Application of DeToro, Civ. A. No. 16804.

• Decision Date: 16 November 1965
• Docket Number: Civ. A. No. 16804.
• Citation: 247 F. Supp. 840
• Parties: Application of Percy DeTORO for a writ of habeas corpus.
• Court: U.S. District Court — District of Maryland

247 F. Supp. 840

Application of Percy DeTORO for a writ of habeas corpus.

Civ. A. No. 16804.

United States District Court D. Maryland.

November 16, 1965.

William J. McCarthy, Baltimore, Md., for petitioner.

Thomas B. Finan, Atty. Gen. of Maryland, and Franklin Goldstein, Asst. Atty. Gen., for respondent.

NORTHROP, District Judge.

Percy DeToro was sentenced to death on July 3, 1961, for the knife slaying of his paramour. He had been found guilty of first degree murder after a court trial in the Criminal Court of Baltimore City.

The issue raised by DeToro in this petition for a writ of habeas corpus is the admissibility in evidence of a written statement made by him shortly after his arrest and while he was being interrogated, the pertinent part of which reads:

"It looked like to me that she was trying to make a pass at me with the scissors and I struck her with the paring-knife."

Counsel stipulate that the statement was given under the following circumstances:

1. DeToro was advised that the statement must be free and voluntary;

2. He had not been advised by anyone of a right to counsel;

3. He did not have nor did he consult with counsel;

4. He did not know that counsel could be present at the taking of the statement;

5. He did not request counsel nor did he request to contact or be contacted by anyone; and

6. He had been previously tried and convicted of another serious crime and had been represented by counsel at that trial.

In addition, it is conceded that the statement was voluntarily given.

DeToro's trial took place March 21, 1961. The State's case rested mainly on the testimony of two witnesses who had been in the apartment at the time of the murder. In his defense, DeToro decided not to take the stand, but instead chose to rely solely on his statement, which the defense produced (although it was formally introduced by the State).

The conviction was affirmed by the Maryland Court of Appeals and DeToro petitioned this court for a writ of habeas corpus. He is now represented by the same able attorney who counseled him in that prior habeas corpus action.¹

This court held a hearing in the present habeas corpus petition on October 21, 1965, at which time the transcript of DeToro's original trial, the stipulations, and his statement were introduced. DeToro came directly to this court, bypassing state post-conviction proceedings. The principal question he raises is whether the failure to advise him that he had a right to counsel rendered his statement inadmissible.

For reasons to be discussed, the court finds that DeToro has exhausted his state remedies.

With respect to the right-to-counsel issue, DeToro relies on the holdings in United States ex rel. Russo v. State of New Jersey, 351 F.2d 429 (3 Cir. 1965) and People v. Dorado, Cal., 42 Cal.Rptr. 169, 398 P.2d 361 (1965), cert. denied, 381 U.S. 946, 85 S.Ct. 1793, 14 L.Ed.2d 710 (1965). Both cases extend the decision in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed. 2d 977 (1964).

In Escobedo, the suspect was arrested and immediately informed that he had been accused of shooting the deceased. En route to police headquarters, he requested to consult with his attorney, whom he had previously retained. During the interrogation period that followed, he renewed his request but was told that his lawyer did not want to see him. In fact, however, his attorney, who was present at police headquarters, had demanded to see him but was prevented from doing so. Escobedo later confessed. The Supreme Court held that under these circumstances, where there also had been a failure to effectively advise Escobedo of his right to remain silent, the confession was inadmissible.

The express holding is that where the investigation has focused on a particular suspect who is in police custody, and the police are interrogating him with the aim of eliciting a confession, and, most importantly, the suspect has requested and been denied counsel and has not been effectively advised of the right to remain silent, the confession obtained is inadmissible. The Court has specifically stated that the presence of these five elements establishes a clear violation of at least the Sixth Amendment right to the assistance of counsel.

