Burko v. State

Gilbert, J., delivered the opinion of the Court. At 7:30 P.M. on March 9, 1972, Detective Lieutenant Donald A. Robertson died as the direet result of a gunshot wound to the head. The fatal shot had been fired from the inside of the trunk of an automobile then parked in the garage of the Montgomery County Police Department. Other police officers fired approximately thirty-five (35) bullets Into the body of the gunman who was secreted in the trunk, hut there was evidence that Lieutenant Robertson's slayer died from a self-inflicted bullet wound to the temple region susd not from the police fusillade.

The appellant, Jeffrey Aaron Burko, who at the time of fclae slaying was in police custody for suspicion of armed robbery, was charged with the murder of Lieutenant Robertson. Appellant was also charged with the armed robbery of Hahn's shoe store situate in Silver Spring, Maryland. After indictment by the Grand Jury for Montgomery County the ease was removed to Frederick County for trial. There, a jury presided over by Judge Samuel W. Barrsck, found the appellant guilty of murder in the second degree and armed robbery. ⁶⁴⁸ In this Court appellant mounts a multifaceted attack on rulings by the trial court both at a pretrial hearing and at trial.

He avers: I. The composition of the petit jury violated constitutional standards because it did not represent a “fair cross-section of the community”.

II

The trial judge failed to grant a motion for a mistrial, which motion was predicated upon improper reference by the prosecutor to evidence that had been stricken from the jury’s consideration.

III

The evidence was insufficient to sustain a conviction for a second degree murder.

IV

The evidence was also insufficient to sustain the armed robbery conviction. V. The trial court erred in instructing the jury that there is “a presumption of murder in the second degree”, and “that theré is a burden upon the appellant to introduce evidence tending to rebut this presumption”.

VI

The trial court erred in its instructions to the jury. Before discussing the several questions posited by the appellant, an abbreviated description of the bizarre facts of this case is in order. Hahn’s shoe store was held up on the afternoon of March 9, 1972 by a lone gunman who, after taking a sum of money in excess of five hundred dollars ($500.00) from the cash register, compelled the employees of the store to get down on the floor. The gunman then fled.

Immediately contiguous to Hahn’s is an alley, and the felon ran into that alley and disappeared. Within seconds a 1964 blue Rambler exited the alley. It was stopped by the police a short distance from the scene of the crime. The appellant was the driver of the Rambler.

He was ordered from the car and frisked. The vehicle was searched for a .weapon and the proceeds of the ⁶⁴⁹ robbery, but neither was found. The glove compartment of the automobile was locked as was the trunk. The appellant denied ownership of the car and said that it belonged to a “Mr. Turner”.

Appellant was given the warnings required by Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966). In response to the police question as to what the appellant was doing in the rear of Hahn’s shoe store, he stated that he was on his way to J.C. Penney’s to seek employment. He said that he went to the parking lot in the rear of the Penney store. When he started to go into the rear door of the store, he observed a sign which indicated that that entrance was for employees only.

Appellant further stated that realizing the time of day and that he was required to meet his friend, Turner, some distance away, he got back into the car and was on his way to meet Turner when he was stopped by the police. The officers asked appellant for the registration card of the vehicle. The appellant responded that the registration card was locked in the glove compartment, and he did not have a key. The police, dissatisfied with appellant’s explanation of events, and fully cognizant that the permissive use of the vehicle by appellant had not been established, instructed the appellant to drive the car to the police station parking lot which was about one mile from the scene of the hold up.

Upon arrival at the station house appellant was again given his Miranda warnings, and he waived the right to counsel. Appellant did, however, seek, and obtain permission to use the telephone to call Turner. In fact the call was placed for him through the police switchboard. There was no answer to appellant’s call to Turner for reasons hereinafter vividly clear.

One of the appellant’s interrogators went to the Rambler and again conducted a search of the car. The glove compartment and trunk were not searched. Thereafter, the vehicle was removed from the parking lot to the garage of the police building. Subsequently, Lieutenant Robertson, who was apparently puzzled by the failure of the police to find any evidence of the robbery in the car, inquired if anyone had checked the trunk.

When the reply to that question was in the negative, the lieutenant and Officer ⁶⁵⁰ Franklin Snider went to the car where a fourth search was commenced. The lieutenant and Snider entered the back seat of the vehicle and began to remove it when the lieutenant was suddenly shot in the head. A second shot narrowly missed Officer Snider. The gunman, whose body was subsequently extricated from the trunk, was Steven Van Turner.

The appellant was still in the interrogation room. A police officer burst into the room and advised another officer that Lieutenant Robertson had just been shot and killed by a person who had been in the trunk of the Rambler. Upon overhearing this expletive, the appellant exclaimed, “Christ, if I knew he was going to shoot anybody I would have opened thé trunk myself. I didn’t know he would shoot anyone; I didn’t want that Officer killed.

I want to die. Í wish I had been the one who was shot.” I. Appellant argues that the composition of the Frederick County jury was constitutionally proscribed because it excluded those persons who are not registered voters and those who, although registered, were under twenty-one years of age. Wilkins v. State, 16 Md. App. 587 , 300 A. 2d 411 (1973), aff'd, 268 Md. 754 , 310 A. 2d 39 (1973), is dispositive of that portion of the appellant’s argument concerned with citizens who have not registered to vote. Our recent decision in Hopkins v. State, 19 Md. App. 414 , 311 A. 2d 483 , holding that it is not unconstitutional to deny persons eighteen to twenty-one years of age the right to serve on juries, is dispositive of the second phase of the appellant’s contention.

