Ponds v. State, 480

• Decision Date: 13 March 1975
• Docket Number: No. 480,480
• Citation: 25 Md.App. 162,335 A.2d 162
• Parties: Richard Jerrimiah PONDS, III v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 162

25 Md.App. 162

335 A.2d 162

Richard Jerrimiah PONDS, III v. STATE of Maryland.

No. 480.

Court of Special Appeals of Maryland.

March 13, 1975.

Stephen R. Creyke, with whom were Williams, Haynes & Creyke, Washington Grove, on the brief, for appellant.

Gilbert H. Robinette, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty., for Montgomery County and Darrel Longest, Asst. State's Atty., for Montgomery County on the brief, for appellee.

Argued before MENCHINE, MOORE, LOWE and MELVIN, JJ.

MENCHINE, Judge.

Richard Jerrimiah Ponds, III, in a bench trial in the Circuit Court for Montgomery County, was found guilty of nighttime breaking and entering of a dwelling with intent to steal personal goods of another. (Article 27, § 30) He was sentenced to a term of 6 years upon conditions authorized by Article 27, § 641A.

A written stipulation of facts, clearly establishing the corpus delicti, was made. The case then proceeded on the issue of criminal agency. The State offered a confession by the accused to establish criminal agency. The appellant contends that the confession was not freely and voluntarily given and was improperly admitted in evidence. His contention essentially is based upon the fact that he testified that specific promises by police officer McFee had been made without specific rebuttal by the State.

Relying heavily upon Streams v. State, 238 Md. 278, 208 A.2d 614, appellant in substance suggests that its teaching is that general disclaimers by police of threats, force, promises or inducements will not suffice to negate specific charges of particular promises, threats, inducements, or applications of force made by the accused. The contention overstates the teaching of Streams. In Streams, one police officer had testified that 'he had done all of the interrogation on Wednesday and Friday' and that there was no mistreatment, no threats, and no inducements to the accused by him or by anyone in his presence. The accused, however, thereafter testified that other officers had made promises and offered inducements to him at times other than those described by the witness. Under those circumstances the Court in Streams said at 281-82, 208 A.2d 615:

'We think the State did not meet its burden of showing that the confessions were freely and voluntarily made and were not products of promises or threats. Sergeant Tabeling's testimony that during all of the interrogations he and Officer Butler were the only officers present and that neither he nor anyone in his presence made any threats or promises to get Streams to give any information, and similarly no immunity or inducements were offered or held out to him, might have been enough if there were no later uncontradicted contentions to the contrary, and if Streams had not admittedly been in the custody of other officers who, he says, made statements to him and questioned him. We do not agree with the appellant's contention that each person who has casual contact with the accused while he is detained by the police or who is present during the interrogations that lead to a confession must testify as to its voluntariness in order for the State to meet its burden. Bagley v. State, 232 Md. 86, 192 A.2d 53; Glaros v. State, 223 Md. 272, 164 A.2d 461; Glover v. State, 202 Md. 522, 97 A.2d 321; Cooper v. State, 205 Md. 162, 106 A.2d 129; Jackson v. State, 209 Md. 390, 121 A.2d 242. It may be enough if one credible witness can testify from personal observation that nothing was said or done prior to and during the obtention of the confession to mar or destroy its voluntary character and there is no claim by the prisoner of improper treatment by others than those covered by such testimony.' (Italics supplied)

The latter case of Price v. State, 261 Md. 573, 277 A.2d 256, wherein the accused alleged that he had been told that 'if you give a statement it won't do you no harm in the courtroom, something like that,' and where the interrogating officers generally had denied that promises or inducements had been made, the Court of Appeals said at 582, 227 A.2d at 261:

"We think the appellant's testimony * * * in view of its qualifications * * * too general, too lacking in specificity and too uncertainly stated to provide the foundation for an allegation of an illegal inducement requiring the State specifically to controvert it as part of its proof of voluntariness.' Cf. Streams v. State, 238 Md. 278, 281, 208 A.2d 614 (1965).

'We think the general denials of inducement by the police officers involved in the interrogation, together with Captain Cadden's testimony that he had read and explained the Miranda warnings to the accused prior to interrogation, one of which warnings specifically provided that anything appellant said 'may be used against him in a court of law,' was sufficient to meet the inducement challenge.'

