Cooper v. State

• Decision Date: 21 April 1967
• Docket Number: No. 79,79
• Citation: 228 A.2d 840,1 Md.App. 190
• Parties: James Julius COOPER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 190

1 Md.App. 190

228 A.2d 840

James Julius COOPER v. STATE of Maryland.

No. 79.

Court of Special Appeals of Maryland.

April 21, 1967.

Alexander R. Martick, Baltimore, for appellant.

Richard C. Rice, Sp. Atty., Baltimore, Francis B. Burch, Atty. Gen., Richard C. Rice, Sp. Atty., Charles E. Moylan, Jr., State's Atty., for Baltimore City, Baltimore, on the brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and W. ALBERT MENCHINE, Special Judge.

ORTH, Judge.

Appellant was convicted on February 14, 1966 of the crime of grand larceny in the Criminal Court of Baltimore before Judge James A. Perrott, presiding without a jury, and sentenced to imprisonment for a term of ten years.

The contention raised on this appeal is that the confession of appellant was improperly admitted in evidence.

Evidence that the dwelling house in Baltimore City of Robert A. Moore was broken into on December 28, 1965 and goods of the value of $336 taken was offered by the State by stipulation with appellant's counsel. The only other evidence was the oral confession of the appellant to the effect that he and another man broke into the house and took the articles. The circumstances surrounding the obtaining of the confession are summarized as follows:

The record indicates, although it is not clear, that appellant was arrested in the Southern Police District on January 12, 1966. Lt. Joseph Judd had obtained a warrant for his arrest on December 29, 1965 and testified that appellant was arrested in the Northern Police District. Investigation in the Northern Police District disclosed that '* * * he was wanted on a warrant in the Western District for investigation.' On Saturday, January 15, 1966, about 11:15 A.M. he was taken to the Western District by Lt. James Butler and Detective Moore and booked for investigation. Lt. Judd did not know how long the appellant had been in custody before he was taken to the Western District. At 6:45 P.M. on January 15, 1966 appellant was interrogated by Lt. Judd. Lt. Judd testified that he read the warrant to appellant, informed him another arrest had been made in the case and that certain information had been received. Lt. Judd then said:

'I told him I understood he told Lieutenant Butler certain information and it became necessary I make certain statements to him. I told him anything he said had to be free and voluntary on his part, I could not offer him any inducement and commented that anything he said to me would be made part of the record in court. Also informed him did he want to contact anybody who had a direct personal interest in his case. He said no, he wanted to talk to me about it'.

Lt. Judd further testified that neither he nor anyone in his presence threatened the appellant and that the statement was given freely and voluntarily. On cross examination Lt. Judd stated that he knew Lt. Butler had talked to the appellant on January 14, 1966, but later said no one had interrogated appellant prior to the interrogation by him, apparently meaning while appellant was in custody in the Western District. Appellant refused to sign the confession. Appellant took the stand for the limited purpose of the voluntariness of the confession. He testified that he remained at the Northern Police Station for three days and during that period was questioned three or four times but was not 'arrested for anything at the Northern'. He stated that he had been originally confined at the Southern Police Station and had been questioned there by Lt. Butler. On cross examination he said that no one threatened him during the time he was incarcerated, that no one hit him and that he was fed. At that point the transcript of the trial reads as follows:

'Q (by the State) Whatever statement you made, you made it freely and voluntarily of your own free will? Whatever you said to them, you said because you wanted to, right?

A At that time I was sick.

Q My question is, whatever you said to the police, Lieutenant Judd or Lieutenant Butler or anyone in respect to answers to questions, you said it voluntarily?

A I said it because I was sick and got tired of them bothering me.

Q Nobody threatened you?

A No.

Q Nobody hurt you?

A No, they didn't.'

The State proffered the confession and appellant's counsel objected on the basis that the totality of the circumstances prevented it from being voluntary. The objection was denied and the confession was placed in evidence by the testimony of Lt. Judd.

It is well established in this State that in order for a confession to be admitted into evidence against the accused the State must prove that it was voluntary and not the product of force or threats, and not the result of any promises whereby the accused might be led to believe that there might be a partial or total abandonment of prosecution. Presley v. State, 224 Md. 550, 168 A.2d 510 (1960) and cases cited. Whether the confession was voluntarily and freely made, and therefore admissible, depends on the facts and circumstances of each case. Bean v. State, 234 Md. 432, 199 A.2d 773 (1964). An oral confession, if freely and voluntarily given, is admissible as evidence and the fact that it is oral does not impose on the State an additional burden to prove its voluntary character. Campbell v. State, 240 Md. 59, 212 A.2d 747 (1965). Although the initial burden rests on the State to show that the confession was voluntary, Kier v. State, 213 Md. 556, 132 A.2d 494 (1957); Abbott v. State, 231 Md. 462, 190 A.2d 797 (1963), this does not mean that the court must close its ears to the evidence offered by an accused regarding it. The matter of admissibility of a confession, in the first instance, is for the court and involves a mixed question of law and fact. As the Court of Appeals said in Smith v. State (1948), 189 Md. 596 at page 604, 56 A.2d 818 at page 822:

'If, after a consideration of both the evidence of the State and the evidence offered by an accused (if any be offered by him) regarding the matter, the court is of the opinion that the evidence shows, prima facie, that the confession was freely and voluntarily made, it should be admitted in evidence; and, if not, it should be rejected.' (emphasis supplied)

In the instant case, there is no question raised that force or coercion was exercised by any police officer to cause the appellant to confess and there is no question raised that any hope or promise was held out to him for the purpose of inducing him to confess. On direct examination the police officer, to whom the confession was made, testified that the confession was given freely and vountarily. Appellant stated that no one threatened him during the time he was incarcerated and no one used force on him. He did not contend that any promises or inducements were made to him at any time he was questioned. Wnen asked whether whatever he said 'to the police, Lieutenant Judd or Lieutenant Butler or anyone in respect to answers to questions' was said freely and voluntarily, his only comment was, 'I said it because I was sick and got tired of them bothering me.' Any question that 'bothering' him encompassed force or coercion is dispelled by appellant testifying that no one threatened or hurt him. We see nothing improper in persistent efforts by police officers to obtain a confession if such efforts do not extend beyond legal bounds. The objection to the admission of the statement was on general grounds that the totality of the circumstances surrounding the giving of the statement so imposed on the will of the appellant that he was induced to confess, that he had been in custody for four days and was tired. Defense counsel also conceded that there were no threats and raised no contention that there were any promises made or inducements offered. His conclusion that appellant was tired is not supported by the evidence; appellant said that he 'got tired of them bothering me'. There is no evidence of lengthy questioning and, in any event, lengthy questioning does not, of itself, make a confession involuntary. Presley v. State, supra. Assuming, arguendo, that appellant confessed because he got tired of the police officers bothering him, we do not feel that this, itself, renders the confession inadmissible. Although we find no authority directly on point, in McCleary v. State, 122 Md. 394, 89 A. 1100 (1914), the Court of Appeals held that in considering the question of the admissibility of a confession, it was not whether the accused was mentally agitated, but whether he was so far deprived of his sense of reason as not to be responsible for what he may have said.

The fact that appellant was not represented by counsel at the time he confessed does not of itself render the confession inadmissible. There was no allegation that appellant requested counsel and that counsel was denied him, so Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1963) does not apply. Nor was appellant within the ambit of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) as Miranda is not retroactive. Meadows v. Warden, 243 Md. 710, 222 A.2d 249 (1966).

The record does not disclose that the confession admitted in evidence was...