Gill v. State

• Decision Date: 12 April 1972
• Docket Number: No. 287,287
• Citation: 265 Md. 350,289 A.2d 575
• Parties: Gilbert Brown GILL v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 350

265 Md. 350

289 A.2d 575

Gilbert Brown GILL v. STATE of Maryland.

No. 287.

Court of Appeals of Maryland.

April 12, 1972.

Edward C. Covahey, Jr., Lutherville (F. Vernon Boozer, Lutherville, on the brief), for appellant.

Clarence W. Sharp, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Edward F. Borgerding, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before HAMMOND, C. J., and FINAN, SINGLEY, SMITH and DIGGES, JJ.

DIGGES, Judge.

The appellant here, Gilbert Brown Gill, was apprehended by police in Baltimore City on January 9, 1970 and then transferred to the custody of Detective Corporal Joseph Corrigan and Detective James Hyson, two Baltimore County policemen. He was charged with the commission on December 30, 1969 of various crimes including the armed robbery and kidnapping of a Diamond Cab Co. driver, Edward Dembeck. ¹ At the time of his arrest Gill was sixteen years old and had a seventh grade education. In the Circuit Court for Baltimore County, at a bench trial, the accused was found guilty by Judge Maguire and sentenced to serve two concurrent fifteen year terms in prison. His conviction was based principally upon a confession he made to Corrigan and Hyson but which at trial he disclaimed was voluntary. After hearing the testimony of only Corrigan and Gill as to whether the confession was uncoerced the trial court, over objection, received it in evidence.

The corporal testified that while he and Hyson were en route with the suspect, on January 9, 1970, from Baltimore City to county police headquarters in Towson, they read him the Miranda rights and a waiver to which he made no reply. Corrigan further stated that upon arriving at their destination Gill was taken to an interrogation room where he was permitted to make several telephone calls. The Miranda warnings were then again read to appellant and this time, according to the policeman, the accused responded, affirmatively waiving his rights and, without being threatened or coerced, he confessed. Following this he signed a written waiver of his rights. Corrigan testified that the young suspect's grandmother had been contacted after he was taken into custody but that the police had been unsuccessful in their attempts to notify the boy's parents. At the time Gill made his statement to the policemen neither his parents nor his grandmother were in attendance. At trial, the appellant objected to the admission in evidence of the confession and, when testifying for the limited purpose of contesting its validity, he claimed that it was induced by the threats of the two detectives. Gill said that while he was alone with Hyson, 'He told me I wasn't in Baltimore City now. I was at his place and if I gave him more smart questions he was going to punch me in my face. . . . Detective Corrigan came running in the room and started screaming at me and said he was going to arrest Cooky (my girl friend) if I didn't confess.' When he was cross-examined, the accused stated that: 'Detective Hyson said he was going to arrest Cooky.' While Corrigan generally repudiated these allegations at trial, Detective Hyson did not testify.

Gill appealed his conviction to the Court of Special Appeals, where he contended Judge Maguire erred in admitting the confession because the prosecution failed to meet the affirmative burden of establishing, prima facie, that it was voluntary. Appellant claimed that once the accusation was made that Hyson, while alone with him, had coercively induced his statement, then it became necessary for this charge to be specifically refuted. The Court of Special Appeals agreed and concluded: 'the failure of the police officers involved to take the stand to deny a direct accusation by the appellant would indicate that the State had failed to meet its constitutional burden to prove the voluntariness of the confession.' Gill v. State, 11 Md.App. 378, 384, 274 A.2d 667, 670 (1971).