The decision in Price makes plain that under some circumstances general, as distinguished from specific denials of inducement will suffice to meet the inducement challenge.

In the case of Gill v. State, 265 Md. 350, 289 A.2d 575, on the other hand, the circumstances were such that denial of specific contentions by the accused was essential to a determination of the basic issue. In Gill, the accused claimed inducements had been made to him when he was alone in the company of one Hyson. It was uncontradicted that Gill had in fact been in the latter's sole presence during the course of interrogation prior to confession. The Court of Appeals pointed out at 354, 289 A.2d at 577:

'* * * that specific person must rebut the allegations of coercion as no one else is qualified to do so.'

Thus, since Hyson had not testified, the only evidence was that the alleged promise or inducement had been made.

This Court has pointed out that there is no magic as to when testimony in denial of promises or inducements must be made. In Burks v. State, 1 Md.App. 81, 227 A.2d 355, where denial of threats, force or inducements had been made before the accused had testified, we said at 84-85, 227 A.2d at 357:

'To require the State to re-ask these questions of Corporal Maddox minutes after he had anticipatorily rebutted Burks' allegations would be a needless gesture. This factor, alone, takes the case at bar out of the holding in Streams.

'There can be no question that the State has the burden of proving that a confession is freely and voluntarily given, without the influence of favor, threat, promise or inducement. Bagley v. State, 232 Md. 86, 192 A.2d 53, 100 A.L.R.2d 1249; Abbott v. State, 231 Md. 462, 190 A.2d 797; Williams v. State, 231 Md. 83, 188 A.2d 543; Bryant v. State, 229 Md. 531, 185 A.2d 190. However, we do not construe the decision and opinion in the Streams case to require a finding in this case that the State has failed to meet the burden of proving the voluntariness of Burks' confession.'

In Harris v. State, 1 Md.App. 318, 229 A.2d 604, the

accused had testified that the police 'told him if he signed the statement he could go home, that he would be tried in the juvenile court, that he was crying because his back hurt and that one of the officers rubbed his 'stick' across the table near appellant's hand but that it never touched his hand because he kept moving his hand away' (at 323, 229 A.2d at 606-07). The police had testified generally 'that neither they nor anyone in their presence offered the appellant any immunities or rewards, made him any promises, threatened him or used any force or violence on him and that the statement was free and voluntary' (at 322, 229 A.2d at 606). In those circumstances, this Court, citing Streams, supra, said at 323, 229 A.2d at 607:

'It may be enough if one credible witness can testify from personal observation that nothing was said or done prior to and during the obtention of a confession to mar or destroy its voluntary character and there is no claim by the prisoner of improper treatment by others than those covered by such testimony.'

We believe, in short, that Streams intended no deviation or departure from the governing rule of law long applied in this State. In Mulligan v. State, 18 Md.App. 588, 598, et seq., 308 A.2d 418, 424, et seq., we discussed in considerable depth the Supreme Court cases of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, and pointed out that Maryland long had adhered to the rules of law declared in those decisions. In Milligan, we pointed out (18 Md.App. at 601, 308 A.2d at 425), 'while Maryland has articulated that the evidence must be prima facie, it has, nevertheless, continuously been applying the preponderance of the evidence standard that a confession be freely and voluntarily made before it is admissible.'

It is true, of course, that the Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, held custodial interrogation impermissible until the constitutional rights of an accused were protected by the procedures mandated by that decision that the police must follow. See Fowler v. State, 6 Md.App. 651, 253 A.2d 409, affirmed State v. Fowler, 259 Md. 95, 267 A.2d 228. In the subject case an 'Interrogation Rights and Waiver Form' containing a waiver of the full panoply of Miranda rights was executed by the accused. While appellant testified that he executed the document after rather than before his confession of the Ranier (subject) offense, and that his negative response to the question: 'Do you want an attorney?' was placed upon the document after the confession in the Ranier incident had been made, the police testimony was in direct conflict therewith. The conflict in that evidence was a matter for resolution by the trial court. Mouzon v. State, 9 Md.App. 57, 60, 262 A.2d 588, 590.

Where there is evidence to support the trial court's finding that the mandates of Miranda v. Arizona, supra, have been obeyed, the question...