Boone v. State, No. 106

CourtCourt of Special Appeals of Maryland
Writing for the CourtBefore ANDERSON, MORTON, ORTH and THOMPSON, JJ., and WILLIAM J. O'DONNELL; O'DONNELL; Raine
Citation233 A.2d 476,2 Md.App. 80
PartiesRoosevelt BOONE v. STATE of Maryland.
Docket NumberNo. 106
Decision Date28 September 1967

Page 80

2 Md.App. 80
233 A.2d 476
Roosevelt BOONE
STATE of Maryland.
No. 106.
Court of Special Appeals of Maryland.
Sept. 28, 1967.
Certiorari Denied Jan. 18, 1968.

Page 85

[233 A.2d 479] Robert F. Freeze, Baltimore, Robert Conrad, Baltimore, on the brief, for appellant.

Frank A. DeCosta, Jr., Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Frank A. DeCosta, Jr., Asst. Atty. Gen., Samuel A. Peregoff, Asst. State's Atty., for Baltimore City, Baltimore, and James A. Gede, Asst. State's Atty., for Baltimore County, Towson, on the brief, for appellee.


O'DONNELL, Special Judge.

Appellant, Roosevelt 'Zip' Boone, together with Abraham Goode, known as 'Tomboy,' Alphonso Obadiah Craft, and James Kitt, were jointly indicted on January 29, 1965, by the Baltimore City Grand Jury, charged with armed robbery and with murder in the first degree as a result of the hold-up of Burman's Cafe and the killing of Charles O. Hazard, the bartender, on the early morning of January 2, 1965.

Following the decision in Schowgurow v. State, 240 Mo. 121, 213 A.2d 475 (1965) and under the holdings in Smith v. State, 240 Md. 464, 214 A.2d 563 (1965), he elected to have those indictments declared invalid and was re-presented and re-indicted on November 2, 1965, with the same co-defendants for the armed robbery and, with the exception of Abraham Goode, for murder in the first degree (in the interval, in a separate proceeding, Goode had pleaded guilty to murder in the second

Page 86

degree and had been sentenced). Appellant requested a change of venue and an order was signed in the Criminal Court of Baltimore removing the case to the Circuit Court for Baltimore County for trial.

A Motion for Discovery and the Answer thereto filed in the earlier indictments were re-filed on March 4, 1966. The Appellant also filed a Motion to Dismiss the Indictments, alleging that his arrest had been illegal, that 'all steps which followed the arrest were illegal,' and alleging that he had been placed in double jeopardy. In addition, he filed a Motion to Suppress Evidence alleging an illegal arrest, that the arrest warrant was invalid, that he was not advised of his right to remain silent, nor of his right to counsel, that he was denied counsel prior to interrogation, and that the statement was not freely and voluntarily given; he moved that the statement be suppressed.

Prior to trial, Judge John E. Raine, Jr., denied the Motion to Dismiss on the ground of double jeopardy and, after conducting a pre-trial hearing, denied the Motion to Suppress, ruling that the arrest was lawful and that the statement was admissible.

After a jury trial, presided over by Judge Raine, Appellant was convicted on the first and second counts of the armed robbery Indictment and was convicted of murder in the first degree. His Motion for a New Trial was granted on the murder conviction. From the sentence imposed (18 years in the Maryland Penitentiary, reduced to 17 years on April 1, 1966) on the armed robbery conviction, he appeals.

Counsel for Appellant, in his Brief and in argument, contends that the trial court committed error (1) by admitting the statement into evidence, (2) by refusing to allow Appellant to summons and call certain witnesses, (3) in permitting the State to re-open the testimony on the Motion to Suppress after it had rested, (4) in permitting the State to interrogate Appellant as to whether or not he had been previously convicted of crime, and (5) in allowing leading questions 'on crucial issues' in the trial. His counsel also (6) challenges the sufficiency of the evidence to sustain the conviction and contends (7) that

Page 87

the verdict of the jury of 'guilty' on the first and second counts of the Indictment was improper.

[233 A.2d 480] I


Appellant's first three (3) contentions, all relating to alleged errors on the part of the trial court, in connection with its rulings on the Motion to Suppress his statement, may be considered together.

Lt. Cadden of the Homicide Squad of the Baltimore City Police Department, testified that on January 7, 1965, he received information from Sgt. Callahan that 'Tomboy' Goode, who was in custody, had in a written statement admitted his participation in the robbery and homicide, had named Boone as one of his accomplices and had identified his photograph. Upon this information, a warrant was issued for Appellant's arrest, but he was 'at large' until brought to Police Headquarters about 11:00 p. m. on January 20, 1965, after having surrendered to Sgt. Watkins.

