A.2d 1016, 1018 (Me. 1992) (rejecting the defendant's argument "that the due process clause of [the Maine Constitution] requires electronic recording of custodial interrogation"); Commonwealth v. Fryar, 414 Mass. 732, 742 n.8, 610 N.E.2d 903, 909 n.8 (1993) (stating

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that neither the common law, the Massachusetts Declaration of Rights, nor the United States Constitution requires electronic recording of custodial interrogations); Williams v. State, 522 So. 2d 201, 208 (Miss. 1988) (rejecting the defendant's argument "that statements made during custodial interrogation must be tape recorded to be admissible"); Jimenez v. State, 105 Nev. 337, 341, 775 P.2d 694, 697 (1989) (per curiam) (declining the defendant's "invitation that we adopt a rule requiring the tape recording of defendants' statements"); State v. James, 858 P.2d 1012, 1017 (Utah Ct. App. 1993) (rejecting the defendant's argument "that the detectives' failure to record the interrogation verbatim violated his constitutional guarantee of due process under both the federal and state constitutions"); State v. Gorton, 149 Vt. 602, 606, 548 A.2d 419, 421 (1988) (rejecting the defendant's argument that "[a]bsent a recording of defendant's statements and absent a finding that a tape recording was not feasible, ... the admission of defendant's statements [is] reversible error"); State v. Spurgeon, 63 Wash. App. 503, 508-09, 820 P.2d 960, 963 (1991) (holding that a failure to tape record a custodial interrogation does not violate a criminal defendant's due process rights under the state constitution), review denied, 118 Wash. 2d 1024, 827 P.2d 1393 (1992). But see Stephan v. State, 711 P.2d 1156, 1159 (Alaska 1985) (holding that under the due process clause of the state constitution the custodial interrogation of a suspect must be electronically recorded when recording is feasible); State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) (holding that "in the exercise of our supervisory power to insure the fair administration of justice, ... all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible

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and must be recorded when questioning occurs at a place of detention"); see also Texas Code of Criminal Procedure, art. 38.22,

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