Watson v. State

• Decision Date: 10 February 1978
• Docket Number: No. 56,56
• Citation: 382 A.2d 574,282 Md. 73
• Parties: Donald Ray WATSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 73

282 Md. 73

382 A.2d 574

Donald Ray WATSON v. STATE of Maryland.

No. 56.

Court of Appeals of Maryland.

Feb. 10, 1978.

Michael R. Malloy, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Gilbert H. Robinette, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued Nov. 2, 1977 before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

Reargued Dec. 7, 1977 before MURPHY, C. J., SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ., and ANSELM SODARO, Chief Judge of the Eighth Judicial Circuit, specially assigned.

SMITH, Judge.

We shall here affirm the determination of the Court of Special Appeals in Watson v. State, 35 Md.App. 381, 370 A.2d 1149 (1977), that appellant, Donald Ray Watson (Watson), effectively waived his right to have counsel present when he made an inculpatory statement. We granted the writ of certiorari to consider the matter in the light of Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

At a court trial in the Circuit Court for Baltimore County Watson was convicted of robbery with a deadly weapon and the use of a handgun in the commission of a crime of violence. The facts were set forth for the Court of Special Appeals by Judge Liss. We shall repeat only those facts necessary to a clear understanding of the narrow issue which we shall address. An agreed statement of facts was submitted to us under Maryland Rule 828 g.

The robbery in question took place on January 5, 1976, at approximately 12:20 p. m. Watson was arrested at 1:05 p. m. while driving the automobile which had been used in the robbery. Miranda warnings were read to him at that time. Detective John Hopkins (Hopkins) of the Baltimore County Police Department, who was in charge of the case, called Watson's mother to inform her of the charges against Watson. He replied in the affirmative to her inquiry as to whether Watson would need a lawyer. Watson was told that his mother had been called. He was again advised of his Miranda rights at about 4:30 p. m. on the same day. Upon being told that the State's Attorney would be so advised if Watson assisted Hopkins in the investigation of the robbery, Watson made an exculpatory oral statement, which the parties agree was properly admitted into evidence. Upon completion of this statement Hopkins told Watson that he did not believe his story. Watson requested a lawyer. He was allowed to call his mother.

Private defense counsel was hired. The attorney in question spoke with Hopkins on each of the days of two separate preliminary hearings. While they were in the courthouse for the second hearing, Hopkins told the attorney that he had doubts about Watson's guilt and suggested that Watson take a lie-detector (polygraph) test. Counsel agreed to the suggestion and instructed Watson, in the presence of Hopkins, "You are to go to meet with Detective Hopkins when he calls you at a scheduled date. . . . Under any circumstances, you are not to give any statement beyond the polygraph examination." Counsel told Hopkins that he was not to question Watson except for the questioning involved in the polygraph test. Hopkins agreed. When Hopkins advised counsel of the scheduled date for the polygraph test, he agreed to call counsel and to let him know the result of the test.

The test was administered. The polygraph operator told Watson that he had failed the test. The operator then advised Hopkins by telephone to come around because the test was over, that Watson had failed, and that Watson wanted to talk to Hopkins. Hopkins twice attempted to call the defense attorney to advise him that Watson had failed the test. The attorney was out of the office on both occasions. Approximately 20 minutes after the test was over Hopkins entered the polygraph room, informed Watson that he had unsuccessfully attempted to reach his attorney, and stated, "I understand you have something you want to tell me, but, first of all, I'm going to read your rights again." Watson was then again informed of his Miranda rights, which advice did not include, however, any reference to the instruction of counsel to make no statement nor counsel's request that Hopkins not question Watson. Watson then affirmatively stated that he understood his rights, that he wanted to talk to the detective, and that "he wanted to get something off his chest." The inculpatory statement then followed.

The trial judge said in his ruling on the motion to suppress the inculpatory statement:

"The defendant, in this case, has testified on this issue, and he has stated that he did not call Detective Hopkins; that he was taken to Detective Hopkins; that he didn't say anything except that he knew Jerome Moore (, one of the robbery suspects). There were other officers present who said they didn't believe him; that during the course of the polygraph, the officer administering the polygraph said, 'You did not?' He said, 'No.' 'Did you drive the car?' He said, 'No,' and he was told that he wasn't believed. He told Detective Hopkins that he wanted to call his attorney, and that after a number of statements were made by Detective Hopkins as to what Detective Hopkins said happened, then, after that, he was read his rights, and that's how the incident occurred on February 11th, '76.

