Grear v. State

Markell, J., delivered the opinion of the Court. This is an appeal from a conviction of murder in the first degree and a sentence of death, after trial before two judges without a jury. About half past six on Sunday morning December 12, 1948 Patrolmen Arnold and Mike were shot on Little Pine Street, an alley, between Biddle Street and Greenwillow Street. On December 30, 1948 Arnold died of his wounds; Mike recovered.

Mike and Mary Alston, a woman whom appellant, Grear, had picked up on the street a little after two the same morning and with whom he had gone from place to place the rest of the night till the shooting, testified that they saw Grear shoot Arnold and Mike. At the argument appellant urged that this court review the sufficiency and weight of the evidence of premeditation, because under Rule 7(c) of the Criminal Rules of Practice and Procedure, adopted December 7, 1949, these questions can be reviewed in cases tried since January 1, 1950. Manifestly Rule 7(c) gives no authority, and we have no other authority, to review these questions in a case to which the rule is expressly inapplicable. Cf.

James v. State, 193 Md. 31, 46 , 65 A. 2d 888, 894 . ³³⁸ The only other question raised at the argument or in the briefs is the admissibility in evidence of a statement —a confession — signed by Grear, dated December 12, 1948, 11:30 P.M., the typewriting and signature of which were not in fact completed until about 1:30 A.M. on December 13th. Grear was born in Oklahoma in 1906 and has lived in Baltimore since 1927. He can read and write; he went to school to the sixth grade. He was arrested on Camden Street about 8:55 Sunday morning December 12th, and taken to the Western Police Station, but not before the magistrate there.

He arrived there about 9:10; the magistrate was there, available; he could have been taken before the magistrate. He was put in a cell for about fifteen minutes then taken to the Northwestern Station, where he was “docketed” or “booked” at 9:45, but not taken before the magistrate there. When he was brought in, Magistrate Fitzpatrick saw him, he passed right by the magistrate but was not arraigned before him that morning; he could have been, the magistrate was available. Lieutenant Burke of the Northwestern District says he was not arraigned because there was an investigation to be made; the express purpose of the Police Department in not taking him before the magistrate was to investigate the case and obtain from him, if possible, a statement.

Captain Feehley of the same district says the reason he did not arraign him was that he was not sure he was the man who shot Arnold and Mike; he did not have any corroboration, only Mike’s word; the real reason was, not the fact that he wanted to question him and get a statement from him, but that he did not think he had his case properly prepared to put before the magistrate. He questioned Grear at one o’clock Sunday afternoon because he had reasons to believe he had shot these officers and felt it his duty to get as much information from him to present to the court as possible “for the time of the trial”. About ten o’clock Grear was brought into Feehley’s office. Feehley had a line-up of eight men.

The Alston ³³⁹ woman viewed the line-up and picked out Grear. Grear was then taken to the Maryland General Hospital, where he was identified by Mike as the man who had done the shooting. He was. in the captain’s office about half an hour, was returned to his cell for a short time before he was taken to the hospital, was gone about twenty minutes, and was returned to his cell and remained there until about one o’clock. At one o’clock he he was taken to the captain’s office and questioned about half an hour, was returned to his cell and remained there till about 8:45 P.M., when he was again taken to the captain’s office, was confronted by the Alston woman and remained there about five minutes.

He was taken back to his cell, remained there until about 10:45 P.M., was again taken to the captain’s office and stayed there till about 1:30 A.M., during which time he was questioned by the captain, and the questions and answers were taken down on a typewriter by a station house matron (who was a slow typewriter) and the statement was signed by him. He was arraigned before the magistrate at the Northwestern station about four o’clock Monday afternoon December 13th 1948, was committed and went to jail that day. The testimony of some thirteen witnesses, captain, lieutenants, sergeants, patrolmen, turnkeys, chauffeur, patrol wagon man, and matron, purporting to be all the members of the police force who had any contact with Grear from the time of his arrest until 1:30 Monday morning, uncontradicted except by Grear, is that his statement was given voluntarily, and was not obtained by force, violence, threats, inducements or coercion of any kind. When he was arrested, he drew his revolver on one policeman and was knocked down in the street by another policeman.

