Glazier v. State

Menchine, J., delivered the opinion of the Court. Linda Sue Glazier (appellant) was convicted by a jury in the Circuit Court for Somerset County * 1 for the murders of her adoptive father and mother and for armed robbery. Sentenced to consecutive life terms for the murders and to a consecutive two year term for armed robbery, she raises the following issues on appeal: 1. Applicability of Miranda to initial investigative procedures. 2.

Voluntariness of confession. 3. Alleged evidentiary errors. ⁶⁵⁰ 4. Alleged absence of intelligent waiver of right to testify. 5. Sufficiency of the evidence (a) Murder (b) Robbery. 6.

Alleged instructional errors. 1. Applicability of Miranda Raymond W. Davis, for 10 years an employee of William Glazier, lived about 300 yards from the Glazier home on Ross Neck Road in Dorchester County, Maryland. At about 7 a.m. on September 23, 1974 Davis went to the Glazier garage. He noted that the Glaziers’ Mercedes automobile was not within it.

He heard the Glazier dog barking incessantly. Looking through a window, he saw disarray within the dwelling. When Davis opened the utility room door, he saw things scattered all over the floor, including a CB unit lying in the doorway. As he entered the kitchen he noticed that the drawers were pulled out and their contents scattered.

Proceeding through the living room and hall, Davis ultimately opened the master bedroom door. A dead body was in the bed, ultimately identified as Dorothy Glazier. Unable at first to identify the body, Davis had called the sheriffs office and the sister of Mrs. Glazier, being under the impression that the Glaziers had gone to visit the sister over the weekend. A deputy sheriff, answering Davis’s call, arrived at the home at 7:42 a.m. and found the dead body of William Glazier lying on the floor on the other side of the bed.

The Glaziers had been killed by shotgun fire. The deputy then called Sheriff Johnson who arrived at the home at 7:55 a.m. State Police were alerted and Trooper Wade Roche, a criminal investigator, arrived at the scene at 8:32. Linda Sue Glazier, (appellant) adopted daughter of the Glaziers, was believed to be in attendance at college.

Unsuccessful attempts were made to reach her there. The first police ⁶⁵¹ contact with Linda Sue Glazier was initiated by her and was thus described by the sheriff: “Did you receive any call or anything at that time? A Yes, sir. Q Will you tell us about it, please?

A At approximately 20 minutes after 10:00, this is in the a.m., the telephone rang and I answered the telephone. And a young lady’s voice at the other end asked to whom she was talking and I identified myself. I said, ‘This is Sheriff Johnson.’ She said, ‘This is Linda Sue Glazier, and I want to know what in the hell is going on down at my mother’s and father’s.’ I said, ‘Where are you? ’ She said, ‘I’m at Dickie Greenwell’s trailer at Airey’s.’ And she said, T demand to know what in the hell is going on at my mother’s and father’s.’ I said, ‘Linda Sue, if you will, stay where you are. I will send a deputy to explain to you as to what happened.

There has been an accident.’ ” A deputy sheriff was dispatched to the trailer and the appellant was taken to an office of the State Police in Cambridge, Maryland. Trooper Roche met her there at 11 a.m. It is conceded that Miranda warnings were not given to the appellant at that time. When the presentation of evidence at the trial had developed the circumstances heretofore outlined, proceedings before the jury were suspended.

Testimony by Trooper Roche; by Sergeant Martin Joseph Keating, in charge of criminal investigation Barrack “I” Easton, Maryland; and by Linda Sue Glazier, was taken out of the presence of the jury. The testimony dealt with incidents occurring during two separate time periods, namely: (a) ⁶⁵² between 11 a.m. and 12:15 p.m. and (b) after 1:17 p.m. on September 23,1974. The appellant contends that the initial interview with the appellant was in violation of the strictures of Miranda and “so tainted the subsequent proceedings as to invalidate her waiver of her privilege against self-incrimination.” Additionally, she contends “that under the totality of the circumstances, her confession was the involuntary product of unconstitutional pressures applied both before and after her purported waiver of her Miranda rights, and therefore should not have been admitted.” The State’s position is that Miranda was not applicable to the initial interview occurring between 11 a.m. and 12:15 p.m. The State maintains also that a confession by the appellant made after Miranda warnings had been given her was her free, voluntary and unconstrained act.

