Dennis v. Warden, Maryland Penitentiary

Orth, J., delivered the opinion of the Court. This case presents the question of the admissibility in evidence at the appellant’s trial in 1959 of statements made by him during custodial interrogation. THB LAW In Maryland the basic rule is that a confession is admissible if it is voluntarily made. “If freely and voluntarily given, it is admissible; if not it is inadmissible.” Taylor v. State, 238 Md. 424, 429 . This has always been the ultimate test of admissibility and it is still the crucial test.

McChan v. State, 238 Md. 149, 158-159 . The voluntariness test was followed in this State more than half a century before it was applied in State prosecutions by the Supreme Court of the United States. Nicholson v. State, 38 Md. 140 (1873). 1 A Today the standard of voluntariness which evolved by Supreme Court decisions in state cases under the due process clause of the fourteenth amendment is the same general standard which applied in federal prosecutions—a standard grounded in the policies of the privilege against self-incrimination. Davis v. North Carolina, 384 U. S. 737, 740 . 2 In ²⁹⁸ Brown v. Mississippi, 297 U. S. 278 (1936) in which the Supreme Court first reviewed state convictions based on coerced confessions and in the five confession cases following 3 the rationale of the opinions was that the obtaining of the confessions violated the inherent standards of decency and fair play implicit in the due process clause of the 14th amendment.

Although there was a shift in emphasis from time to time, through 1963 the Court adhered mainly to standards of voluntariness, more often emphasizing the “totality of the circumstances” bearing on the suspect’s decision to confess. 4 See Haynes v. Washing ²⁹⁹ ton, 373 U. S. 503 (1963). But by Escobedo v. Illinois, 378 U. S. 478 the old test of voluntariness as the sole criterion of admissibility was abandoned. There the confessions were invalid, not because they were coerced, but because they were made in the absence of requested counsel and without effective warnings of the constitutional right to remain silent, the Court having decided in Gideon v. Wainwright, 372 U. S. 355 (1963) that an accused has the right to counsel in all criminal cases. 5 Questions left unanswered in Escobedo were resolved in Miranda v. Arizona, 384 U. S. 436 (1966). 6 It enunciated procedural guidelines and exclusionary rules if they were not followed, but it did not discard the old voluntariness test entirely. 7 ³⁰⁰ It is clear that the rule established in this State is in accord with the voluntariness test followed by the Supreme Court. “The basic standard governing the admissibility of an extrajudicial statement is whether, considering the totality of the circumstances, the statement was voluntary * * * To be voluntary, a statement cannot be ‘extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.’ ” Keller v. State, 2 Md. App. 623, 626-627 , quoting Malloy v. Hogan, 378 U. S. 1, 7 . The holdings of Escobedo and Miranda have been impressed on this rule.

However, Escobedo affects only those cases, the trial of which began after June 22, 1964, the date of the decision, and Miranda applies only to cases, the trial of which began after June 13, 1966, the date of that decision. Johnson v. New Jersey, 384 U. S. 719, 721 . But, at the same time, even though a convicted person may not be entitled to the benefits of Escobedo and Miranda because his trial began before the date of those decisions, providing the procedural prerequisites for direct or collateral attack are inet, “prisoners may invoke a substantive test of voluntariness * * *. That test now takes specific account of the failure to advise the accused of his privilege against self-incrimination or to allow him access to outside assistance * * *.

Prisoners are also entitled to present evidence anew on this aspect of the voluntariness of their confessions if a full and fair hearing has not already been afforded them. * * * Thus, while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the nonretroactivity of these decisions will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness claim.” Johnson v. New Jersey, supra, at 730. With that background we turn to the instant case. ³⁰¹ THE INSTANT CASE History of the Case On 15 December 1959 Dennis was found guilty by a jury in the Criminal Court of Baltimore of murder in the first degree on -which a sentence of life imprisonment was imposed and of robbery on which he was given a concurrent sentence of 10 years. No appeal was taken. On 8 April 1965 he filed a petition under the Uniform Post Conviction Procedure Act and after hearings at which he was represented by court appointed counsel his petition was denied.

