Fowler v. State

Murphy, C.J., delivered the opinion of the Court. On November 6, 1966 at approximately 4:15 p.m., Linda Keller, a seventeen year old nurse’s aid (referred to in hospital ⁶⁵⁴ parlance as a “Pinkie”), was found nude, bloody, and beaten in the boiler room of the Church Home and Hospital in Baltimore. She had been stabbed numerous times and her clothes were missing. She died five days later without regaining consciousness.

Appellant, an employee of the hospital, was arrested at his home on March 25, 1967 on a charge; of negotiating a stolen certified check. He was interrogated by the police about this offense on March 25 and 26, and on March 27, for the first time, he was questioned about the Keller homicide. On March 30, 1967 appellant gave a statement to the police in which he admitted stabbing Miss Keller. Appellant was subsequently charged with the first degree murder and rape of Linda Keller.

The State’s case against him was founded primarily on his incriminatory statement. A motion to suppress the statement having been filed by the appellant on the ground that it was not freely and voluntarily given, the trial judge, out of the presence of the jury, took extensive testimony, at the conclusion of which he ruled that the statement, being voluntary, was admissible. The jury found appellant guilty of murder in the first degree and rape, and the court thereafter sentenced him to life imprisonment and twenty years on the respective charges. Appellant contends on this appeal that the trial judge erred in admitting the statement in evidence.

I We noted in Barnhart v. State, 5 Md. App. 222 , that in a criminal case tried before a jury, the question whether a challenged confession is admissible in evidence is solely for the determination of the trial judge; that he first hears evidence out of the presence of the jury to determine whether the confession was freely and voluntarily made; that if he finds from the evidence that prima facie proof exists to establish that the confession was voluntarily given, and therefore decides to admit it, the same evidence is thereafter to be presented to the jury, as it has the final determination, irrespective of the court’s preliminary decision, whether or not the confession is voluntary, and whether it should be believed. 1 But before the trial judge may ⁶⁵⁵ admit the challenged confession in evidence, the State must prove that it was voluntary and not the product of force, threats, promises, or inducements. Abbott v. State, 231 Md. 462 ; Robinson v. State, 3 Md. App. 666 ; Cooper v. State, 1 Md. App. 190 . Otherwise stated, 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.” Malloy v. Hogan, 378 U. S. 1, 7 . In post-Miranda 2 trials, where the State seeks to introduce a statement taken from an accused during a period of custodial interrogation by police, it must, as part of its proof of voluntariness, affirmatively show that all warnings required to be given to an accused by that case prior to such interrogation were so given, Robinson v. State, 1 Md. App. 522 , and that the accused, in giving the statement, understood his rights and knowingly and intelligently waived them, Johnny Mack Brown v. State, 3 Md. App. 313 .

Specifically, the State is required by Miranda to affirmatively show that the accused was advised prior to such interrogation (1) that he had a right to remain silent, (2) that anything he said may be used against him in court, (3) that he had the right to consult with a lawyer and to have the lawyer with him during interrogation, and (4) that if the accused was unable to afford a lawyer, one would be appointed to represent him. See Hale v. State, 5 Md. App. 326 . Once warnings have been given, Miranda states that “the subsequent procedure is clear,” namely: “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 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 ⁶⁵⁶ the right to cut off 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. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” (at pages 473-474) Prior to questioning, the person to be interrogated “may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently.” Miranda at page 444.

In other words, questioning may proceed if the person to be interrogated understands the import of his Miranda safeguards, and effectively waives them. Myers v. State, 3 Md. App. 534 (footnote 1). But where custodial interrogation is undertaken without the presence of an attorney, and a statement is taken, “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda at page 475. And equally plain from Miranda is the flat holding, at pages 475 and 479, that no evidence obtained as a result of a custodial interrogation can be used against an accused unless and until the prosecution demonstrates a waiver of constitutional rights within the meaning of Johnson v. Zerbst, 304 U. S. 458 , a case which holds that waiver of a fundamental constitutional right is ordinarily an “intentional relinquishment or abandonment of a known right or privilege,” the determination of which “must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Within this framework, the Miranda court, in the course of its opinion, articulated further guidelines governing waiver of an accused’s right against self-incrimination and to retained or appointed counsel at the interrogation, namely: (1) “An express statement that the individual is ⁶⁵⁷ willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver.

But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” (at page 475) (2) “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” (at page 475, quoting from Carnley v. Cochran, 369 U. S. 506 ) (3) “That the accused’s failure to ask for a lawyer does not constitute a waiver.” (at page 470) It has been held that an express statement by an accused undergoing custodial interrogation that he understood his Miranda rights, and nevertheless wanted to make a statement is not an essential link in the chain of proof of waiver, since waiver may be shown “by the attendant circumstances.” See United States v. Hayes, 385 F. 2d 375 (4th Cir.), cert. den. 390 U. S. 1006 ; Miller v. State, 251 Md. 362 ; Mullaney v. State, 5 Md. App. 248 . The ultimate determination of whether the accused knowingly and intelligently waived his Miranda rights before making a statement is governed, in the final analysis, by whether the particular facts and circumstances surrounding the case are such as to demonstrate an intelligent and intentional relinquishment or abandonment of a known right or privilege.

