Conway v. State

⁴⁰² Murphy, C. J., delivered the opinion of the Court. Appellant was found guilty of rape (without capital punishment) by a jury in the Circuit Court for Garrett County and was thereafter sentenced by the court to sixteen years under the jurisdiction of the Department of Correction. On this appeal from that judgment, his principal contentions are (a) that his confession was improperly admitted in evidence in violation of the principles enunciated in Miranda v. Arizona, 384 U. S. 436 , and (b) that the State’s Attorney made a highly prejudicial closing argument to the jury which deprived him of a fair trial. At approximately 11:00 p.m. on the night of January 5, 1968, the prosecuting witness, an eighteen year old white girl, Brenda Wright, drove her car to a service station near Queenstown, Maryland to obtain gas.

The appellant, a Negro, then eighteen years of age, was the sole attendant at the station. He told Brenda that he detected a knock in her engine and suggested that he move the car into the station garage and repair it. She agreed. After working on the car for a brief period, appellant attempted to kiss Brenda.

According to appellant’s testimony, he had seen Brenda at the gas station on several prior occasions and his attempt to kiss her was responsive to her encouragement; and this was followed by an act of consensual sexual intercourse between them which began on the concrete floor of the station and ended on a bed in an adjacent room. According to Brenda’s testimony, she was frightened after appellant attempted to kiss her. She tried to leave the station but appellant overpowered her, tore her clothing off and raped her over a twenty minute period, first on the concrete floor and later on a cot in an adjoining room. Brenda testified that during the attack appellant told her he would slit her throat, but she nevertheless screamed and fought throughout the encounter.

The evidence showed that Brenda was menstruating at the time ⁴⁰³ of the assault and that her sanitary pad was found the following day on the station floor. Brenda testified that after the assault appellant stated that he was going to take her to New York; that he then drove off with her in her car until, in Chestertown, the car ran out of gas; that it was then about 1:00 a.m. and the temperature four degrees above zero; and that she was afraid that appellant was going to kill her. The evidence showed that appellant and Brenda remained in the car while appellant hailed a number of passing motorists and inquired where he might obtain gas; that one of the persons he flagged was James Campbell, the town police officer, who was driving an unmarked vehicle; that another motorist helped appellant hand-push the car to the side of the road; and that Campbell, the town police officer returned on still another occasion, emerged from his car, and asked appellant and Brenda whether either owned an abandoned vehicle which he had discovered on the nearby highway. On none of these occasions did Brenda make any effort to flee from appellant, although each time she attempted by various gestures to attract attention to her predicament while appellant’s back was turned.

She testified that she was afraid to cry out for assistance. Campbell notified the State Police of the parked vehicle and, in company with Campbell and another local police officer, Maryland State Trooper Gerald Taylor arrived at the scene. According to Brenda’s testimony, she was at that time asleep and when the Trooper made his presence known, she jumped out of the car, crying and screaming, telling the officers that appellant had raped her. Trooper Taylor testified that Brenda was crying and screaming as she emerged from the car and that she was “all messed up;” that she immediately stated that appellant had raped her and appellant then said, “I did it” and “you got me.” Taylor’s testimony was confirmed by that of Campbell. ⁴⁰⁴ Following his arrest, appellant was taken to the Kent County Sheriff’s office, arriving at about 3:00 a.m.

The evidence showed that after he was given the full panoply of Miranda 1 warnings, appellant stated that he knew his. rights and wanted to make a confession. Trooper Taylor brought appellant to State Police Headquarters in Centreville at 3:20 a.m. where Trooper James Patchett again gave appellant his full Miranda warnings. At approximately 4:00 a.m., Patchett asked appellant some questions concerning the alleged crime, but appellant “stated that he, at that particular time, did not wish to answer any more questions, that he would like to have some time to think about it.” Patchett promptly stopped the interrogation and at 4:30 a.m., appellant was returned to the jail. The following evening at approximately 7:55 p.m. appellant was returned to the Centreville post where he was interrogated by Sergeant Emil Meyers.

Earlier that day, Patchett had told Meyers of his attempt to interrogate appellant and of the fact that appellant had requested “time to think,” as a result of which he (Patchett) had discontinued the questioning. The evidence showed that Meyers gave appellant his full Miranda warnings and that appellant said he fully understood them and would make a statement. The interrogation then proceeded, Meyers being alone with appellant. 2 After making a number of incriminating admissions concerning his involvement with Brenda at the gas station, appellant told Meyers that he got “a sudden impulse” and “that’s when it all took place.” At this point in the interrogation, appellant said “I don’t want to go into that,” to which Meyers responded: “Q. Do you mean you do not want to describe what you next did, or that you didn’t do anything further ? A. Well, that’s when I had intercourse with her. ⁴⁰⁵ After all this took place, I put the fuses back in the car and told her I was going to take off and I asked her if she was going or was she going to stay.

She said that she was going. That’s when we ran out of gas in Chestertown. If she wanted to get away, I don’t think I would have harmed her. In fact, I know I wouldn’t.” Thereafter, appellant completed his statement and signed it.

