Campbell v. State, 305

• Decision Date: 23 August 1965
• Docket Number: No. 305,305
• Citation: 212 A.2d 747,240 Md. 59
• Parties: Norman Anthony CAMPBELL v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 59

240 Md. 59

212 A.2d 747

Norman Anthony CAMPBELL v. STATE of Maryland.

No. 305.

Court of Appeals of Maryland.

Aug. 23, 1965.

William O. Goldstein, Baltimore (David Kimmelman, Baltimore, on the brief), for appellant.

Julius A. Romano, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., and Charles E. Moylan, Jr., State's Atty., for Baltimore City on the brief), for appellee.

Before PRESCOTT, C. J., and HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.

BARNES, Judge.

Norman Anthony Campbell, the appellant, was found guilty by the Criminal Court of Baltimore on both counts of a two-count indictment charging him with attempted burglary (count 1) and with being a rogue and vagabond (count 2); he was sentenced to serve eighteen months in the House of Correction on the first count, and two years, on the second count, both sentences to be served concurrently, and both to commence at the expiration of a sentence Campbell is now serving. The appellant contends that the evidence was insufficient to sustain the conviction on the attempted burglary count, and that the trial court erred in admitting an oral confession made by the appellant, for several reasons to be considered later.

Rocco's Sandwich Carry-Out Shop is located at 1217 Laurens Street, near the intersection with Carey Street, in Baltimore City, Maryland, and is owned and operated by one William Harris. On the morning of August 17, 1963, Mr. Harris closed the sandwich shop at 2:30 A.M. and prepared to retire for the night. Harris slept in a cot in the back room of the establishment; this cot was six or seven feet from a window which was raised for ventilation and which contained wire screening. Harris had just begun to doze, with his trousers on and with a .25 caliber Baretta automatic pistol in his trouser pocket, as was his custom, when he heard a 'ripping' sound against the window screen. Within a short time someone pulled away the screen and began to climb into the window. When the intruder had pushed his head and upper body though the window, Harris removed the pistol from his trouser pocket, aimed and fired it at him. The intruder hastily withdrew; Harris quickly arose from his cot and ran into the street. Although he never was able to identify the man's face, Harris described the intruder to the police as a colored male, weighing from 150 to 170 pounds, wearing blue jeans and a short sleeve shirt. Also, he observed the man running down the street in a crouched position, holding his face in his hands.

Officer Joseph Brown arrived at the Sandwich shop shortly after 4:25 A.M. in response to a call by Mr. Harris to the Baltimore City Police Department. Within a short time Officer Brown had assembled all the information which Harris could give him, made a tour of the immediate area, and departed. At 5:40 A.M. Officer Brown was instructed to report to University Hospital, some eighteen blocks away (a five minute automobile ride at that hour of the morning) to investigate a report that a man had just been admitted there with gunshot wounds. At the Hospital, Officer Brown and Sergeant Francis Earhardt encountered the appellant, Campbell, on the second floor, lying on a cot in the hall just outside the door to the X-ray room, in a white hospital gown. According to Brown and Earhardt, the man's lip was somewhat puffed up, but he was conscious, talked coherently--though with some effort--and appeared to be in no pain. Brown testified that he inquired of an intern at the hospital if it was all right for Brown to talk to the injured man and that the intern indicated that it would be all right. Brown approached the patient and asked, 'How did you get shot?'; Campbell, according to both officers, replied, 'I might as well tell you, I got shot at Laurens and Carey, breaking in the restaurant.'

Appellant's counsel argues that Campbell's confession, even if voluntary should nonetheless be excluded because it was oral. Oral confessions, he urges, are inherently untrustworthy and unreliable.

The Maryland law is well established to the contrary. In Wells v. State, 236 Md. 381, 203 A.2d 912 (1964), Judge Horney, for the Court, summarized the Maryland law in this regard as follows:

'The cases make it clear that oral as well as written confessions, if freely and voluntarily given, are admissible as evidence. See, among others, Cooper v. State, 205 Md. 162, 106 A.2d 129 (1954), cert. den. 348 U.S. 896, 75 S.Ct. 214, 99 L.Ed. 703 (1954); Felkner v. State, 218 Md. 300, 146 A.2d 424 1958); Hall v. State, 223 Md. 158, 162 A.2d 751 (1960); Glaros v. State, 223 Md. 272, 164 A.2d 461 (1960); Bagley v. State, 232 Md. 86, 192 A.2d 53 (1963). And the fact that a confession is oral does not impose on the State an additional burden to prove its voluntary character. Williams v. State, 231 Md. 83, 188 A.2d 543 (1963); Gault v. State, 231 Md. 78, 188 A.2d 539 (1963). (p. 386 of 236 Md., p. 915 of 203 A.2d).

The appellant denied that he made the confession because of the severe damage to his mouth and teeth. The trial court, however, believed the testimony of Officer Brown and Sergeant Earhardt in regard to the making of the oral confession, rather than that of the appellant and it cannot be said that he was clearly erroneous in so doing. We have stated many times that in a non-jury case, we will not reverse the judgment of the trial court upon the evidence unless clearly in error, and due regard will be given the opportunity of the lower court to judge the credibility of the witnesses. Maryland Rule 886 a. Johns v. Director, No. 124, September Term, 1965, 239 Md. 411, 211 A.2d 751.

The decision of the U. S. Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) is not apposite to the facts of this case. See Mefford and Blackburn v. State, 235 Md. 497, 201 A.2d 824 (1964), cert. den. 380 U.S. 937, 85 S.Ct. 944, 13 L.Ed.2d 825 (3-8-65); Cowan and Hayes v. State, 238 Md. 433, 436, 209 A.2d 552, 554 (1964); Parker v. Warden, 236 Md. 236, 203 A.2d 418 (1964); Green v. State, 236 Md. 334, 203 A.2d 870 (1964); McCoy v. State, 236 Md. 632, 204 A.2d 565, 566 (1964); Wilkins v. State, 237 Md. 617, 205 A.2d 593 (1964); and Ramsey v State, Md., 212 A.2d 319 (September Term, 1964, filed July 29, 1965). As Chief Judge Prescott, for the Court aptly stated in Ramsey:

'[T]he appellant claims his confession was inadmissible, relying upon Escobedo v. [State of] Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. There is no evidence to show whether or not the police specifically advised the defendant of his right to remain silent or of his right to counsel; however, there was no evidence that he requested counsel or was denied the right to obtain the same. Although appellant claimed that one of the officers threatened to involve his wife and child in the commission of the crime and this induced him to confess, this was flatly denied by the...