Weitzel v. State

863 A.2d 999

384 Md. 451

Mark Edward WEITZEL v. STATE of Maryland.

No. 44, September Term 2004.

Court of Appeals of Maryland.

December 21, 2004.

Anne K. Olesen (Jennifer P. Lyman, Community Legal Clinics of George Washington University Law School, Washington, DC, on brief), for petitioner.

Michelle W. Cole, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

RAKER, J.

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 shall hold that a defendant's pre-arrest silence in police presence is inadmissable under Maryland evidence law as direct evidence of guilt.

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 and petitioner Mark Weitzel. Following a brief on-scene investigation, Baltimore County Police Officer Frederick Johnson placed Weitzel under arrest.

Weitzel was indicted by the Grand Jury for Baltimore County 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 Crabtree told Officer Johnson that Weitzel had thrown Effland down 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 preceding Officer Johnson's arrival. Crabtree also testified that he had punched Weitzel two to three times in the face, and that Weitzel had "curled up 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 Johnson that Weitzel had thrown Effland down the stairs. Weitzel 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 name, 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 remained silent as Crabtree accused him of throwing Effland down the stairs. According to Johnson, Weitzel was sitting on the stairs, he appeared conscious and cognizant, and he did not display signs of intoxication. Johnson remembered Crabtree looking (not pointing) at Weitzel, and referring to him as "Mark." Johnson testified that 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 commands 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 stare." Johnson also testified that Weitzel's lips were "a little swollen," and that Crabtree had admitted to striking Weitzel once in the mouth.

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 evidence was admissible as a tacit admission by the defendant.

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 Special Appeals. In an unreported opinion, that court affirmed. We granted Weitzel's petition for writ of certiorari to consider the following questions:

(1) Whether, as a matter of law, police officer presence together with the defendant's participation in recent unlawful conduct distinct from the offense under investigation renders pre-arrest silence too ambiguous to be admissible;

(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 other equally plausible explanations for his silence.

Weitzel v. State, 381 Md. 677, 851 A.2d 596 (2004).

Before this court, Weitzel argues that his silence was inherently ambiguous, in that a jury could only speculate as to whether it reflected an admission of guilt as to the assault, rather than an attempt to avoid detection of his illegal drug use or merely the effects of intoxication and recent head trauma. He also contends that, even if his silence were not inadmissable as a matter of law, the Circuit Court abused its discretion when it concluded that a reasonable person in Weitzel's position would have responded to Crabtree's accusation if false.

The State argues that Weitzel's silence was not ambiguous, that the record supports a conclusion that Weitzel was capable of both understanding and responding to Crabtree's accusation. The State further suggests that any error was harmless beyond a reasonable doubt.

II.

The trial court permitted the State to use Weitzel's silence as substantive evidence of his guilt. This evidence is commonly referred to as "pre-arrest" silence, i.e., refusal to speak or answer questions by a person who has not yet been read Miranda rights and is usually not under arrest.¹

As a threshold matter, Weitzel is met by Key-El v. State, 349 Md. 811, 709 A.2d 1305 (1998), in which this Court, in a 4-3 decision, held that pre-arrest silence may be admissible against a defendant if it satisfies the prerequisites for use as a tacit admission. 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 should be per se inadmissible as a matter of evidentiary law, or, in the alternative, that it should be inadmissible as a violation of the right against compelled self-incrimination under the Fifth Amendment to the United States Constitution. Id. at 815, 709 A.2d at 1306. We surveyed the views of our sister states on the issue of whether pre-arrest silence can ever give rise to a tacit admission by an accused when a police officer is present, and recognized the split in authority in both the state courts and federal 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 courts around the country have held that such evidence is inadmissible, either because it is too ambiguous to be probative, or because it violates the Fifth Amendment. See Combs v. Coyle, 205 F.3d 269 (6th Cir.2000); People v. Rogers, 68 P.3d 486 (Colo.Ct.App.2002); State v. Moore, 131 Idaho 814, 965 P.2d 174 (1998); State v. Remick, 149 N.H. 745, 829 A.2d 1079 (2003); State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335 (2004); Hartigan v. Commonwealth, 31 Va.App. 243, 522 S.E.2d 406 (1999); State v. Clark, 143 Wash.2d 731, 24 P.3d 1006 (2000); State v. Adams, 221 Wis.2d 1, 584 N.W.2d 695 (1998); Spinner v. State, 75 P.3d 1016 (Wyo.2003).

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 extent 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, some relying on an evidentiary analysis and relevancy, 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 decades. In United States v. Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 2136, 45 L.Ed.2d 99 (1975), in considering an accused'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 indicate reliance on the right to remain silent as to support an inference that the explanatory testimony was later a fabrication." Id. at 177, 95 S.Ct. at 2139. Finding silence ambiguous, the Court noted as follows:

"In most circumstances silence is so ambiguous that it is of little probative force. For example, silence is commonly thought to lack probative value on the question of whether a person has expressed tacit agreement or disagreement with contemporaneous statements of others. See 4 Wigmore § 1071. Silence gains more probative weight where it persists in the face of accusation, since it is assumed in such circumstances that the accused would be more likely than not to dispute an untrue accusation. Failure to contest an assertion, however, is considered evidence of acquiescence only if it would have been natural under the circumstances to object to the assertion in question. 3A Wigmore § 1042. The Raffel Court [Raffel v. United States,

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