White v. State

Decision Date22 February 1962
Docket NumberNo. 166,166
Citation227 Md. 615,177 A.2d 877
PartiesRobert Galloway WHITE v. STATE of Maryland.
CourtMaryland Court of Appeals

Hugh J. Monaghan, II, Baltimore (George B. Cavanagh and Lawrence E. Wedekind, Baltimore, on the brief), for appellant.

Robert F. Sweeney, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Saul A. Harris, State's Atty., and Charles E. Moylan, Jr., Asst. State's Atty., of Baltimore City, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HAMMOND, HORNEY, MARBURY and SYBERT, JJ.

SYBERT, Judge.

The appellant, Robert Galloway White, and a co-defendant, James Frank Wade, were found guilty by Chief Judge Niles and Associate Judges Manley and Cullen in the Criminal Court of Baltimore, sitting without a jury, under two indictments, tried together, one charging the murder of a 67-year old grocery store proprietor, and the other the assault and robbery with a deadly weapon which culminated in the death of the victim. After motions for a new trial on behalf of both defendants on both charges were heard and denied by the Supreme Bench of Baltimore City, the appellant was sentenced to death and Wade to life imprisonment in the murder case. Sentence was suspended as to both defendants on the robbery charge. Wade did not appeal. These two appeals in one record by White challenge his conviction on both charges. Both defendants had filed petitions as indigents, and separate court-appointed counsel represented each defendant below, and White on this appeal.

I

The appellant first contends that it was erroneous for the police to have waited four days from his arrest before bringing him before a magistrate for a preliminary hearing. The appellant had been taken into custody at 12:40 P. M. on Friday, May 27, 1960, and while at Central District Station he made a confession to the police which, among other things, implicated the co-defendant Wade in the crime. Appellant was docketed at 6:30 P. M. at Central District and remained in custody until Tuesday, May 31, when he was charged before a magistrate. At the trial a detective lieutenant testified that the four-day delay was caused by investigation of Wade's connection with the crime as well as a sharp curtailment of magistrates' sittings over the Memorial Day week end.

At oral argument appellant's counsel conceded that he could not point to any prejudice to appellant which resulted from the delay in bringing him before a magistrate, and our review of the record discloses none. It has been held by this Court that a preliminary hearing is not necessary before a valid indictment can be obtained, Sykes v. Warden, 201 Md. 662, 93 A.2d 549 (1953), and that the absence of such a hearing will not invalidate a criminal conviction. Hardesty v. State, 223 Md. 559, 165 A.2d 761 (1960); Shorey v. State, 227 Md. 385, 177 A.2d 245 (1962). In Grear v. State, 194 Md. 335, 71 A.2d 24 (1950), as in this case, the arresting officers testified that there was a delay in bringing the accused before a magistrate in order to allow time for further investigations. In denying the defendant relief on that ground the Court said (at 349, 71 A.2d at 30), 'Like other legal proceedings, preliminary hearings may for sufficient reasons be postponed or continued * * *.' Cf. Young v. State, 220 Md. 95, 151 A.2d 140 (1959).

II

Appellant entered a plea of guilty at the preliminary hearing before the magistrate and he now contends that it was erroneous for the trial court to have permitted the State to introduce this plea into evidence at the trial. However, no objection to the testimony as to the plea appears in the record and therefore the question is not properly before us, since it was not raised below and decided by the trial court. Maryland Rule 885. However, we point out, without further discussion, that the contention is without merit. Cf. Williams v. State, 214 Md. 143, 132 A.2d 605 (1957); Weaver v. State, 226 Md. 431, 174 A.2d 76 (1961); Annotation, 141 A.L.R. 1335.

III

It is urged that it was an abuse of discretion for the trial court not to have followed a probation department report, which recommended that the appellant be given a life sentence and sent to the Patuxent Institution for observation.

