Jenkins v. State

• Decision Date: 07 April 1975
• Docket Number: No. 649,649
• Citation: 25 Md.App. 551,334 A.2d 549
• Parties: Clifford Sunday JENKINS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 551

25 Md.App. 551

334 A.2d 549

Clifford Sunday JENKINS v. STATE of Maryland.

No. 649.

Court of Special Appeals of Maryland.

April 7, 1975.

Certiorari Denied July 3, 1975.

Robert E. Farnell, III, Cambridge, with whom were Hubert H. Wright, IV, Farnell, Hessenauer and Freeland, Cambridge, on the brief, for appellant.

Gilbert H. Robinette, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and William B. Yates, II, State's Atty. for Dorchester County, on the brief, for appellee.

Argued before MORTON and MENCHINE, JJ., and SINGLEY, FREDERICK, J., Jr., Special Judge.

SINGLEY, FREDERICK J., Jr., Special Judge.

Clifford Sunday Jenkins, found guilty by a jury in the Circuit Court for Dorchester County of the crime of incest has appealed to this Court. He advances five reasons why his conviction should be reversed: (i) insufficiency of the evidence; (ii) the admission of his confession; (ii) the exclusion of testimony of his personal physician; (iv) the exclusion of testimony of a character witness; (v) the admission of his testimony on cross-examination that two of his children were in foster homes.

Jenkins, a 57-year-old Dorchester County antique dealer, was arrested by Trooper Legg of the Maryland State Police on 27 January 1974 in execution of an arrest warrant sworn out by Jenkins' 14-year-old daughter, Linda, who had charged that her father had engaged in sexual intercourse with her on a number of occasions, commencing on 15 January 1973, and continuing for about two and one-half months.

Trooper Legg took Jenkins to the Maryland State Police detachment office at Cambridge, Maryland, where he was met by Corporal Donald H. Cox. Corporal Cox read to Jenkins the Miranda warnings from a card supplied by the State Police, and had Jenkins sign the card. He explained the charges to Jenkins, and according to Cox, Jenkins' only statement at this time was that 'He . . . could not believe the charge of incest was being brought against him by his daughter, and further added that any person who would have sexual relations with his daughter would have to be sick.' Jenkins was taken to the Dorchester County sheriff's office.

On 29 January, Jenkins appeared at a bail hearing before Commissioner McKelvey of the District Court. The court record shows that he was advised of his right to counsel, and that he indicated that he wished to employ his own lawyer.

There is a conflict in the testimony as to what happened on the 30th, the following day. Corporal Cox said that he received a telephone call from Deputy Sheriff Owen Lewis of Dorchester County, telling him that Jenkins wanted to speak with him. Jenkins' version was that on 28 January he had asked the 'tier runner' at the jail to leave a note on the sheriff's desk asking Corporal Cox 'to see Mr. Farnell, my lawyer,' '(a)nd to try to get me a bondsman.'

Cox went to Cambridge on the afternoon of 30 January, and saw Jenkins at the Dorchester County sheriff's office. He again read the Miranda warnings to Jenkins, and had Jenkins sign the card. When it became apparent that Jenkins was ready to make a statement, Cox once more read the Miranda warnings which appeared on the statement form; typed in Jenkins' responses that he understood the warnings, that he wanted to make a voluntary statement, and that he was waiving his right to have a lawyer present. Cox then typed a short statement in which Jenkins admitted that he had tried to have intercourse with Linda on one occasion. Jenkins signed each page of the statement.

At Jenkins' trial, after an exclusionary hearing held out of the presence of the jury, see Gill v. State, 265 Md. 350. 289 A.2d 575 (1972); Day v. State, 196 Md. 384, 76 A.2d 729 (1950); White v. State, 13 Md.App. 1, 280 A.2d 283 (1971), the trial court ruled, without making any specific finding of fact as regards Jenkins' waiver of his right to counsel, that a prima facie case had been made that the statement had been voluntarily given and that it should be submitted to the jury. After taking testimony in the presence of the jury, the statement was presented to the jury for determination of voluntariness.

While Jenkins assigns five reasons why his conviction should be reversed, we need discuss only one of them: whether his confession should have been admitted. We have considered his other contentions and remain unpersuaded.

At argument much was made of Jenkins' testimony that Corporal Cox had said, 'You don't need a lawyer.' Cox's testimony was that he had no recollection of having made such a statement. Much emphasis was laid, too, on the conflict between Jenkins' testimony that the note to Deputy Sheriff Lewis said that Jenkins wanted Cox to see about a lawyer and a bondsman, and Cox's statement that the message from Lewis was simply that Jenkins wanted to see Cox. This discrepancy, Jenkins argues, could have been resolved by the State's calling Lewis, who was present in the courtroom, as a witness.

Jenkins cites Gill v. State, 11 Md.App. 378, 274 A.2d 667 (1971) in support of his notion that by failing to call Lewis as a witness, the State failed to meet its constitutional burden of proving the voluntariness of the confession. We think this reliance is misplaced. In Gill, which reached the Court of Appeals where it was reversed on other procedural grounds, Gill v. State, supra, 265 Md. 350, 289 A.2d 575, there was a failure to call an officer who had taken part in the interrogation and had allegedly threatened the defendant. Here, Deputy Sheriff Lewis had taken no part in the interrogation. In fact, there was no evidence that he had ever been in contact with Jenkins. The Court of Appeals, in Gill, supra, specifically dealt with this situation:

'(The State's affirmative duty) 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.' 265 Md. at 353, 289 A.2d at 577.

Jenkins had ample time to engage counsel between 27 January and 30 January. According to Cox, Jenkins had been given an opportunity to call a lawyer at the time of the hearing on 29 January, before Commissioner McKelvey. Jenkins testified that during this period he had attempted unsuccessfully on at least one occasion to reach his counsel, Mr. Farnell, by telephone.

The difficulty, however, goes deeper than this. Cox's statement that he had no recollection of having told Jenkins...