Collins v. State

• Decision Date: 13 July 1982
• Docket Number: No. 1583,1583
• Parties: Leon COLLINS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 186

52 Md.App. 186

447 A.2d 1272

Leon COLLINS v. STATE of Maryland.

No. 1583.

Court of Special Appeals of Maryland.

July 13, 1982.

Arthur A. Delano, Jr., and Isaac S. Kershner, Asst. Public Defenders, with whom was Alan H. Murrell, Public Defender of Maryland on the brief, for appellant.

William C. Rogers, III, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. and Joseph E. Moore, State's Atty., for Worcester County, on the brief, for appellee.

Argued before GILBERT, C. J., LISS, J., and PHILIP M. FAIRBANKS, Specially Assigned Judge.

LISS, Judge.

Leon Collins, appellant, was charged in the Circuit Court for Worcester County with the first-degree murder of Olivia Collins, his wife. The case was originally tried before a jury on January 16, 1981. Upon submission of the issues to the jury it was unable to agree upon a verdict and a mistrial was declared on January 21, 1981. Appellant's motion to dismiss on the basis of double jeopardy was denied by the trial court. Appellant was subsequently tried and convicted of first-degree murder. Sentence was imposed and it was from the judgment that this appeal was filed. Appellant raises six issues to be determined by this appeal:

1. Did the lower court err in denying appellant's motion to suppress extrajudicial statements that were not voluntarily made pursuant to a valid waiver of the privilege against self-incrimination and of the right to an attorney's presence?

2. Did the lower court err in denying appellant's motion to suppress extrajudicial statements obtained during an unreasonable delay in presenting appellant before a judicial officer in violation of MDR 723 a?

3. Was appellant deprived of his constitutional right to a speedy trial?

4. Did the lower court err in admitting hypnotically induced testimony?

5. Did the lower court err in permitting a police officer to testify before the jury that he had been informed that the appellant shot his wife?

6. Did the lower court commit reversible error in failing to provide appellant an opportunity to be present at a critical stage of his trial?

1.

A pretrial hearing was conducted by the trial court on the motion to suppress certain statements elicited by police from appellant. Trooper Hornung of the Maryland State Police Department testified that on July 16, 1980, at approximately 12:30 a. m., he had received a report that Olivia Collins, appellant's wife, had been shot by her husband at a truck stop on Route 13, south of Pocomoke, Maryland. He further testified that the victim's whereabouts were unknown and that the appellant's unoccupied vehicle, with a rifle in the front seat, had been sighted by a trooper at another truck stop adjacent to the truck stop where the incident had occurred. Trooper Hornung proceeded to the appellant's home and took him into custody. Appellant testified that he was sleeping when he was awakened by a telephone call from the police informing him that his house was surrounded by police and ordering him to come out on the porch with his hands up. Trooper Hornung and two other officers advanced on the appellant with their service weapons drawn and appellant was patted down and taken into the house. Trooper Hornung stated he read the appellant his Miranda warning when he took appellant into custody at approximately 1:00 a. m. Appellant stated that he understood them. Appellant denied being advised of his rights until he was taken to the Snow Hill, Maryland jail at approximately 12:20 p. m. on July 16, but, in any case, he acknowledged being given the Miranda warnings and does not contend that he did not understand them.

Immediately after the Trooper advised appellant of his Miranda rights, the Trooper testified that the following occurred:

"I [Trooper Hornung] asked [appellant] if he was willing to talk to me about his wife, and he indicated that he certainly was. And I said, 'Where is she?', and he said that he assumes that she was home and claimed not to have any other knowledge of her. He told me that he had been separated, I believe he said, for four months or so.

I then asked him if he owned a weapon, and he said, yes, he had a rifle and it was in the bedroom. And he turned and walked to the bedroom and I followed him. And in the corner behind the dresser he had a .22 caliber rifle. As I recall, the stock was up and the barrel to the floor standing in the corner.

He reached back and picked that up and I immediately took it from him."