II

Appellant perceives reversible error as the result of a remark made by the prosecutor during closing argument. The remark concerned the appellant’s failure to inform the police of the presence of Turner in the trunk of the car, which evidence had been earlier stricken with proper admonition to the jury to disregard all references to the fact that the accused did not tell the police that Turner was ⁶⁵¹ hidden in the trunk. Appellant’s motion for a mistrial was denied by Judge Barrick, but the judge botfa Informed the jury that the prosecutor’s argument was improper and repeated his earlier admonition. In this Court appellant argues that because he had been apprised of bis rights under Miranda v. Arizona, supra, he was under no obligation to speak, and the fact that he exercised those rights should not be allowed to be used against him.

As we have noted, when the vehicle that the 'appellant was driving was first stopped, he was given his Miranda rights. These rights include the right to remain silent. Théreafter he did not advise the police that anyone was hiding in the trunk, although he did suggest that if the police officers would give Mm a tire iron he would open the trunk. The fourth time that the appelant was given his Miranda warning was, according to the record, 4:55 P.M. an March 9, 1972.

In written form he stated “Yea I’ll answer your questions”, and further indicated that he did not desire an attorney at that time. Patently then, answers given to any questions following the written Miranda warning would be admissible. The first time appellant indicated that he desired the presence of an attorney was when he was taken before a District Court Commissioner at 6:38 P.M. of the same day. Five times during the trial the State asked of its witnesses whether or not the appellant had informed the police that Turner was in the car.

Judge Barrick sustained an objection to two of those questions and subsequently, as we have previously said, struck the answers to the others and told the jury to disregard them. The most commonly known provisions of Miranda, supra at 478-79 are: “ ... |W]hen an individual is taken into custody or otherwise deprived of Ms freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and untes other fully effective means are ⁶⁵² adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Opportunity to exercise these rights, must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” (Footnote omitted). Miranda precludes the use of a statement or confession obtained in violation of its tenets.

The Supreme Court recognized, however, that if its holding went no further than to require that an accused be informed of his rights, that the exercise of those rights could, and in many cases possibly would, be used as a weapon for the prosecution. To allow the police to make an accusatory statement to one who had elected to remain silent and then to permit the police to testify that when the defendant had been accused he did not answer, would have a devastating effect upon the defense. Such tactics, if allowed, would have cloaked the precepts of Miranda in an armor of gauze. Chief Justice Warren, anticipating a possible attempt to evade the mandate of Miranda in such a manner as previously discussed, wrote for the majority 1 at 468, n. 37: ⁶⁵³ “In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.

The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. California, 380 U.S. 609 (1965); Malloy v. Hogan, 378 U.S. 1, 8 (1964); Comment, 31 U. Chi. L. Rev. 556 (1964); Developments in the Law-Confessions, 79 Harv.

L. Rev. 935 , 1041-1044 (1966). See also Bram v. United States, 168 U.S. 532, 562 (1897).” See also Cooper v. State, 231 Md. 248 , 189 A. 2d 620 (1963); Miller v. State, 231 Md. 215 , 189 A. 2d 635 (1963); Duckett v. State, 3 Md. App. 563 , 240 A. 2d 332 (1968); Barnes v. State, 1 Md. App. 123 , 227 A. 2d 763 (1967). The short answer to the appellant’s contention is that the testimony relative to the custodial interrogation was stricken from the jury’s consideration, and they were admonished to disregard such testimony. The same admonition applied to the prosecutorial remarks made during closing argument.

We cannot say that the jury disobeyed the trial judge’s instructions. There is yet another reason why the appellant’s contention is without merit. The trial judge’s striking of that testimony produced by the State which dealt with the failure of appellant to reveal Turner’s presence in the trunk of the car presented to the appellant more than he was entitled to receive. Appellant, at the time of his arrest, did not elect to stand mute or claim his privilege under the Fifth Amendment.

On the contrary, he expressly waived his Miranda rights and set about a course that was charted with the purpose in mind of misleading the police in order that appellant and Turner could avoid criminal charges arising from the robbery. In furtherance of his plan, he supplied false information concerning Turner’s whereabouts. The waiver of Miranda having been made by the appellant, the State should have been allowed to demonstrate that appellant not only gave false information upon which the ⁶⁵⁴ police relied, thereby causing Lieutenant Robertson’s death, but that appellant at no time disclosed that Turner was armed and hidden in the trunk of the car. Miranda sanctions silence, not prevarication.

Once Miranda rights have been waived by an accused, and he then makes false or partially true statements, the State has the right to show that the statement of the accused is a lie or incomplete. Furthermore, if an accused waives his Miranda rights, makes a partial statement and then invokes Miranda , the State may use so much of the accused’s statement as was made prior to his invocation of Miranda. See Younie v. State, 19 Md. App. 439 , 311 A. 2d 798 .

III

Appellant next asserts that there was insufficient evidence to convict him of murder in the second degree. The answer to this contention is found in Jeter v. State, 9 Md. App. 575 , 267 A. 2d 319 (1970), aff'd, 261 Md. 221 , 274 A. 2d 337 (1971). In that case Jeter had been apprehended during the breaking of a storehouse. While he was in the custody of the police outside of the storehouse, his accomplice inside the warehouse shot a guard to death.

Jeter contended that the homicide “was not a natural and probable consequence of his agreement to participate in the storehouse breaking”, and he was in police custody at the time the accomplice committed the homicide. We said, at 579-80: “In the facts here it is important to note that appellant knew that his codefendant had a gun before either party