Johnson v. State, 49

• Decision Date: 15 March 1965
• Docket Number: No. 49,49
• Parties: Ervin Lee JOHNSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 140

238 Md. 140

207 A.2d 643

Ervin Lee JOHNSON v. STATE of Maryland.

No. 49.

Court of Appeals of Maryland.

March 15, 1965.

John R. Hargrove, Baltimore, for appellant.

John W. Sause, Jr., Asst. Atty. Gen., Baltimore (Thomas B. Finan, Atty. Gen. and Charles E. Moylan, Jr., State's Atty. for Baltimore City, Baltimore, on the brief), for appellee.

Before PRESCOTT, C.J., and HAMMOND, MARBURY, SYBERT and OPPENHEIMER, JJ.

SYBERT, Judge.

Convicted in three capital cases by Judge Harris, sitting without a jury in the Criminal Court of Baltimore, and sentenced to death in each case, Ervin Lee Johnson appeals. He was found guilty of the first degree murder of seven year old Debbie Washington under indictment No. 3228, and of assault with intent to rape the same child under indictment No. 3229. These two cases were tried together. Immediately thereafter, on the same day, Johnson was tried under indictment No. 3751 and found guilty of the rape of Bertha McRoy.

The evidence introduced by the State in the Washington cases showed that Johnson, then thirty years of age, moved into the home of Mr. and Mrs. Leonard N. Washington in February, 1963, as their guest. Also living in the house, besides the parents, were eight children, including Debbie, Mrs. Washington's father, and a boarder. Debbie was last seen alive by her father at about 2:30 P.M. on Saturday, May 25, 1963. At about 4:00 P.M. the parents became worried because of her absence and they, with Johnson, searched the neighborhood without result. She was then reported missing to the police. At about 4:30 P.M. on the next day, Sunday, a teen-age daughter of the Washingtons discovered in a closet in her bedroom the body of Debbie partially covered by a mattress. The police took everyone in the house, including Johnson, to police headquarters at about 5:45 P.M. for questioning and began to interrogate Johnson at 7 P.M. Sometime in the next hour Johnson consented to having his fingernails clipped and scraped by officers from the crime laboratory, and then began to make certain oral admissions to the police, which were reduced to writing from 8 to 9:09 P.M. and signed by him. In the statement he confessed that he had strangled and raped Debbie Washington and placed her body in the closet where it was found. An autopsy report showed the cause of death to be asphyxia due to strangulation and that the decedent had been the victim of rape or attempted rape.

In the case tried under indictment No. 3751 the State introduced evidence showing that Bertha McRoy, a sister-in-law of Mrs. Washington who lived two doors from the Washingtons, had been raped by Johnson in her bedroom after a party on the night of April 20, 1963. Mrs. McRoy testified that she recognized Johnson's voice when, as he was leaving her room, he threatened to cut her throat if she made any outcry. On May 27, 1963, Johnson was questioned in regard to the McRoy complaint, which had been made to the police earlier that day, after Debbie Washington's body was found. The interrogation began at 11:30 A.M., and after Johnson made incriminating admissions, a written statement was taken from 12:30 to 1:40 P.M. in which he confessed to having raped Mrs. McRoy. At the trials Johnson did not testify and produced no evidence.

In reference to the two Washington cases the appellant contends that the convictions were based entirely on the confession introduced in evidence, i.e., that the confession was not "corroborated" and that therefore his motion for a judgment of acquittal was improperly denied because of the insufficiency of the evidence. We find this contention to be without merit. To state that a confession must be "corroborated" is misleading. What we have consistently held is that an extrajudicial confession of guilt by a person accused of crime, unsupported by other evidence, is insufficient to warrant a conviction, but that if there is evidence, independent of the confession, which relates to and tends to establish the corpus delicti, the conviction is justified. Bradbury v. State, 233 Md. 421, 197 A.2d 126 (1964), and cases cited; Pierce v. State, 227 Md. 221, 175 A.2d 743 (1961), and cases cited. We said in Bradbury (at pp. 424-425 of 233 Md., at p. 128 of 197 A.2d),

" * * * that proof of the corpus delicti need not be full and positive but may be established by the circumstances of each particular case; and that the supporting evidence is sufficient to establish the corpus delicti if, when considered in connection with the confession or admission, it satisfies the trier of facts beyond a reasonable doubt that the offense charged was committed and that the accused committed it."

The requirements were satisfied in the Washington cases. The trial court had before it, in addition to the confession, the autopsy report which was clear evidence that the crimes charged had been committed, the testimony of the father as to the circumstances surrounding the disappearance of the child, the testimony of the teen-age sister and of a police officer in regard to the circumstances of the discovery of the body, and the testimony of another police officer with respect to the taking of the appellant's statement. Therefore, as far as the appellant's first contention is concerned, the motion for a judgment of acquittal was properly denied.

The appellant next argues that the confession in the Washington cases was not voluntarily made, on the grounds that it was obtained four hours after his arrest, he was subjected to constant questioning without benefit of counsel, he was intimidated by the police by the clipping and scraping of his fingernails, and that "possibly" illegally seized evidence was used to obtain the confession. But the appellant did not object to the admission of the confession below on the ground that it was involuntarily made and therefore this question is not properly before us. Maryland Rule 885.

It is further claimed that the confession in the Washington cases was improperly admitted because there was "reasonable doubt as to whether or not the * * * confession * * * was the true statement signed by the Defendant." This contention is based on the fact that in response to the defendant's request for pretrial discovery, the State's Attorney sent defendant's counsel a typewritten copy of the confession which was not signed as a witness by the sergeant who had conducted the interrogation, although the original was so signed. It was shown at the trial that there were no differences in text between the original and the copy, as was conceded by defense counsel, and the original was sufficiently authenticated by the sergeant. Thus it was properly admitted in evidence.

A further contention relating to the Washington cases is that the appellant was prejudiced because the sergeant, when asked to produce the confession relating to the Washington cases, inadvertently handed to counsel the confession in the McRoy case, and the State's Attorney said " * * * I think you handed the wrong one. I think that is the Bertha McRoy case." The mistake was discovered immediately, the confession pertaining to the McRoy case was not handed to the judge, read, or offered in evidence, and the proper confession was produced instead. It had been stated at the beginning of the pending trial that the McRoy case was to be tried next, so we are at a loss to see any prejudice to the appellant in the slight reference to the McRoy case, especially since the case was being tried before an experienced judge, and there was no jury.

In regard to the McRoy case, the appellant contends that his motion for a judgment of acquittal was improperly denied because of the insufficiency of the evidence. As before, he argues that the confession introduced in the McRoy case was not "corroborated". Without repeating what we said above concerning the same argument in the Washington cases, it will suffice to say that the corpus delicti in the McRoy case was sufficiently proven by the prosecutrix's own testimony, if believed, as the trial judge said it was. The testimony of the prosecutrix in a rape case need not be corroborated. Domneys v. State, 229 Md. 388, 182...