Leave to appeal was denied as to eight grounds for relief raised by him and granted as to three: 1) that he was unconstitutionally denied counsel during his preliminary hearing at which he entered a guilty plea and that the State prosecutor, in his opening statement had so told the jury; 2) that an alleged oral confession and written statement were not voluntarily made; and 3) that he was denied a transcript of the original trial. The Court said that the transcript was to be made available to him and remanded the case as to those three grounds for the taking of further testimony and for findings of fact therein. Dennis v. Warden, 243 Md. 104 . Fn conformity with the mandate of the Court of Appeals, the lower court conducted evidentiary hearings on 1 February and 24 August 1967, and on 10 October denied relief, finding that the guilty plea had not been referred to at the trial and that his statements were voluntarily made.

A transcript of the original trial had been furnished Dennis. He filed application for leave to appeal. On 10 July 1968, after reviewing the transcript of the proceedings at the hearings, we agreed that there was no evidence to support the contention as to the guilty plea but we felt that the question of whether the oral and written statements made to the police were voluntary should be resolved only after the issue had been fully briefed and argued before us. We granted leave to appeal as to the question of the voluntariness, vel non, of the oral and written statements, denying leave to appeal on the other contentions.

Dennis v. Warden, 4 Md. App. 548. The case was transferred to the regular appellate docket of this Court, briefs were filed on behalf of Dennis and the State and the matter argued before us. The ³⁰² appellant contends that the statements were not voluntarily made and thus it was error to admit them in evidence. The sole issue presented for review is whether the statements were voluntarily given or were the result of overbearing by police authorities.

The Evidence at the Trial Sergeant Albert Kendrick of the Baltimore City Police Department testified- that Dennis had been arrested on 11 August 1959 by Officers Sticklein, Sellers and McGuire and brought by them to the Southwestern Station at 11:05 A.M. He took custody of the suspect in the Sergeant’s room on the second floor. He talked to him about the murder and robbery of Lawrence North which occurred on 7 August about 10:00 P.M. Dennis said that on 7 August he went to look for a job about 8:00 A.M. He walked around until noon. He stayed around Mount and Fayette Streets and went to the house of his girl friend, Geraldine Campbell, at 8:00 P.M., staying there until 11:00 P.M. playing records and dancing. He left “came up Fayette Street to Bentalou, came down Baltimore where he went to his house at Catherine which was around midnight.” Dennis was booked at 11:45 A.M. and the Sergeant sent for the girl friend.

He talked to her and then talked to Dennis again at 3:20 P.M. in the Sergeant’s room. The Sergeant told Dennis the girl had said that he was not at her house and that Dennis had told her to say that he was. (She told the Sergeant Dennis had not been at her house; “she was not going to be involved in it.”) Dennis “started to get nervous and all and finally gave me an oral statement that he had hit the (deceased).” The statement was later reduced to writing. The written statement was started at 5 :40 P.M., it was interrupted at 6:00 P.M. “for him to eat his meal, resumed at 6:30 P.M. and terminated at 7:50 P.M.” In answer to specific questions by the State the witness said that neither he nor anyone in his presence used any force or violence upon the appellant, that no threats were made to him, that no promises were made to him and that no immunities were held out to him, “in order to get him to make a statement.” The Sergeant was cross-examined at length on the issue of voluntariness of the statements.

It was elicited that ³⁰³ the written statement contained the words of the appellant and nothing was omitted as far as the actual statement was concerned. Sergeant Donahue, Detective Keefer, Detective Raw-lings and Officer Clark were present when the statement was made, the last typewriting it. The door to the room was closed and the statement was typed as the appellant made it, “directly to the typewriter.” Only Kendrick asked questions. The appellant was able to make direct answers to every question asked him and had no difficulty in understanding and it was not necessary “to prod him a little bit or urge him on a little bit” in the middle of an answer. “He acted like he understood everything that was asked him.” The statement contained the appellant’s language, not what the Sergeant quoted him as saying.

He did not tell the appellant “anything about the statement being used against him.” The Sergeant denied that the appellant told him that when he learned the man had died “he was sick in the stomach” or that he said “he didn’t realize the man was hurt that bad as to ultimately die.” After the statement was typed the appellant was given the original and each person present was given a copy. The appellant read it aloud, “line for line”, “after which he freely signed it.” He at no time said, “that’s not what my answer is.” He was told when he made the oral statement that he was going to be charged with murder. Kendrick’s testimony was, all the direct evidence produced by the State on the issue of the voluntariness of the statements and the written statement was offered. The court asked defense counsel if there was any objection but the question was not answered.

