Davis v. State

Citation42 Md.App. 546,402 A.2d 77
Decision Date06 June 1979
Docket NumberNo. 650,650
PartiesCharles William DAVIS, Jr. v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Arnold M. Zerwitz, Assigned Public Defender, with whom were Alan H. Murrell, Public Defender and George E. Burns, Jr., Asst. Public Defender on the brief, for appellant.

F. Ford Loker, Asst. Atty. Gen., with whom were Francis Bill Burch, Atty. Gen., Sandra A. O'Connor, State's Atty. for Baltimore County, Mark H. Kolman and Timothy J. Martin, Asst. State's Attys. for Baltimore County on the brief, for appellee.

Argued before MELVIN, LISS and COUCH, JJ.

MELVIN, Judge.

On April 12, 1978, at a jury trial in the Circuit Court for Allegany County (Getty, J., presiding), the appellant, Charles William Davis, Jr., was convicted of murder in the first degree and the use of a handgun in the commission of that crime of violence. The murder victim was Mrs. Kathleen Cook, who was shot to death behind a shopping center parking lot in Baltimore County on the night of December 31, 1975. Mrs. Cook, with her husband, had gone to a night club located in the shopping center to meet some relatives and friends for a New Year's Eve party.

At trial, over appellant's objection and following pre-trial suppression hearings, appellant's oral confessions were admitted in evidence. The confessions were given to the police on September 4th and 5th, 1977. Those given on September 4th were recorded on tape in the appellant's own voice and transcribed. At trial, the tapes were admitted in evidence and heard by the jury. The transcriptions were also admitted in evidence. The confession of September 5th was presented to the jury through the testimony of Maryland State Trooper David Horan. Testifying from notes made at the time, Trooper Horan related the appellant's detailed account, given at the scene of the crime, of how, on New Year's Eve 1975, the appellant had lured Mrs. Cook, thinking she was someone else, from the night club onto the parking lot of the shopping center, had sexual intercourse with her, beat her, fired four .38 calibre bullets into her body, and left the scene.

The appellant elected not to testify either at the suppression hearings or at trial, and otherwise presented no evidence to contradict the State's evidence concerning the Corpus delicti of the crimes or his criminal agency.

On appeal his primary contention is that the judgments of conviction must be reversed because the trial judge erred in admitting his confessions into evidence. He does not contend here that his confessions were involuntary in the traditional sense or that any of his rights set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) were violated so as to invoke the exclusionary rule enunciated in that landmark decision. He does invoke, however, two other exclusionary rules: 1) the Fourth Amendment exclusionary rule followed in Ryon v. State, 29 Md.App. 62, 349 A.2d 393 (1975), Aff'd. 278 Md. 302, and 2) the Per se exclusionary rule adopted by the Court of Appeals in Johnson v. State, 282 Md. 314, 384 A.2d 709, decided April 6, 1978, four days before the appellant's trial below and seven months after his confessions. The appellant argues that a proper application of either of these rules required the trial judge to exclude his confessions.

Related to the claimed applicability of the Johnson exclusionary rule is appellant's remaining contention that the trial judge erred in failing to instruct the jury that it was up to them, the jury, to determine whether or not the rule of Johnson applied to this case.

After a careful review of the record we conclude that there is no merit to any of the appellant's contentions and we affirm the judgments of conviction.

I The Fourth Amendment Claim

The relevant facts as presented to Judge Getty at a suppression hearing on March 13th, 14th and 15th, 1978, are as follows. On July 20, 1977, Maryland State Troopers David Horan and Gary Hartman were driving in Baltimore City when they passed the appellant Davis driving his Volkswagen in the opposite direction. Trooper Horan recognized Davis as an individual who had been questioned several months before in connection with the murder of Kathleen Cook, the victim in this case, and the August 24, 1976 murder of one Peggy Pumpian. Trooper Horan also had information that the license plates on the Volkswagen were "switch tags", I. e., that they had not been issued to the Volkswagen Davis was driving. Trooper Horan turned around and followed Davis. A radio call to Maryland State Police Headquarters confirmed the fact that the license plates had been issued to another vehicle. Davis was stopped by the troopers for the motor vehicle violation. Davis admitted that he had switched tags and was told by Trooper Horan that citations for this and other motor vehicle violations (driving "without any registration plates at all" and "operating a vehicle without any insurance") would be issued. Trooper Horan then asked, "Can I search your vehicle, Charlie?" Davis consented to the search. There is no claim in this appeal that Davis did not voluntarily and willingly consent to the search or that the scope of the search of the vehicle was in any way limited by the consent given.

