Brown v. State

• Decision Date: 07 March 1967
• Docket Number: No. 129,129
• Citation: 239 A.2d 761,3 Md.App. 313
• Parties: Johnny Mack BROWN v. STATE of Maryland. . March, 6, 1968. Bernard A. Greenberg, Baltimore, for appellant. Bernard L. Silbert, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., for Baltimore City, Alan B. Lipson, Asst. State's Atty., for Baltimore City, on the brief, for appellee. Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ. MURPHY, Chief Judge. The appellant, Johnny Mack Brown, was convicted of murder in the first degree on
• Court: Court of Special Appeals of Maryland

Page 313

3 Md.App. 313

239 A.2d 761

Johnny Mack BROWN v. STATE of Maryland.

No. 129.

Court of Special Appeals of Maryland.

March, 6, 1968.

Bernard A. Greenberg, Baltimore, for appellant.

Bernard L. Silbert, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., for Baltimore City, Alan B. Lipson Asst. State's Atty., for Baltimore City, on the brief, for appellee.

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

MURPHY, Chief Judge.

The appellant, Johnny Mack Brown, was convicted of murder in the first degree on March 7, 1967 by the court sitting without a jury and sentenced to life imprisonment in the Maryland Penitentiary. He contends on this appeal (a) that his confession was secured in violation of the principles enunciated in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and was thus improperly admitted into evidence at his trial, and (b) that certain statements made by a police officer to the appellant's father while appellant was in police custody were also erroneously admitted into evidence at his trial, and (c) that the evidence was insufficient to support the conviction.

There was evidence adduced at the trial from which the trier of fact could find that in the late afternoon of September 26, 1966, Gail Jefferson, age fourteen, was shot with a .22 caliber buller while playing in the courtyard of an apartment project and died shortly thereafter; that at 8:31 p. m. that same day, the appellant phoned the police stating: 'I'm Johnny Mack Brown, and I want to give myself up for shooting that girl today. I am walking from Fayette and Broadway to 302 North Ann Street, my mother's house'; that the police, at 8:35 p. m., arrived at appellant's mother's home, at which time the appellant, in company with his father, walked up to the police and stated: 'I'm the one that called. I'm the one that did the shooting'; that appellant then gave the officers a .22 caliber bullet, after which he was taken to police headquarters and placed in a cell; and that at 8:55 p. m. he was taken to the Sergeants' Room for interrogation where, within a short time thereafter, he gave police a written statement to the effect that he had shot Gail Jefferson with his .22 caliber rifle from the window of a second floor apartment of a friend's home because the victim had teased him earlier in the day.

Appellant contends that his statement was improperly admitted at the trial over his objection since the State failed to prove that he had voluntarily, knowingly and intelligently waived his constitutional right to remain silent and to have counsel to represent him.

The record discloses that appellant was interrogated by Detective Donald Raley and Sergeant Carl Zamerelli in the presence of two other officers. Raley testified that before any interrogation began appellant said that, 'he wanted to tell us what had happened,' and also said, 'I want to get it off my chest.' An objection to the admission of these oral statements was made by appellant and the objection was sustained by the court. Detective Raley was then asked, 'What was the next thing that was said or done?' He answered, stating that, 'We had the typewriter and what not prepared and we prepared to take a statement.' Raley further testified that, 'prior to taking any statement from him,' appellant was told of his right to remain silent, that anything said would be used against him in court, that he could have a lawyer present if he cared to have one, and that if he could not afford an attorney, one would be secured for him. Detective Raley was then asked:

'Q. What happened if anything after you told the defendant, after you gave him this information?

'A. He told us what had happened.

'Q. Before you started to get anything, was there any other discussion on any other matter preliminary to taking down the statement on paper?

'A. Well we asked him some questions, some little background what had happened.'

On cross-examination, Detective Raley was asked:

'Q. In fact after you finished advising him of his rights you didn't ask him whether or not he wanted a lawyer, did you?

'A. We asked him already, yes.

'Q. You did?

'A. We asked him if he wanted a lawyer and he said he wanted to tell us what-'

At this point, the State objected and Detective Raley did not complete his answer. The court then adjourned for lunch.