"In contrast to that, Detective Hopkins states that, yes, he did speak to Mr. Kroop ((Watson's attorney)), that it was agreed that he was to take the polygraph test, that he would not conduct an interview with the defendant. Detective Hopkins said that the defendant was administered the polygraph test, that he was informed that he did not pass same, that he was informed that the defendant wanted to talk to him; that, still, at this point, he read the Miranda rights to him. Now, at this point, looking at the totality of the circumstances, we have a situation where the defendant is read his rights for the third time, and has said for the third time that he understands them; also, a situation where he has had access to an attorney and access to a good attorney who, unquestionably, advised him, and Detective Hopkins so stated, not to say anything during the course of this polygraph test, yet the defendant still chooses to make a statement, according to the testimony of Detective Hopkins.

". . . (T)he testimony of Detective Hopkins is that this is what occurred, that he did, again, advise him of his rights, and that a statement was given, and I accept the testimony of Detective Hopkins . . . .

"I don't believe the sequence of events as described to me by the defendant in this case. I will say, however, that the statements given by the defendant do not indicate to me that he was put upon or lulled into some kind of sense of false security by virtue of having been administered a polygraph test. I don't feel that, based on what he says transpired, that was the situation that existed at the time the polygraph was completed, and I think that the statement was given voluntarily with the understanding of his Miranda rights, and having been given good advice by his counsel, he chose to ignore it at that particular time. Then, I don't know of any duty on the detective to contact the attorney and tell him the situation. He did try to call him, as he said, to tell him what the results of the polygraph were, but was unable to contact him, which is certainly, understandable, with attorneys' trial schedules being busy, it is understandable that such things as that would happen on this occasion, so I will rule that the statement given on February 11th, '76, is admissible."

As Chief Judge Brune observed for the Court in McDowell v. State, 231 Md. 205, 211, 189 A.2d 611, 614 (1963), "The credibility of witnesses is primarily for the determination of the trier of facts. McKenzie v. State, 230 Md. 513, 514, 187 A.2d 885 ((1963))." Accord, Cunningham v. State, 247 Md. 404, 417, 231 A.2d 501 (1967), cert. denied, 390 U.S. 908, 88 S.Ct. 832, 19 L.Ed.2d 877 (1968). Under Rule 886 "the judgment of the lower court will not be set aside on the evidence unless clearly erroneous . . . ."

In State v. Blizzard, 278 Md. 556, 567, 366 A.2d 1026 (1976), in determining whether an individual had been denied his right to counsel under the Sixth Amendment to the Constitution of the United States and Article 21 of the Maryland Declaration of Rights, we considered and rejected "(t)he broad or liberal rule, called by some the 'per se' rule," which we said "represent(ed) the distinct minority view," espoused by some as to the application of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Under the "per se" rule, as stated in United States v. Thomas, 474 F.2d 110, 112 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973), "(O)nce a criminal defendant has either retained an attorney or had an attorney appointed for him by the court, any statement obtained by interview from such defendant may not be offered in evidence for any purpose unless the accused's attorney was notified of the interview which produced the statement and was given a reasonable opportunity to be present." The "per se" rule is also espoused in United States ex rel. O'Connor v. State of New Jersey, 405 F.2d 632, 636 (3d Cir.), cert. denied, 395 U.S. 923, 89 S.Ct. 1770, 23 L.Ed.2d 240 (1969); Hancock v. White, 378 F.2d 479, 482 (1st Cir. 1967); State v. Gallagher, 97 Ariz. 1, 7, 396 P.2d 241 (1964); State v. Witt, 422 S.W.2d 304, 309 (Mo.1967), and State v. Green, 46 N.J. 192, 215 A.2d 546, 551 (1965), cert. denied, 384 U.S. 946, 86 S.Ct. 1475, 16 L.Ed.2d 544 (1966).

In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424, the defendant, Williams, was arrested for abducting a 10-year-old girl on Christmas Eve. Two days after she disappeared he turned himself in to the police at Davenport, Iowa, a town...