Burko v. State

• Decision Date: 07 January 1974
• Docket Number: No. 278,278
• Citation: 313 A.2d 864,19 Md.App. 645
• Parties: Jeffrey Aaron BURKO v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 645

19 Md.App. 645

313 A.2d 864

Jeffrey Aaron BURKO v. STATE of Maryland.

No. 278.

Court of Special Appeals of Maryland.

Jan. 7, 1974.

Certiorari Denied March 18, 1974.

Karl G. Feissner, Hyattsville, with whom were Feissner, Kaplan, Smith, Joseph & Greenwald, Hyattsville, on the brief, for appellant.

Arrie W. Davis, Asst. Atty., Gen., with whom were Francis B. Burch, Atty. Gen., George A. Eichhorn, III, Asst. 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 MORTON, THOMPSON and GILBERT, JJ.

GILBERT, Judge.

At 7:30 P.M. on March 9, 1972, Detective Lieutenant Donald A. Robertson died as the direct result of a gunshot wound to the head. The fatal shot had been fired from the inside of the trunk of an automobile then parked in the garage of the Montgomery County Police Department. Other police officers fired approximately thirty-five (35) bullets into the body of the gunman who was secreted in the trunk, but there was evidence that Lieutenant Robertson's slayer died from a self-inflicted bullet wound to the temple region and not from the police fusillade.

The appellant, Jeffrey Aaron Burko, who at the time of the slaying was in police custody for suspicion of armed robbery, was charged with the murder of Lieutenant Robertson. Appellant was also charged with the armed robbery of Hahn's shoe store situate in Silver Spring, Maryland. After indictment by the Grand Jury for Montgomery County the case was removed to Frederick County for trial. There, a jury presided over by Judge Samuel W. Barrick, found the appellant guilty of murder in the second degree and armed robbery.

In this Court appellant mounts a multifaceted attack on rulings by the trial court both at a pretrial hearing and at trial. He avers:

I. The composition of the petit jury violated constitutional standards because it did not represent a 'fair cross-section of the community'.

II. The trial judge failed to grant a motion for a mistrial, which motion was predicated upon improper reference by the prosecutor to evidence that had been stricken from the jury's consideration.

III. The evidence was insufficient to sustain a conviction for a second degree murder.

IV. The evidence was also insufficient to sustain the armed robbery conviction.

V. The trial court erred in instructing the jury that there is 'a presumption of murder in the second degree', and 'that there is a burden upon the appellant to introduce evidence tending to rebut this presumption'.

VI. The trial court erred in its instructions to the jury.

Before discussing the several questions posited by the appellant, an abbreviated description of the bizarre facts of this case is in order.

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.'

I.

Appellant argues that the composition of the Frederick County jury was constitutionally proscribed because it excluded those persons who are not registered voters and those who, although registered, were under twenty-one years of age. Wilkins v. State, 16 Md.App. 587, 300 A.2d 411 (1973), aff'd, 270 Md. 62, 310 A.2d 39 (1973), is dispositive of that portion of the appellant's argument concerned with citizens who have not registered to vote. Our recent decision in Hopkins v. State, 19 Md.App. --, 311 A.2d 483, decided November 26, 1973, holding that it is not unconstitutional to deny persons eighteen to twenty-one years of age the right to serve on juries, is dispositive of the second phase of the appellant's contention.

II.

Appellant perceives reversible error as the result of a remark made by the prosecutor during closing argument. The remark concerned the appellant's failure to inform the police of the presence of Turner in the trunk of the car, which evidence had been earlier stricken with proper admonition to the jury to disregard all references to the fact that the accused did not tell the police that Turner was hidden in the trunk. Appellant's motion for a mistrial was denied by Judge Barrick, but the judge both informed the jury that the prosecutor's argument was improper and repeated his earlier admonition.

In this Court appellant argues that because he had been apprised of his rights under Miranda v. Arizona, supra, he was under no obligation to speak, and the fact that he exercised those rights should not be allowed to be used against him. As we have noted, when the vehicle that the appellant was driving was first stopped, he was given his Miranda rights. These rights include the right to remain silent. Thereafter he did not advise the police that anyone was hiding in the trunk, although he did suggest that if the police officers would give him a tire iron he would open the trunk. The fourth time that the appellant was given his Miranda warning was, according to the record, 4:55 P.M. on March 9, 1972. In written form he stated 'Yea I'll answer your questions', and further indicated that he did not desire an attorney at that time. Patently then, any answers given to any questions following the written Miranda warning would be admissible. The first time appellant indicated that he desired the presence of an attorney was when he was taken before a District Court Commissioner at 6:38 P.M. of the same day.

Five times during the trial the State asked of its witnesses whether or not the appellant had informed the police that Turner was in the car. Judge Barrick sustained an objection to two of those questions and subsequently, as we have previously said, struck the answers to the others and told the jury to disregard them.

The most commonly known provisions of Miranda, supra, 384 U.S. at 478-479, 86 S.Ct. at 1630 are:

'. . . (W)hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that...