On re-direct examination, Raley testified that he had no doubt that the appellant understood the Miranda warnings. Appellant objected to the answer and the objection was sustained by the court. Raley was then asked:

'Q. Did the defendant ask any questions after the warnings were given, * * *?

'A. The defendant stated he wanted to give-'

An objection to the answer was sustained by the court.

Raley was thereafter asked on re-direct:

'Q. What if anything did the defendant say as you gave him these warnings?

'A. Nothing. We went ahead with the statement with the exception he wanted to give a story, his side of the story.'

As the State's re-direct examination of Detective Raley progressed, it sought to show that in the preliminary part of appellant's written statement, he expressly acknowledged that he understood the Miranda warnings, and nevertheless wanted to tell the police what had happened. An objection to this line of testimony was sustained by the court. Thereafter, Raley was asked:

'Q. Did Mr. Brown at any of those times prior to, during or subsequent refuse to give you any information concerning this offense?

'A. No, sir.

'Q. Did Mr. Brown question you as to what you meant after you had given him the warnings you already testified to?

'A. No.'

On re-cross examination of Detective Raley, he testified that appellant was asked, 'if he wanted an attorney present at the time he was talking to us.' The record does not reveal what, if any, response appellant made to that question.

Appellant testified as to the voluntariness of his statement, and was asked 'Q. What were you told by the police if anything?

'A. They asked me if I-I ain't had to say nothing, I could remain silent, if I want I could have a lawyer right there where I was, let him hear what I was telling them.

'Q. Speak clearly?

'A. They told me I could remain silent and if I don't want I ain't have to say nothing without a lawyer would be there to listen to hear what I say.'

To the question of 'whether he knew that he could have a lawyer right then and there,' appellant answered in the negative but the court sustained an objection to this answer. Appellant was then asked by his counsel:

'Q. What did you say if anything after you were informed of your righs?

'A. I didn't say anything. I just started telling them what had happened.'

On cross-examination, the appellant testified:

'Q. Mr. Brown, it was your intention all along to turn yourself in and to tell the police about what had happened, was it not?

'A. Yes.'

Appellant's statement was then offered in evidence. The appellant objected on the ground that the evidence failed to show a knowing and intelligent waiver of his right to remain silent and to have a lawyer present to represent him. The court concluded that the statement was admissible in evidence, stating:

'THE COURT: I find that any indecision about what was told to the defendant by Detective Raley has been answered conclusively by the testimony of the defendant himself who certainly corroborates Detective Raley when he said, yes, the police told me among other things I could have a lawyer right there with me. The defendant stated I didn't say anything after I was informed of my rights. Then I just told them what happened.

'THE COURT: I hold that the police in this case acting through Detective Raley at that time clearly told the defendant of his existence of his rights under Miranda together with the other information according to the testimony pertaining to the fact that no promises were made, no inducements were made, no coercion, no violence exerted and it seems to me to be very clear that the police had met affirmatively the burden upon them placed on them by the Miranda case.'

The written statement, as read into evidence, contained by way of introductory matter a recitation of the details of the particular crime which the officers were investigating, together with the fourt-fold Miranda warnings, after which appellant was asked, 'Johnny, do you understand what I just said?' to which he replied:

'Yes, I understand what you said; & I want to tell you just what happened.'

We have no difficulty in concluding that appellant was afforded all the constitutional warnings to which he was entitled under the Miranda decision, including advice in clear terms that he had a right to have counsel present during the interrogation. But as Miranda makes clear at page 475, 86 S.Ct. at page 1628, if after such warnings have been given, custodial interrogation is undertaken without the presence of an attorney, and a statement is taken, 'a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.' Equally plain from Miranda is the flat holding at pages 475 and 479, 86 S.Ct. 1602 that no evidence obtained as a result of a custodial interrogation can be used against an accused unless and until the prosecution demonstrates a waiver of his constitutional rights within the meaning of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 a case which holds that waiver of a fundamental constitutional right is ordinarily 'an intentional relinquishment or abandonment of a known right or privilege,' the determination of which 'must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' Within this framework, the Miranda court, in the course of its opinion, articulated...