Lodowski v. State
| Decision Date | 01 September 1983 |
| Docket Number | Nos. 154,s. 154 |
| Citation | 307 Md. 233,513 A.2d 299 |
| Parties | Kenneth James LODOWSKI v. STATE of Maryland. , |
| Court | Maryland Court of Appeals |
Michael R. Braudes, Asst. Public Defender (Alan H. Murrell, Public Defender and George E. Burns, Jr., Asst. Public Defender, on the brief) Baltimore, for appellant.
Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen. and Deborah K. Chasanow, Asst. Atty. Gen., on the brief) Baltimore, for appellee.
Argued before MURPHY, C.J., SMITH, * ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.
In Lodowski v. State, 302 Md. 691, 490 A.2d 1228 (1985) (Lodowski I ), we reversed the judgments of the Circuit Court for Charles County and remanded the case for a new trial. The Supreme Court of the United States vacated our judgment and remanded the case to us for further consideration in light of Moran v. Burbine, 475 U.S. ----, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Maryland v. Lodowski, --- U.S. ----, 106 S.Ct. 1452, 89 L.Ed.2d 711 (1986). We now further consider the case as directed.
Lodowski had been convicted as a principal in the first degree of the murder in the first degree of Carlton Xavier Fletcher (count 1 of the indictment), as a principal in the second degree of the murder in the first degree of Minh Huong Phamdo (count 2), of the armed robbery of Phamdo (count 7), and with six offenses of conspiracy relating to those crimes (counts 3, 4, 5, 6, 8 and 9). He was sentenced to death on the conviction under the 1st count, to life imprisonment on each of the convictions under the 2nd, 5th and 6th counts, and to 20 years imprisonment under each of the 7th and 8th counts to run consecutively. The 3rd, 4th, and 9th counts were held to merge.
The reason for our reversal of these judgments centered on the admission at trial of three statements given to the police by Lodowski. The first statement was a written admission given at 11:00 p.m. on 14 June 1983. The second statement was an oral confession obtained as a result of an interrogation which began about 10:15 p.m. on 17 June 1983 and ended shortly after 6:00 a.m. the next morning. The third statement was a written admission which was obtained shortly after the oral confession was concluded. We focused on the third statement. 302 Md. at 712, 490 A.2d 1228. As required of us, we made an independent constitutional appraisal of the voluntariness of the third statement in the light of the facts and circumstances under which it was obtained. We accepted, as not clearly erroneous, the factual finding of the trial judge that Lodowski did not request a lawyer. We assumed for the purpose of decision that, prior to the making of the third statement, Lodowski was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), with respect to the right to a lawyer and that he waived, for the nonce, the right in writing by answering "yes" to the question, "Are you willing to answer questions without having a lawyer with you now?" Lodowski, 302 Md. at 712-713, 490 A.2d 1228. We found in the record certain other relevant facts and circumstances surrounding the making of the statements which stood undisputed and unrefuted. We set them out as follows:
Lodowski was in custody at the police station from 10:00 p.m. on 17 June 1983, when the police informed him that he was under arrest, until noon the next day when he was taken before a Commissioner of the District Court. During that period interrogation of him produced two statements. One was an oral confession. As recounted by the officer to whom it was made, it covered the inception of the crimes, the planning of them, their execution the disposition of the loot and the disposal of the murder weapons. Upon the completion of the oral confession, Lodowski was presented with a form on which was typed the following:
Kenneth you have advised me [the officer who received the oral statement] that you have information about the shooting/armed robbery that occurred at the Mini-Market on Greenbelt Rd. last Saturday evening. I would like for you to tell me about that incident.
The balance of that page and two additional pages bear a statement in Lodowski's handwriting. A fourth page is appended which according to the police, is a diagram showing where the murder weapons were thrown from the Woodrow Wilson Bridge into the Potomac River. The statement [designated by us as the "third statement"] bears the date "6-18-83" and the time "0618 Hrs." A police officer took possession of the statement around 11:00 a.m. on 18 June at which time he requested that Lodowski sign each of the first three pages. Lodowski did so, adding the notation "signed under protest."
