Gardner v. State

Orth, J., delivered the opinion of the Court. Henry Kravetz, a taxicab driver, was shot and killed in an attempt to rob him. William Gardner was arrested and while in custody made an inculpatory verbal statement as to the homicide and attempted robbery. He was charged with the murder and attempted robbery with a deadly weapon of Kravetz and also with the robbery with a deadly weapon of another taxi driver, Edward Balcer.

He went to trial before a jury in the Criminal Court of Baltimore. His statement was offered by the State over challenge and upon evidence adduced out of the jury’s presence the court made the required preliminary determination that it was voluntary and ruled it to be ad ²³⁵ missible. Evidence as to its voluntariness was then adduced before the jury and the statement was received in evidence. See Barnhart v. State, 5 Md. App. 222 ; Cooper v. State, 1 Md. App. 190 .

The jury rendered verdicts of guilty of murder in the first degree without capital punishment, and guilty of the attempted robbery of Kravetz and the robbery of Balcer as charged. The court imposed a life sentence on the murder conviction and a sentence of 20 years on each of the other convictions, the sentence on the conviction of the robbery of Balcer to run consecutively and that on the conviction of the attempted robbery of Kravetz to run concurrently. See Darby v. State, 3 Md. App. 407 . We remand the case without entertaining a final order affirming, reversing or modifying the judgments with direction to the lower court to conduct further proceedings with respect to the propriety of the admission into evidence of the statement of appellant.

Maryland Rule 1071 a. The matter of the admissibility of the statement as presented and argued on appeal does not go to the basic standard of voluntariness 1 but rather to the holdings of Miranda v. Arizona, 384 U. S. 436 which are impressed on that standard. And as to Miranda appellant does not assert that the required warnings were not in fact given. The crux of the issue is what happened after the warnings were explained to appellant.

The State offered two witnesses on the preliminary issue of voluntariness. Detective George Christian of the Baltimore City Police Department, Criminal Investigation Division, Homicide Squad, had been a police officer for 10 years. He testified that “in company with Ser ²³⁶ geant Fred Buckmaster we interviewed' Mr. William Gardner in the. Headquarters Building, the .

Homicide Squad room.”. Before any questioning “* * * I-advised him of his rights and after each right I asked him if he understood and he shook his head ‘yes’ that:he understood.” The rights were read to appellant from a. police form and the evidence is plain that all the required- rights were given. Christian testified that when he explained to appellant that “if you agree to make a statement you may stop at any time and request the presence: of a lawyer and no further questions will be asked- of .you,” and asked if he understood, appellant stated “yes.” At this point, you know what I mean, he stated that .he didn’t wish to make a statement.” According to Christian, appellant “* * * sat there for awhile and looked startled to me — appeared to be startled. He just sat.there-and he shook his head like this and he commenced to .talking.” Christian indicated appellant shook his head “in the affirmative.” Appellant said he had shot the cab driver,, told the police the whereabouts of the gun (the police recovered it) and who had been present when the crimes were committed.

At this point in the proceedings the. Assistant State’s Attorney asked .the witness, “Now you said before that Mr. Gardner said he didn’t want to make-a statement. Can you explain that in the light of. the fact that he admitted the shooting of Henry Kravetz?” .The answer was, “Yes sir. I think — well, not think, but-1 asked him about a typewritten statement, did he want .to give a typewritten statement and he refused, of course.” The transcript reads: • , . “Q. All right, sir.

And was this after he. had admitted shooting Henry Kravetz ? A. No, sir. Q. All right. He said that he did not want .to give a typewritten statement then, is that ■ correct? ' A. Yes sir, a signed, typewritten statement. ■ .

Q. All right. And then — now, what in reconstructing the conversation between-you and. ²³⁷ Mr. Gardner, after he said he didn’t want to give a signed typewritten statement, what then occurred ? What was the next thing that occurred ? A. Well, of course, I didn’t say anything to him.

He sat there. He looked to be in a dazed state earlier and then he just shook his head like this and then he said, T shot him”, but he also stated it was an accident, [indicating]. I did not get to that in here, but it is in my report. The gun went off by accident.” Christian said that appellant’s mother was present, (“there was only two of us there outside of his mother”) that appellant did not ask for a lawyer at any time, that he did not say to Christian that he could not afford a lawyer and wanted one appointed, nor did his mother say that she wanted a lawyer for him before anything was said.

Christian did not remember the length of time which elapsed between the time the warnings were given and the time the oral admissions were completed but it was less than an hour. On cross-examination Christian thought that when he arrived at the interrogation room appellant, his mother (“he is under twenty-one years of age”) and Sergeant Buckmaster were already there. The mother “continuously advised him to say nothing.” Defense counsel asked if the mother was present when appellant “first told you that he didn’t want to give a statement which you later qualified to mean that he didn’t want to give a typewritten signed statement?” Christian thought she was sitting right beside appellant. In response to further questions by defense counsel Christian said that he said nothing else to appellant after appellant said “he didn’t want to give a statement.” “I didn’t say anything else to him.” Both he and Buckmaster sat there. “We were getting notes and stuff together for the folder.” He reiterated that there was no conversation between him and appellant after appellant said he did not want “to sign any statement.” The confession was not in response to any question that Christian directed at appellant.