Lt. Cadden testified further that the written statement was given within 20 minutes after Boone arrived at Police Headquarters and after he had told the officers about the case; that Boone was admonished that he did not have to give a statement, did not have to discuss the matter at all, that no request, nor any mention of, an attorney was made by him; that both he and Sgt. Watkins were present during the entire interrogation; that no threats were made to him, no force or violence was used or exhibited; that Boone was 'eager to discuss the case' and that after he typed the six (6) page statement, verbatim as Boone told it, he read it, signed it, initialed each page and made initialed corrections in it. He testified that Sgt. Watkins made no statement at the interrogation that either Boone, or his wife, had advised him that they had retained an attorney.

Appellant, 36 years of age, who had completed third-year high school, on the Motion testified that 'he was in big trouble,' knew that a warrant was outstanding for his arrest, but being afraid of 'what might happen to him at the hands of the police' had attempted, by seven or eight phone calls, to contact

Page 88

Sgt. Watkins (of his own race) on January 20th, so that he might surrender to him. He requested Sgt. Watkins to come alone to his mother's home (she did not wish the neighborhood disturbed by a number of policemen at her home) and Sgt. Watkins assured him and the family that no harm would come to him at the hands of the police and that he would be with him while he was being interrogated.

He contended that enroute to the Police Station in the Sergeant's private car, he told the Sergeant that he was 'submitting to the warrant, but wouldn't say anything until his lawyer came,' that the Sergeant told him he didn't need a lawyer, that no one would mistreat him and advised him not to say anything at the interrogation unless Watkins was present. He further stated that during the ride, in the Sergeant's presence, his wife stated that 'she would call his lawyer.' He acknowledged that notwithstanding his self-serving statement that 'he wouldn't say anything until his lawyer came,' he had told Sgt. Watkins substantially the same things as were recorded in the statement.

He testified that while in the cell in the Police Station he requested permission about 9:35 p. m. of a turnkey 'to make a phone call,' was told that the Desk Sergeant would be asked, but never again saw the turnkey or the Desk Sergeant until he was being transported to Headquarters. He later testified that he had told the turnkey he wanted 'to phone his lawyer,' but had been advised that he was 'not permitted to make a phone call.'

He testified that when he entered the Interrogation Room at Headquarters, one of the nine (9) officers present was 'beating a blackjack in his hand,' that another 'slammed a chair against the wall,' and that he had told an unidentified Lieutenant (not Lt. Cadden) that he was 'waiting for his lawyer before he would discuss the [233 A.2d 481] case with them.' He denied that he was advised of his right to remain silent, or that he was not required to give evidence against himself, nor that what he said would be used against him, although he knew that this was 'standing law.' He contended that although reluctant to give a statement, he 'submitted' because of the general atmosphere in the room where the police appeared hostile. He admitted

Page 89

signing the statement but denied having read it. He explained his initials and corrections 'because he was told to do so.'

On cross-examination he admitted that he knew he was entitled to consult with an attorney and knew he had a right to remain silent and acknowledged that the statement was made 'not because he didn't have a lawyer, but because of threats of the officers.' He admitted that he believed that his wife had contacted an attorney who was enroute and knew that he could have waited for his attendance but contended that he 'believed he may have been subject to violence-that the officers by their very presence presented a definite threat to him.' Although he admitted that he knew he was to be questioned about the robbery at Burman's Cafe and had been assured that no harm would come to him when he surrendered to Sgt. Watkins, he 'didn't want to tell the police what he knew.'

His wife testified that while in Sgt. Watkin's car, Boone had asked her to 'call Lawyer Brager' but that she had been unable to contact him until the following day. (Between January 2nd, the date of the crime, and his surrender to Sgt. Watkins on January 20th, no attorney had been retained, nor had the Appellant discussed the case with any attorney. The day after the statement was given an attorney did visit the Appellant at Police Headquarters, but never was engaged by him.)

Lt. Manuel, Sgt. Callahan and Officer Rout were called as witnesses by Appellant and testified that Goode had been arrested at Crownsville State Hospital only after they had been assured by its Clinical Director that his condition was normal and that he showed no ill effects from any (narcotics) withdrawal symptoms. It was elicited that about 4 hours after Goode had given his statement concerning his participation and that of the Appellant in the robbery and homicide, he was taken to Mercy Hospital...

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