The threshold question as to when the point is reached in police investigations that Miranda warnings are mandated was the subject of discussion in depth in the case of Cummings v. State, 27 Md. App. 361 (1975). We pointed out that where the interrogation was non-custodial in nature, Miranda is inapplicable and compliance therewith is moot (at page 369). At the conclusion of the preliminary hearing out of the presence of the jury the trial judge ruled that: “As far as I’m concerned, there was no in custody investigation taking place until after the Miranda warnings were given. “Now, she may, I guess, argue maybe she was in police custody from the time she was put in the automobile. But according to her testimony, I don’t think she was. “The officers put her in the car, took her in town, and carried her to the police station. “And the police officer testified it was a general discussion trying to find something to help him with the investigation.

That’s about what it ⁶⁵³ amounted to, so I don’t think there was in custody investigation until later on in the day. “When he found out she was a suspect, which was shortly after lunch, 1 o’clock, then he gave her the necessary constitutional warnings and she said she understood them.” In our constitutionally mandated independent review of the record as a whole, we find that the initial interview between 11 a.m. and 12:15 p.m. did not constitute a custodial interrogation and thus is not within the purview of Miranda. We deem the undisputed fact that the appellant initiated that police interview to be of considerable importance in our review of the record. It is true that the interview was carried on in the office of the Maryland State Police. The choice of that site under the circumstances of this case, however, certainly was not inappropriate.

The shocking conditions extant at the home of the appellant ruled out its choice as a site for the police to respond to her inquiry. The trailer home of another person, from which she telephoned, was inappropriate also. Her interest, as it then appeared to police authorities, was to seek information concerning the tragedy and to assist in the apprehension of the perpetrators of the crime. The ensuing interview took place between the hours of 11 a.m. and 12:15 p.m.

Roche summarized the general nature of the discussions between himself and the appellant between 11 a.m. and 12:15 p.m. as follows: “The first time I spoke with her, Your Honor, was simply talking to her as a member of the family. “She was not under suspicion at that point. I talked to her as I would talk to any members of the family trying to gather information that would lead to a successful conclusion of the crime. “The questions were strictly investigative, such as, ‘Who would have a reason to want to harm your parents? ’ and things of that nature. “We interviewed Linda. Like I said, I was asking her questions as to who might have had the motive ⁶⁵⁴ to do harm to her parents, and talked to Linda just as I would any member of the family, just as we had Mr. Davis and other people that we had interviewed, neighbors, and asked them questions as to movements and things like that.” He added that, “We talked about many things, the fact that she went — attended the same school that I had gone to, and talked about how things were at Goldey Beacom [College], and things other than investigative questions were talked about. It was more of a conversation.” During the course of the interview a friend of the appellant “came in and asked if he could speak to Linda, and came in and told her, of course, he was sorry what happened and she was free to come and stay with him as soon as we were done talking to her.” Trooper Roche thus declared his position when he arrived at the State Police office: “Q You say when you arrived there that she was not in custody?

Are you saying that? A Right. I didn’t feel as though she were in custody. Q She was free to go?

A There was no way I could legally held her or I would not have tried to hold her there at that point. No sir, I would not have.” It is true that the appellant testified that, “I figured I was in custody of them.” She had previously said, however, that she “had a phone call telling me that the Glaziers were dead, that it had been heard over the radio and I called down there and the Sheriff said he would send somebody to get me and they would meet me when [they] got me to the police barracks.” She admitted that the subject whether she could leave during the initial interview wasn’t “ever brought up by anybody.” We are persuaded, as was the trial judge, that viewing the issüe of custody — as applied to the period between 11 a.m. and 12:15 p.m. — from the state of mind of a reasonable ⁶⁵⁵ person in the appellant’s circumstances, the appellant was not in custody. Miranda had no application to that period of time. Cummings, supra, at 381 .

