Hyde v. State

• Citation: 215 A.2d 145,240 Md. 661
• Decision Date: 15 December 1965
• Docket Number: No. 28,28
• Parties: John N. HYDE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 661

240 Md. 661

215 A.2d 145

John N. HYDE v. STATE of Maryland.

No. 28.

Court of Appeals of Maryland.

Dec. 15, 1965.

William E. Brannan, Towson, for appellant.

Robert F. Sweeney, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Frank H. Newell, III, State's Atty. for Baltimore County, Towson, on the brief), for appellee.

Before PRESCOTT, C. J., and HAMMOND, HORNEY, MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

HAMMOND, Judge.

After John N. Hyde had been convicted in 1961 of murder in the first degree by Judge Raine, sitting in the Circuit Court for Baltimore County without a jury, he appealed to this Court from the judgment and sentence of life imprisonment, claiming that he was legally insane when the crime occurred, that the evidence was insufficient to support a finding of premeditation and, finally, that both an oral and a written confession were improperly admitted against him because, in the words of Hyde's brief on appeal as quoted by Judge Prescott for the Court in affirming the conviction in Hyde v. State, 228 Md. 209, 217, 179 A.2d 421, 425, cert. denied, 372 U.S. 945, 83 S.Ct. 938, 9 L.Ed.2d 970, the 'refusal of the police to obtain for [him] the counsel he requested and their failure to advise him of his right to remain silent violated [his] right to due process of law.'

We found that Hyde was not insane, the evidence was sufficient, and that everything material and pertinent in the confession which Hyde himself wrote out had been said orally to the police before the confession was written and that the police had told the court from the stand, without any objection having been made, all that Hyde had told them orally. We further noted (228 Md. at page 222, 179 A.2d at page 428) that '* * * Hyde, himself, later took the stand and voluntarily testified to everything [material] in the written confession,' and said (at page 224, 179 A.2d at page 429):

'We turn now to the objection to the written confession. The record, we think, amply sustains the trial judge in his finding that the confession was freely and voluntarily made, and not coerced. Here, we do not have the usual factors that have been held to render a confession coerced, such as an ignorant, illiterate accused, easily open to suggestion; physical force; prolonged and uninterrupted interrogation; shuttling of the prisoner from one place to another for the purpose of confusing him; failing to provide food, etc. The only complaints advanced by the appellant are that the police (although not actually preventing his obtention of counsel) did not actually assist him in getting counsel, and the police failed to tell him he did not have to answer questions.'

The determinations below and here, that Hyde's confession was admissible, were in accord with the established law of Maryland which makes voluntariness in fact, the test. McCleary v. State, 122 Md. 394, 400, 89 A. 1100; Mefford and Blackburn v. State, 235 Md. 497, 511-512, 201 A.2d 824, cert. denied, 380 U.S. 937, 85 S.Ct. 944, 13 L.Ed.2d 825; Ramsey v. State, 239 Md. 561, 565, 212 A.2d 319; Bull v. State, 239 Md. 101, 104-105, 210 A.2d 396; Cowans and Hayes v. State, 238 Md. 433, 209 A.2d 552; McCoy v. State, 236 Md. 632, 204 A.2d 565, cert. denied, 380 U.S. 986, 85 S.Ct. 1358, 14 L.Ed.2d 279. In Jenkins v. State, 238 Md. 451, 459, 209 A.2d 616, 620, we said:

'If the confession was freely and voluntarily given, as the judges and the jury had a right to find from the testimony was the fact, it would not be inadmissible under Maryland law merely because the confessor either was not warned of his constitutional right to remain silent or was without the advice of counsel, or both.'

In August 1962 Hyde filed an application for post conviction relief, setting forth eight reasons why it should be granted including the claim of police refusal to allow him a lawyer and police failure to advise him of his constitutional right to remain silent. Judge Berry denied the application, after a hearing, on July 10, 1963, and Hyde sought leave from this Court to appeal.

