State v. Fowler

• Decision Date: 17 July 1970
• Docket Number: No. 345,345
• Parties: STATE of Maryland v. William Bobby FOWLER, Jr.
• Court: Maryland Court of Appeals

Page 95

259 Md. 95

267 A.2d 228

STATE of Maryland v. William Bobby FOWLER, Jr.

No. 345.

Court of Appeals of Maryland.

July 17, 1970.

William E. Brannan, Asst. Atty. Gen., Baltimore, (Francis B. Burch, Atty. Gen., Edward F. Borgerding, Asst. Atty. Gen. and Charles E. Moylan, Jr., State's Atty., Baltimore, on the brief) for appellant.

William J. McCarthy, Baltimore, for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN and SINGLEY, JJ.

Reargued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

FINAN, Judge.

This case is before us on a writ of certiorari to the Court of Special Appeals. On November 6, 1966, Linda Keller, a nurse's aide, was found brutally beaten and knifed at Church Home and Hospital in Baltimore. She died five days later without ever having regained consciousness. On March 25, 1967, William Fowler, the defendant, was taken into police custody. After six days of interrogation, Fowler signed a confession admitting to the murder of Miss Keller.

The defendant was indicted for first degree murder and rape. The case was tried before a jury in the Criminal Court of Baltimore with Judge Perrott presiding. The confession, which was the major piece of evidence produced by the State, was introduced over the objection of defense counsel that it was not voluntarily given and that the defendant had been denied his Miranda rights. Judge Perrott ruled the confession was admissible after hearing testimony concerning its voluntary nature out of the range of the jury. On July 30, 1967, the jury returned its verdict finding the defendant guilty. The court imposed a life imprisonment sentence for the murder charge and a twenty year term for the rape count.

The case was then appealed to the Court of Special Appeals. Writing for the Court, Chief Judge Murphy, in an able opinion, held the confession should not have been admitted because the defendant had been denied his constitutional right to the assistance of counsel. Upon petition by the State we granted a writ of certiorari to the Court of Special Appeals.

The issue before this Court is the admissibility of the confession into evidence at the defendant's trial. To reach a decision on this point, the highly complex factual situation which led to the confession must be closely examined. On March 25, 1967, more than five months after the slaying, Detective Vincent DiCarlo of the Baltimore City Police Department went to Fowler's house to question him in connection with the theft of a money order. He was taken to Northeastern Police Station, in the City of Baltimore, where he was interrogated from 4:30 to 5:30 P.M. by Sergeant Charles Siford. The interrogation did not concern the Keller homicide. A reading of the record reveals that the warnings he gave Fowler concerning his constitutional rights, met the Miranda test. The record is silent as to what response Fowler made to these warnings.

Siford later interrogated him, that night, from 7:30 to 9:30 P.M. He again advised him of his rights but the record is silent as to Fowler's response.

On March, 26, the defendant was further questioned by Siford from 1:45 to 3:45 P.M. During this day he was allowed to talk to his wife and two of his brothers. He was again advised of his rights but the record does not reveal his response.

The following morning he was given a polygraph test. After lunch he was taken downtown to the Homicide Division offices where he was questioned for the first time about the Keller case. That evening he was placed in a lineup in regard to an unrelated offense. Once again there is testimony that his Miranda rights were given but there is no indication as to his response.

On March 28, he was again interrogated by Homicide about the Keller murder. He also spoke to his mother and wife during the day. The record reveals he was advised of his Miranda rights prior to questioning but it does not contain any indication of Fowler's response. Testimony of his interrogators reveals that Fowler denied any knowledge of the Keller murder.

On March 29, Fowler was questioned by Sergeant Siford about offenses unrelated to the Keller homicide. He was then given a preliminary hearing on another charge. The result of this hearing was that he was to be held for action of the Grand Jury and placed in the Baltimore City Jail.

For the five day period from March 25 through March 29, the record reveals that Fowler was questioned several times about a number of offenses. On the 27th and 28th he was interrogated about the Keller murder and denied any relation to or knowledge of it. Before each interrogation the officers testified that they warned Fowler of his Miranda rights. However, at no point is there any testimony as to his response at hearing these rights.