That determination is consistent with the decisions of this Court which have made it abundantly clear that before a suspect's statement can be received in evidence the State has the affirmative duty of showing it was freely made and not the product of promises or threats. This does not require that each person who had casual contact with the accused, once he was in police custody or being interrogated, must testify to the voluntariness of the confession in order for the prosecution to satisfy its burden. But when it is contended that someone employed coercive tactics to obtain inculpatory statements, the charge must be rebutted. Here it is claimed the inducement occurred while Gill was alone with Hyson. Since it is uncontradicted that the suspect was in fact in the sole presence of this police interrogator, that specific person must rebut the allegations of coercion as no one else is qualified to do so. Streams v. State, 238 Md. 278, 208 A.2d 614 (1965); Smith v. State, 237 Md. 573, 207 A.2d 493 (1965); Mercer v. State, 237 Md. 479, 206 A.2d 797 (1965); Combs v. State, 237 Md. 428, 206 A.2d 718 (1965); Bean v. State, 234 Md. 432, 199 A.2d 773 (1964); Abbott v. State, 231 Md. 462, 190 A.2d 797 (1963); Bryant v. State, 229 Md. 531, 185 A.2d 190 (1962); Ralph v. State, 226 Md. 480, 174 A.2d 163 (1961), cert. denied, 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613 (1962); Presley v. State, 224 Md. 550, 168 A.2d 510 (1961), cert. denied, 368 U.S. 957, 82 S.Ct. 399, 7 L.Ed.2d 389 (1962). From the facts of this case it is readily apparent that since Hyson did not testify the State failed to meet its burden of establishing the confession was voluntary. However, while we agree with the Court of Special Appeals that the admission of the statement was obviously improper, we granted certiorari to consider the propriety of the procedure that court adopted in attempting to rectify the error. It did not reverse the judgment and order a new trial but rather said: 'We . . . remand (the case) for a redetermination of the question of voluntariness after the taking of additional testimony', following which the case was to be returned to that court without further order. Gill v. State, supra, 11 Md.App. at 384, 385, 274 A.2d at 670.

In accordance with this mandate, the trial court conducted a hearing for the sole purpose of re-deciding whether the confession was admissible. At this proceeding, both Corporal Corrigan and Detective Hyson testified at length as to the manner in which the Miranda warnings and waiver were explained to appellant. Each explicitly denied that they had at any time threatened young Gill. As a result Judge Maguire reaffirmed his earlier conclusion that the confession was voluntary when he said:

'(I)n light of the fact there is a denial by both Detective Hyson as to any threat made to the Defendant and by Corporal Corrigan as to any threat to the Defendant, the Court feels a complete and proper explanation of the Miranda Warning and Waiver to the Defendant was given.'

As directed, the case was then immediately returned to the Court of Special Appeals where, in an unreported opinion, it agreed that the confession was admissible and affirmed the conviction.

The Court of Special Appeals claimed the authority to utilize the restricted remand procedure in this situation by relying on its own decisions in Gardner v. State, 10 Md.App. 233, 269 A.2d 186 (1970), cert. denied, 404 U.S. 937, 92 S.Ct. 279, 30 L.Ed.2d 250 (1971) and Murphy v. State, 8 Md.App. 430, 260 A.2d 357 (1970). However, these two cases cite no precedent in Maryland, statutory or otherwise, as supportive of this procedure. And we have been unable to find any occasion where, in similar circumstances, this Court has employed such a procedural device instead of granting a complete new trial. Our failure to adopt this method does not, in and of itself, render it impermissible if there are no legal impediments which prohibit its use. But, while it is unnecessary to pursue the point, there is authority which indicates that in the absence of a legislative enactment or rule (adopted by this Court pursuant to its Constitutional privilege, Art. 4, § 18A) prescribing this procedure, our power as well as that of the Court of Special Appeals 'is limited to a simple reversal (or affirmance) of the judgment.' McDonald v. State, 45 Md. 90, 98 (1876). The State, in its brief, claims that: 'Such action by the Court of Special Appeals is clearly permitted and in fact mandated by Maryland Rule 1071'. We agree that rule, as well as Rule 871 which is identical, though apposite for this Court, pertains to remand; but it does not apply to the situation here. Rule 1071 provides 'a. For Further Proceedings.

If it shall appear to this Court that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment from which the appeal was taken, or that the purposes of justice will be advanced by permitting further proceedings in the cause, either through amendment of the pleadings, introduction of additional evidence, or otherwise, then this Court, instead of intering a final order affirming, reversing or modifying the judgment from which the appeal was taken, may order the case to be remanded to the lower court. Upon remand to the lower court, such further proceedings shall be had by amendment of the pleadings, introduction of additional evidence, making of additional parties, or otherwise, as may be necessary for determining the action upon its merits as if no appeal had been taken and the judgment from which the appeal was taken had not been entered; provided, however, that the order entered by this Court in remanding said case, and the opinion of this Court on which said order is passed, shall be conclusive as to the points finally decided thereby. In such an order remanding a case this Court will express the purpose for so...