Brown v. State, supra. A On the preliminary question of the admissibility of appellant’s statement, the following evidence was introduced out of the presence of the jury: On March 25, 1967 appellant was arrested at his home by Detectives Vincent DiCarlo and Joseph Folio on a charge of negotiating a stolen certified check. 3 He was taken to the North ⁶⁵⁸ eastern Police Station and booked at 11:30 a.m. He was interrogated for the first time from 4:30 to 5:30 p.m. by Sergeant Charles Siford in the presence of Folio and DiCar lo, the interrogation not being in connection with the Keller homicide. Sergeant Siford testified that prior to interrogating appellant about this offense, “I advised him of his absolute right to remain silent.

Also, anything he said would be used against him in court. Advised him there would be no threats or no promises made to him. Also he have a right to have a lawyer, that if he couldn’t afford a lawyer, one would be appointed for him and that during any interrogation, if he expressed the desire to have a lawyer present, that all interrogation would cease until a lawyer was made available and if one wasn’t made available, there would be no more interrogation.” The record is silent as to what, if any, response appellant made after these warnings were given to him. In other words, Siford was not asked, and did not state, whether appellant said he understood the warnings, that he nevertheless wanted to talk to the police, and did not want an attorney present.

Siford testified further that appellant was interrogated again about offenses unrelated to the Keller homicide from 7:30 to 9:30 p.m. that same night, and was again advised of his Miranda rights in the same terms as above specified. The record does not indicate what, if any, response appellant made after the warnings were given to him by Sergeant Siford. Siford testified that on March 26, appellant talked to his wife, presumably by phone from 8:50 to 9:08 a.m.; that he talked to his brother from 9:40 to 9:52 a.m. on the 26th; that he was thereafter interrogated by Siford about unrelated offenses in the presence of Folio and DiCarlo from 1:45 p.m. to 3:45 p.m., during which period appellant was visited by another brother for approximately forty-five minutes, and was later visited by another brother from 7:30 to 7:45 p.m. According to Siford, appellant was once again warned of his Miranda rights in the detail hereinabove specified.

The record fails, however, to disclose appellant’s response, if any, to the warnings. ⁶⁵⁹ On March 27 appellant was again interrogated from 9:45 a.m. to 12:45 p.m. about unrelated offenses, and took a polygraph test during that period of time. At 2:55 p.m., he was for the first time taken to the Homicide Squad for questioning. At 6:55 p.m., he was placed in a lineup in connection with an unrelated offense. Siford stated that appellant was given the Miranda warnings prior to his interrogation on the 27th, but the record does not show appellant’s response, if any, thereto.

On March 28 appellant was visited by his mother and sister from 10:20 to 10:55 a.m., after which he was taken to the Bureau of Identification and thereafter to a preliminary hearing on a charge unrelated to the Keller homicide. The preliminary hearing was postponed. Thereafter, appellant was taken to the Homicide Squad for further questioning, stopping en route at appellant’s home to permit him to visit briefly with his wife. Appellant was interrogated briefly by Captain Anton Glover of the Homicide Squad.

At 10:35 p.m. he phoned his mother. Appellant was afforded his Miranda warnings at this interrogation but the record fails to- disclose what, if any, response he made thereto. On March 29 appellant called his mother between 12:40 and 12:44 p.m. and again at 1:00 p.m. Between 1:50 and 2:38 p.m. he was subjected to further interrogation by Siford on offenses unrelated to the Keller homicide, during which time he was advised of his Miranda rights.

The record does not show appellant’s response, if any, to these warnings. Appellant was given a preliminary hearing on an unrelated charge on March 29 and was held for action of the Grand Jury. He was then placed in the Baltimore City jail. Asked whether a waiver was ever taken from the appellant of his Miranda rights, Siford testified: “No written”; that it was not departmental practice at that time to take written waivers after an accused had been advised of his Miranda rights, but that it has since become the practice to take written waivers.