Testifying on the voluntariness of his written statement, the appellant stated that he interrupted Patchett’s interrogation because he “wanted to stop and have time to think about it and then I’d let him know.” He testified that Sergeant Meyers came to the jail at about 7:00 p.m. and took him back to the Centreville post for questioning; that he (appellant) just wanted to tell the Sergeant “a little bit” but not “everything;” that he continued answering questions only because Sergeant Meyers continued asking them and while what he said was “in a sense” voluntary, he answered the Sergeant’s questions because he was frightened. The trial judge found that none of Miranda’s precepts were violated in the taking of the written statement, and it was admitted in evidence. I Appellant contends that the lower court erred in admitting his written confession into evidence because it resulted from interrogation improperly conducted after he had once invoked his Fifth Amendment privilege to remain silent. He relies on Miranda at pages 473-474, wherein it is held: “Once warnings have been given, the subsequent procedure is clear.

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has ⁴⁰⁶ shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut oif questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” (Italics added.) In People v. Fioritto, 441 P. 2d 625 , the accused, after being afforded his Miranda warnings, refused to execute a waiver. Shortly thereafter, he was confronted with two accomplices who had confessed and implicated him.

At this point, the police again recited the Miranda warnings to the accused who executed a waiver and made a statement. The Supreme Court of California found the confession inadmissible under Miranda , stating at page 627: “By his refusal to waive his constitutional rights initially, defendant indicated that he intended to assert his rights — the privilege had been once invoked — and all further attempts at police interrogation should have ceased. Although the confrontation of defendant with his two juvenile accomplices who had confessed injected a new factor into the questioning, the didactic language of the United States Supreme Court shows no disposition to permit subsequent interrogation in the absence of counsel even if authorities believe there has been a change of circumstances. Thus we have no alternative but to hold that the confession thereafter secured constituted inadmissible evidence at trial. “In so holding, we prohibit only continued questioning after an individual has once asserted his constitutional rights.” In People v. Ireland, 450 P. 2d 580 , the Supreme Court of California extended its holding in Fioritto to a case ⁴⁰⁷ where, at the time of arrest, the accused responded to a police question whether he had anything to say by asking them to “Call my parents for my attorney.” The police made no such call and appellant subsequently confessed.

The confession was found violative of Miranda’s precepts, the court noting the holding at page 474 of that opinion that “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” See also United States v. Nielsen, 392 F. 2d 849 (7th Cir.), where the court held that although the accused requested counsel, interrogation thereafter was not improper where the accused subsequently “knowingly” and “intelligently” waived his rights to counsel and to remain silent. To like effect is State v. Kelly, 439 S.W.2d 487 (Mo.). In State v. McClelland, 164 N.W.2d 189 , the Supreme Court of Iowa held that although the accused at his initial police interrogation expressly stated that he didn’t want to answer any questions, incriminating statements later made by him, following recitation of his Miranda warnings, were admissible, it being shown that there was no physical or psychological coercion brought to bear on the accused. The court there considered the argument that once an accused states that he wishes to invoke his constitutional privilege to remain silent, any information obtained by subsequent interrogation is inadmissible in evidence.

The court held at page 193: “It is at once apparent the inevitable consequence of such a holding would be an ironclad rule prohibiting police officers from subsequently inquiring of a defendant who has invoked his right to silence whether he wishes at any time to waive that right. Certainly a defendant has a right to reconsider and change his decision in the matter. We do not believe Miranda goes so far as to exclude all answers to questions put to defendants after they have claimed their right to remain silent.” ⁴⁰⁸ The court in McClelland concluded that the proper test to determine whether a statement given under such circumstances is admissible in evidence is whether the totality of the facts — the attendant circumstances — clearly show that the accused subsequently waived his Miranda rights and that the incriminating statements thereafter made were wholly voluntary. In Jennings v. United States, 391 F. 2d 512 (5th Cir.), the defendant, after answering several police questions, refused to answer further but shortly thereafter he was again given his Miranda warnings, signed a waiver and confessed.

In holding the confession properly admissible in evidence, the court said at page 515: “* * * It seems clear to us that what the Court sought to interdict in Miranda were those situations in which a person has indicated his desire to exercise his constitutional right of silence but the police refuse to take ‘no’ for an answer. Disregarding his constitutional claim, they continue to ask questions, see 384 U. S. at 453 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 . These techniques were not used in this case. It is admitted that the local police cease interrogation immediately upon appellant’s expression of an unwillingness to proceed further.” Under a similar factual situation the court in State v. Bishop, 158 S.E.2d 511 (N.C.), stated at page 520: “We do not interpret the portion of the Miranda opinion now under consideration to mean that when a defendant is ‘in custody’ and has been duly advised of his constitutional rights, and he states that he does not want to make a statement at the first questioning, that law enforcement officers are forever barred from asking another question.

We do interpret it to mean that when a defendant is being interrogated and he indicates that he wishes to remain silent, that ⁴⁰⁹ interrogation must not then be continued. The vice sought to be removed is the evil of continued, incessant harrassment by interrogation which results in breaking the will of the suspect, thereby making his statement involuntary.” And in State v. Godfrey, 155 N.W.2d 438 (Neb.), where the defendant, after receiving his Miranda warnings, refused to answer any questions but soon thereafter was re-warned under Miranda , executed a waiver and confessed, the court said at pages 441-442: “We