Prescoe v. State

• Decision Date: 24 May 1963
• Docket Number: No. 235,235
• Citation: 231 Md. 486,191 A.2d 226
• Parties: Jerome PRESCOE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 486

231 Md. 486

191 A.2d 226

Jerome PRESCOE v. STATE of Maryland.

No. 235.

Court of Appeals of Maryland.

May 24, 1963.

George L. Russell, Jr., Baltimore, for appellant.

Russell R. Reno, Jr., Asst. Atty. Gen. (Thomas B Finan, Atty. Gen., William J. O'Donnell, State's Atty., and Dene L. Lusby, Asst. State's Atty., for Baltimore City, Baltimore, on the brief) for appellee.

Before BRUNE, C. J., and PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

SYBERT, Judge.

Appellant, Jerome Prescoe, was tried by the Criminal Court of Baltimore, sitting without a jury, under a six count indictment charging, inter alia, the crime of statutory burglary (a misdemeanor) and grand larceny (a felony). A general verdict of guilty was rendered and appellant was sentenced to two years' imprisonment. He appeals from the judgment on the ground that his confession was improperly admitted in evidence.

The record shows that in the early morning hours of February 26, 1962, a store owned by Kramer's West End Corporation in Baltimore, was broken into and 22 men's suits valued at $503.00 and $16.00 in cash were taken from the premises. On June 14, 1962, the police arrested one Lawrence Morgan in connection with the burglary and received information from him that the appellant had participated in it. Morgan also admitted having committed ten other offenses. The officer who investigated the Kramer store burglary testified that at first the police did not believe Morgan's statement implicating the appellant, but after checking for three days became satisfied with the truth thereof. Up to the fourth day the police had only alias names of the appellant, but on that day they received information as to his whereabouts and his correct name. When the investigating officer went off duty that day he left in the station house a report on the case with instructions for an officer to arrest the appellant. At 2:30 a. m. on the fifth day a police officer who had not participated in the investigation arrested the appellant at his home without an arrest or other warrant and took him to the station house. At 8 a. m. on the same day the investigating officer reported for duty and began to question the appellant. A half hour later, six hours after his arrest, appellant gave police a written statement admitting that he, with two others, had burglarized Kramer's store on February 26, 1962 and taken some suits therefrom which were later divided among them.

The State offered no evidence at the trial of any facts ascertained as the result of Morgan's statement to the police. Asked why a warrant had not been obtained for the arrest of the appellant, the investigating officer testified, 'We didn't have grounds enough to obtain a warrant.' In his memorandum opinion, referred to hereafter, the trial judge reported that the State had admitted the illegality of the arrest. We were told at oral argument that the assistant state's attorney who had tried the case made such an admission in his closing argument, which does not appear in the transcript. Hence we shall assume, without deciding, that the arrest of the appellant was unlawful because of the absence of either an arrest warrant or probable cause for the police to believe that he had committed a felony.

At the trial appellant's confession was offered in evidence by the State over his counsel's objection that the confession, although conceded to have been freely and voluntarily given, was inadmissible because made by him while under illegal detention. The trial judge reserved his ruling on this objection until the filing of his opinion. In finding the appellant guilty, the trial judge determined that the mere fact that the confession was made subsequent to an illegal arrest would not require its exclusion in a State criminal prosecution if, in fact, it was voluntarily given, as was conceded. This ruling is the basis of the appeal.

The sole and determinative issue in this appeal, as stated by the appellant in his brief, 'involves the question of the admissibility of a confession, admitted by the defendant to have been voluntarily given, but made while the defendant was under an arrest, admitted by the State to have been illegal.' The State points out, and the appellant concedes, that the Maryland law, as it presently exists, would not require the exclusion of a confession merely because it was made during a period of illegal detention subsequent to an unlawful arrest. See Payne v. State, 207 Md. 51, 113 A.2d 93 (1955); Cox v. State, 192 Md. 525, 64 A.2d 732 (1949); Barber v. State, 191 Md. 555, 62 A.2d 616 (1948); Frank v. State, 189 Md. 591, 56 A.2d 810 (1948); Courtney v. State, 187 Md. 1, 48 A.2d 430 (1946). See also Balbo v. People, 80 N.Y. 484 (1880); State v. Raftery, 252 Mo. 72, 158 S.W. 585 (1913); People v. Klyczek, 307 Ill. 150, 138 N.E. 275 (1923); 3 Wigmore, Evidence (3d ed.), Sec. 823(b); 2 Wharton's Crim. Evidence (12th ed.), Sec. 366. As we stated in Driver v. State, 201 Md. 25, 30, 92 A.2d 570, 573 (1952): 'The law is clear that, unless the facts show that an unlawful arrest in itself constitutes such duress as to make a confession signed by the defendant while under arrest involuntary, the same rule as to admissibility of the confession is applicable as where the arrest is lawful. * * *'

