Appeal No. 245 (75) from Circuit Court for Kent County, In re

• Decision Date: 28 November 1975
• Docket Number: No. 245,245
• Citation: 349 A.2d 434,29 Md.App. 131
• Parties: In re APPEAL NO. 245(75) FROM the CIRCUIT COURT FOR KENT COUNTY, sitting as a Juvenile Court.
• Court: Court of Special Appeals of Maryland

Page 131

29 Md.App. 131

349 A.2d 434

In re APPEAL NO. 245(75) FROM the CIRCUIT COURT FOR KENT

COUNTY, sitting as a Juvenile Court.

No. 245.

Court of Special Appeals of Maryland.

Nov. 28, 1975.

David B. Mitchell, Assigned Public Defender, for appellant

Michael James Kelly, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Floyd L. Parks, State's Atty., for Kent County, on the brief, for appellee.

Argued before ORTH, C. J., and POWERS and MASON, JJ.

ORTH, Chief Judge.

STATEMENT OF THE CASE

On 6 February 1975 two petitions were filed in the Circuit Court for Kent County, sitting as a Juvenile Court, against appellant, ¹ a youth then seventeen years of age. Both alleged

                that he was a delinquent child.  2  One gave as reason that on 9 July 1974 he had stolen a bike belonging to C. Daniel Saunders (Code, art. 27, § 340).  The other gave as reasons that on 12 December 1974 he had (1) received a pair of binoculars belonging to George Outten, knowing them to have been stolen (Code, art. 27, § 467), and (2) stolen the binoculars (Code, art. 27, § 341).  The petitioner in each petition was William T. Blackiston, Jr., Deputy Sheriff of Kent County.  At an adjudicatory hearing which terminated on 3 March 1975, the court found under the petition concerning the binoculars that appellant was a delinquent child.  It dismissed the petition concerning the bike.  At a dispositional hearing on 20 March [349 A.2d 436] 1975 appellant was committed to the Secretary of Health and Mental Hygiene for placement at Maryland Training School.  The Secretary was directed to provide psychiatric and psychological services.  An appeal was noted
                

THE CONFESSION

Background

At the adjudicatory hearing, ³ a confession obtained by the authorities from appellant was challenged. Evidence was received on the motion to suppress it. On 11 July 1974 Saunders reported the theft of his bike to the office of the Appellant was born in January 1958. At age 8 years and 10 months he was in the second grade in a school in Wilmington and was given an I.Q. test known as the WISC (Western Intelligence Scale for Children). His verbal score was 74, performance was 78 and full scale I.Q. was 73. The next year the he was placed in the 'Special and Emotionally Maladjusted' third grade class in a Kent County school. In 1968, 1969 and 1970 he was in primary 'special education' at Millington. 'Special education' was 'a special placement in classes for children who cannot function or get along in a regular class for various reasons.' In May 1971 he was again given the WISC test and also an achievement test known as WRAT. On the former his verbal score was 75, his performance quotient was 92 and his full scale I.Q. was 81. On the WRAT test his reading level was 3.9, spelling was 4.3 and arithmetic was 3.3. In 1971 he attended the sixth grade at Galena Middle School. He was present 66 days and absent 8 days. He withdrew and his records were sent to Chestertown Middle School on 3 January 1972, although it seems that he did not attend that school. On 14 February he was transferred to Cambridge State Hospital where he remained until 27 March 1974, when he was discharged to his parents. There were home visits, so that the actual time spent in that Institution

                Sheriff for Kent County.  On 12 December 1975 Outten reported to that office that his home had been broken and entered and that personal property had been stolen.  Blackiston and Deputy Sheriff Jess Metcalfe investigated the crimes.  Their investigation led them to appellant, one of a group of suspects.  On 18 January 1975, about 4:00 p. m., Blackiston and Metcalfe, in uniform and wearing side-arms, went in their official car to the trailer home where appellant lived with his parents.  Appellant was the first 'suspect' they went to see.  Blackiston said: 'I wasn't sure he was my man.  I wanted to investigate to find out who was.'  The deputies told the parents they wanted to see appellant.  Appellant appeared from within the trailer, and Blackiston took him to the car parked nearby to interrogate him.  Blackiston testified that he did this 'Because it's generally my policy to do an interrogation on my grounds.'
                was about one year and four months.  4  The Institution's final diagnoses[349 A.2d 437]  on discharge included 'adjustment reaction of adolescence, conduct disturbance' and 'borderline mental retardation with other (and unspecified) condition.'  5  The condition on release and prognosis was, 'Patient's condition on leaving was excellent from the physical and psychiatric viewpoint.  However, prognosis is considered guarded if patient doesn't have enough supervision at home and if he doesn't have a job in the community.'  Appellant did not return to school.  This was the background of the youth Blackiston took to the police car to interrogate
                

