Weitzel v. State

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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. -2- 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 -3- 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 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- 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). -5- 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 § 1071. Silence gains more probative weight w here it persists in the face of accusation, since 2 Therefore, we do not reach the constitutional issue of whether admission of a defe ndant's pre-arrest silence as substantive proof of guilt violates the Fifth Am endmen t to the United States Constitution s privile ge aga inst self- incrimin ation. See Nationsbank v. Stine, 379 Md. 76, 86 , 839 A.2d 727 , 733 (2003). -6- 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 W igmore § 1042. The Raffel Court [Raffel v. United States, 271 U.S. 494, 46 S. Ct. 566, 70 L. Ed . 1054 (1926)] found that the circumstances of the earlier confrontation naturally called for a reply. Accordingly, the Court held that evidence of the prior silence of the accu sed was a dmissible. B ut the situation of an arrested is very differen t, for he is und er no duty to speak and, as in this case, has o rdinarily been advised by government authorities only mome nts earlier that h e has a right to remain silent, and that anything he does say can and will be used against him in c ourt. At the time of arrest and during custodial interrogation, innocent and guilty alike p erhaps pa rticularly the innoc ent may find the situation so intim idating that the y may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing circumstances, a suspect may not have heard or fully understood the question, or may have felt there w as no n eed to re ply. See Traynor, The Devils of Due Process in Crimina l Detection , Detention , and Trial, 33 U. Chi. L. Rev. 657, 676 (1 966). He may have maintained silence out of fear or unwilling ness to incrim inate another. Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention. In sum, the inherent pressures of in-custody interrogation exceed those of questioning before a g rand jury and c ompou nd the diff iculty of identifyin g the rea son fo r silence . Id. Other courts arou nd the cou ntry have reaso ned that silence, in and of itself, whether pre-arrest, pre-Miranda, or post-arrest, sim ply is too ambig uous to have probative value as an indicator of guilt a nd any pro bativ e val ue w ould be outweigh ed by the prejudice to the -7- defendant at trial. 3 In Ex parte Marek, 556 So. 2d 375, 382 (Ala. 1989), the Alabama Supreme Court rejected the legal reasoning that when an accused is confronted with an accusation, an individual who considers himself innocent will deny such an accusation. The court abolished the tacit admission rule, to the extent that the rule permits evidence of an accused s silence when confronted with an accusation, both as to p re-arrest situation s as well as post-arrest situations. The court reasoned as follows: That underlying premise, that an innocent person always objects when confronted with a baseless ac cusation, is ina ppropriately 3 The First, Sixth, Seventh and Tenth Circuits hold that pre-arrest, pre-Miranda silence is not admissible as substantive eviden ce of g uilt. Com bs v. Co yle, 205 F.3d 269, 283 (6th Cir. 2000); United States v. Burson, 952 F.2d 1196, 12 00-01 (10 th Cir. 1991), cert. denied 503 U.S. 997, 112 S. C t. 1702, 118 L. Ed. 2d 4 11 (1992 ); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir. 1 989), cert. denied 493 U.S. 969, 110 S. Ct. 418, 107 L. Ed. 2d 383 (1989); United States ex rel. Savory v. Lane, 832 F.2d 1011, 10 17-18 (7th Cir. 1987). The Fifth, Ninth and Eleventh Circuits have held that pre-arrest, pre-Miranda silence is admissible as substantive eviden ce of g uilt. United Sta tes v. Oplinger, 150 F.3d 1061, 10 66 (9th Cir. 1998); United States v. Zanabr ia, 74 F.3d 590 (5th Cir. 1996) ; United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 199 1). State courts are also split on the issue, with some courts holding that pre-arrest, pre-Miranda silence is not adm issible as substan tive evid ence o f guilt. See People v. Welsh, 80 P.3d 296 (Colo. 200 3); People v. Rogers, 68 P.3d 486, 492 (Colo. Ct. App. 20 02); Landers v. State, 508 S.E.2d 637, 638 (Ga. 19 98); State v. Moore, 965 P.2d 174, 180 (Idaho 1998); State v. Dunkel, 466 N.W.2d 425, 428-29 (Minn. Ct. App. 1 991); State v. Rowland, 452 N.W.2d 75 8, 763 (Neb. 199 0); People v. DeGeorge, 541 N.E.2d 1 1, 13 (N.Y. 1989 ); State v. Leach, 807 N.E.2d 335, 342 (Ohio 2004); Hartigan v. Comm onwea lth, 522 S.E.2d 406, 410 (Va. Ct. App. 1999), aff d en banc 531 S.E.2d 63 (V a. Ct. App. 2000); State v. Easter, 922 P.2d 1285, 1292 (Wash. 1 996); State v. Fencl, 325 N.W.2d 703 (Wis. 1982 ); Tortolito v. State, 901 P .2d 387 , 390 (W yo. 1995 ). Other courts hold that pre-arrest, pre-Miranda silence doe s not implica te the Fifth Amen dment. State v. Leecan, 504 A.2d 480, 484 (Conn. 1 986); State v. Kinder, 942 S.W.2d 313, 326 (Mo. 1996); State v. Helgeson, 303 N.W.2d 342, 348 (N.D . 