Bagley v. State, 345

• Decision Date: 19 June 1963
• Docket Number: No. 345,345
• Parties: , 100 A.L.R.2d 1249 Nick D. BAGLEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 86

232 Md. 86

192 A.2d 53, 100 A.L.R.2d 1249

Nick D. BAGLEY v. STATE of Maryland.

No. 345.

Court of Appeals of Maryland.

June 19, 1963.

Fred Oken, Baltimore, for appellant.

Jacques E. Leeds, Asst. Atty., Gen. (Thomas B. Finan, Atty. Gen., William J. O'Donnell, State's Atty. and Abraham L. Adler, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, HORNEY, and MARBURY JJ.

HORNEY, Judge.

The defendant, Nick D. Bagley, who was tried by a jury in the Criminal Court of Baltimore on an indictment charging him with robbery and murder, was convicted of murder in the first degree without capital punishment, and has appealed.

The victim, Donald J. Davis, operated a retail meat store on Falls Road in Baltimore City. Between 6:45 and 7:00 o'clock on the morning of November 28, 1961, the sales manager of a meat wholesaler answered his telephone and as he did he heard the storekeeper call his name and say 'someone is knocking at the door' and 'I think I have an early customer.' After a pause of a few seconds, the storekeeper returned to the telephone and gave the sales manager his order and hung up without further comment. A few minutes after 7:00 o'clock a truck driver for another wholesaler, making a routine delivery, entered the store through the unlocked door and found the storekeeper lying in a pool of blood with a wound in his head. A revolver belonging to the storekeeper was on the floor close to and pointing toward the left side of his head. The storekeeper died four days later. At the hospital, particles of gunpowder were found in the wound canal. A note entered in the hospital record by the surgeon referred to the possibility of suicide and the medical examiner reported that the anatomical findings indicated a typical self-inflicted wound.

At the scene, besides the revolver, there was found a one-dollar bill, approximately $28 in change in a paper bag and $11 in change in a desk drawer. At the trial, an employee testified that the storekeeper had left $100 in the cash register the night before, but the wife of the deceased testified that he usually took money with him each morning for operating funds. His gold watch and wallet were found on the desk but there was no evidence that any money had been taken from the wallet. Other than a butcher knife, a cigar and some stamps on the floor and the telephone receiver dangling from the hook, there were no signs that a struggle had taken place.

About the middle of February of 1962, as a result of requested information received from the State Police of North Carolina, two members of the police department of Baltimore City were sent to Durham to interrogate the defendant as a possible suspect in the death of the storekeeper. At this time the defendant was in the Durham jail awaiting a hearing on the charge of violating his probation on a charge of check raising. Several days before, the defendant on two occasions, in order to obtain food and lodging for a night, had told the police in Winston-Salem and Valdees that, while hitch-hiking near Washington (D. C.), he had had an altercation with a storekeeper and had killed him. It was the report of this fictitious killing on the teletype that caused the Baltimore police to inquire of the Durham police as to the whereabouts of the suspect.

The Durham police, at the request of the Baltimore police, talked to the defendant about the killing of the Baltimore storekeeper for the first time on February 12, 1962. They said that he told them he had been in Baltimore for several days shortly after Thanksgiving in 1961. When he was questioned again on the next day, the defendant said he had been involved in an accidental shooting of a Baltimore storekeeper following an incident involving the purchase of cigarettes and a subsequent altercation over the use of a telephone. On February 17, 1962, the defendant confessed the killing of Donald Davis in the presence of the Baltimore and Durham police and a stenographer and signed a statement to that effect. At the same time he signed a waiver of extradition and was subsequently brought back to Baltimore.

