Elfadl v. State

GETTY, Judge. On December 16, 1983, the State filed a Suggestion for Removal in the case of Kamel Ali Elfadl, appellant herein, who was charged, jointly with Kenneth James Lodowski, 1 in a nine count indictment with the murder of Carlton X. Fletcher and Minh Huong Phamdo. Additionally, appellant was charged with six counts of conspiracy and armed robbery of Phamdo. Appellant’s case was removed to the Circuit Court for Calvert County where, following a jury trial, he was convicted on all nine counts (as a principal in ¹³⁴ the second degree in the premeditated murder of Fletcher and as a principal in the first degree in the premeditated murder of Phamdo).

Appellant was sentenced to six consecutive terms of life imprisonment 2 and to three consecutive twenty year terms of imprisonment. 3 Appellant has preserved five issues for review, namely: 1. Did the trial court err in denying appellant’s motion to suppress the extra-judicial statements given to the police? 2. Did the trial court err in permitting the case to be removed from Prince George’s County upon suggestion by the State? 3. Was appellant properly convicted and sentenced on six separate conspiracies? 4.

Did the trial court err in denying appellant’s request to have the writings on the waiver of rights forms examined by an expert chromotographer? 5. Did the trial court err in permitting the State’s witnesses to refer to the first statement, which was suppressed by the trial court, prior to appellant testifying on his own behalf? Background At 11:45 P.M. on Saturday, June 11, 1983, Prince George’s County policeman Carlton X. Fletcher and Ming Huong Phamdo, Assistant Manager of the Goddard Mini-mart in Greenbelt, were shot and killed by two assailants who robbed them of more than $20,000.00. The money represented the night deposit of the Minimart which was to ¹³⁵ be deposited by Phamdo; Fletcher accompanied him as a guard.

Phamdo walked from the minimart carrying several money bags in a paper sack. Fletcher was seated nearby in a marked Prince George’s County patrol car. Phamdo was fatally shot in the right chest by a rifle slug fired from a twenty gauge shotgun as he approached his car which was parked near the police vehicle. Fletcher was killed by a shotgun blast to the left side of his neck while seated in the cruiser.

In short, Phamdo and Fletcher were ambushed. Allegedly, appellant killed Phamdo and Lodowski killed Fletcher. Investigators at the scene recovered a spent twenty gauge shotgun shell and a shipping carton for a twenty gauge shotgun. The carton was traced to a J.C. Penney Store where appellant had purchased the shotgun on March 25, 1983.

Appellant was stopped by the police while driving his car on the day following the murders. He accompanied the officers present to the police station where he was interviewed for approximately ninety minutes by Detective Steven Ricker. At approximately 5:40 P.M., Detective David Hatfield took over the questioning which continued for nearly three hours. At 8:30 P.M. appellant indicated that Sunday was a Moslem religious day and he desired to go to his apartment to pray and eat.

Accompanied by two police officers, appellant was allowed to fulfill his request. Between 9:30 and 9:45 P.M., appellant was returned to the police station where the questioning resumed. Sometime prior to 1:30 A.M. on June 13, the substance of the interview was reduced to writing and signed by appellant. Appellant then consented to undergo a polygraph examination that lasted for two and one-half hours.

Additional questioning by the police continued until 3:00 P.M. on Monday, June 13, at which time appellant was returned to his apartment. A consent search of the apartment was conducted wherein the police recovered some items and ¹³⁶ departed. Officer Hatfield ordered a continuous surveillance of appellant after leaving ’ him at the apartment. Recapping, the initial detention covered a twenty-four hour period; from 3:00 P.M. Sunday, June 12, to 3:00 P.M. Monday, June 13.

No Miranda warnings were given, the police maintaining that appellant was not a suspect at the time and that he was free to leave if he chose to do so. The statement, however, was suppressed by the trial judge for failure to advise appellant of his Miranda rights after he became a suspect in the murders. Appellant became aware of the surveillance following his release and contacted an attorney, Stephen Kiefert, on Wednesday, June 15. He advised Kiefert that he had been questioned about the recent murders and he made an appointment to meet with the attorney at 2:00 P.M. the following day.

The police had retained appellant’s driving license and on Thursday morning he telephoned the police in an effort to retrieve the license. He was told to come to the station. At 12:30 P.M. appellant and his wife went to the police station and met with Detective Hatfield. Appellant stated that he advised Hatfield of his appointment with an attorney at 2:00 P.M.; Hatfield denied that any such statement was made.

