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In the Circu it Court for B altimore C ounty Case No. 02-CR-1553

IN THE COURT OF APPEALS OF MARYLAND No. 44 September Term, 2004

MARK EDWARD W EITZEL v. STATE OF MARYLAND

Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ.

Opinion by Raker, J. Cathe ll and B attaglia, J J., dissen t.

Filed:

December 21, 2004

In this case, we revisit the "tacit-admission" rule and the issue of the admissibility of pre-arrest silence in the presence of a law enforcement officer as substantive evidence of guilt. We sha ll hold that a defenda nt's pre-arrest s ilence in police prese nce is inadm issable under M aryland evide nce law a s direct evide nce of gu ilt.

I. On March 17, 2002, police and paramedics responded to a 911 call from the Holabird East apartments in Baltimore County. They discovered Darla Effland lying unconscious and severely injured at the bottom of a public stairwell. The only other persons present were Thomas Crabtree a nd petitione r Mark W eitzel. Follow ing a brief o n-scene inv estigation, Baltim ore Co unty Polic e Off icer Fre derick J ohnso n place d Wei tzel und er arrest. Weitzel was indic ted by the Gra nd Jury for B altimore C ounty for the offenses of attempted murder and first degree assault. Prior to trial, the State indicated that it intended to introduce at trial evidence as a "tacit admission" that Weitzel had sat by silently as Crabtr ee told O fficer J ohnso n that W eitzel ha d throw n Effl and do wn the stairs. Weitzel filed a motion in limine to exclude the evidence. At a hearing on the motion, Crabtree testified that he, Weitzel, Effland, and others had purchased and smoked cocaine the afternoon of Effland's fall, and that he had observed Weitzel smoke cocaine and drink vodka within the two hours p recedin g Off icer Joh nson's arrival. Crabtree also testified that he had punched Weitzel two to three times in the face, and that Weitzel ha d "curled u p in a ball on the floor," where he remained for approximately ten minutes until the police arrived.

According to Crabtree, Weitzel was approximately four feet away from Crabtree at the time he told Johnso n that We itzel had throw n Efflan d down the stairs. We itzel had his eyes open and appeared conscious, but had said nothing since being punched. Crabtree did not

remember precisely what he had told Johnson, but remembered that he had pointed to Weitzel and indicated that "he" had thrown Effland down the stairs. Crabtree did not think he had used Weitzel's n ame, and did not know whether Weitzel was looking in his direction when he pointed. Officer Johnson testified that he had interviewed Crabtree in Weitzel's presence, and that Weitzel had rema ined silent as C rabtree accu sed him of throwing Effland down the stairs. According to Johnson, Weitzel was sitting on the stairs, he appeared conscious and cognizan t, and he did not display signs of intoxication. Johnson remembered Crabtree looking (not pointing) at Weitzel, an d referring to him as "M ark." John son testified th at he "advised [Weitzel] that he was under arrest for first degree assault for pushing the victim Effland down the stairs," and that Weitzel "made no comment" in response to this statement. Weitzel apparently had no difficulty in following Johnson's com mands to stand up , turn around, and submit to handcuffing. Once at the police station, Weitzel did not respond when asked if he understood his Miranda rights, but did provide oral answers to routine booking questions. When asked if he wanted to make a statement, Weitzel "just gave [Johnson] a blank s tare." Johnson also testified that Weitzel's lips were "a little swollen," and that Crabtree had admitted to striking Weitzel once in the mouth.

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The Circuit Court denied Weitzel's motion to exclude the evidence, reasoning that Weitzel had been awake, alert, and cognizant of what was happening. The court ruled that the evid ence w as adm issible as a tacit ad mission by the de fenda nt. At trial, the State offered evidence of Weitzel's silence and Weitzel objected. Weitzel was convicted of the lesser included offense of second degree assault and sentenced to ten years incarceration. Weitzel noted a timely appeal to the Court of Spe cial Appeals. In an unreported opinion, that cou rt affirm ed. We granted Weitzel's petition for writ of certiorari to consider the follow ing question s: (1) Whether, as a matter of law, police officer presence together with the defen dant's participation in recent unlawful conduct distinct from the offense under investigation renders pre-arrest silence too a mbiguo us to be ad missible; (2) Whether, as a matter of law, police officer presence together with the possibility of mental impairment on the part of the defendant renders pre-arrest silence too ambiguous to be admissible; (3) Whether the trial court abused its discretion in admitting evidence of Mr. Weitzel's silence as a tacit admission when there were o ther equ ally plausib le expla nations for his s ilence. Weitzel v. Sta te , 381 Md. 677 , 851 A.2d 596 (2004). Before this court, Weitzel arg ues that his silen ce was in herently amb iguous, in tha t a jury could only speculate as to wh ether it reflected an admiss ion of gu ilt as to the assau lt, rather than an attempt to avoid detection of his illegal drug use or merely the effects of

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intoxication and recent head trauma. He also contends that, even if his silence were not inadmissa ble as a matter of law, the Circuit Court abused its discretion when it concluded that a reasonable person in W eitzel's position w ould have responde d to Crabtre e's accusa tion if false. The State argues that Weitzel's silence was not ambiguous, that the record supports a conclusion that Weitzel was cap able of both unde rstanding and respond ing to Crabtree's accusation. The State furthe r suggests th at any error w as harmles s beyond a re asonable d oubt.