On June 22, 1964, during the pendency of the application for leave to appeal, the Supreme Court announced Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, which held that where the police investigation had reached the point of focusing on a particular suspect and that individual is subjected to:

'* * * a process of interrogations that lends itself to eliciting incriminating statements, [and] the suspect has requested and been denied an opportunity to consult with his lawyer [previously retained], and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. , at 342, 83 S.Ct. , at 795 and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.' Escobedo v. State of Illinois, 378 U.S. 478, 491, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977, 986.

Although we found that seven of Hyde's contentions did not warrant post conviction relief and denied leave to appeal as to them, Hyde v. Warden etc., 235 Md. 641, 202 A.2d 382, we concluded in that opinion that as a result of Escobedo there should be further findings of fact on the point of the confessions and remanded the case to provide a basis for answers to the following questions:

1. '[C]an the admissibility of Hyde's statements and confession be considered as a ground for relief under the Maryland Post Conviction Procedure Act by reason of decisions of the Supreme Court of the United States rendered after its admissibility had been upheld by this Court and the conviction affirmed on the basis of the law as we then understood it to be?'

2. If the answer is in the affirmative, '* * * do any supervening decisions of the Supreme Court * * * indicate that admission of the statements and confession made by the applicant was in contravention of his constitutional rights?'

3. '[A]re these supervening decisions retroactive?' Hyde v. Warden etc., 235 Md. 641, 649, 202 A.2d 382, 387.

We directed the trial court to make a speedy 'determination of the facts with regard to the applicant's desire or request or requests for counsel and police action or inaction with regard thereto' (emphasis added), ordered the case transferred to our regular appellate docket as soon as the determinations below had been filed with us, and further ordered the case set for argument as soon thereafter as practicable after the filing of briefs.

Judge Jenifer, after a hearing on October 9, 1964, decided that Hyde did not request (construing 'request' to mean 'to ask for' or 'to solicit') the assistance of counsel prior to giving the oral statement 'and not until after completing two pages of the written statement when, at the top of page three, he said: 'May I consult an attorney?" He found that Hyde's previous references to counsel 'had been in the form of a desire or 'wish to have' or 'would like to have' legal advice.' Judge Jenifer further concluded (a) that Hyde's 'requests' for counsel were not refused but for a time partially ignored, or in Hyde's words, 'it was either ignored or evaded,' and (b) he was finally told by Inspector Story that he could call a lawyer when he finished his confession and was asked to finish it and that then he 'voluntarily completed page three of the statement.'

It is once more entirely clear to us, as Hyde v. State, 228 Md. 209, 179 A.2d 421, held, that Hyde's oral statement and his written version thereof were in fact freely and voluntarily made and were therefore admissible under Maryland law as it stood when they were made, when he was tried and when his conviction was affirmed on appeal. We shall assume, without deciding, that had the rule enunciated by the Supreme Court in Escobedo been controlling in Maryland before Hyde's conviction had become final, both his oral and written statement would have been inadmissible without regard to voluntariness in fact because before he made them he was not told of his right to remain silent and had made known to the police his desire to have legal advice and had not been given the opportunity to secure it.

We hold, nevertheless, that the ruling below that Hyde was not entitled to post conviction relief must be affirmed because, in our view, the doctrines of Escobedo were not intended to be, and are not to be, applied retrospectively.

Both before and after the decision of the Supreme Court in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, every court which has discussed the problem, as far as we have been able to determine, has concluded that Escobedo does not apply to convictions which had become final before it was handed down.

In January 1965, about four months before Linkletter was announced, the Supreme Court of California in Bank decided In re Lopez, 62 Cal.2d 368, 42 Cal.Rptr. 188, 398 P.2d 380. There, in a reasoned and persuasive opinion (handed down on the same day on which that court handed down People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, which extended Escobedo's scope by holding that a mere failure by the police to tell a suspect of his right to counsel or of his absolute right to remain silent invalidated his confession), Justice Tobriner for the court held that neither Escobedo nor Dorado were to be applied to cases which had become final prior to the date the Supreme Court of the United States rendered the Escobedo decision. There were three bases of decision. First, although Escobedo sought to provide a suspect the opportunity to obtain counsel at the accusatory stage and so sought to eliminate conditions which invited confessions coerced in fact, the ruling does not require a retroactive application--'We cannot say that the possibility...