Captain Anton Glover of the Homicide Squad testified that he briefly interrogated appellant about the Keller homicide on March 27 and 28 in the presence of Siford, DiCarlo, and Folio; and that he (Glover) advised appellant of his Miranda rights in the following terms: ⁶⁶⁰ “Advised he had a right to remain silent, had a right to counsel, if he couldn’t afford counsel, counsel would be obtained for him. He had a right to know that what he said would be used against him in Court. He was also informed if he wished to talk to us, he had the right to have counsel present.” The record is silent as to what, if any, response appellant made to Glover’s recitation of his Miranda rights. Glover testified that his interrogation of appellant on both the 27th and 28th was brief because he had instructions from the State’s Attorney’s office that since appellant had been in police custody for such a length of time, was charged “with the rape of the young girl,” 4 was “locked up being charged with investigation of assault and shooting of an elderly woman,” and also was being held “for a series of armed robberies,” it would be advisable that he be placed in the Baltimore City jail “so we would not hinder the investigation of the District officers.” 5 Appellant was, however, brought from the jail to the Homicide Squad for interrogation on March 30 “on a writ” 6 signed by a judge of the Supreme Bench of Baltimore City.

Appellant arrived at the interrogation room at 3 :45 p.m., and interrogation was undertaken by Glover in the presence of Siford, Detective Richard Bosak, DiCarlo and Folio. Glover advised appellant of his Miranda rights as follows : “The right to counsel, if he couldn’t afford counsel, counsel would be secured. Advised he could remain silent, anything he told us could be used in Court against him. He was told if he decided to talk to us, he could have counsel present.” 7 ⁶⁶¹ Appellant’s response, if any, to the warnings and to the recitation of his rights is not reflected in the record.

In response to questioning between 3:45 and 4:20 p.m., appellant admitted knowing Miss Keller and to having worked at the hospital on the day the crime was committed. According to Glover’s testimony, Leonard Briscoe, an attorney and associate of Milton Allen, arrived at the interrogation room at 4 :20 p.m. “to talk to his client”; that after appellant indicated a desire to talk to Briscoe, and Briscoe asked to be alone with his client, “Everyone left the room with the exception of the defendant and counsel”; that at 4:35 p.m. Briscoe called the officers back into the room; that Briscoe then asked whether appellant had been advised of his rights; that he (Glover) then again advised appellant in Briscoe’s presence of his Miranda rights ; that he (Glover) asked Briscoe if he wished to remain but Briscoe declined to stay, stating that he had to talk to another client; that Briscoe left at 5:30' p.m., having stayed, in all, about forty-five minutes to an hour; 8 and that when Briscoe left he told appellant “Mr. Allen would be in to see him.” Glover testified further that after Briscoe left, appellant stated that he would like a few minutes to himself to meditate; that appellant then said a prayer to himself, ten or fifteen minutes after which he indicated he wanted to talk alone to Siford; that he (Glover) and the other officers left the interrogation room and about three minutes later, at about 6:05 p.m., Siford came out ⁶⁶² and said that appellant “wished to talk to us about the Keller case, Pinkie case”; that at 6:10 p.m. appellant was given a written mimeographed waiver form to read and execute, the form specifying in detail the four-fold Miranda warnings, and concluding as follows: “After reading the above [Miranda rights and warnings] and having my rights thoroughly explained to me, I, William B. Fowler, wish to talk to the police without an attorney present and this wish is of my own free volition, without any threats or promises.” Glover testified that appellant signed the waiver at 6:10 p.m. and then told the officers about the Keller crime; that his statement was subsequently reduced to writing beginning at 6:40 p.m., the statement being completed at 8:30 p.m.; and that prior to taking the written statement, appellant was again advised of his constitutional rights, as embodied in the statement, as follows : “Now William before you say anything I wish to advise you that you have the right to remain silent, you do not have to answer any questions without first being able to talk with your lawyer. If you cannot afford a lawyer we will make arrangement for you get a lawyer, also that anything that you say may be used against you in a court of law.

There will be no- threats or promises made to you in order to get you to make this statement it must be free and voluntary on your part do you understand what I have just said to you and are you still willing to talk with us about the assault of the ‘Pinky?’ “Yes Sir “Now Bobby you were visited a little earlier by a Mr. Leonard A. Briscoe, Attorney at Law associated with Mr. Milton Allen and he informed you that you will be represented by Mr. Allen still knowing this are you willing to talk with us about the assault of the ‘Pinky?’ “Yes Sir ⁶⁶³ “Now Bobby after being advised of your rights to remain silent, your right to an attorney and your right to the use of the telephone and knowing what you say may be used in court are you ready to give us a statement concerning the assault and homicide ? “Yes Sir” On cross examination, Glover was asked why a waiver was not taken from appellant when he was first brought into the interrogation room at 3:45 p.m. on March 30. Specifically, Glover was questioned as follows: “Q. Having been advised of his rights, why wasn’t a waiver taken at that particular time ? A. Why should we take a waiver? He didn’t indicate he wanted to give a statement.

