Sabatini v. State

Decision Date10 February 1972
Docket NumberNo. 319,319
Citation14 Md.App. 431,287 A.2d 511
PartiesGary Lee SABATINI a/k/a Gary Lee Marino v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

James G. Klair, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur Argued before ORTH, MOYLAN and POWERS, JJ.

A. Marshall, Jr., State's Atty., and E. Allen Shepherd, Asst. State's Atty., for Prince George's County, on the brief, for appellee.

ORTH, Judge.

Gary Lee Sabatini, also known as Gary Lee Marino, was found guilty by a jury in the Circuit Court for Prince George's County of robbing William Bryant Dowling 1 with a deadly weapon. A sentence of 10 years was imposed.

THE FACTS ADDUCED AT THE TRIAL

Dowling, the manager of a liquor store in Beltsville, Prince George's County, Maryland, was working in the store on 14 December 1970 with another employee, William J. Chilcoate. About 9:15 p. m. a man, later identified as a Mr. Andrews, came in the store and 'shopped around.' He had on a black raincoat or trench coat and an off-white or ivory colored hat turned up all around. He wore no tie and his collar was open. The legs of his pants were turned up 'a couple cuffs.' He selected a bottle of Seagram's Crown Royal. The bottle, enclosed in a blue velvet bag, was in a box. Its price was $9.25. With the box under his arm, he examined other merchandise in the store until about 9:30 p. m. when he paid for the Seagram's with a $10 bill. Given his change he pulled out a small, silver colored handgun, told the two employees to go to the back and ordered them to get the money out of the cash box. The cash box contained only change. Saying he did not want that, the robber ordered Dowling 'to get the money' and Dowling handed him about $700 in bills and checks from the safe. The robber made Dowling and Chilcoate lie on the floor and left. From 3 to 5 minutes elapsed from the time the robber pulled the gun Corporal Herbert E. Bolvin of the Prince George's County Police received a radio report of the robbery about 9:41 P. M. He directed two of his officers to go to the crime scene and he drove to a shopping center at Powder Mill Road and Route 1. He was there about 30 seconds when a blue Chevrolet containing two men passed by. Its rear license tag was covered by tissue paper. Bolvin activated his cruiser's red light and siren, followed the Chevrolet and pulled it over. Bolvin was reporting to his dispatcher when Sabatini, the driver of the car, got out, and walked toward the police car. Bolvin told Sabatini to stay by the rear of the Chevrolet. When the officer completed his report he got of the police car. He saw the passenger in the Chevrolet, seated in the right front seat, lean forward, his arms moving 'in a way that he was stuffing something under the front seat or taking something from the front seat, one of the two.' The passenger had on a black coat. Bolvin told Sabatini 'to tell his passenger to get out of the car with his hands in clear view * * *.' Sabatini and the other man talked about 30-45 seconds but Bolvin could not hear what was said. The passenger got out of the car. Sabatini asked why he had been stopped and Bolvin told him because of the paper obliterating the rear license tag. Sabatini pulled off the paper and stuffed it in his pocket saying, 'Oh, it must have fell out of the trunk.' Bolvin recounted what then happened 'His passenger asked me * * * if he wanted me to have him go to the front of the vehicle and obtain the registration card. I told him no. He had started to turn around towards the front of the car and I said, 'No, stay where you are and keep your hands out of your pockets in clear view.' Then he turned back towards me and he started walking back towards my cruiser, and he made a statement that it was a rather cold evening that night. I said it sure was. I said, 'Just get your hands out of your pocket and back up towards the rear end of your car and stay there. * * * I had called for assistance several times, but my radio was rather bad. When I turned my emergency equipment on, my radio cuts out on me sometimes, and I couldn't hear what the dispatcher was saying, and I was trying to get through to my dispatcher to get a better lookout so I could made positive identification on the passenger in the car. About this time Sergeant Nicholls pulled back in behind me on the traffic stop that I had. As he got out of his car-his car was parked directly behind mine. When he got out of his car, he walked between the two cruisers and then up the right side of my cruiser. At this time I got back into my cruiser and asked my dispatcher again for a definite lookout. When he came back and told me what the lookout was again, I told him I had a good suspect. As I said the word 'suspect' the man that was with Mr. Sabatini turned around, pulled a gun out of his pocket and shot Sergeant Nicholls. I exited my vehicle, leaned across the hood and fired back. * * * I fired three across the hood and then he started to fall. I ran back between the cruisers and came back up the right side. Sergeant Nicholls was just getting back up on his knees. I fired one more shot to make certain that the man was either down Bolvin apprehended Sabatini, brought him to the front of the cruiser, spread-eagled him on the hood and handcuffed him. The officer said he then 'advised (Sabatini) of his constitutional rights.' 2 Bolvin then took him to the rear of the cruiser and 'placed him on top of the trunk, the upper extremity of his body on the top of the trunk, to make certain he did not have a weapon and not give him cause to use any weapon against the rest of us that were there on the scene. * * * I grabbed him by * * * his hair and placed his head down on the trunk with my left hand while I had my right hand at his belt and my knee in between his legs.' He denied hitting Sabatini but said Sabatini's head could have hit the trunk because he was trying to jerk away, 'trying to lift himself back up * * * trying to jerk back * * *.' But he observed no signs of injury to Sabatini and Sabatini made no complaints of any injury. Bolvin agreed that he was not 'particularly gentle with Sabatini when he put him spread-eagle on the trunk.' Other officers had arrived to lend assistance. Sabatini was placed in the back of the cruiser to await the paddy wagon. It arrived shortly and Sabatini was placed in the custody of the two paddy wagon officers, Schachner and Tucker. When the passenger, Andrews, identified as the actual perpetrator of the robbery, was shot he fell and remained motionless on the ground with his right arm under his