The defendant's testimony concerning this five day period is that he was advised of his rights only on March 26th. He also testified that he asked the police for an attorney approximately twenty times (this was denied by the police), and that in the interviews with his relatives he asked them to obtain an attorney for him.

This brings us to March 30, the day upon which the confession was obtained. At 3:15 P.M. the defendant was taken from the Baltimore City Jail to Homicide Division for further questioning. He was removed from jail on the authority of a writ the nature and terms of which are not shown in the record. The interrogation began at 3:45 P.M. and was led by Captain Anton Glover in the presence of Officers Siford, Bosak, DiCarlo, and Folio.

Captain Glover testified that he warned the defendant of his rights as follows:

'The right to counsel, if he couldn't afford counsel, counsel would be secured, advised he could remain silent, anything he told us could be used in court against him. He was told if he decided to talk to us, he could have counsel present.'

The record does not reflect defendant's response to these warnings.

Sergeant Siford testified that at no time did Fowler ask for an attorney. However, defense counsel did elicit the following testimony:

'Q. Did you ever hear him ask anyone for an attorney?

A. He called his brother in my presence, called his brother in the Homicide room, interrupted interrogation to call his brother to see if he had gotten a lawyer.

Q. What did he say (on March 30), he wanted to call his brother to get an attorney?

A. Yes.

Q. What was the first date on which he said this, Sergeant Siford? Was it while you had him in custody at Northeastern?

A. No. I'm speaking of the interrogation at Homicide on the 30th, that interrogation was interrupted and he asked to use the phone.

Q. To get an attorney?

A. To call his brother to find out whether or not his brother had contacted an attorney. That is exactly what he said.'

Siford further testified that the interrogation continued because Fowler 'didn't stress that he wanted an attorney.'

'Q. Did he not express to you the fact that he wanted his brother to get an attorney for him?

A. Sounded like he wanted his brother to get an attorney.

Q. It was your understanding, was it not, that the defendant in this case wanted an attorney through his brother * * *?

A. Yes but it was to no one. We didn't understand that he did not ask for an attorney at this time, at the interrogation, because when Captain Glover advised him, he made it very clear that any time if the defendant wanted the interrogation stopped and wanted the lawyer present, he could so have the lawyer.'

At approximately 4:20 P.M., Leonard Briscoe, an attorney, arrived at the interrogation room to speak to Fowler. He had been sent by Milton Allen, an attorney with an office in downtown Baltimore, to interview the defendant. Mr. Allen had been contacted about the case by a member of Fowler's family. Mr. Briscoe testified that he asked to be left alone with the defendant. Captain Glover and Detective DiCarlo acknowledged hearing the request while Officers Siford, Bosak, and Falio testified that they never heard such a request.

Briscoe alleged that there were some officers in the room at all times. Captain Glover maintained that 'everyone left the room with the exception of the defendant and counsel.' Detective Bosak testified that he thought Glover remained in the room because all of the officers were huddled in one area of the room about fifteen feet from the defendant and Briscoe. The room was approximately 12 by 20 feet.

Sergeant Siford's testimony on this issue is as follows:

'A. Well, I personally went over by the door. I don't know exactly what the other officers did. I think some of them may have went outside. I don't know.

Q. Where was the door in relation to Mr. Fowler?

A. I guess about five or six feet away.'

Detective Folio testified that Siford, Glover and Bosak all stood by the door while he and DiCarlo stood alongside the door.

Briscoe reported that because of the proximity of the officers he did not ask appellant about the case. He took down some background information and told Fowler, 'Remember you don't have to make any statement.' He maintains that he was unaware that Fowler was a suspect in the Keller homicide at the time of this interview. Briscoe admits asking Glover whether Glover had advised Fowler of his Miranda rights. Glover responded affirmatively and Fowler nodded in agreement.

Glover testified that at 4:35 P.M. Briscoe called the police back into the room and that he told Briscoe he had advised Fowler of his Miranda rights. He then asked Briscoe if he wished to remain and that Briscoe left at 5:30 P.M. to talk to another client. Glover later testified that Briscoe left at 4:35 P.M.

After he left Homicide, Briscoe returned to attorney Milton Allen's office and informed him of what had transpired. Allen then called Captain Glover. Allen testified that he told him to stop questioning Fowler until he got there and that Glover agreed to this. Glover denies receiving such a call.

Upon Briscoe's departure, the police...