In substance, the signed confession stated that the defendant came by bus to Baltimore from Durham on November 26, 1961, and stayed at the home of a cousin. The next day he called a friend and arranged to meet him that night and go to a party. After getting 'juiced up' on dope, he left the party alone about 4:30 o'clock in the morning of November 28. He walked until near daylight and came upon a group of stores, only one of which was lighted. The defendant knocked on the door, asked for cigarettes and was told that none was sold there. He then asked for some meat. After he was admitted, he decided to rob the storekeeper. He put his hand in a pocket of his green leather coat to pretend he had a gun and told the storekeeper that it was a 'stick-up.' The storekeeper picked up a butcher knife and the defendant knocked it out of his hand and again demanded money. The storekeeper then retreated to the desk and came back with a revolver in his right hand. The defendant lunged at the storekeeper, grabbed his wrist and struggled with him. During the altercation there was a flash from the revolver and the storekeeper was shot in the left temple and slumped against the desk. The defendant took some money and ran. He returned to the home of his cousin and went to sleep. On the next day he returned to Durham. In the signed confession, the defendant also stated that he had told a girl friend in Durham that he had shot and robbed a man in Baltimore.

Approximately three hours after his return to Baltimore, the defendant, in handcuffs, was taken to the scene of the crime by the police. A photographer, a stenographer and an assistant prosecutor also accompanied the police. At the store, the defendant, orally and demonstratively, re-enacted the account of the holdup and shooting of the storekeeper he had given in the signed confession. By posing in and about the store both alone and in concert with the police detective acting the role of the victim, the defendant simulated the various phases of the holdup, resistance and shooting. Eight photographs of the posed scenes were taken. Seven of the photographs and the two confessions were admitted into evidence. At the trial, the defendant, claiming that he was not permitted to see a lawyer beforehand and that he had no choice but to participate in the re-enactment, denied its voluntary character, but the police (Lieutenant Glover, Sergeant Cadden and Detective Ray) testified that the defendant went to the scene and took part in the re-enactment willingly, and that no promises, threats or force had been used to induce his cooperation. The photographer did not testify as to the voluntariness of the re-enactment. Nor did the stenographer and assistant prosecutor take the stand. The defendant also claimed that he was instructed by the police where to stand and how to pose for the photographs.

The principal defense of the defendant was that he was in Durham when Davis was shot. His employer in Durham testified that the defendant had worked at his restaurant the entire week beginning November 27. He borrowed $20 from his employer on the evening of November 28--the day the storekeeper was shot. The loan was made by way of a check dated that day. Another witness, whose endorsement was on the check, testified that she had cashed it for the defendant that same evening. The assistant manager of a clothing store in Durham identified the green leather coat as the one he had sold the defendant on December 30, 1961. The girl friend in Durham testified that the defendant had not told her that he had killed a man in Baltimore. The cousin of the defendant also denied that he had been in her home at any time in November of 1961. The defendant testified that in Durham he had been shown photographs of the scene of the crime and that they were the source of his information concerning the details of the crime. The Baltimore police admitted having photographs with them when the first confession was made but denied showing them to the defendant.

Three contentions are made on appeal: (i) that the re-enactment of the crime was an involuntary confession and was therefore inadmissible in evidence; (ii) that the photographs of the re-enactment were likewise inadmissible as evidence; and (iii) that it was error to refuse to instruct the jury that the State had the burden of excluding beyond a reasonable doubt every hypothesis that the death of the storekeeper was caused by means other than homicide.

(i)

Although the defendant contends that his signed confession was false, its admission as evidence is not challenged on appeal. It is the re-enactment, which reiterated and effectively corroborated the first confession, that is objected to as being involuntary.

Since the re-enactment was in fact a second confession, the question whether the evidence with respect to the re-enactment was admissible is governed by the same rules as governs the admission of confessions proper. 'The burden is upon the State to show that the confession offered in evidence is the voluntary act of the accused, and not a product of force, threats, or inducement by way of promise or advantage.' Parker v. State, 225 Md. 288, 291, 170 A.2d 210, 211 (1961); Presley v. State, 224 Md. 550, 168 A.2d 510 (1961), cert. den. 368 U.S. 957, 82 S.Ct. 399, 7 L.Ed.2d 389 (1962); Hall v. State, 223 Md. 158, 162 A.2d 751 (1960). In a case where the jury is the ultimate arbiter of the facts the matter of the admissibility of a confession involves, in the first instance, a question for the trial court to decide, but once it is admitted in evidence, the voluntary character of the confession becomes a question for the jury to decide in the light of all the facts and circumstances of the case. Hall v. State, supra, 223 Md. p. 169, 162 A.2d p. 757; Linkins v....