Asked ²³⁸ why appellant was not taken back to his cell after he said he did not want to give a statement, Christian said that they just continued working on the file. “It is no hurry to get him back. If he doesn’t say anything, he doesn’t say anything. Nobody forces him to say anything. * * * There is no rule to state that I have to take him back downstairs after he refuses to give a statement.” The State went back over the ground on redirect examination. The transcript reads: “Q.

(by Assistant State’s Attorney) Now, when you finished each of the rights, after the last one, did you ask the Defendant whether he desired, as you said, to sign a typewritten statement ? A. (by Christian) No sir. After I advised him of his rights I told him that I would like to talk to him relative to the shooting of the cab driver and I explained to him certain things in this folder whereas to the cab driver was shot and killed at Madison and McCulloh Street and would he care to give me a typewritten statement relative to this.

Q. All right. After telling him about the case that you wanted to talk to him about and asking him whether he cared to give a typewritten statement on it, his response was what? A. No, he didn’t want to give a typewritten statement, he said. Q. All right.

And did he use those words ? A. Yes sir, he said, ‘No, I don’t want to give a typewritten statement.’ Q. All right. Now, when he said, ‘No, I don’t want to give a typewritten statement’, was there any remark made to him by you or by Sergeant Buckmaster, any further remark or any question asked of him ? A. No sir. ²³⁹ Q. All right.

Now, how long was it — you say then that you started getting your file together. How long was it, if you can recall, between the time when the Defendant said he did not want to give a typewritten statement and the time when you say he began to nod his head and then stated that he shot the cab driver ? A. I’d say maybe four or five minutes had elapsed. Q. In that period of time, neither you or Sergeant Buckmaster had asked him a question ?

A. No sir. Q. And in that period of time had either the Defendant or the mother requested that an attorney be present ? A. No sir. Q. Had either the Defendant or the mother requested that the Defendant then be taken out of that room ?

A. No sir. Q. And without any further questioning or prompting or conversation by you or the sergeant, he made his statement about shooting the driver, is that correct? A. Yes sir. Q. And during — during the time when he made the statement about admitting the shooting and saying it was accidental and naming the persons that were with him, did either you or Sergeant Buckmaster interrupt with questions ?

A. No sir, I just let him talk. Q. All right, And how long would you say he talked on in giving this information ? A. Well, the longer he talked the more at ease he got. He really got at ease.

Just very at ease. Q. All right. And without any interruptions or ²⁴⁰ questioning then he gave this complete statement then or the completed — whatever— his complete oral statement, is that correct? A. Yes sir.

Q. Now, what did he say when he finally finished talking? What did he say to indicate to you that he had finished talking ? A. He stopped. Q. All right.

And when he stopped, did you or Sergeant Buckmaster ask him any further 1 questions ? A. I don’t recall. Q. Do you recall, sir, when it was that the 1 mother told the Defendant not to say anything? A. She was telling him when — right when I was advising him of his rights.

Q. I see. While you were advising him of each of his rights and asking him if he understood them, the mother was telling him not. to say anything ? A. Yes sir. Q. Did the mother attempt to interrupt him while he was telling about the shooting of the driver?

A. She didn’t say anything. Q. She didn’t say anything during that period of time? A. No sir.” On recross-examination Christian said that he asked appellant “for a typewritten signed statement and he stated that he would not give a signed statement.” Appellant had also refused to sign an explanation of rights form, before he made the confession. Sergeant Buckmaster testified that when he arrived at the iriterrogátion room appellant and Christian were there — “whether anybody else was there at that particular time, I don’t recall.” He believed appellant said that, his mother was downstairs and Buckmaster went down ²⁴¹ and got her.

Buckmaster said he was “the one who advised” appellant of his constitutional rights but it soon became evident that he did not remember whether he or Christian read the warnings. He obviated this perplexity by thereafter stating either that “we” read them to him or that they were read to him. In any event, after the warnings were given appellant refused to sign the explanation of rights form, saying, “I am not signing anything.” Buckmaster explained to him that by signing the form no rights were thereby waived but appellant said, “I am still not signing anything.” But soon after he refused to sign the explanation of rights form the second time (“it was hardly any time at all”), he confessed. During this short time lapse “the only thing I can remember — well, we didn’t do too much talking actually when we asked him about it.

I mean, it wasn’t no repeated questions. He more or less came out with it, although his mother continuously — she just said to him, ‘You don’t have to say anything. Don’t say anything. You don’t have to tell them anything.’ Things like that.” Buckmaster was asked, “In spite of her saying these things during this period of time * * * in spite of her telling him not to say anything * * *