About 6:15 a.m. on 18 June, Lodowski's mother, who was at the police station, was informed by the police that her son was a suspect. She immediately took steps to obtain the services of a lawyer. By 7:15 a.m. she had employed two lawyers to represent her son. The lawyers arrived at the police station at 8:10 a.m., identified themselves, and asked to see and consult with their client. The request was refused. From then until noon, when Lodowski was taken before a District Court Commissioner, they made persistent efforts without avail to obtain access to their client. They solicited the aid of the Public Defender, the State's Attorney for Prince George's County and a District Court judge. They prepared a petition for a writ of habeas corpus and obtained the agreement of the judge to hear it at noon.
The police made their position perfectly clear to the lawyers, to the State's Attorney and to the judge. Their position was that since Lodowski had waived his right to counsel and had not asked for a lawyer, they were not going to allow the lawyers representing him to talk to him. The State's Attorney recounted what was told him at 9:45 a.m. when he made inquiry to the police about Lodowski. Lt. Robert Miller informed the State's Attorney that Lodowski "was being processed at that time, he had been advised of his rights by the Prince George's County Police Department, that he had not requested an attorney, and that they [the police] thought it was inappropriate to talk to counsel or to allow counsel to see Mr. Lodowski." When one of the lawyers telephoned the State's Attorney about 9:55 a.m. and asked to see his client, the State's Attorney said that he "thought the best thing would be to go ahead with his hearing [on the petition for the writ of habeas corpus], that we would have an attorney available at whatever time the Court wished to have an attorney available."
While the lawyers were attempting without success to see their client, Lodowski was writing the third statement. He was not informed by the police, nor was he aware, before he had completed the statement and signed it, that two lawyers retained by his mother to represent him were at the police station desperately attempting to see him so they could consult with him forthwith. Id. at 713-715, 490 A.2d 1228.
In those circumstances we thought that the admissibility of the third statement depended upon whether, in the contemplation of Miranda, the waiver of Lodowski's rights, guaranteed by the Fifth Amendment to the Constitution of the United States, was effective. Id. at 718-719, 490 A.2d 1228. We held that it was not. We were convinced that
the conduct of the police vitiated Lodowski's waiver of his right to counsel with respect to his third statement. Therefore that statement was rendered involuntary and inadmissible in the State's case in chief. Id. at 722, 490 A.2d 1228.
It was our view "that a suspect must be fully informed of the actual presence and availability of counsel who seeks to confer with him, in order that any waiver of a right to counsel, as established by Miranda, can be knowing and intelligent." Id. at 721, 490 A.2d 1228. It turned out that a majority of the Justices of Supreme Court of the United States thought otherwise and made their views known in Burbine.
The facts and circumstances of Burbine are accurately summarized in the syllabus to the opinion, 106 S.Ct. at 1136-1137:
After respondent [Brian K. Burbine] was arrested by the Cranston, Rhode Island, police in connection with a breaking and entering, the police obtained evidence suggesting that he might be responsible for the murder of a woman in Providence earlier that year. An officer telephoned the Providence police at approximately 6 p.m., and an hour later, Providence police officers arrived at the Cranston headquarters to question respondent about the murder. That same evening, unknown to respondent, his sister, who was unaware that respondent was then under suspicion for murder, telephoned the Public Defender's Office to obtain legal assistance for her brother on the burglary charge. At 8:15 p.m., an Assistant Public Defender telephoned the Cranston detective division, stated that she would act as respondent's counsel if the police intended to question him, and was informed that he would not be questioned further until the next day. The attorney was not informed that the Providence police were there or that respondent was a murder suspect. Less than an hour later, the Providence police began a series of interviews with respondent, giving him warnings pursuant to Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694], before each session and obtaining three signed waivers from him prior to eliciting three signed statements admitting to the murder. At all relevant times, respondent was unaware of his sister's efforts to retain counsel and of the attorney's telephone call, but at no time did he request an attorney. The state trial court denied his pretrial motion to suppress the statements, finding that he had validly waived his privilege against self-incrimination and his right to counsel. Respon...
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