In the course of searching the inside of the Volkswagen, Trooper Hartman saw an uninstalled CB radio under one of the seats. He "grabbed a hold of it and pulled it out and since it wasn't attached to anything just looked at the serial number and jotted it down on the back, and then called it in for a check to see if it was stolen." The information received back was that the CB radio was stolen. Davis was thereupon arrested for receiving stolen property. Subsequent investigation showed that the radio had been purchased with a stolen credit card belonging to the husband of one Carol Willingham. Mrs. Willingham was the victim of an alleged rape and robbery that occurred in Baltimore City on February 23, 1977, during the course of which the credit card was taken from her. Eventually Carol Willingham made a photographic identification of Davis as her assailant. On August 30, 1977, an arrest warrant was obtained from the Maryland District Court in Baltimore City charging Davis with the rape and robbery of Carol Willingham. In the meantime Davis had gone to Reno, Nevada, where he worked for an ambulance service.

On August 31, 1977, Troopers Horan and Hartman, accompanied by Marshall Feldman, Esq., an assistant State's Attorney for Baltimore City, traveled by airplane to Reno to obtain custody of Davis and return him to Maryland for trial on the Willingham rape and robbery charges. At approximately 1:20 A.M. on September 1, 1977, the Reno police, accompanied by Troopers Horan and Hartman, arrested Davis, advised him of his rights and placed him in the Reno jail. Before being taken to the jail Davis told Trooper Horan that he wanted to talk to him privately. The trooper replied that he was busy at that time but that "he (Davis) would get an opportunity later to speak with me if he wanted to". Later, during the same day, September 1, Trooper Horan went to the jail and asked Davis if he still wanted to speak to him. Davis said he did not and no questions were asked of him.

On the afternoon of September 2, Trooper Horan went to the Reno jail to photograph Davis. At this time Davis told the trooper that "about every six months he did something big and he gets into trouble" and that there were "two things" he wanted to talk to the trooper about. However, after the trooper made arrangements for a room in which they could have privacy and after Davis had been given Miranda warnings and asked again if he "wish(ed) to talk to me", he replied, "Only with a lawyer". No further interrogation took place. This was but one of several "false starts" during the next two days in which Davis, without prompting from the police, first indicated a desire to talk about the "two big things" (presumably the Cook and Pumpian murders) and then changed his mind.

On September 3, 1977, Davis appeared before a Nevada judge and waived extradition. The extradition hearing ended at approximately 10:15 A.M., at which time the troopers made arrangements to fly to San Diego, California to pick up an escapee from the Maryland House of Correction. They left Reno with Davis at approximately 1:30 P.M.

At 6:30 the following morning, September 4, the four men (Horan, Hartman, Davis and the escapee) left San Diego and after a short stop in Chicago, Illinois, arrived at Baltimore-Washington International Airport at 5:31 P.M. The troopers' intention was to then drive to Baltimore to deliver Davis to the Baltimore City Police Department. Before doing so they stopped at Jessup, Maryland, to deliver the escapee to the House of Correction. When they arrived at the prison, Trooper Hartman remained in the car with Davis while Trooper Horan took the escapee inside. While waiting in the car Davis told Trooper Hartman that he wanted to talk about the Pumpian homicide. When Trooper Horan arrived back in the car a few minutes later Davis again said he wanted to talk about the Pumpian homicide. Before making any statement Davis was advised of his Miranda rights. He then confessed to the Pumpian crime and agreed to repeat it on tape. He was then driven to the Waterloo Barracks of the Maryland State Police where at 6:43 P.M. his statements were recorded on voice tape. The taping session lasted until approximately 10:30 P.M. and included inculpatory statements concerning not only the Pumpian murder but the Kathleen Cook murder as well. 1 The transcript of the tapes shows that before making the statements Davis was fully advised of his Miranda rights and that he waived them. He was taken before a commissioner the following day at 7:00 P.M.

Davis claims in this appeal, as he did below, that his confessions were inadmissible under the doctrine of the fruit of the poisonous tree. See Wong Sun...

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