Appellant was then advised of his Miranda rights, executed a waiver form and the interrogation began anew. The session with Hatfield began about 1:00 P.M. on Thursday afternoon and continued for nearly twelve hours until Detective Ferriter took over. Appellant was advised of his rights a second time and signed another waiver of those rights. After an hour with Ferriter, Detective Edgar (who had been quizzing Lodowski in another room) appeared, obtained a third waiver and questioned appellant until 3:00 A.M. Friday.

Detective Hatfield returned, appellant executed a fourth waiver, and a second statement was typed between 5:34 A.M. and 10:36 A.M. Three pages of the eleven page statement were in appellant’s handwriting, ¹³⁷ the remaining eight were typed. Appellant signed the statement shortly before noon on Friday. Within an hour of Hatfield’s departure, Officer Gentile confronted appellant who was asleep on a chair in the interrogation room. Appellant was awakened, advised of his Miranda rights, signed a waiver of those rights, and admitted his complicity in the murders.

A charging document was then prepared and a District Court Commissioner came to the police station where appellant was being held. The form prepared by the Commissioner indicated that appellant wished to have the services of an attorney. Appellant was committed without bail while Gentile, preceded by another signed waiver form, prepared a twelve page typed statement (the third statement) which was completed at 6:05 P.M. Thus, appellant’s visit to the police station for the purpose of retrieving his driver’s license resulted in a 29 hour stay; he arrived at 1:00 P.M. Thursday and the encounter concluded at 6:05 P.M. Friday. Meanwhile, appellant’s wife, who accompanied him to the police station to get his license, remained at the scene until 4:00 A.M. Friday.

At noon on Friday she called another attorney, Harry Trainor. A second call to Trainor at 3:00 P.M. resulted in his being retained to represent appellant. Counsel’s telephone request to the police seeking to speak with appellant was refused because the officer who received the call “wasn’t going to interrupt that particular interview.” Arriving at the police station at 4:20 P.M., Trainor requested to speak with appellant and, when this was denied, requested that appellant be given counsel’s card; this request was also refused. 4 Trainor unsuccessfully continued his attempts either to see appellant or to have appellant advised of his presence. The first time that appellant and counsel met was on Saturday afternoon at the Detention Center in Upper Marl ¹³⁸ boro.

The police concluded, and advised Trainor, that appellant was not his client because appellant did not call him. We have set forth the time frame of the various interrogations in order that we may consider appellant’s claim that he was denied his constitutional right to the assistance of counsel granted by the Sixth and Fourteenth Amendments to the Constitution. The first statement was suppressed for failure to advise appellant of his rights under Miranda. Statement number two was admitted by the trial court because it was preceded by Miranda warnings which the court concluded were effectively waived.

The second statement, moreover, was exculpatory. Appellant admitted in his second statement his sudden pecuniary gain ($4,000.00) and attributed the source of the funds to three vaguely described men, one of whom had allegedly purchased appellant’s shotgun several days before the robbery and murders. The third statement, also admitted into evidence at trial, was a confession by appellant that he and Lodowski planned and committed the robbery and two killings. This final statement was preceded by Miranda warnings and a signed waiver by appellant.

According to the record, counsel was retained, albeit without appellant’s knowledge, at the same time the third statement was being reduced to writing. Conceding that appellant was not made aware of a specific attorney’s presence at the station house, and that the police denied counsel’s request to confer with his client, the State maintains that any error in refusing to advise appellant of counsel’s presence was harmless. The State contends that the oral confession was obtained by Detective Gentile prior to counsel’s appearance and the written statement was thereby cumulative and merely a repetition of what Gentile testified to as appellant’s oral confession. We are not persuaded that the introduction of a signed confession is harmless error beyond a reasonable doubt, Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1978), even assuming that a prior oral statement may be admissible.

A signed confes ¹³⁹ sion, in our view, is unquestionably more compelling evidence of guilt than a police officer’s testimony that a defendant made incriminating admissions. In the latter situation the issue of credibility arises. A defendant may deny making inculpatory statements and the issue then becomes one of credibility for the trier of fact. A defendant who has signed a confession has a more difficult task of persuading the trier of fact of his non-involvement in the crime alleged.

We shall, therefore, address the issue of admissibility of the signed statement within the context of appellant’s right to counsel and waiver of that right. In Brewer v. Williams, 430 U.S. 387 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977); the Supreme Court stated: “Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him — whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” Accord, Massiah v. United States, 377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964), holding that once adversary proceedings have commenced against him, an individual