1981). -8- simple, because it does not account for the ma nifold motivations that an accused may have when, confronted with an accusation, he chooses to remain silent. Confronted with an accusation of a crime, the accuse d might w ell remain silent beca use h e is angry, or frightened, or because he thinks he has the right to remain silent that the mass media have so well publicized. Furthermore, without that premise that silence in the face of an accusation means that the accused thinks he is guilty, the tacit admission rule cannot withstand scrutiny, because the observation that the accused remained silent could not necess arily lead to the inference that the accused knew that he was guilty; without the premise that silence in the face of accusa tion necess arily results from guilt, the tacit admission rule merely describes two concurrent events, accusation and silence, without giving the reason for the concurrence of th e two events. Accord ingly, neither logic nor common experience any longer supports the tacit adm ission ru le, if, inde ed, eithe r ever su pporte d it. Id. at 381. In People v. DeGeorge, 541 N.E.2d 11 (N.Y. 1989), the New York C ourt of A ppeals held that pre-arrest silence in the p resence of police off icers is inadmissible at trial because silence is the natural reaction of many people in the presence of law enforcement officers. The court noted as follows: Silence in these circumstances is ambiguous because an innocent person may have many reasons for not speaking. Among those identified are a person's awareness that he is under no obligation to speak or to the natural caution that arises from his knowledge that anyth ing h e says might later be used against him at trial, a belief that efforts at exoneration would be futile under the circumstances, or because of explicit instructions not to speak f rom an attorney. Moreover, there are individuals who mistrust law enfo rcement o fficials and refuse to speak to them not because they are guilty of some crime, but rather because they are simply fearful of coming into contact with those whom they regard as antagonists. In most cases it is impossible to -9- conclude that a failure to speak is more consistent with guilt than with innocence. Moreover, despite its lack of probative value the evidence undoub tedly affects a witness credibility. Jurors, who may not be sensitive to the wide variety of alternative explanations for a defe ndant's pretrial silence, m ay assign mu ch more w eight to it than is warranted and thus the evidence may create a substantial risk of prejudice. Id. at 13. (Quotation mark s and internal citations omitted). Similarly, the United States Co urt of Appeals for the Sixth Circuit found that the use of silence as substantive evidence of guilt, unlike the use for impeachment purposes, does not enhance the reliability of the criminal process and held tha t the use of pre-arrest silence as substantive evidence of guilt is an impermissible burden upon the exercise of the privilege against self-incrimination. Combs, 205 F.3d at 283. Quoting Doyle, 426 U.S. at 617, 96 S. Ct. at 2244, that every post-arrest silence is insolubly ambig uous, the court noted tha t there are many reasons why a defendant may remain silent before arrest, such as a know ledge of his or her Miranda rights or a fear th at the sta temen t may not b e believ ed. Combs, 205 F.3d at 285. The court co ncluded that the proba tive value of such silence is there fore minimal. We cannot ignore the ubiquity w ith which d epictions of police proc edures ap pear in popular entertainment, particularly the Miranda warnings, and the consequent understanding that any statement made in the presence of police can and will be used against you in a court of law. Although the Supreme Court has required only that such warnings be given when police are engaging in custodial interrogation, the average citizen is almost -10- certainly aware that any words spoken in police presence are uttered a t one s peril. W hile silence in the presence of an accuser or non-threatening bystanders may indeed signify acquiescence in the truth of the accusation, a d efendan t s reticence in p olice presen ce is ambiguous at best. We hold that pre -arrest silence in police prese nce is not ad missible as substantive evidence of guilt under Maryland evidence law. III. The State argue s that any error is h armless be yond a reaso nable doubt. In order for the error to be h armless, w e must be c onvinced , beyond a rea sonable doubt, that the error in no way influenced the verd ict. See Arch er v. State, 