Moreover, there is no evidence (a) that any information emanating from the appellant during the course of the initial interview played the slightest role in the discovery of the damning evidence uncovered by other officers in their investigation being contemporaneously conducted, or (b) that any information elicited in that initial interview had influenced or affected her subsequent confession. There was in short, no showing of prior taint or that the later confession was in any respect the result of the prior interview. 2. Voluntariness of Confession We find no merit in the secondary contention of appellant that the confession later made by the appellant was involuntary. At 12:15 p.m.

Trooper Roche had left the State Police office for the sheriffs office, to which other investigating officers had returned. There he learned — for the first time — “that [Deputy Roe] had found [at the Greenwell trailer] this shotgun, the shell casing, and the bloodstained napkins, what we took to be bloodstained napkins, and towel.” She was subjected to no interrogation of any kind between 12:15 p.m. and 1:17 p.m. when the Miranda warnings were given. After receiving that information from Roe, Trooper Roche returned to the State Police office at 1:17 p.m. and “advised [appellant] that she was now a suspect for the double homicide of her parents and at that time I give [sic] her the Miranda warnings.” The appellant conceded that no one had threatened, beaten or intimidated her. The sole basis for her contention that her confession was coerced arises from her testimony that, “[Detective Sergeant Keating] had said that if I gave a statement voluntarily, that it might be easier on me in court.” She added that, “I thought that if they found out any ⁶⁵⁶ information that could implicate me, it would be lesser charge.” Keating denied making such a statement.

Trooper Roche denied that any promises or inducements were made. The trial judge thus pinpointed the credibility issue on this conflicting testimony: “Now, you say sometime during that afternoon in the presence of Trooper Keating and Mr. Roche, you were told that it may go easier on you if you made a statement. Is that about the size of it? THE WITNESS: Yes, sir.

THE COURT: Which one of them told you that? THE WITNESS: Sergeant Keating. THE COURT: Sergeant Keating. What time did he tell you that?

THE WITNESS: It was around 4:00 or 4:30, something like that. THE COURT: Was Trooper Roche present when that was said? THE WITNESS: I think he was not, but I’m not sure. THE COURT: Did you hear him testify nothing like that was mentioned?

THE WITNESS: I heard him. THE COURT: Did you hear Sergeant Keating testify nothing like that was mentioned? THE WITNESS: That is right. THE COURT: Both lying?

THE WITNESS: Yes, sir.” The trial judge credited the testimony of Keating; he rejected the testimony of the appellant. We accept this ⁶⁵⁷ first-level fact as found by the trial judge. Walker v. State, 12 Md. App. 684, 695 (1971). We find as an ultimate constitutional fact after examination of the record as a whole that the confession of the appellant was voluntary and admissible in evidence. 3.

Alleged Evidentiary Errors (a) Admission of witness’s contemporary notes as exhibit It probably can be said that in earlier times the weight of authority broadly was to the effect that his own contemporary notes, when used by a witness to refresh his recollection, were inadmissible as documentary evidence, except at the instance of the adverse party. That there is a clear trend to the contrary is shown in 3 Wigmore, Evidence § 754 (Chadbourn rev. 1970) where it is pointed out that “* * * in both the last and present century, much criticism of this doctrine has been voiced, and to a significant extent (the precise limits of which are difficult to determine) the advocates of forthrightly admitting the record as documentary evidence have gained ground.” A classic example of this changing view is to be found in Fisher v. Swartz, 130 N.E.2d 575 (Mass. 1955), wherein a witness had read, without objection, a memorandum earlier prepared by him. The