Grear, testifying only as to the admissibility of the confession, tells a story which is flatly contrary to the other evidence and, if true, clearly shows that the confession was obtained by physical brutality and violence and threats of worse and is inadmissible. ³⁴⁰ Grear says he first got to the Northwestern Police Station about 9:45. “When I went to the Police Station that morning they placed me in a cell. I stayed for about five minutes. After that five-minutes stay they taken me out and carried me into a room which I later learned was the captain’s office. This room was used for third degree purposes.

When I first started in this room there was eight men on each side of the door in a line. After I got in and the man closed the door behind me, I was knocked from one side of the line directly to the other, all the way down till I got to the last man. I was also handcuffed in this position. I could not block any licks or defend myself whatsoever.

At that particular time they beat me for about fifteen minutes, when they used eight men. Four men gathered around the chair. I was setting in a chair something like one of those chairs there, and I was handcuffed. One man stood in front of the chair, one in back of the chair, and one on each side.

Well, they punched my head and shoulders like you would a punching-bag, I will say, for about fifteen minutes. After that they sit down, and had a rest and smoke, and four more men got up and took over, which carried on for about seven minutes, and they said, ‘This is a hard job, he can stand more beating than a Missouri mule.’ Said, ‘Take him back and throw him in the cell.’ That was the first time. “I stayed in there about five or ten minutes, maybe. I didn’t have a watch. And they taken me back, and employed the same brutality, with eight men.

Later on in the day these men had to return to their active duty, on beats, etc. That only left three men in the Police Station excluding this Captain Whitely, or whatever his name is, and he taken the place of the four-men. So they had to sit me in the chair in front of the desk, and slide the desk to one side. Well, he being a man of quite a good bit of age, he didn’t strike so many licks, but every now and then he would give me a straight jab in the mouth. So this lasted for about ³⁴¹ twelve minutes, and they taken me back and threw me in the cell, and I stayed in the cell, I guess, till about five minutes. “Well, this continued for the whole entire day.

The worst beatings I got of all was when the Police Department would be changing shifts. That is when they would line up sixteen men to a side in this room, and as I walked through they kept me going in this position, and the men was too close to me, I couldn’t fall, the man striking me on this side and the other fellow would re-bounce the blow back to the next man. That worked all the way down to the end of the line. After this went on all the way down to the end of the line, this lieutenant that was in charge — * * * the lieutenant on the day shifts, * * * 8 to 4, * * * Lieutenant Burke, suggested that they form a ring in the room. * * * They formed a large circle, put me in the circle, and after they put me in the circle, each man held out his hands arm-length, and they closed in within six inches of arm-length; that give each man a perfect striking power.

And they kept me reeling and rocking backwards and forwards in this ring for about fifteen minutes. Well, I become to be punch drunk and fell out. Well, I got up, and when I got up oh my feet this lieutenant suggested that to sit all the men down, put me back in the chair, and use eight men, two in front, two on each side, and two in the back. Well, this lieutenant himself stood to the left-hand side of me, * * * the same Lieutenant Burke.

And at that time — this man was I know well over 200 pounds — he struck me on the left side near the butt of the head, and he knocked me, chair and all, over at that time. One of those type of chairs is hard to knock over, because the legs sit caterbox, in this position. So the man must have hit me a terrible blow. When I fell I fell right underneath another policeman’s feet.

One policeman struck at my head, missed me and hit the other policeman in the mouth. So then they decided eight men was too many men to beat on one man at one time. So the lieutenant decided to make four of them sit down. ³⁴² Then four continued for several minutes. * * * That was in the morning, * * * I would say about 11 o’clock.” The same brutality continued during the afternoon, and during the night .the same way. He heard Captain Feehley and Lieutenant Ernest testify that he was there in the room with them from about 10:45 Sunday night until 1:30 Monday morning, December 13th.