Both Russo and Dorado hold that a suspect, arrested and questioned as was Escobedo, need not request counsel in order to be protected by the Sixth Amendment, since, by virtue of that amendment, the right to counsel attaches at every critical stage, and the interrogation stage is a critical one. Since the right does attach automatically, it is the duty of the police to inform the accused of this right, and if he is indigent, also to inform him that he has a right to have counsel appointed for him.

Most federal and state courts do not agree with this extension. Maryland is among those states. See Jenkins v. State, 238 Md. 451, 209 A.2d 616 (1965); Cowans v. State, 238 Md. 433, 209 A.2d 552 (1965); Green v. State, 236 Md. 334, 203 A.2d 870 (1964); Sturgis v. State, 235 Md. 343, 201 A.2d 681 (1964). Thus, even though DeToro has not raised this issue in the state courts, it would serve no useful purpose to require him to do so. The interests of comity are not furthered by futile proceedings which merely delay resort to this court. See, e. g., Hayes v. Boslow, 336 F.2d 31 (4 Cir. 1964); Evans v. Cunningham, 335 F.2d 491 (4 Cir. 1964). Therefore, this court must determine the correctness of petitioner's primary contention: that the failure to advise a suspect of his right to counsel renders the statement inadmissible.

In his well-reasoned dissent in Escobedo, Mr. Justice White anticipated cases such as Russo and Dorado and predicted that later decisions would go even further by excluding from evidence "all admissions obtained from an individual suspected of crime, whether involuntarily made or not". Escobedo v. State of Illinois, 378 U.S. at 495, 84 S.Ct. at 1767. He accused the majority of creating this situation by moving back the right to counsel from the time of indictment or preliminary hearing to that nebulous stage when an investigation focuses on a suspect. Law-enforcement bodies, the bench, and the bar — all of which are seeking means to stem the surging crime rate — are alarmed at the implications of such cases as Russo and Dorado and of Mr. Justice White's predictions.

Since the beginning of the Supreme Court's recent decisions on criminal procedure, great concern has been voiced regarding their effect upon law enforcement; but none of the cases has caused as much concern and given rise to such heated controversy as has Escobedo. Two extremes have developed: one group, although admitting that constitutional protection should be afforded all criminal defendants, feels that the limits of such protection have been defined by cases such as Escobedo and Mapp (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). To extend these cases would proscribe practices which frequently expose the criminal and, at the same time, present little likelihood of convicting the innocent.

The opposing group looks solely at the Bill of Rights, reading into it a code of conduct much beyond its intent. That group ignores the fact that the Preamble to the Constitution assures that the "blessings of Liberty" be available not only to the unsavory, but also to the law-abiding, whose liberties and freedoms must be protected from unlawful intrusions. In this group's desire to cure all ills of society by court decision, the coequal constitutional purposes to "insure domestic Tranquility", "promote the general Welfare", and "establish Justice" are overlooked.

Supreme Court decisions in White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), reflect unquestioned values with respect to the right to counsel. Also, various forms of coercion employed to extract confessions have long been proscribed: physical brutality in Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L. Ed. 682 (1936), threat of mob violence in Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958), thirty-six consecutive hours of questioning in Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944), threats against defendant's family in Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815 (1949), and deception in Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); as have searches and seizures under certain circumstances. See, e. g., Mapp v. Ohio, supra, United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). The case of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), corrected the procedural defect that allowed juries, as the triers of fact, to determine also whether the confession obtained was voluntary.

Such activities and practices have caused the Supreme Court as well as lower courts, state and federal, to vacate the resultant convictions even though independent corroborative evidence has often left little doubt as to the correctness of the verdict. The balance has been struck with these decisions. Any adjustment in favor of the suspect will lead courts to a more ready absolution of the guilty.

Also, it will be noted that even in England, which adopted the Judges' Rules, seriously limiting the questioning of suspects in custody, the Rules are being observed more in their breach than in their application, for now the admissibility of confessions obtained in a questioning session is left to the judge's discretion. The reason for this relaxation is that the former method was found to impose an unreasonable restriction on the police in bringing criminals to book.

It is for these reasons that most federal and state courts have found it...