Wilson v. State

*340RODOWSKY, Judge,

dissenting.

I respectfully dissent. The error is harmless beyond a reasonable doubt. Further, even if the error were not harmless, this Court should not rule now that “Lee’s statement would be inadmissible” on the retrial of Wilson. 334 Md. 313, 339 n. 10, 639 A.2d 125, 138 n. 10 (1994).

I

Under all of the evidence, it was undisputed that Weston was the shooter, that Lee furnished the car and was the driver, and that Wilson furnished the handgun. The general object of the joint enterprise, robbing one or more drug dealers, led Wilson to furnish the handgun on the night of the murder. Wilson gave one oral and three written confessions that acknowledged the undisputed facts. Wilson’s defense strategy was to convince the jury that Weston and the murder victim became involved in a personal altercation, distinct from any attempted robbery, and Wilson used Lee’s statement to support that argument. The majority unreservedly acknowledges “that Wilson’s statements and Lee’s statement were substantially alike in all significant aspects.” 334 Md. at 338, 639 A.2d at 137. Wilson’s strategy was successful in that the jury acquitted him of felony murder.

Wilson did not seek a severance from trial with Lee under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Lee did seek a severance, but only if his motion in limine were denied. Wilson’s oral statement referred to Weston’s having fired the handgun at some person, other than the victim, earlier during the night of the murder. Lee sought a ruling from the trial court excluding that aspect of Wilson’s oral statement, and the motion was granted. Consequently, Lee and Wilson went to trial jointly. Neither defendant sought to have the statement of his codefendant excluded at their joint trial as substantively inadmissible against the defendant. See Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). Both Lee and Wilson waived their Bruton and Cruz rights for the obvious reason *341that each wanted to rely on his own statement, and on that of his codefendant, without testifying.

Of the three youths involved in the murder, Wilson was the last to be arrested. Prince George’s County, Maryland homicide detectives had faxed a copy of the arrest warrant for Wilson to the authorities in Brunswick County, Virginia where Wilson was a student at St. Paul’s College. Special Agent Douglas W. Reardon of the Virginia State Police went to the dean of the college who had Wilson “brought” to the dean’s office. Wilson arrived with a hamburger sandwich and a large drink which he consumed during the interview by Reardon. In the dean’s office Wilson signed a statement that in part read: “The man that got shot said T am the bad[d]est guy around’ and Anthony [Weston] said ‘No I am.’ Anthony pulled the gun and the man smacked the gun away and then Anthony shot him.”

Special Agent Reardon arrested Wilson and took him to the Brunswick County Sheriffs Office. There, unshackled and seated at one of the desks in the open office area used by the deputies, Wilson gave and signed a second written statement. In that second statement Wilson said that “Anthony pulled the gun and shot the man for no reason.”

While Wilson and Reardon were conversing, awaiting the arrival of a Prince George’s County detective, Wilson orally told Reardon that Weston and Lee were interested in robbing drug dealers to get the drugs, but Wilson was interested only in getting the money. That portion of the oral statement was admitted.

When Detective Daniel Smart, the principal Prince George’s County homicide detective on the subject murder investigation, arrived at the Brunswick County Sheriffs Office, he took the third written statement from Wilson. By that time Prince George’s County police officers had obtained a search warrant for the home of Wilson and his parents and seized the handgun used in the murder. That weapon, as described by Lee in his statement, was a “.38 special with D.C. cop written all over it.” It was introduced into evidence.

*342In his written confession to Detective Smart, Wilson said that Weston shot the victim because “[t]hey got into an argument. It was a macho thing. He [the victim] reached out and hit the gun while Anthony had it on him.”

Lee’s statement described the victim as saying, “ ‘I’m the biggest hustler around here.’ ” It continued, “And Anthony said, ‘No, you’re not. I am.’ The whole time the gun was at his head. At first the guy hit the gun away and then Anthony shot the guy----”

Even if a defendant’s own, fully-interlocking statement is the type of corroborating evidence that may not be considered under Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), Wright recognizes that “the presence of corroborating evidence more appropriately indicates that any error in admitting the statement might be harmless.” Id. at 823, 110 S.Ct. at 3150. Here the majority gives no explanation, in terms of the facts of this case, for rejecting harmless error. This is not a case in which a codefendant attempted to shift blame to the defendant or to minimize the codefendant’s involvement by increasing the defendant’s involvement. The majority’s harmless error analysis gives no effect to the fact that Wilson embraced Lee’s statement. Thus, we have here erroneously admitted evidence that is not merely cumulative, but it was relied on by Wilson as part of Wilson’s defense.