383 Md. 329, 361, 859 A.2d 210, 229 (2004 ); Dorsey v. State, 276 Md. 63 8, 659, 350 A.2d 665, 678 (1976 ). The only direct evidence presented of Weitzel s guilt was Crabtree s eyewitness testim ony. Accord ing to Crab tree s accou nt, he, Effla nd, Weiz tel, and others had smoked cocaine and imbibed alcohol in Crabtree s apartment within the two hours preceding the incident. He recalled that Weitzel had discovered Crabtree and Effland kissing, that Weitzel and Effland had begun arguing, that Effland had slapped Weitzel, and that Crabtree had ordered the two out of his apartment because of the noise. Crabtree testified that as he was escorting Weitzel and Effland down the stairs, Weitzel grabbed Effland [b]etween the shoulder blades and the lower b ack grippin g her jacke t and threw her down the last flight of steps into the b asement. -11- Both Effland and Weitzel testified that they had no memory of what had occured in the stairwell Effland as a result of her head truama and Weitzel as a result of the blackouts he some times expe rienced af ter mixing c ocaine an d alchoho l. The circumstantial indication of guilt implied by Weitzel s silence was therefore the only significant evidence corroborating Crabtree s eyewitness account. As the only other person present at the time of Effland s fall, Crabtree was the obvious alternative suspect in her assault a nd thus had a c lear mo tivation to fabri cate his t estimon y. Without the corroborative evidence of Weitzel s silence, the jury could easily have concluded that Crabtree s testimony was insufficiently trustworthy to estab lish guilt beyond a reasonab le doubt. In his closing argument, the prosecutor argued as follows: [Weitzel] heard the accusation that he had thrown Darla down the steps. Any one of us, Ladies an d Gentlem en, wou ld have said no way. That s not true . That is, if it was not true. He didn t respond to that. The law says that is the tacit admission whe re the Defendant basically adopts the statement made because if it wasn t true, he would have objected to it. That is corroborative evidence. That is circumstantial evidenc e that Tom Cra btree is telling the truth. That is direct evidence that the Defendant is the person respon sible. On this record, we cannot conclude beyond a reasonable doubt that the evidence of Weitzel s silence in no way influenced the verdict. Because that evidence was admitted in error, we re verse and remand f or a new trial. -12- JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE JUDGM ENT O F THE C IRCUIT COURT FOR BALTIMORE COUNTY AND REMAND THE CASE TO THAT COU RT F OR A NEW TRIA L. COSTS IN THIS COURT AND THE COURT OF SPECIA L APPE ALS TO BE PAID BY B ALT IMO RE C OUN TY. -13- IN THE COURT OF APPEALS OF MARYLAND No. 44 September Term, 2004 MARK EDWARD WEITZEL v. STATE OF MARYLAND -14- Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Battaglia, J. which Cathell, J., joins Filed: December 21, 2004 -15- The majority overrules our decision in Key-El v . State, 349 Md. 811, 818-19, 709 A.2d 1305, 1308 (1998) that pre-arrest, pre-Miranda silence in the presence of a police officer may be admissible as substantive evidence of guilt. The majority concludes that the better view is to preclude the admission of pre-arrest silence in the presence of a police officer as a tacit admission under Maryland law because it is too ambiguous to be probative. See maj. op. at 6. I disagree and would affirm the judgment of the Court of Special Appeals because we should not overrule the quite recent decision in Key-El to avoid reaching the issue of whether the trial ju dge ab used h is discre tion in ad mitting th e evide nce in th is case. The majority relies on the Supre me Cou rt s opinion in United Sta tes v. Hale , 422 U.S. 171, 95 S.Ct. 2133, 45 L.E d.2d 99 (1 975), for the proposition that a defen dant s silence is ambiguous, and thu s, not pro bative o f guilt. See maj. op. at 7-8. The Supreme Court in Hale, however, explained that an accused s silence during an initial police interrogation after Miranda warnings had been given was unclear because the inherent pressures of in-custody interrogation exceed those of q uestioning before a grand jury and com pound th e difficulty of identifying the reason for silence. Hale, 422 U.S . at 177, 95 S .Ct. At 2137, 45 L.Ed.2d at 108. C ertainly, Hale was good law and was considered when Key-El was decided in 1998. It is inapposite b ecause in th is case we a re not dealin g with a de fendant s in-custody, pos tMiranda silence.1 1 Contrary to the majority s view, Justice Stevens in a concurring opinion in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct 2124, 65 L.Ed.2d 86 (1980) (Steven s, J., concurring), construed the probative value of a defendant s pre-arrest, pre-Miranda silence, as evidence of guilt: (contin ued...) Also, numerous sister courts have commented on the