Counsel asked if the State had any further testimony on the matter. The court said the State “qualified (the statement) as to being voluntary.” The defense indicated that it desired to offer evidence and the appellant was called to the stand. He had given his name and address, and his age as 18 years when his counsel said, “After due deliberation I have changed my mind and I will remove him from the stand and offer no evidence on that point at this time.” Kendrick identified the written statement and it was read to the jury without objection. 8 ³⁰⁴ The appellant offered evidence on the question of guilt or innocence. Flossie Dennis, the mother of the appellant, said that Dennis was 18 years of age and had been living at home with five other children.

His father had not been living in the home for nine years. Dennis had been in the service but she did not remember when he got out. He had been in trouble twice before. Geraldine Campbell said that the appellant left her house at 8:00 P.M. on 7 August 1959 and came back about 11:00 P.M. On cross-examination she said he saw her on 10 August and told her if the police asked to tell them he had been there all evening because he had hit a man on 7 August.

The appellant said that he was eighteen years old and lived with his mother. He was honorably discharged from the army 7 October 1957. He had been convicted of fighting and tampering with an automobile after he got out of the service. He was with three other boys on the night of 7 August.

The four of them drank about two and a half gallons of wine during the course of the evening. They were walking down the street, “laughing and singing * * * all of us was feeling pretty good”, when this man bumped into me—“I was a couple of steps in front of the rest of them.” The man said, “Why don’t you watch out where you’re going you black son of a bitch.” Dennis testified, “When he ³⁰⁵ said that I just took a punch at him. I hit him in the chin. He fell back and hit his head against the curb.

I continued to walk down the street.” He saw the other boys pull the man out of the street. He denied taking anything from the man and said he did not know that night the other boys had taken anything. He read in the paper the man had died and that his purse and ring were missing. He asked the other boys about it.

Objection to what they told him was sustained. 9 After he learned the man had died “I was real sick. T couldn’t eat. I didn’t feel well * * * I couldn’t sleep either.” He said that when he was arrested he was questioned in the Sergeant’s Room at Southwestern. “Most of the time the Sergeant would question me but if any of the others had any suggestions, well they would ask too.” They did not tell him what he was charged with or that a statement could be used against him. “I knew I was there to be questioned about the man * * He described the interrogation procedure. “Well the Sergeant would ask me a question and when he asked me the question I would give him an answer, but when I gave him the answer he would turn the answer around to what he wanted it to be and then anyway I gave him an answer and he would say it his way and give it to the clerk and the clerk would type it down.” The answers were not typed as he gave them. He said the answer in the statement containing 13 lines was not a narrative by him but the result of a series of questions. “I kept telling him, I said Sergeant that’s not the way, that’s not the way I said and I didn’t say it and he would tell me to shut up and just answer the questions.” He signed the statement—“so it wasn’t nothing I could do but sign it.” He said he never denied to the police that he hit the man, he admitted it.

On cross-examination he admitted that he first told the police he was not even there and that he asked his girl friend to tell the police he had been at her house all ³⁰⁶ evening to set up an alibi because he knew he was the one responsible, “in a way”, for the man’s death. He had been convicted of assault in June of 1958 and sentenced to six months and of tampering with an automobile in August of 1958 and sentenced to six months. Evidence at the Post Conviction Hearings of 17 September 1965 and 14 October 1965. On 17 September 1965 the appellant testified that when he was arrested the police did not advise him “of any legal right to remain silent in the face of any questions.” He made a statement because “they had three witnesses, boys of about fifteen or sixteen years of age, and they asked the boys had they seen me on that particular night, and they had the boys sign a statement saying that they had * * * and they told the girl that I couldn’t have possibly been around the house because they had three boys sign a statement saying I had been down Bentalou Street, coming down Bentalou Street.” His counsel read to him the allegation in his post conviction petition—“his so-called ‘confession’ was obtained by the police by means of psychological duress which, in fact, made it an involuntary confession.

