Fowler v. State

• Decision Date: 05 May 1969
• Docket Number: No. 37,37
• Citation: 253 A.2d 409,6 Md.App. 651
• Parties: William Bobby FOWLER, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 651

6 Md.App. 651

253 A.2d 409

William Bobby FOWLER, Jr. v. STATE of Maryland.

No. 37.

Court of Special Appeals of Maryland.

May 5, 1969.

John D. Hackett, Baltimore, with whom was E. Thomas Maxwell, Jr., Baltimore, on the brief, for appellant.

Thomas N. Biddison, Jr., Asst. Atty. Gen., Baltimore, with whom were Francis B. Burch, Atty. Gen., Charles E. Moyland, Jr., State's Atty. for Baltimore City, Howard M. Cardin, Asst. State's Atty., for Baltimore City, Baltimore, on the brief, for appellee.

Before MURPHY, C. J., and MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

On November 6, 1966 at approximately 4:15 p. m., Linda Keller, a seventeen year old nurse's aid (referred to in hospital parlance as a 'Pinkie'), was found nude, bloody, and beaten in the boiler room of the Church Home and Hospital in Baltimore. She had been stabbed numerous times and her clothes were missing. She died five days later without regaining consciousness.

Appellant, an employee of the hospital, was arrested at his home on March 25, 1967 on a charge of negotiating a stolen certified check. He was interrogated by the police about this offense on March 25 and 26, and on March 27, for the first time, he was questioned about the Keller homicide. On March 30, 1967 appellant gave a statement to the police in which he admitted stabbing Miss Keller.

Appellant was subsequently charged with the first degree murder and rape of Linda Keller. The State's case against him was founded primarily on his incriminatory statement. A motion to suppress the statement having been filed by the appellant on the ground that it was not freely and voluntarily given, the trial judge, out of the presence of the jury, took extensive testimony, at the conclusion of which he ruled that the statement, being voluntary, was admissible. The jury found appellant guilty of murder in the first degree and rape, and the court thereafter sentenced him to life imprisonment and twenty years on the respective charges. Appellant contends on this appeal that the trial judge erred in admitting the statement in evidence.

I

We noted in Barnhart v. State, 5 Md.App. 222, 246 A.2d 280, that in a criminal case tried before a jury, the question whether a challenged confession is admissible in evidence is solely for the determination of the trial judge; that he first hears evidence out of the presence of the jury to determine whether the confession was freely and voluntarily made; that if he finds from the evidence that prima facie proof exists to establish that the confession was voluntarily given, and therefore decides to admit it, the same evidence is thereafter to be presented to the jury, as it has the final determination, irrespective of the court's preliminary decision, whether or not the confession is voluntary, and whether it should be believed. ¹ But before the trial judge may admit the challenged confession in evidence, the State must prove that it was voluntary and not the product of force, threats, promises, or inducements. Abbott v. State, 231 Md. 462, 190 A.2d 797; Robinson v. State, 3 Md.App. 666, 240 A.2d 638; Cooper v. State, 1 Md.App. 190, 228 A.2d 840. Otherwise stated, to be voluntary a statement cannot be 'extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.' Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653. In post-Miranda ² trials, where the State seeks to introduce a statement taken from an accused during a period of custodial interrogation by police, it must, as part of its proof of voluntariness, affirmatively show that all warnings required to be given to an accused by that case prior to such interrogation were so given, Robinson v. State, 1 Md.App. 522, 231 A.2d 920, and that the accused, in giving the statement, understood his rights and knowingly and intelligently waived them, Brown v. State, 3 Md.App. 313, 239 A.2d 760. Specifically, the State is required by Miranda to affirmatively show that the accused was advised prior to such interrogation (1) that he had a right to remain silent, (2) that anything he said may be used against him in court, (3) that he had the right to consult with a lawyer and to have the lawyer with him during interrogation, and (4) that if the accused was unable to afford a lawyer, one would be appointed to represent him. See Hale v. State, 5 Md.App. 326, 247 A.2d 409. Once warnings have been given, Miranda states that 'the subsequent procedure is clear,' namely:

'If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent,' (at pages 473-474, 86 S.Ct. at page 1627)

Prior to questioning, the person to be interrogated 'may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently.' Miranda at page 444, 86 S.Ct. at page 1612. In other words, questioning may proceed if the person to be interrogated understands the import of his Miranda safeguards, and effectively waives them. Myers v. State, 3 Md.App. 534, 240 A.2d 288 (footnote 1). But where custodial interrogation is undertaken without the presence of an attorney, and a statement is taken, 'a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.' Miranda at page 475, 86 S.Ct. at page 1628. And equally plain from Miranda is the flat holding, at pages 475 and 479, 86 S.Ct. 1602, that no evidence obtained as a result of a custodial interrogation can be used against an accused unless and until the prosecution demonstrates a waiver of constitutional rights within the meaning of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, a case which holds that waiver of a fundamental constitutional right is ordinarily an 'intentional relinquishment or abandonment of a known right or privilege,' the determination of which 'must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' Within this framework, the Miranda court, in the course of its opinion, articulated further guidelines governing waiver of an accused's right against self-incrimination and to retained or appointed counsel at the interrogation, namely:

(1) 'An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.' (at page 475, 86 S.Ct. at page 1628)

(2) 'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.' (at page 475, 86 S.Ct. at page 1628 quoting from Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70)

(3) That the accused's 'failure to ask for a lawyer does not constitute a waiver.' (at page 470, 86 S.Ct. at page 1626)

It has been held that an express statement by an accused undergoing custodial interrogation that he understood his Miranda rights, and nevertheless wanted to make a statement is not an essential link in the chain of proof of waiver, since waiver may be shown 'by the attendant circumstances.' See United States v. Hayes, 385 F.2d 375 (4th Cir.), cert. den. 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106; Miller v. State, 251 Md. 362, 247 A.2d 530; Mullaney v. State, 5 Md.App. 248, 246 A.2d 291. The ultimate determination of whether the accused knowingly and intelligently waived his Miranda rights before making a statement is governed, in the final analysis, by whether the particular facts and circumstances surrounding the case are such as to demonstrate an intelligent and intentional relinquishment or abandonment of a known right or privilege. Brown v. State, supra.

A

On the preliminary question of the admissibility of appellant's statement, the following evidence was introduced out of the presence of the jury:

On March 25, 1967 appellant was arrested at his home by Detectives Vincent DiCarlo and Joseph Folio on a charge of negotiating a stolen certified check. ³ He was taken to the Northeastern Police Station and booked at 11:30 a. m. He was interrogated for the first time from 4:30 to 5:30 p. m. by Sergeant Charles Siford in the presence of Folio and DiCarlo, the interrogation not being in connection with the Keller homicide. Sergeant Siford testified that prior to interrogating appellant about this offense,

'I advised him of his absolute right to remain silent. Also, anything he said would be used against him in court. Advised him there would be no threats or no promises made to him. Also he have a right to have a lawyer, that if he couldn't afford a lawyer, one would be appointed for him and...