Driver v. State

• Citation: 201 Md. 25,92 A.2d 570
• Decision Date: 14 November 1952
• Docket Number: No. 16,16
• Parties: DRIVER v. STATE.
• Court: Maryland Court of Appeals

Page 25

201 Md. 25

92 A.2d 570

DRIVER v. STATE.

No. 16.

Court of Appeals of Maryland.

Nov. 14, 1952.

Harold Buchman, Baltimore, for appellant.

Kenneth C. Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., Anselm Sodaro, State's Atty., and James F. Price, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before MARKELL, C. J., and DELAPLAINE, COLLINS and HENDERSON, JJ.

DELAPLAINE, Judge.

Jeremiah Driver, a Negro, 22 years old, is appealing here from a conviction by the Criminal Court of Baltimore for rape. He was tried for assault and sodomy upon one Negress and assault and rape upon another. The crimes were committed on the night of January 10, 1952.

The first girl attacked was Edna Hart, 19. She testified that at about 7 o'clock, while walking on Central Avenue on her way home from her work at the Johns Hopkins Hospital, appellant grabbed her, showed a pistol, and warned her not to scream. He walked with her for a number of blocks and took her into an alley, where he forced her to take off her clothing and submit to unnatural sexual intercourse. Her screams caused him to flee. She then picked up her clothing and went to the home of a friend, who called the police.

The second victim, Dolores Burns, 20, testified that at about 8:30 o'clock appellant grabbed her on Eager Street, pointed a pistol at her, and warned her that if she shouted he would kill her. She asserted that she was afraid to scream when he led her past her home and continued several blocks to a vacant lot, where he forced her to take off her clothes and then raped her. He walked back with her to her home and then fled.

Appellant was arrested that night at about 11 o'clock. In one of his pockets was a nickel-plated toy pistol. He was taken to the Northeastern Police Station for investigation and two hours later was interrogated. He declared that he was innocent. However, on the evening of January 12, after he was placed in a line-up and identified by both of the girls, he told the police: 'That is true. I want to make a statement.' He began his confession that evening at 8:10 o'clock. A transcript was ready for his signature at 9:10 o'clock. He read it and signed it in the presence of five police officers.

The Court appointed an attorney to defend him, and the charges were tried together by the Criminal Court without a jury. At the trial each girl positively identified him as her assailant. But appellant repudiated his confession and swore that he had never seen either of the girls. He claimed that when he made the confession he was under great fear and answered the questions of the police 'to fit into what they wanted.' The Court admitted the confession in evidence, and found appellant guilty of both sodomy and rape and sentenced him to be hanged for rape.

First. Appellant contends that his signed confession should not have been admitted in evidence. He claims that he was unlawfully held by the police for 45 hours and during that time was subject to constant interrogation before he signed the confession, although there is no evidence that he was questioned at all until his identification by the two girls. He states that he went only as far as the sixth grade in school and had retarded mental development, and when he was held at the police station he was without counsel of friends. He asserts that he was in a sate of great fear and nervousness, and contends that a confession made under such circumstances is obtained by coercion.

The Due Process Clause of the Fourteenth Amendment to the Federal Constitution, which guarantees appropriate procedure before liberty is curtailed or life is taken, bars systematic, protracted and uncontrolled subjection of an accused to interrogation by the police for the purpose of forcing a confession. Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815. The systematic persistence of interrogation, the length of the periods of questioning, the failure of the police to advise the prisoner of his rights, the absence of counsel or friends, and the character of the prisoner are circumstances that may be considered by the trial court in determining whether the accused was deprived of due process of law.

It is true that appellant did not have counsel until after he made his confession. But the mere fact that an accused makes a confession while in the custody of the police before he consults counsel does not render it inadmissible, even when he is not permitted to consult counsel, if it is given voluntarily. Audler v. Kriss, Md., 79 A.2d 391, 395.

In Wright v. State, 177 Md. 230, 9 A.2d 253, the Court of Appeals held that a confession made by the accused, who was subjected to solitary confinement for twenty hours, with denial of counsel, for the obvious purpose of securing a confession, and to whom a police officer during such confinement was alleged to have made various threats and promises for that purpose, was inadmissible in evidence, as some of the allegations were not contradicted, and the confession was not shown to be voluntary.

The law is clear that, unless the facts show that an unlawful arrest in itself constitutes such duress as to make a confession signed by the defendant while under arrest involuntary, the same rule as to admissibility of the confession is applicable as where the arrest is lawful. Cox v. State, 192 Md. 525, 64 A.2d 732; James v. State, 193 Md. 31, 65 A.2d 888; Grear v. State, Md., 71 A.2d 24. It has not been shown that appellant was held unlawfully by the police. In James v. State, 193 Md. 31, 65 A.2d 888, this Court held that the confession of the accused was admissible in evidence, where he was not arraigned or charged with the crime until more than 43 hours after the arrest and did not see counsel or friends before signing the confession 48 hours after the arrest, and he was questioned by the police several times, but not at exhausting lengths, and was not deprived of food or sleep or subjected to any personal indignities.

There is nothing in the record now before us to show that appellant was denied due process of law. There is no evidence that he was questioned until after his identification. The police officers testified that they made no threats and gave no promises or inducements to obtain the confession. Appellant made no complaint that he had been threatened or coerced. Nor did he make any complaint that he had been ill treated by the police. He admitted that they gave him good food and treated him well. He now says that some of his clothing was taken from him, but the State explains that this was done so that chemical tests could be made for blood stains, and that...