That the arresting officer never advised your Petitioner of his right to remain silent, his right to an attorney, or that any statement that he made could be held against him.” Asked to tell the court about that he said, “That is right. I was not advised * * * of any rights.” On cross-examination he made no response to a question whether the police had threatened him in any way to obtain the statements. The transcript then reads: “Q. Did they beat you at all ? A. No, I don’t think so.

Q. Did they threaten you in any way, or did they use any physical force, or violence, on you ? A. No, they didn’t use no physical force. Q. Did they tell you things would go easier if you signed: A. Yes, they did say things like that. Q. What do you mean ‘things like that?’ What did they tell you specifically?

Did they tell you they ³⁰⁷ would drop any particular charges against you ? (No response) Q. How did they say things like that? What specifically did they say ? A. Well, like I said I admitted hitting the man.

Q. You admitted it ? What did you say ? A. I said I admitted it down at the Court, that’s in the central, that’s the reason why I pleaded guilty. Q. You admitted it to the police prior to your pleading guilty at the Magistrate’s hearing, is that correct, and that’s why you pleaded guilty ?

A. Right. Q. Did they offer you any inducement in order to get you to make this statement? Did they tell you they were going to go easier on you, you were going to get a lesser term ? What did they say to you ?

A. One policeman said—I don’t remember his name —he said it would be better if I cooperated. * * * One policeman said—I don’t remember his name —he said it would be better if I cooperated with him. By Mr. Baker (Assistant State’s Attorney) : Q. Did you understand the statement? A. I don’t know if I did, or not. I seen it, but I didn’t get a chance to read it real thoroughly.

Q. Prior to your giving the statement, had you at any time requested to have an attorney ? A. Not then because they told me they was holding me for investigation. Q. So, you hadn’t requested an attorney then? A. No. Q. Did you request to make any telephone calls?

A. Yes. Q. Didn’t they allow you to make these telephone calls ? A. No, sir. Q. Who did you want to call ?

A. I wanted to call home. ³⁰⁸ Q. What time was this ? (No response) Q. When did you make this statement? AVhat day? A. I can’t remember the exact day, but I know it was the 10th or the 11th, something like that.

Q. Well, you were arrested on the 10th, or the 11th. Was it the same day you were arrested that you made the statement ? A. The next day. Q. The next day?

A. Yes. Q. What time were you arrested? A. It was in the morning about 9:30. Q. AVhat time did you make the statement on the next day?

A. I think it was somewhere around noon, or later that evening. Q. Had they questioned you prior to that time ? A. Yes, sir. Q. Was there anybody in your presence, when they questioned you about any of the three boys you are talking about ?

A. No.” The hearing was continued to afford the opportunity, among other things, to obtain the appearance of the police officer to testify “whether or not the statement was voluntarily given.” But at the hearing on 14 October 1965 no evidence was- produced on the point, nor was it mentioned or argued. Evidence at the Hearing of 1 February 1967 and 24 August 1967 The appellant testified that on Tuesday morning, 11 August 1959, three police officers came to his house and told him they would like to take him to the Southwestern Police Station for investigation. He was placed in a room. Sergeant Kendrick asked him a few questions about his whereabouts on 8 August and then came back and asked about 7 August. “So I told him where I was on both nights.” The Sergeant talked to him for ³⁰⁹ a while, took him to the cell block and later came to get him.

The transcript reads: “When he came to get me later, he had people standing outside and were asked had they seen me before that—After he came to get me later he took me back downstairs and placed me in another room. Before I got to the room outside people were pointing me out and saying, ‘He’s the one, yes, he’s the one that did it’, and this sort of thing. After I was taken into the room, he sat down and told me, ‘All right, Dennis, come clean with me, come clean with me as you can, you were not where you said you were on Friday, the 7th of August, and we got witnesses, so let’s have it.’ At that time, being real young I was scared with all the police officers around me and they were hollering, and whatnot. At this particular time, from the attitude I felt they were not going to turn me loose like they said they would when they first picked me up for investigation, so I told them that I would like to see my mother, either my mother or somebody.