probative value of pre-arrest silence and held s uch evide nce adm issible. Courts have ruled that an accused s silence offered as evidenc e of guilt rep resents but o ne piece o f circumsta ntial evidence that is a natural a dversa rial com ponen t of the o verall tria l. See U .S. v Beckman, 298 F.3d 788, 795 (9 th Cir. 2002) (affirming trial court s use of pre-arrest silence as one factor to determine the defendant s guilt); U.S. v. Oplinger, 150 F.3d 1061 , 1066-67 (9 th Cir. 1998) (upholding admission of pre-arrest silence as substantive evidence as part of jury determination); U.S. v. Zanabr ia, 74 F.3d 590, 593 (5 th Cir. 1996) (allowing pre-arrest silence to be used as substantive evidence o f guilt); U.S. v. Rivera, 944 F.2d 1563, 1569-70 (11th Cir. 1991) (admitting pre-arrest silence as one component of substantive evidence of gu ilt); State v. Case, 140 S.W.3d 80, 86-87 (Mo. App. 2004) (permitting jury to consider a defendant s prearrest silence as evidence of guilt); State v. Lee, 15 S.W.3d 921, 924-25 (Tex. Crim. App. 2000) (holding that pre-arrest silence may be considered by jury as evidence of guilt); State 1 (...continued) The fact that a citizen has a constitutional right to remain silent when he is questio ned had no bearing on the probative significance of his silence before he has any contact with the police. We need n ot hold that every citizen has a d uty to report every infraction of law that he witnesses in order to justify the drawing of a reasonable inference from silence in a situation in which the ordinary citizen w ould norm ally speak out. Id. at 243, 1 00 S.C t at 2132 , 65 L.E d.2d at 9 8. -3- v. Richards, 750 So.2d 940, 941-42 (La. 1999) (affirming trial court s admission of defendant s pre-arrest silence as one factor to assess guilt). 2 Key-El clea rly pro pose s that pre-arre st sile nce f ollowing an accu satio n by a third party while in the presence of a police officer should be carefully considered by the trial court as to whether the impa ct of the officer s presence would deter a reasonable person from denying or explaining the accusa tion. See Key-El, 349 Md. at 819, 709 A.2d at 1308. The principles established in Key-El, concerning pre-arrest silen ce, provide adequate safeguard s to overcome any unfair prejudice, whether an officer is present or not. The bright-line rule determined by the majority does not permit the use of deliberative discretion on the part of the trial judge, but rather reflects a wholesale refusal to acknowledge any probative value of pre-arre st silence , which was re cogniz ed by this C ourt w ithin the last six yea rs. In overruling Key-El the majority fails to determine whether Weitzel s sile nce in this case was prop erly admitted under the tacit admission exception to the hearsay rule. The Court of Special App eals did so and held that the a dmission of W eitzel s silence was not an abuse of discretion. The trial court determined that Weitzel had not been taken into custody 2 Several of the courts opposing the admission of pre-arrest silence as a tacit admission have conceded that the admission of such is harmless error when v iewed in c onjunction with all the othe r eviden ce that th e fact-f inder m ust use to determ ine guilt or inno cence . See Ouska v. Cahill-Masching, 246 F.3d 1036, 1049 (7 th Cir. 2001) (stating that admission of pre-arrest silence wa s harmless e rror); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir. 1991) (explaining that the evidence against the defendant was overwhelm ing and that the defendant s silence wa s but one c ompon ent); Savory v. Lane, 832 F.2d 1011, 1020 (7 th Cir. 1987) (noting that the defendant s silence was included in the overall weight of the evidence). -4- or Mirandized and that his drinking alc ohol and in gesting coc aine did no t render him unable to understand the officer s questioning about the incident. Indeed, the trial court determined: [COURT] A reasonable person in Weitzel s position who would disagree with anything that Mr. Crabtree had said would have certainly spoken up to contradict it. Certainly when the officer gives him the oppor tunity and asks if he has an ything to say with regard to M r. Crabtree s statement, he does not take advanta ge of tha t opp ortunity. We should not abandon controlling precedent in Key-El, which w as decided by this Court so recently. Deciding to reject precedent, especially one so recent, has serious consequences, as noted by a former mentor, William Reynolds: [e]very overruling requires that a price be paid: loss of stability and confidence, damage to the efficiency of the system, [and] reduction in predictability. W ILLIAM L. R EYNOLDS, J UDICIAL P ROCESS (West Publishing 3rd ed. 20 03). I respectfully dissent. Judge Cathell auth orizes me to state that he join s in this dissent. -5-

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