Bazzell v. State, 95

• Citation: 6 Md.App. 194,250 A.2d 674
• Decision Date: 04 March 1969
• Docket Number: No. 95,95
• Parties: Gerald David BAZZELL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 194

6 Md.App. 194

250 A.2d 674

Gerald David BAZZELL v. STATE of Maryland.

No. 95.

Court of Special Appeals of Maryland.

March 4, 1969.

Charles Philip Brown, Baltimore, for appellant.

William E. Brannan, Asst. Atty. Gen., with whom were on brief: Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty. for Baltimore County, Clewell Howell, Jr., Asst. State's Atty. for Baltimore County, Baltimore, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

MORTON, Judge.

The appellant, Gerald David Bazzell, was tried in the Circuit Court for Baltimore County, without a jury, on two indictments. On the first indictment he was convicted of larceny and burglary and on the second indictment of breaking with intent to steal. He was sentenced to be committed to the jurisdiction of the Department of Correction for five years on each conviction, the sentences to run concurrently.

In this appeal it is contended that the appellant's confession was not voluntarily given and that the evidence was legally insufficient to sustain his convictions.

The record indicates that a seventeen-year-old boy observed two individuals, whom he could not identify, come from a wooded area about 9:00 p. m. on the evening of December 21 1967, carrying a TV set and sundry household articles which they cached behind a tree and then depart from the area. Shortly thereafter he saw a light blue 1965 Chevrolet park under a street light from which the same two individuals alighted, picked up the articles, placed them in the car and drove away. The young boy jotted the license tag number on a match cover and called the police. The automobile was found to be registered in the name of the appellant's wife. There was also testimony that two houses in the area had been broken into while the occupants were away on extended visits.

The appellant was arrested on January 8, 1968, and taken to police headquarters about midnight. Sergeant Zombro of the Baltimore County Police Department testified that Corporal Bedsloe (who did not testify) advised the appellant of his constitutional rights by reading to him from a card (presumably a so-called 'Miranda card'), 'which he said he understood, and wished not to be interrogated at that time.' The next morning at 8:00 a. m. the appellant again declined to make a statement. Approximately three hours later, Sergeant Zombro took lunch to the appellant in his cell and, according to the Sergeant's testimony, the following occurred:

'A We got to talking, and a statement was made that since it was only he and I there, that this could not be used in court. He admitted to that he did break into the two homes that he is charged with.

THE COURT: Who said it could not be used in court?

THE WITNESS: The defendant stated that since only he and I were there, since it was not part of the interrogation, since he'd waived, stated he did not wish to be interrogated, that it couldn't be used at that time.'

'Q What was your conversation with him at the time that you brought him his lunch?

MR. BROWN: I am going to object again, Your Honor.

THE COURT: I will overrule it.

MR. BROWN: Argument.

THE COURT: Overruled.

THE WITNESS: It was just-we just got to talking about the offenses. He was saying that, talking about the three charges we had on him, which one was an attempted B and E. He told me that, since only he and I were there, that he did break into the two places that we actually had him charged with B and E, but he did not do the attempted breaking and entering. That was the extent of it, right there.

THE COURT: Was that in response to any question which you put to him?

THE WITNESS: No, sir.

THE COURT: You mean he volunteered that, and said, 'Well, I'll tell you this, because I know it can't be used in court'?

THE WITNESS: Yes, sir, because there was only he and I there.

THE COURT: All right.'

On cross-examination, the following occurred:

'Q Did you go back there for any express purpose other than taking lunch back?

A No. It was general, general conversation that was started, but it was nothing along the lines of interrogation.

Q Did you start any general conversation with him?

A I can't remember how it got started, if I started it or if the defendant started it.

Q In other words, out of a clear blue sky he made this statement?

A Just through general conversation. We might have been talking about anything. I've known Jerry in the past. I really don't know, I can't state.

MR. BROWN: No further questions.

THE COURT: Thank you, Sergeant.

MR. BROWN: I am going to renew my objection, for the record.

THE COURT: You move to strike, and the motion is overruled.'

The appellant first contends that it was error to permit Sergeant Zombro to testify concerning the reading of the Miranda warnings by Corporate Bedsloe, who did not testify, since such testimony by Sergeant Zombro was hearsay and, therefore, inadmissible. This being so, it is argued, the posture of the case is such that no Miranda warnings were given to the appellant. It is also contended that in any event it is clear that the appellant misunderstood his rights and, therefore, did not knowingly and intelligently waive his privilege against self-incrimination as required by the holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

In Miranda the strictures enunciated are directed toward interrogation by the police. As stated by Chief Justice Warren (at p. 439, 86 S.Ct. p. 1609): 'More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation * * *.' He explains: 'By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody * * *.' (Emphasis added.) It must be recognized that Miranda does not proscribe the use of all statements or confessions. ¹ As explicated by the Chief Justice (p. 478, 86 S.Ct. p. 1630):

'In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. ...