to his departure. Dowling phoned the police and two squad cars arrived 'in a couple of minutes.' An officer suggested, 'Well, one of you come with me and we will go for a ride and see if maybe we can see him if he's on foot.' Chilcoate went. As the car left the parking lot a message was received on the radio that a suspect had been pulled over and shortly thereafter another call that an officer had been shot in front of the Hess Station about a half mile from the store. The squad car went to the scene and Chilcoate saw the man who had committed the robbery lying on the side of the road. Nearby was a blue Chevrolet or if he was going to fire back, I could have fire cover. As I ran towards the front of the car Mr. Sabatini was at the rear left of his vehicle. I fired one more shot, at which time he took off towards the front of his car. I fired a second shot and then Mr. Sabatini was finally stopped at the front of the vehicle, at the front of his vehicle, crouched down behind the left front headlight.' body. The police found a gun in his right hand. The gun's clip held 9 rounds and there were 7 live rounds in it. Dowling testified that the gun looked like the one the robber brandished during the holdup. A white hat and a box containing a bottle of whiskey were found in the Chevrolet. Dowling identified the hat as the one the robber wore and the bottle of whiskey as the type the robber purchased. Paper money totaling $488 was found stuffed under the right front seat of the car.

THE CONFESSION

Detective Ranson Jader McLamb of the Prince George's County Police saw Sabatini in the company of officers Schachner and Tucker about 10:10 p. m. on 14 December at the Hyattsville detective bureau. 'He appeared to be subdued. Physical condition, didn't appear to be anything physically wrong with him. * * * he was very quiet; he walked with his head down; don't recall him saying anything.' McLamb and Detective Daniel R. Olds interviewed Sabatini. He was given the required Miranda warnings, expressly asserted that he understood his rights and said he was willing to make a statement. At this point in McLamb's testimony the jury left the courtroom and a hearing was held out of their presence on the admissibility of a statement given by Sabatini. McLamb testified under examination by defense counsel that Schachner and Tucker, who had brought Sabatini from the place of his apprehension to the police station, turned their prisoner over to him and Olds. McLamb and Olds took him to the interrogation room. McLamb did not recall ever leaving his presence. Olds read the Miranda rights to him about 10:25 p. m., and although he expressed his willingness to make a statement a formal waiver was not signed until midnight after his statement had been reduced to writing. Asked: 'It was not until 2400 or after the statement was completed that you gave him an opportunity to call a lawyer; is that your testimony?', he replied, 'To that point he didn't want a lawyer.' Only McLamb, Olds and Sabatini were in the room during the 'THE COURT: And did he make any request for either water or a lawyer at that time?

interrogation. Examined by the State, McLamb was asked if Sabatini was reluctant to give a statement. McLamb said: 'He wanted to talk about it. When he started talking about...

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