This is forcefully demonstrated by the final argument of Wilson’s counsel. After submitting to the jury that Lee had said that Weston “had an argument with this individual and shot him,” Wilson’s counsel further said:

“Now, we wouldn’t have to be here today if both of them [Lee and Wilson] would have said that we intended to rob this victim, but before Mr. Weston could rob him he shot him, because it would have been a closed case. So now we have to determine whether or not the veracity of these statements can be relied upon. You have heard the instructions that you can believe what you want to of these statements and what you don’t want to of these statements. I submit to you that both of these individuals were telling *343the truth completely. They had no communication with each other. ... Mr. Lee was arrested at 8:00 o’clock in the morning in Prince George’s County and Mr. Wilson was arrested at 5:00 o’clock in the evening at a remote location in Virginia.... If you’re going to believe that they contrived the actual incident then you’re going to have to believe that these statements are untrue. But, all the evidence points to the fact that they told the truth, that what happened that night[ — ]Mr. Weston got into an altercation with an individual.”

Justice White, speaking for four dissenting Justices in Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), has said that “[a] defendant’s confession is ‘probably the most probative and damaging evidence that can be admitted against him.’ ” Id. at 292, 111 S.Ct. at 1255 (quoting Cruz v. New York, 481 U.S. at 195, 107 S.Ct. at 1720 (White, J., dissenting)). Nevertheless, Arizona v. Fulminante held that the admission of an involuntary confession is not per se beyond the pale of a harmless error analysis under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Chapman is the basis for Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976). Wilson’s four confessions, reinforced by the seizure of the murder weapon, are simply corroborated and confirmed by Lee’s cumulative statement. The error is harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) (erroneously admitting codefendants’ cumulative statements held to be harmless); Evans v. State, 333 Md. 660, 716, 637 A.2d 117, 145 (1994) (claimed violation in capital case of right against self-incrimination held to be harmless error) [No. 149, Sept. Term, 1992, decided February 16, 1994, slip op. at 23].

II

Even if the admission of Lee’s statement is not harmless beyond a reasonable doubt, the Court, for two reasons, should not preclude the State from undertaking to prove on retrial the circumstances surrounding Lee’s statement. First, because there was not a whisper in the trial court that Wright *344blocked the admissibility of Lee’s statement, the State never had the opportunity to prove circumstances of reliability. The State’s foundation for admitting the Lee statement established, and was limited to, Miranda compliance and voluntariness. Secondly, there is substantial reason to believe that proof addressed to the circumstances surrounding Lee’s statement would demonstrate its reliability.

When the State introduced Lee’s statement, Lee’s attorney objected. The objection went to one sentence in the narrative portion of the statement written in Lee’s own hand. After saying that Weston, Wilson and he had gone out in Lee’s father’s gold Honda and that Wilson had Wilson’s father’s District of Columbia police officer’s revolver, Lee said, “We were going to rob a dope dealer.” Lee’s counsel argued that the quoted sentence was proof of other crimes which should be excised. That objection was overruled. Lee’s counsel then requested a special instruction cautioning the jurors not to speculate that the victim of the shooting was a dope dealer whom the three youths intended to rob. That request was denied. All of this was entirely consistent with the joint defense strategy of seeking to avoid a conviction for felony murder.

Near the conclusion of the foregoing bench conference, Wilson’s counsel said, “I would like to go on the record also objecting to the statement being admitted into evidence.” The court asked, “You’re objecting to what?” Wilson’s counsel replied, “The statement, because it hurts my client also.” The fact that evidence offered against an accused tends to prove guilt of the crime charged has not been recognized as an objection that renders the evidence inadmissible. Further, judicial review of an objection ordinarily is limited to the reason given for the objection. See Thomas v. State, 301 Md. 294, 328, 483 A.2d 6, 23 (1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985); Calhoun v. State, 297 Md. 563, 601, 468 A.2d 45, 62 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed.2d 846 (1985); Jackson v. State, 288 Md. 191, 196, 416 A.2d 278, 282 (1980); von Lusch v. State, 279 Md. 255, 263, 368 A.2d 468, 472 (1977).