Circumstances Surrounding the Obtaining of the Confession

Blackiston sat in the front seat and placed appellant in the back seat. Blackiston testified that he read all the Miranda warnings to appellant and that appellant said he understood them. 'And I said, 'Do you knowingly waive these rights?' and (appellant) didn't know what the words 'knowingly waive' meant, so I explained to him that if he wanted to talk to me about Mr. Outten's property he could stop any time and not tell me anything. And he advised me okay.' There was evidence tending to show that the confession was voluntary in the traditional sense. Blackiston said that neither he nor Metcalfe made any threats, gave any promises or extended any inducements to appellant to get him to talk. Metcalfe, who had remained at the trailer to talk to the parents, appeared about the time Blackiston finished giving the Miranda warnings and sat in the front Appellant's father gave his version of what occurred:

seat next to Blackiston. The interrogation proceeded. Appellant gave a verbal statement.

'He drove up to the yard and my wife went to the door and said a Trooper car was here, and I said, 'What Trooper,' and she said, 'From Maryland.' Then they came up to the door and one had his hat on (apparently Blackiston) and the other one didn't. Before he knocked on the door she opened the door. And he said-I can't tell one from the other, but the one that had the hat on said, 'Could I talk to Stanford?', and she said, 'Come on in.' They came in and the short one, the one that didn't have the hat on, wasn't completely in the door. My wife called to (appellant), he was in the back, in the back bedroom and he came out of the trailer on the porch part. She said to him, 'They want to talk with you.' Then the one that had the hat on said, 'Boy, go to the car.' They went on to the car. Then the one that didn't have the hat on, he went out first. He was the last one getting in the car. I watched out the window.'

He denied that the deputies told them why they wanted to talk to appellant.

Appellant told what occurred when the deputies arrived:

'I was in the bedroom, in the back bedroom in the trailer, getting my shirt. Then my mother called me out there on the porch because the policemen was there. Then the young one, with the hat on, asked my father could he ask me some questions. The one in the doorway didn't say anything. Then we went out into the car and that was when he started asking me questions.'

According to appellant, he, Blackiston and Metcalfe went out to the car at the same time. Metcalfe said, addressing appellant by his first name, '_ _ we've got some trouble around here and I think you know about it.' Then 'Q. Now, did they ever threaten to hit you?

                Blackiston 'started reading off my rights.'  Appellant denied, however, that anything was said about a lawyer.  He said he went with the 'policemen' because he was afraid they would take him to Chestertown and lock him up.  6  On cross-examination the State pursued the matter of the voluntariness of the statement in the traditional sense
                

A. No sir.

Q. Or beat you?

A. No sir.

Q. Did they make any promises or do anything to you that was bad?

A. No sir.'

Blackiston was recalled by the State. He said that when he and appellant went to the car, Metcalfe remained at the trailer to talk to the parents. About ten or fifteen minutes elapsed before Metcalfe came to the car. Blackiston said that when he and appellant first arrived at the car 'I introduced myself and advised (appellant) that I wanted to talk to him about George Outten's home being broken into and some things being taken.' Blackiston iterated that he then gave the Miranda warnings, and that appellant said he understood them and waived them. On cross-examination, asked why he did not talk to appellant in the trailer about the Outten matter, Blackiston replied: 'I do it differently at times, but I generally take the people out in the car to talk.' He said he tried 'to deal with' both adults and juveniles the same way.

Admissibility of the Confession

The judge below granted the motion to suppress the confession. Upon our independent constitutional appraisal, see Davis v. North Carolina, 384 U.S. 737, 741-742, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966), we think it was properly excluded. We reach this conclusion for alternative reasons. The confession was inadmissible both because an effective waiver of the privilege against self-incrimination and the right to retained or appointed counsel was not shown, and because it was the fruit of a poisonous tree.

The judge below apparently relied on the failure to show a valid waiver of the constitutional privilege against self-incrimination and right to counsel in holding that the confession was to be excluded. We are in accord. The rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) is that 'the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against...