So they told me, ‘Just shut up,’ all they want to know is what happened that night. So I told them on this particular night that me and some fellows were drinking and singing, and we had been down to this girl’s house at this time. So the officer, he told me, he said, well, there was a different story, and I wasn’t at these girls’ houses there like I said I was, and she said she hadn’t seen me at the time the crime was supposed to have taken place. He also had some witnesses that he brought before me—no, he took me back downstairs first again—no, he asked the witnesses he brought before me, there were three boys, one named Buffington, one Lessane, the other boy’s name was Johnny Kerr, and all three of them signed statements saying they had seen me this particular night.

Since they had signed statements ³¹⁰ against me saying they had seen me this particular night, and the officers, they said this and they said that, I admitted to being the man at that particular time. The officers kept telling me, ‘You might as well come clean with us, come clean with us,’ so I admitted hitting the man, but that’s the only statement I gave.” He later signed a written statement, typed by a clerk: “Well, the sergeant—they were asking questions and I would answer the questions, but when the sergeant asked me questions and I answered them, in other words he would repeat the questions to the clerk and the clerk would never type the question as I answered it, he only typed the answer where the sergeant repeated it to him. * * * Between the oral statement and the written statement, at that time one officer—I don’t know his name ■—he told me, he said, he asked me to cooperate, he said ‘You could be cooperative, we know that you did it, we have witnesses that saw you,’ he said, ‘If you will be cooperative we will see what we can do for you.’ * * * I don’t remember the officer’s name. He told me, he said, ‘Well, come on, Jerry.’ He said, T got a kid home myself.’ He said, ‘I know you are scared,’ and so forth and so on, ‘But we aren’t going to hurt you or bother you, all we want you to do is to be a little cooperative, we know you hit the man.’ At this particular time the girl who I was going with was in one room and she was crying, and whatnot, and it had some effect on me. So then when I started giving the written statement, the written statement wasn’t the way I gave it, it was turned around. * * * Like I said at that time, I really didn’t want to give any statement and I wanted to see somebody to talk ■fjQ '}” ^ I wanted to see my mother, she was the only one ³¹¹ that could help me, she was the only one that was close enough to me, to help me.

My mother later said she had gone to Southwestern police station that evening but they wouldn’t let her see me, they were holding me for investigation, but I wasn’t held for investigation at that time because at that time they had decided they were not going to release me. They didn’t inform me not to talk or anything, they did everything they could to persuade me to talk. But they didn’t tell me that if I should talk at that time—.” Asked if any police officer told him that anything he said could be used for or against him in a court of law, he said: “No, sir. Like I said, when I told them before they used these boys to point me out, and they told the boys several times, warned me they had seen me, and so forth, and so on, this was their method in trying to get me to talk, and the transcript also started off saying I started to weaken.

This is what he employed at this particular point. When he used all these things, the boys and the statement, and tried to get a -confession from me and my girl friend, when she was crying like everything and asking me to cooperate and everything, this is the point when I started to weaken.” He replied in the affirmative to a question, “You feel that the police officers used improper motives of persuasion to get you to give that statement, is that right?” Asked if he ever suggested to any police officer that he wanted an attorney or wanted to talk to an attorney before he said anything or made a statement of any kind, he said: “Well, when I said I wanted to see my mother, this is what I wanted to see her about. 1 did not have the funds at the time to get an attorney, but I believed she would get an attorney for me, that I wasn’t allowed to. That’s the purpose of seeing my mother.” That was all he had to tell the court about the statements. On cross-examination he said that Sergeant Kendrick was present ³¹² during the entire interrogation; he was the one who took both the oral and written statements.

He was the one Dennis told he wanted to call his mother, although he never mentioned that he wanted his mother to get an attorney and never told him he would like to have a lawyer. “I recognized the seriousness of the offense, and I recognized they were not going to appoint me counsel and I needed some help.” That was his purpose in asking for his mother. He admitted he told the officer at first that he had been with Geraldine Campbell the night of the crime. No one beat him or hit him nor did they “rough” him up' at all. “Like I said at that particular time, knowing the seriousness of the offense, I was pretty scared of police officers.” Sergeant Albert Kendrick, who had retired since the original trial, testified in behalf of the State. He said that he conducted the entire interrogation.

When Dennis was brought into the police station he asked him his whereabouts on 8 August and then 7 August. When he said he had been with Geraldine Campbell he questioned her and “she gave me an entirely different story * * * refuting the