In Maryland the test of whether a confession is admissible is whether or not it is the 'voluntary act of the accused'. See Kier v. State, 213 Md. 556, 132 A.2d 494 (1957); Merchant v. State, 217 Md. 61, 141 A.2d 487 (1958). This test has been recognized by the Supreme Court of the United States as the proper one as to the admissibility of confessions in state criminal prosecutions. See, e. g., Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961).

It is appellant's position, however, that the decisions of the Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), require a re-examination of the 'voluntariness test' as heretofore applied in state criminal prosecutions to the admissibility of confessions obtained after an illegal arrest. He argues that a rule similar to the so-called 'McNabb-Up-shaw-Mallory' ¹ rule, excluding confessions in federal prosecutions which are obtained during a period of illegal detention in violation of Rule 5(a) ² of the Federal Rules of Criminal Procedure, must now be applied by the States. This conclusion can be inferred, he maintains, from the Supreme Court's decision in Mapp v. Ohio, supra. He also contends that, regardless of this Court's decision as to the applicability of the McNabb rule, the recent case of Wong Sun v. United States, supra, controls the instant situation and requires the exclusion of his confession. Contrariwise, the State contends that the decision in Mapp relates only to the admissibility of evidence obtained through an illegal search and seizure, and that the rule as to the admissibility of confessions in state criminal prosecutions is unchanged thereby--the McNabb rule being restricted to federal prosecutions and never having been applied by Maryland. Cox v. State, supra. As to Wong Sun, it is the State's position that this case does not represent a departure from the 'voluntariness test' heretofore recognized by both the Supreme Court and this Court; and that, in any event, the fact that the appellant concedes the voluntariness of his confession is sufficient to require an affirmance of the decision below.

In Mapp v. Ohio, supra, the Supreme Court held that the prohibitions of the Fourth Amendment requiring the exclusion of evidence illegally seized was applicable to the States (whether the evidence was seized by State or federal officers) through the Due Process Clause of the Fourteenth Amendment. By so holding, the Supreme Court extended to the States the rule excluding illegally seized evidence which it had first recognized in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), as applying only to federal prosecutions. Cf. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (where the Supreme Court, while recognizing that the Fourteenth Amendment prohibits unreasonable searches and seizures on the part of the States, declined to require the exclusion of evidence obtained thereby in state criminal prosecutions; this case was overruled by the decision in Mapp v. Ohio); and cf. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). See also Michener, Unreasonable Searches and Seizures and the Admissibility of Evidence in Maryland, 21 Md.L.Rev. 321 (1961) for a thorough exposition of the cases preceding Mapp. Both the language of Mapp and the development of the doctrines therein expounded leave no question but that the rule excluding evidence obtained as the result of an illegal search and seizure is now held to have a constitutional, rather than a merely evidentiary, foundation.

Simultaneously with its concern with the question of excluding evidence obtained as a result of illegal searches and seizures the Supreme Court has also dealt with the problem of the admissibility of confessions, giving each separate treatment. In the case of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), relied on by the appellant, the Supreme Court held that confessions obtained during the course of an illegal detention resulting from the failure of the arresting officers to comply with federal statutes then in effect requiring prompt production of persons arrested before a judicial officer for preliminary examination, were not admissible in federal prosecutions. Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 (1948), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), applied the same exclusionary rule in implementation of Rule 5(a), supra. Although the McNabb case was presented to the Court in the context of a...