Q. At this particular time, 3 :45, he indicated he didn’t want to give a statement? A. tie didn’t indicate that he did not wish to talk to us. Q. What did he indicate? A. He spoke to us until such time as Mr. Briscoe arrived.” Detective Richard Bosak testified that on March 30 he and DiCarlo picked up appellant at the Baltimore City jail “on a writ” and took him to the Homicide Squad for interrogation; that appellant continued to maintain his innocence of the Keller homicide and “refused to talk about it,” saying that he had nothing to do with it and was somewhere else when the crime was committed; that Briscoe arrived at 4:20 p.m. and while he (Bosak) didn’t hear Briscoe request to be alone with his client, he was nevertheless left alone with him “in the corner”; that he (Bosak) thought Glover remained in the room while Briscoe interviewed appellant because all the officers were “all huddled in one area” of the room, about fifteen feet from appellant and Briscoe, the room being approximately 20' X 12' in size.

According to Bosak, after Briscoe left, interrogation of appellant was resumed and he continued to deny involvement in the Keller crime until, at approximately 6:00 p.m., he said he wanted ⁶⁶⁴ to talk alone to Sergeant Siford. Bosak did not recall appellant .asking for a period of silence so that he could meditate and pray. Bosak further testified that he saw the appellant for the first time on March 28 when he was interrogated by Glover about the Keller murder. He stated that “we couldn’t get any information whatsoever out of Mr. Fowler.” He was then asked: “O. He didn’t want to talk to you?

A. No. Q. He told you? A. He said he didn’t know anything about it.” Sergeant Siford, recalled to testify, stated that he was alone with appellant for about three or four minutes at appellant’s request at about 6:00 p.m. on March 30; that appellant told him he had something to tell him and began to cry. Siford then asked him “What he wanted to tell me,” and after about thirty seconds of silence, appellant said “He killed the Pinkie.” Siford then asked where he killed her and appellant stated at the •Church Home and Hospital. At this point, Siford called Glover into the room, appellant repeated what he had told Siford, after which Glover called the other detectives into the room.

On behalf of appellant, Milton Allen, an attorney specializing in criminal law, with eighteen years experience at the Bar, testified that he was retained on March 28 to represent appellant by his relatives; that he knew appellant was a suspect in the “Pinkie case” and sent Leonard Briscoe, an attorney who did some work for him, to interview him; that at approximately 4:25 p.m. on March 30, Briscoe came into his (Allen’s) •office, interrupting a conference, to tell him that the police had the appellant at the Homicide Squad and would not permit him (Briscoe) to interview appellant privately; that he (Allen) •called Glover by phone at 4:25 p.m., and told him that he was not to question appellant in his absence, and Glover so agreed; 9 that later that night, he learned from Briscoe that appellant had not been returned to the City jail and called Glover at approximately 8:00 p.m.; that he could not reach Glover at that time ⁶⁶⁵ but Glover called him back at 8:30 p.m. and stated that appellant had made a statement. Leonard Briscoe, a lawyer admitted to practice in 1965, testified that after Allen asked him to interview appellant, he located him on March 30 at the Homicide Squad where he was undergoing interrogation; that this had been his first contact with the Homicide Squad; that he told Glover that “he was not Mr. Fowler’s lawyer,” that he came to interview him for Milton Allen. Briscoe testified that he asked for, hut was denied, permission to interview the appellant alone; that Glover stayed in the interrogation room throughout his entire interview with appellant; that most of the other officers remained near the door of the room but some went “in and out”; that the police officers were six to eight feet from him throughout the interview; and that he was “never alone with the defendant.” Briscoe stated that as a result of Glover’s refusal to permit him to confer privately with the appellant, he did not ask appellant about the case, since he did not wish to be overheard; that Glover told him, in response to his question, that appellant had been advised of his rights and appellant nodded in apparent agreement; that after securing some background information from appellant, he told him, “Remember you don’t have to make any statement,” and that he would attempt to see him in the morning at the jail. Briscoe testified that he was “puzzled” as to what to do because “I felt I did not represent the man,” that he was Milton Allen’s client; that at the time of his interview with appellant he did not know that he was a suspect in the Keller homicide; and that he remained at the Homicide Squad only about ten minutes, leaving at approximately 4 :25 p.m.

Appellant testified that he was married, had three children, and had been employed prior to his incarceration for eleven months as a male aide in the emergency room at the Church Fióme and Hospital. He was not asked and did not give his age or the extent of his education. He testified that on the day of his arrest, he was not advised of his constitutional rights; that during questioning on the 26th, he was advised of his rights; that his brother told him on the 26th that he was going to secure a lawyer for him and appellant ⁶⁶⁶ also told his wife to get him a lawyer; that on the 27th, he was interrogated by Glover with respect to the Keller homicide but was not advised of his rights; that he asked the police for an attorney three times that day but his requests were denied; that he was not thereafter advised of his rights, although he asked for a lawyer, in all, about twenty times. He testified that on the 29th his mother told him that she was getting a lawyer for.hkn; that on the 30th he was taken from the City jail for interrogation at the Homicide Squad;