Burks v. State

Morton, J., delivered the opinion of the Court. This is an appeal from the Circuit Court for Baltimore County wherein the Appellant, Russell Eugene Burks, and a co-defendant were tried together by the Court, without a jury, upon a five-count indictment. After pleas of not guilty, both defendants were convicted on the first count, charging robbery with a deadly weapon, and on the fifth count, charging assault, and sentenced to ten years in the Maryland Penitentiary. Burks contends that (I) the trial Court erred in admitting his confession and (II) that having convicted him on the first count, it was error to convict him upon the fifth count, since the lesser offense (assault) merged into the greater offense.

I. The record indicates that in the afternoon of August 17, 1965, two men wearing sun glasses entered a confectionery store with guns drawn and demanded of the woman manager the money in the cash register and a cigar box. After comply ⁸³ ing with the demand, she was told to lie on the floor for ten or fifteen minutes before calling the police. Burks and the co-defendant were apprehended by the police several hours later as a result of information furnished by Roger German, the driver of the “get away car”. German permitted the police to search the car and they found therein sun glasses and pistols which he identified as belonging to Burks and the co-defendant.

At the trial German testified that Burks was one of the hold-up men. Burks was also> identified by the Manager in a line-up, at the preliminary hearing, and at the trial as one of the hold-up men. At the trial Corporal Maddox of the Baltimore County Detective Bureau testified that Burks had signed a written confession after being informed that “he was entitled to a telephone call, he was entitled to a lawyer, and that anything he would say would be used against him.” Burks, in testifying with respect to the voluntariness of the confession, conceded that he had been informed of his right to counsel and the use of a telephone, but added that Corporal Maddox told him during the interrogation — “If you help me, I can help you because you have no previous record” and “that if I didn’t help him there’s a lot of unsolved robberies around, that he could get me a little time orit of it.” Burks further stated that “to me this meant if I help' him solve these cases that he’d, he could help me in getting me free.” It is contended on behalf of the Appellant that the State, by not asking Corporal Maddox to specifically rebut these assertions, did not meet the burden of proving Burks’ confession to be voluntary. In support of this contention, the Appellant cites Streams v. State, 238 Md. 278 (1965).

In the Streams case, the accused, an eighteen year old boy who could not read and could only write his name, in testifying as to the voluntariness of his confession, stated that he was told by the interrogating officers that it would be better for him if he made a statement because if he did they would try to get him put on probation. He also was, allegedly, told that if he did not sign a statement, the officer would “throw the book at me, get me more time, that’s all.” Prior to this testimony of the accused, the officer who took the confession had testified ⁸⁴ that the accused was not mistreated and that he was not in anyway threatened or induced to make the