*345When Wilson briefed his belated appeal to the Court of Special Appeals, following a post conviction ruling permitting the same, Wilson did not cite Wright, and the State did not contend that Wilson’s reliance on Lee v. Illinois raised an issue that had not been preserved. The Court of Special Appeals considered the confrontation issue by applying Lee and without citing Wright. Wilson v. State, 95 Md.App. 680, 622 A.2d 810 (1993). Wilson’s petition for certiorari to this Court did not cite Wright. The decision was first cited by Wilson in his brief on the merits in this Court. In short, the State has never had an opportunity to present the facts surrounding Lee’s statement in support of its reliability under Wright.

This Court’s foreclosure of that inquiry on remand is particularly inappropriate because there is a strong indication that reliability under Wright could be proved. Proof relevant to reliability is not limited to evidence that is admissible before the jury. Whether a foundation for admitting the statement has been established is a mixed question of fact and law for the trial judge to decide, subject to independent, appellate, constitutional review.

One of the indicia of reliability which the Wright Court identified as properly considered in determining reliability is the absence of a motive to fabricate. 497 U.S. at 821-22, 110 S.Ct. at 3150. If Lee were motivated to lie, it would only be because he and Wilson in some way had colluded to cast the principal blame on Weston. But the majority tells us nothing about Weston’s position.

Weston had been tried previously before a jury presided over by the same trial judge who in April 1991 presided over the joint jury trial of Lee and Wilson. Weston was found guilty of felony murder. The unreported opinion of the Court of Special Appeals in Weston’s appeal from that conviction reflects that Weston

“confessed to the police and to a witness, Daryl Shropshire, that he and two Mends had gone to the scene of the crime in order to rob drug dealers. [Weston] admitted that he *346shot the victim with a .38 caliber weapon when the victim had ‘bucked on him.’ ”

It further appears from the Statement of Charges filed against Wilson, from the affidavit in the search warrant for the Wilson family premises, and from the pre-sentence investigation report that the police were led initially to Weston and Lee, and then to Wilson. More specifically, the above-mentioned sources indicate the following sequence of events.

The victim’s body was found at 6:30 a.m. on January 6,1990. Shortly thereafter Weston admitted to an informant that he had shot the victim. On January 9 the informant telephoned the “Crime Solvers” telephone number of the Prince George’s County police and implicated Weston as the shooter. That informant identified himself or herself. Subsequently, when interviewed, the informant confirmed Weston’s admission against penal interest and identified Weston from a photo array. By January 10 Weston and Lee had been identified as two of the three suspects in the case. Warrants were issued for the arrest of Weston and Lee on January 10. Both were arrested on January 11, and both admitted involvement in the murder. Both identified Wilson as the third participant.

Lee was arrested at 8:07 a.m. on January 11. After signing a written waiver of rights, Lee began giving his written statement at 8:55 a.m. and concluded it by 10:00 a.m. In that statement Lee also admitted having told his girlfriend, prior to his arrest, about the shooting.

The statement of charges for Wilson was obtained at 10:30 a.m. on January 11. Special Agent Reardon began his interview of Wilson in the dean’s office at St. Paul’s College in Virginia at 5:30 p.m. that same day. At 7:08 p.m. on January 11, the search warrant for the Wilson family home was executed in Capitol Heights, Maryland, and the Washington Metropolitan Police Department service revolver used in the killing was seized. At 8:00 p.m. Detective Smart of Prince George’s County obtained in Virginia the fourth confession from Wilson.

*347Thus, the jury argument that Wilson’s counsel made about the reliability of the Lee and Wilson statements has considerable legal merit. Any motive that Lee would have to lie about the extent of Wilson’s participation, said by Lee to be equal with his own, would not likely falsely inculpate Wilson at the expense of falsely inculpating Lee as well. Further, because the Lee statement is in tandem with the four Wilson statements, any unreliability of the Wilson and Lee statements must lie in their falsifying Weston’s participation, but it appears from Weston’s statement that they do not falsify his participation.

What we do not know from court records on this joint indictment is whether Weston was arrested prior to Lee and whether Weston confessed prior to Lee’s confessing. If that is the fact of the matter, as it may well be, it is highly relevant, not because Weston’s statement corroborates Lee’s, but because Lee then has no motive falsely to inculpate Weston or Wilson.

The State should be permitted the opportunity on remand to demonstrate reliability.

Judges McAuliffe and Karwacki have authorized me to state that they join in the views expressed in this dissenting opinion.