The contention lacks substance. The death sentence is one of the alternatives prescribed by the statute, Code (1957), Art. 27, § 413, and the trial court alone has the discretion to determine whether the maximum penalty should be imposed. Merchant v. State, 217 Md. 61, 141 A.2d 487 (1958). The appellant had an extensive history of violent and other crimes, and the record contains testimony that he induced his younger co-defendant to enter the store and strike the victim with a heavy club, because appellant had held up the same establishment some months previously. The trial court had before it not only the probation department report, but also the reports of two eminent psychiatrists, both of whom concluded that appellant exhibited no symptoms of psychotic behavior or intellectual defect and that he knew the difference between right and wrong. The procedural policy of this State encourages a trial judge to consider all reports of this nature, and allows him a broad discretion in the use of such reports in determining the kind and extent of punishment to be imposed within the limits fixed by law. Driver v. State, 201 Md. 25, 92 A.2d 570 (1952). As to the weight to be assigned to the various reports by the trial court and as to the reasoning used by it in coming to a decision, this Court has recognized that on appeal it '* * * has no power to review that reasoning, and set aside the sentence if it should find any error in the process. In that, there can be no abuse of discretion to be reviewed by the appellate court. The sentence was of undeniable legality, imposed by the tribunal to which alone the law looks for the decision as between the two alternative penalties, and this court could not interfere with it on the ground urged without usurping the functions of the court of original jurisdiction.' Duker v. State, 162 Md. 546, 548, 160 A. 279 (1932).

IV

Appellant contends that he was illegally induced to make the confession to the police soon after he was taken into custody, and that, since it was involuntary, it was erroneously admitted into evidence. He bases his argument entirely on the alleged taking into custody by the police of his pregnant common-law wife, Vera Savage, and the subsequent confrontation of appellant with her while she was crying and emotionally upset. Miss Savage was allowed to remain alone with appellant for one hour anf fifty-five minutes and appellant testified that she said that the police would not release her until he made a statement. Appellant also testified that the police had used threats and physical violence in questioning him but insisted that his real reason for confessing was in order to have his common-law wife released. At the trial Miss Savage stated that the police asked her to attempt to persuade appellant to confess, that they said they would try to make it 'better' for him if he did, and that until he did so, she would not be permitted to return home.

The testimony of four police officers who had participated in the questioning of the appellant was flatly contradictory to the testimony given by the appellant and Miss Savage. Their testimony was to the effect that appellant's confession was given voluntarily and that no force, threats of violence, inducements or coercion of any kind were exerted either directly against appellant or through his common-law wife. The officers testified that they began questioning appellant at 2:05 P. M. on the day he was taken into custody and that he gave them an oral statement amounting to a confession which the interrogating officers began to reduce to writing at 2:30. It was after he had given a verbal confession which had been partly typed that appellant requested to see Miss Savage, according to the testimony of two of the officers. This testimony is borne out by the signed confession itself, which, subsequent to certain incriminating admissions, contains within the text this notation: '(Statement stopped at 2:50 p. m. and renewed at 4:45 p. m. because White refused to say anything further until this time after he had talked with Vera Savage).' The officers also testified that Miss Savage had come to the station voluntarily and was free to leave at any time, and that even though she was crying, she did not appear extremely upset.

More frequently than not, testimony in regard to the voluntary nature of a confession is, as in the instant case, conflicting and contradictory. In Jones v. State, 188 Md. 263, 52 A.2d 484 (1947), where the testimony was conflicting, this Court said, 'As there is no precise formula by which to determine whether a confession is voluntary, the determination of the question lies within the sound discretion of the trial judge. The determination of the question by the trial judge will not be disturbed by the Court of Appeals, unless the discretion has been clearly abused. The circumstances that constitute such improper influences as to make a confession inadmissible are reviewable, but the credibility of conflicting evidence concerning the circumstances is a matter for the trial judge, and is not reviewable unless there is a manifest abuse of discretion. * * *' (pp. 270-271, 52 A.2d p. 488, emphasis added). It cannot be said as a matter of law that the circumstances surrounding this confession establish its involuntary nature, nor do we find any abuse of discretion on the part of the trial court in weighing the credibility of the conflicting testimony. Cf. Ralph v. State, 226 Md. 480, 174 A.2d 163 (1961); Hall v. State, 223 Md. 158, 162 A.2d 751 (1960); Grammer v. State, 203 Md. 200, 100 A.2d 257 (1953), cert. den., 347 U.S. 938, 74 S.Ct. 634, 98 L.Ed. 1088; Edwards v. State, 194 Md. 387, 71 A.2d 487 (1950); 2 Wharton's Criminal Evidence, 12th ed....

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