II. The trial court perm itted the State to use Weitzel's silence as substantive evidence of his guilt. Th is evide nce is co mmo nly referre d to as " pre-arre st" silenc e, i.e., refusal to speak or answer questions by a person who has not yet been read Miranda rights and is usually not under arre st.1

In Doyle v. O hio , 426 U.S. 610, 619, 96 S. Ct. 2240, 2245, 48 L. Ed. 91 (1976), the United States Supreme Court held that any adverse use, whether substantive or for impeach ment, of post-arre st, post- Miranda silence violates a defendant's due process rights. In Jenkins v. Anderson, 447 U.S. 231, 239, 100 S. Ct. 2124, 2130, 65 L. Ed. 2d 86 (1980), the Court held that pre-arrest silence may be admitted on cross-examination to impeach a defendant's credibility. The Court commented further on the use of silence in Fletcher v. Weir , 455 U.S. 6 03, 607, 102 S. Ct. 1309, 1312, 71 L. Ed. 2d 490 (1982), holding that the use of post-arrest, pre-Miranda silence for impeachment purposes does not offend due process. The Court has not yet addressed the issue of the use of pre-arrest, pre-Miranda silence as su bstantive ev idence of guilt. -4-

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As a thresho ld matter , We itzel is me t by Key-El v. State, 349 Md. 811, 709 A.2d 1305 (1998), in which th is Court, in a 4-3 decisio n, held that pr e-arrest silence may be adm issible against a defend ant if it satisfies the prerequisites for use as a tacit admiss ion. Id. at 818, 709 A.2d at 1308. Petitioner in that case contended that evidence of pre-arrest silence in the presence of a police officer sho uld be per se inadmissible as a matter of e videntiary law, or, in the alternative, that it should be inadmissible as a violation of the right against compelled self-incrimination under the F ifth Ame ndment to the Un ited Stat es Con stitution. Id. at 815, 709 A.2d at 1306. We su rveyed the views of ou r sister states on the issue of wheth er prearrest silence can ever give rise to a tacit admission by an accused when a police o fficer is present, and recognized the split in author ity in both th e state co urts and federa l circuits. A majority of the federal courts considering the issue had ruled that pre-arrest silence could not be used as substantive evidence of guilt in the government's case in chief. Since Key-El was decided, more cou rts around th e country hav e held that such evidence is inadmissible, either because it is too am biguou s to be p robativ e, or bec ause it v iolates th e Fifth A mend ment. See Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000); People v. Rogers, 68 P.3d 486 (Colo. Ct. App. 2002); State v. M oore, 965 P .2d 174 (Idaho 1998); State v. Remick, 829 A.2d 1079 (N.H. 2003); State v. Leach, 807 N.E.2d 335 (Ohio 2004); Hartigan v. Commonwealth, 522 S.E.2d 406 (Va. Ct. App. 19 99); State v. Clark, 24 P.3d 1006 (Wash . 2000); State v. Adams, 584 N.W.2d 695 (W is. Ct. App. 1 998); Spinner v . State , 75 P.3d 1016 (W yo. 2003).

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We think the better view is that the evidence is too ambiguous to be probative when the "pre-arrest silence" is in the presence of a police officer, and join the increasing number of jurisdictions that have so held.2 To the ex tent that Key-El is inconsistent with this view, it is hereby overruled. As noted above, courts around the country have taken different paths in analyzing substantive use of pre-arrest silence, som e relyi ng on an evid entia ry ana lysis a nd re leva ncy, and others employing a constitutional analysis. The United States Supreme Court has commented on the probative value of silence on several occasions over the past de cades. In United States v. Hale, 422 U .S. 171, 176, 9 5 S.Ct. 213 3, 2136, 45 L. Ed. 2d 9 9 (1975), in considering an accuse d's post- Miranda silence during an initial police interrogation, the Court held that evidence related to the defendant's silence should not have been admitted, noting that the defendant's silence could just as "easily be taken to ind icate reliance o n the right to remain silent as to support an inference that the explanatory testimony was lat er a fab rication ." Id. at 177, 95 S. Ct. at 2139. Finding silence ambiguous, the Court noted as follows: "In most circumstances silence is so ambiguo us that it is of little probative force. For example, s ilence is com monly thoug ht to lack probative value on the question of whether a person has expressed tacit agreement or disagreement with contemporaneous statements of othe rs. See 4 Wigmore

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