Watson v. State, 740

• Decision Date: 16 March 1977
• Docket Number: No. 740,740
• Citation: 370 A.2d 1149,35 Md.App. 381
• Parties: Donald Ray WATSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 381

35 Md.App. 381

370 A.2d 1149

Donald Ray WATSON v. STATE of Maryland.

No. 740.

Court of Special Appeals of Maryland.

March 16, 1977.

Gerald A. Kroop, Assigned Public Defender, Baltimore, for appellant.

Gilbert H. Robinette, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Sandra A. O'Connor, State's Atty., Baltimore County and Thomas Morrow, Asst. State's Atty., Baltimore County, on the brief, for appellee.

Argued before POWERS, MOORE and LISS, JJ.

LISS, Judge.

The appellant, Donald Ray Watson, was convicted at a court trial by Judge Edward A. DeWaters of robbery with a deadly weapon and use of a handgun. It is from those judgments that this appeal is filed.

The case arises out of an armed robbery which occurred in Baltimore County on the afternoon of January 5, 1976. Ms. Gertrude Libowitz, office manager for Bond Distributing Company, had just returned from the bank to the parking lot adjoining her employer's building when she was accosted by two men-one a tall man armed with a gun, the other, shorter in height-who ordered her to get back into the car. She refused and the taller man pushed her against the car knocking off her glasses. He then reached into the car and grabbed her purse and two empty bank bags which she had picked up at the bank. The two robbers then got into a car which was some 40 or 50 feet away from Ms. Libowitz's car, and a third man drove them away from the scene. Ms. Libowitz had the presence of mind to note the license tag of the getaway vehicle and the police were called. She gave the investigating officer a description of the persons involved in the incident and the information concerning the car.

Later that same day Donald Ray Watson, the appellant, was arrested. The appellant did not raise the issue of probable cause for the arrest at the trial below nor was the issue raised in this appeal.

Detective John W. Hopkins of the Baltimore County Police Department gave Watson his Miranda warnings, advised him of the reason for his arrest and ultimately transported him to police headquarters. At police headquarters Detective Hopkins called the appellant's mother, explained why her son was being held and that he would be charged. Mrs. Watson asked whether her son needed a lawyer and the detective replied in the affirmative. Hopkins then told Watson that he was hunting for three suspects and that if Watson told the truth, he, Hopkins, would advise the state's attorney of Watson's cooperation. Watson then gave a statement to Hopkins in which he said that his mother had left for work at 6 a. m. and had left the car because she could not start it. At about 12:15 p. m. he persuaded a friend to give the car a 'hot shot' and the appellant left the keys in the car, the motor running, and when he returned the car had been moved. He walked around the neighborhood and located the car in an apartment house parking lot three of four blocks away from his home. He was just driving the car off the lot when the police stopped him. Over objection the appellant's motion to suppress this statement was denied. No issue as to the admissibility of this statement was raised on this appeal.

In the interim, the appellant employed counsel who represented the appellant in the trial below and on appeal. A second preliminary hearing was scheduled, and at this hearing Detective Hopkins suggested to defense counsel that he was not sure of the appellant's involvement in the robbery and that it might be useful if the appellant would submit to a polygraph test.

Defense counsel discussed the suggestion with the accused and he agreed to take the test. Counsel advised his client not to give any statements beyond that required by the polygraph examination and instructed Detective Hopkins not to question his client after the completion of the test. The detective agreed to call defense counsel after the examination and let him know the result of the test.

A few days later the appellant took the test and was advised by the examiner that he had failed it. ¹ The appellant then advised the examiner that he wanted to talk to Detective Hopkins. Hopkins attempted to reach appellant's defense counsel by telephone on two occasions, but he was unable to do so. He told this to the appellant and then stated, 'I understand you have something to tell me, but, first of all, I'm going to read you your rights again.' Hopkins testified that he advised the appellant of each of his rights and that appellant stated he understood them. The appellant said that he wanted to talk to Hopkins because he 'had something to get off his chest.'

The appellant took the stand and testified that he did not request to see Hopkins and that he gave Hopkins no statement at all. The trial court ruled that the appellant's oral statement allegedly made after the polygraph examination was admissible into evidence. In that statement appellant allegedly admitted to being with the two men who robbed Ms. Libowitz, but he denied knowing that they intended to commit the robbery.

The sole question raised by the appellant on this appeal is whethr, under all the circumstances, the inculpatory statement made by the accused was the product of a free and unconstrained will which had not been overborne or compelled. We believe the statement was voluntarily made after the accused had been fully advised of his rights and we shall affirm.

The appellant suggests five grounds as the basis for his contention that the statement given to Officer Hopkins was not a free and voluntary statement made by the accused after the had been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and had knowingly waived those rights. The first and third grounds will be considered together because they essentially allege the same basis for error on the part of the trial court. The appellant suggests that the statement was involuntarily made by him as a result of the coercive atmosphere generated by the lie detector examination. Johnson v. State, 31 Md.App. 303, 305, 355 A.2d 504, 506 (1976), is dispositive of this contention. In that case Judge Lowe for this Court in discussing a similar factual situation said:

'It is apparent that the use of the deception testing device was intended to produce a psychological effect upon the accused in order to obtain the relevant facts if known by appellant. Appellant's expressed reason for confessing does not gainsay the test's effectiveness. It is clear, however, that the use of such a procedure for that purpose would not as a matter of law require the exclusion of a confession so obtained . . ..' (Citations omitted)

We are not impressed with his contention that the polygraph examination undermined his belief in his own innocence and his ability to assert that innocence. The appellant admits that he voluntarily agreed to take the lie detector test. He argues, however, that once he was advised that he had failed the polygraph test the adverse psychological effect made it impossible for him to exercise his free and unconstrained will, and that any waiver of his rights could not have been voluntarily and intelligently made. We point out, however, that even under the burden of his alleged hopeless position, occasioned by his failing of the...