Scott v. State, 189

• Decision Date: 22 March 1968
• Docket Number: No. 189,189
• Citation: 239 A.2d 771,3 Md.App. 429
• Parties: Harold SCOTT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 429

3 Md.App. 429

239 A.2d 771

Harold SCOTT v. STATE of Maryland.

No. 189.

Court of Special Appeals of Maryland.

March 22, 1968.

Michael Lee Kaplan, Baltimore, on brief, with Morris Lee Kaplan, Baltimore, for appellant.

Frank A. DeCosta, Jr., Asst. Atty. Gen., Baltimore, with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr. and Fred Grant, State's Atty., and Asst. State's Atty. for Baltimore City, respectively, Baltimore, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

The appellant was convicted in the Criminal Court of Baltimore before Judge Thomas J. Kenney, presiding without a jury, of breaking the dwelling house of James Edward Jones at 901 Duncatel Street with intent to steal and of grand larceny of Jones' properties. He was sentenced to imprisonment for a term of 10 years for each offense, the sentences to run concurrently.

On appeal from the judgments, he first contends that a culpatory statement admitted in evidence was not made by him to the police freely and voluntarily because he had been denied a request to call a lawyer and because he had been induced to confess by a promise of the police to release a female companion taken into custody with him.

Evidence adduced by the State was that the appellant was observed about 1:15 P.M. on October 12, 1966 by police officers Nicholas Caprinello and Francis Baker while he was walking in the 900 block Whitelock Street carrying a record player answering the description of one stolen in a burglary. A girl, Regina Carter was with him. When the officers first rode by the appellant he placed the record player on the ground next to a parked automobile and continued walking. They accosted him and he told them the record player belonged to Regina. She denied it, stating that it belonged to the appellant. He said he was taking it to be fixed but 'simultaneously she said they were taking it to her mother's.' There was a record on the player but the appellant could not tell them the name of the song recorded. Regina said, 'Well, we haven't done anything wrong. You can go over and look in our apartment, if you want to.' About that time Sergeant Donald Bedsworth drove up and gave the officers 'certain information, which caused us to place Mr. Scott under arrest at that time * * * He was arrested for investigation of homicide.' Immediately upon placing him under arrest, Caprinello, according to his testimony, warned the appellant in accordance with the procedural safeguards required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. ¹ The appellant made no statements at that time. Baker and Regina went to the apartment at 912 Whitelock Street, second floor. Baker saw 'several articles sitting around-lamps, television, clocks-which to me seemed familiar with the articles that had been taken in a previous burglary.' As a result of 'information received' from Regina 'certain items' were removed from the apartment and taken to the Northern District Police Station. The appellant was taken to the Northern District Police Station and 'again advised of his rights' by Bedsworth in the presence of Caprinello and Baker. ² The appellant was confronted with the articles recovered from the apartment and after talking to Regina, stated that he and another 'fellow' had broken in the house at 901 Ducatel Street and took the articles. They carried them to Regina's apartment. On cross examination Baker said that no threats were made to the appellant, no one told him that 'if in the event that he didn't make a statement, he might get a lengthy sentence', no promises were made to him, and no officer told him that if he made a statement Regina would be released. Baker did not recall whether the appellant requested 'her release if he made a statement.' The testimony above summarized was apparently accepted both as to the voluntariness of the statements and on the issue of guilt or innocence of the appellant, but we think it clear that the testimony of what the appellant said was admitted subject to exception pending the determination of the court on the question of voluntariness. Defense then produced the appellant 'solely for the purposes of testifying as to the question of whether your statement was freely and voluntarily given.' He said he was 25 years of age and had a 10th grade education. He denied that he had placed the record player on the ground and said he was still carrying it when the officers came up. He told the officers it was Regina's record player and that he had just come out of the apartment across the street. 'I said it was the apartment of Regina's, and I told him that. He told Regina-he say well, I would like to check on this, and he took Regina across the street and seen the landlord. The landlord evidently verified that she-.' At this point his counsel interjected another question. He denied that he was given the Miranda warnings while on the street. The officers 'got the merchandise out of the apartment * * * but then her apartment wasn't mine, so I didn't object.' He was then taken to the station house 'directly to the Sergeant's Room.' Caprinello, Baker, a sergeant and another officer were present. He was questioned in an attempt 'to find out information about this about different items they took out of the apartment,'-lamps, the record player and a television were in the room. Another officer, whose name he did not know, came into the room and looked at the articles taken from the apartment '* * * and he called the Sergeant out of the room, and the Sergeant-when the Sergeant came back, he say, this look like some merchandise that we had word of two days ago. He say, I got you now, and went out to pull the records for this burglary.' When the Sergeant came back with the records he told the appellant, 'I will advise you of your constitutional rights; say anything that you say could be held against you * * *.' He stated that he was not threatened but that he told them 'I would like to have a counsel, I'm not going to make any more statements until I have a lawyer.' This was about 4:00 P.M. and then he was placed in a cell. The next morning about 9:00 A.M. the Sergeant, in the presence of another officer whom he thought to be Baker, but he was not sure, said that 'if I go on and made a statement and make it light on everybody else around them, they would make it light on myself; and, then, make a statement, and I can get Regina of * * * And they say, if I make a statement and verify that she didn't know anything about it, that they would cut her loose. And when I say cut her loose, to release her * * * They told me to put it down on tape, on a tape recorder. So all the officers came back into the room, I made the statement on the tape recorder, and right after we left out of the room, the Sergeant gave Officer Caprinello orders to go down and release her.' The appellant did not depart from his direct testimony in any substantial detail on cross examination. He was positive in his denial that he made a statement on the day of his arrest and that he confessed that he took 'the merchandise along with another man' only on the following day at which time his statements were taped. He 'made no statements on the street with regard to the burglary.' He maintained that he confessed only because he 'wanted Regina out.'