During those hours things like that took place. Lieutenant Ernest “is the man that struck me in the back of the spine, and I have a knot there to show that will be on there till I go to my grave, a fracture of the spine. That is not a natural knot”. [No objective evidence was offered regarding this “knot” or “fracture”.] He was questioned “about thirty-six times” between one o’clock in the afternoon and 8:30 or 9 when he was brought before the Alston woman in the captain’s office. He did not sleep at any time from 9:45 Sunday morning, when he was brought into the station, until the statement was signed at 1:30 Monday morning. “They didn’t give me a chance to sleep, when they taken me back to this cell, I was in so much pain and agony — whoever was handling the food brought coffee and they also brought hot dogs — my throat and neck were swollen so I couldn’t eat the hot dogs, and I couldn’t' drink the coffee. * * * Lieutenant Burke said, ‘Make the black so-and-so confess or kill him.

If you fellows are afraid to do it, I am not.’ That is what he said. * * * Lieutenant Ernest * * * threatened me, and he said, T will make you confess, because I have handled a lot of your kind.’ He said, T know just what to do with you,’ he said, ‘knock your brains out.’ And that is when the man struck me with the stick across the head, and knocked me almost unconscious, and I got up as far as my knees; they had • to pick me up. * * * [It was] a regular officer’s pantoon. * * * Captain Freehley didn’t make any threats. He only hit me about twelve licks at different times. He was sitting down in the chair, and would just reach over and hit me in the mouth like that. * * * I was sitting in ³⁴³ the chair when he was carrying me through, because there was only three men, and he didn’t want to stand.” No police officer advised him that he did not have to answer any questions he was being asked or told him he was not obliged to talk to them at all in connection with this shooting affair; “they told me I must tell the truth how the case begin, how it started, and everything, and if I didn’t tell the truth or didn’t confess to the crime, they were going to beat me to death.” They did not tell him he was entitled to have the services of a lawyer to advise him in connection with the charges about to be brought against him. “They even objected of [sic] me calling my wife so I could get an attorney.” “On the night of the 13th” [sic] he asked Captain Feehley for permission to call his wife. “I said to him ‘Captain Feehley, would you grant me permission to call up the grocery store in the neighborhood where my wife lives, and she can come up and get me an attorney. In that way they would help me a whole lot.’ He said, ‘No, you can’t call anybody.’ * * * I signed a statement after thirty-six hours of brutality, after being in the Station House thirty-six hours and a half — * * * Q. * * * Did you sign the statement at 1:30?

A. Well, at that time I could not be definitely sure about the time of the night, because I had been knocked out twice, unconscious, and they left me lay in this room each time till I gained consciousness. That was after the second unconscious blow, and I am not sure what time it was when I signed the statement.” He did sign the statement, but at the time it was signed he had not first read it. At the time he was asked to sign, he was not advised that he did not have to make any statement or that he could have the services of counsel before signing. Before he signed the statement he asked to call a named lawyer, whom he knew, and they refused to grant him permission. “I signed the statement simply because I am only a human being, and I could not stand any more of the brutality.

I knew that I had been previously wounded in several accidents, and I have been shot direct ³⁴⁴ ly through the brains. I had been also knocked three times unconscious in the Police Station and left in this room to regain consciousness the best way I could, not even was offered a glass of cold water at that time, and I knew I could not stand the amount of brutality that I had stood already.” Hé was shot through the brain in 1914. “I signed the statement simply because I knew I couldn’t stand the brutality that I had went through, and they had threatened to keep it up until I confessed. * * * I did not sign it freely and voluntarily.” He was in fear at the time he signed it; he was forced to sign it. On cross-examination Grear said he did not remembel hearing the question asked, (which is answered in the affirmative in the signed statement), “I want you to realize what you say must be free and voluntary on your part, and whatever you do say may or may not be used against you in court at the time of your trial. I cannot promise you anything, and I