The Trooper then questioned appellant for approximately 45 minutes. All the officers who participated in the questioning of the appellant at one time or another testified that no promises or threats were made. The record makes it clear that the questioning concerned itself almost exclusively with the whereabouts of the appellant's wife. Appellant assured the officers he wanted to help locate his wife and responded to all questions about where she might be. At about 7:00 a. m., Trooper Hornung took the appellant to the Snow Hill police station where one Trooper Thomas spoke to him. During his conversation with Trooper Thomas, appellant said he was tired and was permitted to nap for about a half hour. When he awoke, Trooper Thomas spoke to the appellant for about 45 minutes to an hour. Essentially the same questions were asked by Thomas as had been asked by Hornung, i.e., concerning Olivia's whereabouts and whether appellant killed her. This was acknowledged by appellant, in his testimony in support of the motion to suppress. Appellant further acknowledged that he was never handcuffed, beaten or threatened and that he never made any request of the police that was refused. Appellant ultimately told the officer that he could visualize his wife at a truck stop, driving through water near a boat ramp. Based on this information, appellant, in the company of Troopers Thomas and Hornung, was taken to the municipal boat ramp. When nothing was found at that location, appellant next suggested they look at the boat ramp behind the Campbell Soup plant. There the police found tire tracks leading to the water which appellant stated looked like tracks which could have been made by his wife's vehicle. Appellant was then taken before a Commissioner at approximately 12:30 p. m. and charged with attempted murder. Two days later, appellant's wife was found in her car, in the Pocomoke River, near the boat ramp. It is admitted by the State and the appellant that the Miranda warnings were given to the appellant only at the time he was originally taken into custody and that appellant indicated he understood the rights.

Appellant relies primarily on Brown v. State, 6 Md.App. 564, 252 A.2d 272 (1969), to support his claim that he did not validly waive his Miranda rights. Waiver of these rights may be shown expressly or by the attendant circumstances. See North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Leuschner v. State, 45 Md.App. 323, 413 A.2d 227 (1980). Cf. Swain v. State, 50 Md.App. 29, 435 A.2d 805 (1981). There is no requirement that there be a statement by an accused that he fully understands and waives his rights.

We have carefully considered Brown, supra, and find it distinguishable on the facts from the case at bar. In Brown, this Court was in accord with the cases that held that the Miranda warnings need not be given anew and that the Miranda waiver need not be expressed each time the officers question an accused. See Miller v. United States, 396 F.2d 492 (8th Cir. 1968); State v. Davis, 261 Iowa 1351, 157 N.W.2d 907 (1968). In Brown, we concluded that the admission of an appellant's written confession was reversible error where, although he had been given the Miranda warnings the night before, his statement on the following day was given to different interrogators at a police barracks some 50 miles away from the scene of the prior interrogation without any further Miranda warnings or a waiver thereof.

The facts are substantially different in the case at bar. There is not the slightest doubt that the Miranda warnings were properly given when the appellant was taken into custody. The record substantiates that appellant acknowledges having been given the warnings and acknowledges understanding them. The questioning then concerned itself primarily with the whereabouts of the alleged victim. In Brown, this Court considered the time lapse, the distance to the second interrogation, the difference in the interrogators, and the difference in the statements obtained. On the basis of these differences, the Court found that the statements were involuntary.

In this case, the time lapse was substantially less; the ultimate statement was made within 5 1/2 hours from the original taking of the appellant into custody and the knowing and voluntary waiver of his Miranda rights. The final questioning occurred at the police barracks and it may be rationally inferred, we think, absent proof to the contrary, that the barracks are located near the appellant's home.

While it is true that the ultimate information was given to Trooper Thomas rather than Trooper Hornung, it is clear from the record that the officers were cooperating in the investigation and we see no need for Trooper Thomas to have reiterated the Miranda warnings. Finally, the information obtained in the statements was essentially consistent throughout. To the end, the appellant denied doing any harm to his wife and also denied knowing her whereabouts. The vision he related having seen amounted, at the most, to a suggestion that his wife might be found in the water and it is significant, we think, that her body was not recovered until two days after he had been charged. From our own independent review of the record, we find that the Miranda warnings were seasonably given, that the appellant understood and voluntarily waived these rights, and that there was no physical or psychological coercion used in obtaining the statements he made. We conclude that the...