At this point the court found as a fact that the initial contact of the officers with the appellant was an accosting and that the appellant had placed the record player on the ground and walked away from it when he saw the officers. It found as a fact that the officers notified the appellant of his constitutional rights on the street; that he made no admission on the street that he was advised of his rights in the station house again; that after he was advised of his rights, he was shown the merchandise and that he did not ask for a lawyer. It accepted the version of the police officers as to what the appellant said to them. The court admitted the testimony as a voluntary statement. But it appears from the record that the court permitted the issue of voluntariness to be reopened. Defense counsel informed the court that the appellant now alleged that the officers admitted to the judge presiding at the preliminary hearing that he had requested an attorney and that the judge had excluded the admission at the hearing for that reason. The court gave defense counsel an opportunity to explore the matter and court adjourned until 2:00 P.M. When court reconvened defense counsel stated that he had been unable to reach the hearing judge. The court granted counsel's request to allow him to make further effort 'to check out (the hearing judge's) possible testimony' buy proceeded with the balance of the State's case consisting of testimony of James E. Jones and his wife concerning the breaking of their premises and the properties stolen. After the State rested, defense counsel said he would prefer to withdraw his motion for judgment of acquittal and to strike the testimony as to the admission until the hearing judge had been contacted. He requested a continuance which the court granted, saying, '* * * (I)t is possible and conceivable that if he (the hearing judge) had any testimony, that then to reflect on the credibility of the officers with respect to advice given about constitutional rights and the timing of when the admissions were made, and it might very well have a bearing on the admissibility of this, which I am asked to pass on now.' After a recess the court was informed that both the State and defense counsel had talked to the hearing judge who said he 'really has no independent recollection of the case at all.' He suggested that the clerk at the 'Northern Court' be called 'to check the Docket Sheet to see whether he made any notation on this case.' The clerk was unable to do so until after 4:00 P.M. The court felt that the State and defense counsel...