Combs v. State

• Decision Date: 05 February 1965
• Docket Number: No. 115,115
• Citation: 237 Md. 428,206 A.2d 718
• Parties: Edward COMBS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 428

237 Md. 428

206 A.2d 718

Edward COMBS v. STATE of Maryland.

No. 115.

Court of Appeals of Maryland.

Feb. 5, 1965.

Franklin Somes Tying and Lawrence S. Lanahan, Jr., Bel Air, for appellant.

Robert F. Sweeney, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Edward H. W. Harlan and Donald G. Smith, State's Atty. and Asst. State's Atty., respectively, for Harford County, Bel Air, on the brief), for appellee.

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

MARBURY, Judge.

This is an appeal by Edward Combs from a judgment and sentence of life imprisonment for rape, imposed by Chief Judge Day in the Circuit Court for Harford County, who sat without a jury.

On Monday evening, February 18, 1963, a fifty-six year old woman was assaulted and raped in the rear yard of her home in Harford County. She told police that at approximately 9:30 p. m. she heard the back doorbell and proceeded through the kitchen into the hall. As she passed through the hall, someone grabbed her from behind and yanked her off her feet onto the floor of the back porch. A struggle ensued, the victim pushed her assailant, and both went out the porch door into the yard. There was ice on the ground and the temperature was below freezing. The only light outside was that which shone through the glass windows enclosing the porch. The struggle continued until the victim was worn out at which time the assailant had sexual relations with her, without her consent. Immediately after her assailant left the scene, the victim called the Maryland State Police, who took her to the office of a physician for examination. She gave the officers a general description of the features of her attacker, and described the clothing he was wearing.

On Tuesday, Troopers Messick and George went to the appellant's home. In the course of investigating the crime, they had obtained information causing them to suspect him as the perpetrator. Combs, twenty-six years old with a fourth grade education, had a lengthy criminal record. In addition, he had been confined in the Patusxent Institution as a defective delinquent. At the request of the officers he voluntarily accompanied them to the Benson Barracks, where he was questioned about the events of the previous evening. He was about to be placed in a cell when he started crying and pleading that he didn't know anything about the assault. A line-up was conducted that evening and the victim found that the appellant fitted the general description of her assailant, although she declined to make a positive identification.

Combs was questioned following the line-up, when he again denied implication in the crime and no information incriminating him was developed. The troopers returned him to his home, and left after arranging with him to take a polygraph examination the next day. He failed to keep the appointment and the police rescheduled it for Friday, February 22. At 9:15 a. m., Trooper Messick went to appellant's residence to pick him up for the examination at the North East Barracks, and found him preparing to have breakfast since he had no notice of the time of the test. He was asked to eat so they could depart, but at first declined to go because the trooper had no warrant. According to Combs, the officer advised him that he could get one and he then requested permission to get an attorney, but received no answer from the officer. Appellant's wife testified that her husband asked the trooper if he could see a lawyer, but said she then convinced her husband that if he was innocent he should take the polygraph examination, and he went with the trooper to the North East Barracks where he arrived at 11:00 a. m.

According to the State police officers, Combs thereafter made three confessions. The first was a sobbing statement in a detention cell an hour or so after he arrived at the Barracks--'O.K. I did it.' Then, two or three minutes later, he made a full oral confession for some twenty minutes in the polygraph room. Combs then was taken back to the Benson Barracks near Bel Air, where, beginning at two-fifteen p. m., a similar statement from him was taken down in shorthand and transcribed. It was read to him (he had only a fourth grade education and could not read and could write only his name), and he signed it.

Appellant contends that his confessions were erroneously and prejudicially admitted against him over his timely objections because (a) the confessions were the product of physical and psychological coercion and, hence, involuntary; (b) they were extracted after an illegal arrest; and (c) they were extracted after Combs had requested and been denied an attorney.

We find that the record supports the first claim of the appellant that the confessions were involuntary in fact. We do not, however, reach the second and third claims, although we note in passing that the arrest on Friday, February 22, appears to have been based on probable cause to believe a felony had been committed and that Combs had committed it, and that the State police officers categorically denied Combs' assertions that he had asked for an attorney Friday morning at his home and thereafter several times during the day, and each time had been refused. They agreed that on Friday afternoon, after the first two confessions had been given--and perhaps after the third--he had 'mentioned' that he might need an attorney but had not asked to call one or have one furnished. Judge Day said he had no problem in accepting the testimony of the police officers in regard to Combs' claim that he requested a lawyer, saying to him: 'Your testimony on that was not worthy of belief and the testimony of the State Troopers was very clear and convincing * * *.'

Our view that the confessions were involuntary in fact is the result of the following factors. When he was taken to the Benson Barracks on Tuesday, February 19, Trooper Messick started to put him in a cell. Combs then revealed a claustrophobic fear of cells, according to Messick, who says he began to sob and stated he hated cells, '* * * to please not to lock him in the cell.' because he had been locked up in Patuxent for four years [presumably in connection with his defective delinquency] '* * * and he hated cells because they were so--as he put it, small. He was not put in a cell.'

On Friday, February 22, Messick took Combs to the polygraph room at North East Barracks, where Sergeant Elwood Stacey, the State police lie detector expert, was to interrogate him. Sergeant Stacey's testimony was that he told Combs he had a right to take the polygraph test and an equal right to refuse to take it. Combs, perhaps understandably, decided to accept the latter alternative. There are three versions of what occurred immediately thereafter, but on what may be said to be the essential and controlling points they do not differ importantly or significantly. Sergeant Stacey says that he told Combs: '* * * we [the State Police] felt that he was involved in this attack, and that, in fact, in so many words, we believed that he was responsible for it.' and 'At this point, the defendant became aggressive and, I think, dramatically upset.' and Combs became '* * * irate and threw his hands up toward my face.' Whereupon, according to Stacey, he acted 'rather fast' and 'reached and got him.' Stacey admits he tore Combs' shirt, and he says: '* * * I contained him at this point, * * * he began to shout * * * that he was going to tell the Court that I was choking him and hurting him, * * * while I was talking to him to keep his hands away from me * * * he seemed to quiet down and * * * I asked Trooper Messick to return him or take him to the detention room * * * and Trooper Messick did.' Stacey's testimony continued: 'I asked for the key, * * * It was upstairs * * * and I asked Trooper Messick to leave [to get the key] and I would stay there and * * * at that point * * * the defendant * * * started to sob * * * and he said * * * 'O.K. I did it."

Combs says that when he told Stacey he was not going to take the polygraph test '* * * he got pretty sore about it * * *. He got--well, mad * * *.' Combs continued: '* * * I had my hands down * * * and I didn't bring them up fast * * * and I was going to put them up to my face, * * * He grabbed me in my shirt here, and he said boy, don't you ever raise your hands to me, * * * and he said you're threatening me, and I said I ain't threatening you at all, I said I haven't...