Burko v. State

• Decision Date: 26 November 1975
• Docket Number: No. 278,278
• Citation: 349 A.2d 355,28 Md.App. 732
• Parties: Jeffrey Aaron BURKO v. STATE of Maryland. On Remand.
• Court: Court of Special Appeals of Maryland

Page 732

28 Md.App. 732

349 A.2d 355

Jeffrey Aaron BURKO v. STATE of Maryland.

No. 278. On Remand.

Court of Special Appeals of Maryland.

Nov. 26, 1975.

Karl G. Feissner, Appointed Public Defender, Hyattsville, with whom were Feissner, Garrity, Levan & Schimel, Hyattsville, on the brief, for appellant.

Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County, and William T. Wood, Asst. State's Atty., for Montgomery County, on the brief, for appellee.

Argued before MOYLAN, GILBERT and MELVIN, JJ.

MOYLAN, Judge.

The appellant, Jeffrey Aaron Burko, was convicted by a Frederick County jury, presided over by Judge Samuel W. Barrick, of second-degree murder and of armed robbery. The trial had been removed to Frederick County from Montgomery County. In Burko v. State, 19 Md.App. 645, 313 A.2d 864, we affirmed the convictions. A Petition for Writ of Certiorari was denied by the Court of Appeals. A Petition for Writ of Certiorari to the Supreme Court was granted, 422 U.S. 1003, 95 S.Ct. 2624, 45 L.Ed.2d 667 (1975), the judgment was vacated and the case was remanded to the Court of Appeals 'for further consideration in light of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).' The Court of Appeals, in turn, remanded the case to this Court for reconsideration in the light of Mullaney v. Wilbur. Supplemental briefs have been submitted by both parties and the case has been reargued with exclusive focus upon the applicability of Mullaney v. Wilbur. After searching reconsideration, we still affirm.

In Burko v. State, at 19 Md.App. 648-650, 313 A.2d 866, Judge Gilbert well summarized 'the bizarre facts of this case':

'Hahn's shoe store was held up on the afternoon of March 9, 1972 by a lone gunman who, after taking a sum of money in excess of five hundred dollars ($500.00) from the cash register, compelled the employees of the store to get down on the floor. The gunman then fled. Immediately contiguous to Hahn's is an alley, and the felon ran into that alley and disappeared. Within seconds a 1964 blue Rambler exited the alley. It was stopped by the police a short distance from the scene of the crime. The appellant was the driver of the Rambler. He was ordered from the car and frisked. The vehicle was searched for a weapon and the proceeds of the robbery, but neither was found. The glove compartment of the automobile was locked as was the trunk. The appellant denied ownership of the car and said that it belonged to a 'Mr. Turner'.

Appellant was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In response to the police question as to what the appellant was doing in the rear of Hahn's shoe store, he stated that he was on his way to J. C. Penney's to seek employment. He said that he went to the parking lot in the rear of the Penney store. When he started to go into the rear door of the store, he observed a sign which indicated that that entrance was for employees only. Appellant further stated that realizing the time of day and that he was required to meet his friend, Turner, some distance away, he got back into the car and was on his way to meet Turner when he was stopped by the police. The officers asked appellant for the registration card of the vehicle. The appellant responded that the registration card was locked in the glove compartment, and he did not have a key. The police, dissatisfied with appellant's explanation of events, and fully cognizant that the permissive use of the vehicle by appellant had not been established, instructed the appellant to drive the car to the police station parking lot which was about one mile from the scene of the hold up. Upon arrival at the station house appellant was again given his Miranda warnings, and he waived the right to counsel. Appellant did, however, seek, and obtain permission to use the telephone to call Turner. In fact the call was placed for him through the police switchboard. There was no answer to appellant's call to Turner for reasons hereinafter vividly clear.

One of the appellant's interrogators went to the Rambler and again conducted a search of the car. The glove compartment and trunk were not searched. Thereafter, the vehicle was removed from the parking lot to the garage of the police building. Subsequently, Lieutenant Robertson, who was apparently puzzled by the failure of the police to find any evidence of the robbery in the car, inquired if anyone had checked the trunk. When the reply to that question was in the negative, the lieutenant and Officer Franklin Snider went to the car where a fourth search was commenced. The lieutenant and Snider entered the back seat of the vehicle and began to remove it when the lieutenant was suddenly shot in the head. A second shot narrowly missed Officer Snider. The gunman, whose body was subsequently extricated from the trunk, was Steven Van Turner. The appellant was still in the interrogation room. A police officer burst into the room and advised another officer that Lieutenant Robertson had just been shot and killed by a person who had been in the trunk of the Rambler. Upon overhearing this expletive, the appellant exclaimed, 'Christ, if I knew he was going to shoot anybody I would have opened the trunk myself. I didn't know he would shoot anyone; I didn't want that Officer killed. I want to die. I wish I had been the one who was shot."

Motivated perhaps by the fact that the appellant was a principal only in the second degree who was not present during and may not have anticipated the actual killing of Lt. Robertson, the jury, as is always its prerogative, returned a legally illogical verdict of guilty of murder in the second degree, although the undisputed evidence clearly established, if it established any crime at all, a case of first-degree murder based upon the combination of the felony-murder doctrine and Article 27, § 410. The jury did, in its companion verdict, find the appellant guilty of armed robbery.

In affirming the establishment of the criminal agency of the appellant in our initial consideration of this case, we quoted extensively from Jeter v. State, 9 Md.App. 575, 267 A.2d 319, aff'd, 261 Md. 221, 274 A.2d 337, a case in which the defendant, apprehended during the perpetration of a storehouse breaking, was already in police custody at the moment when his yet unapprehended accomplice shot and killed a guard. We there held that the principal in the second degree was fully responsible for the actions of his accomplice while the underlying felony and the chain of circumstances it set in motion were still in progress. In applying the principle of Jeter to this case, we said, at 19 Md.App. 656-657, 313 A.2d 870-871:

'The testimony revealed that the appellant and Turner had been sharing a hotel room at the Parkside Hotel in the District of Columbia for a period of two or three weeks prior to the robbery. They were seen together by the hotel...