Williams v. State

• Decision Date: 16 October 1967
• Docket Number: No. 209,209
• Citation: 2 Md.App. 170,234 A.2d 260
• Parties: Mack WILLIAMS, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 170

2 Md.App. 170

234 A.2d 260

Mack WILLIAMS, Jr. v. STATE of Maryland.

No. 209.

Court of Special Appeals of Maryland.

Oct. 16, 1967.

John R. Hargrove, Baltimore, for appellant.

Donald Needle, Asst. Atty. Gen., for appellee. Francis B. Burch, Atty. Gen., Thomas P. Perkins, III, Asst. Atty. Gen., Charles E. Moylan, Jr., and George J. Helinski, Deputy State's Atty., for Baltimore City, Baltimore, on brief.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and WILLIAM W. TRAVERS, Special Judge.

WILLIAM W. TRAVERS, Special Judge.

Appellant was indicted for the murder of one Inger Harris and for carrying a concealed weapon. The indictments were consolidated for trial, and appellant was found guilty of murder in the second degree and guilty of carrying a concealed weapon by a jury in the Criminal Court of Baltimore on June 8, 1966. He was sentenced to eighteen years imprisonment on the murder charge, and one year, concurrent, on the concealed weapon offense. This appeal is from those judgments.

On July 22, 1964, at approximately 10:00 p. m., the body of the decedent was discovered in a residence in Baltimore City. It was stipulated that the cause of death was a gunshot wound in the neck which nearly completely severed the spinal cord. As a result of preliminary investigation, the police put out a teletype bulletin advising that the appellant was wanted in connection with the incident. At approximately 2:30 a. m., on July 23, 1964, Officer John Schaech was walking his beat in Baltimore City when he observed a man lying on a public sidewalk in front of premises known as 1642 Bond Street. The man identified himself as the appellant, and was taken into custody. At approximately 4:30 a. m., the appellant was taken to Lt. Frederick Koenig of the Baltimore City Police for interrogation. At approximately 5:30 a. m., Lt. Koenig took a statement in question and answer form which contained incriminating information. The appellant refused to sign the statement.

Appellant was subsequently indicted and tried in February 3, 1965. That trial resulted in a verdict of guilty of murder in the first degree and of carrying a concealed weapon. While disposition of a motion for new trial was pending, the Court of Appeals handed down its decision in Schowgurow v. State, 240 Md. 121, 213 A.2d 475. Appellant's motion to dismiss the original indictment on the basis of Schowgurow was granted. He was reindicted and on June 7 and 8, trial was held before a jury in the Criminal Court of Baltimore. The trial court overruled appellant's plea of double jeopardy and pleas of not guilty were entered to both indictments. The verdicts are noted above.

Appellant raises four issues on this appeal. He alleges: (1) that he was placed in jeopardy twice because of the second indictments and trial; (2) that the evidence introduced was insufficient to convict him of either offense; (3) that the Court erred in admitting into evidence certain testimony of Lt. Koenig with respect to appellant's unsigned statement and subsequent oral admissions, and (4) that the appellant was deprived of due process of law by virtue of the court's refusal to give him credit on the sentence imposed for the time spent in jail awaiting trial.

The appellant's claim of double jeopardy is without merit. By his election to have the indictments of his first trial invalidated under Schowgurow, appellant has brought himself within the rule that when a traverser has been tried under an invalid indictment, he has not been in jeopardy and can be tried again. Sadler v. State, 1 Md.App. 383, 230 A.2d 372; Moon v. State, 1 Md.App. 569, 232 A.2d 277. See also Tate v. State, 236 Md. 312, 203 A.2d 882.

Appellant contends that his statements to the police should not have been admitted into evidence because they were not freely and voluntarily given. As appellant was convicted on June 8, 1966, the protections afforded by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, are not available to him. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.ed.2d 882, wherein it is held that Miranda was 'available only to persons whose trials had not begun as of June 13, 1966' (the date of the decision of Miranda). Appellant likewise can derive no comfort from Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, because the record fails to indicate that he made an affirmative request for counsel prior to the interrogation which resulted in the statements he wishes to exclude from evidence. That this was an essential requirement for the application of Escobedo is now beyond doubt. Campbell v. State, 244 Md. 363, 366, 223 A.2d 604; Westfall v. State, 243 Md. 413, 221 A.2d 646; Mefford and Blackburn v. State, 235 Md. 497, 201 A.2d 824, cert. den. 380 U.S. 937, 85 S.Ct. 944, 13 L.Ed.2d 825.

We thus turn to an examination of the applicable law with respect to the admissibility of confessions and oral admissions as it existed on June 7 and 8, 1966. It is beyond dispute that the test then was whether the disclosures were made to police freely and voluntarily and at a time when the accused knew and understood what he was doing. Tate v. State, supra; Wiggins v. State, 235 Md. 97, 200 A.2d 683; Bryant v. State, 229 Md. 531, 185 A.2d 190. In determining whether statements were freely and voluntarily given, reference must be had to the 'totality of circumstances' surrounding the statement. Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513.

The appellant is a forty-two year old male, with a sixth grade education and the capacity to read and write. He testified at the trial that he had been employed by Bethlehem Steel Corporation for fourteen years, that his present position was that of a scaler and that his salary was between $145.00 and $150.00 a week. The testimony also indicates that the appellant, when apprehended by Officer Schaech at approximately 2:30 a. m. on July 23, 1964, was drunk. The officer acknowledged on cross-examination that the appellant was incoherent, but that his incoherence did not extend to such a degree that the officer could not understant his response when asked what his name was. Approximately two hours after his apprehension, the interrogation was undertaken by Lt. Koenig, and other police officers. Lt. Koenig testified that the appellant was not offered any promises or award of immunity in order to obtain a confession and that the appellant was not threatened, abused or assaulted, that he was sober, but had been drinking, that the appellant did not try to go to sleep during the interrogation, that the appellant never requested to see anyone, and that the appellant was never out of Lt. Koenig's presence while being questioned.

Lt. Koenig further testified that he initially discussed the case with the appellant orally, and after having obtained an oral admission he undertook to reduce the admission to a typewritten statement. The statement which the appellant refused to sign was typed at approximately 5:30 a. m.

In response to a question by the court, the officer testified that he warned the appellant that his statement might be used against him both at the time he began...