Hadder v. State

³⁴⁵ Prescott, C. J., delivered the opinion of the Court. After his conviction of murder in the first degree by a jury in the Circuit Court for Prince George’s County, the appellant, Hadder, has appealed. He contends that the trial court erred: (1) in not granting his motions for judgment of acquittal; (2) in not requiring the State’s Attorney to furnish everything he requested in a bill of particulars; (3) in permitting a deputy sheriff to sit at the counsel table during the hearings on two pre-trial motions; (4) in admitting into evidence statements and confessions made by the accused; and (5) in several of its advisory instructions to the jury. About 1:15 a.m. on May 2, 1963, the body of Officer Alfred Steinat of the Prince George’s County police was found over an embankment flanking Route 3-301 a short distance south of the Anne Arundel County line.

On the road 35 to 40 feet away, his police cruiser—motor running, headlights on, red light flashing—attracted the attention of two Anne Arundel County policemen and led to the discovery of the body. The cause of death was a perforating gunshot wound which entered the chest, and, ranging downward, emerged from the left side of the victim’s back near the beltline. According to an E.B.I. ballistics expert, the bullet was fired at a range of from 6 to 12 inches. A .45 slug dropped out of Officer Steinat’s clothing during post mortem examination of the body.

Promptly after the discovery of the body the police roped off the area and, shortly after daybreak, began a search of the crime scene. Captain Rogato, in charge of the search, testified to the results. Steinat’s .38 service revolver was found 18> feet from his body and 36 feet from the road. An automobile registration card was found 64 feet from the body and 17 feet from the edge of the road.

Six .38 empty cartridge casings were recovered about 77 feet from the body and a .45 automatic pistol was found some 8 feet therefrom. A wallet was picked up 72 feet from the .45 gun, and 64 feet from the wallet a shoe was found. The registration card was for the appellant’s 1960 black Ford Falcon automobile. The wallet and shoe were identified as his.

Ballistic testimony identified the .45 slug found inside the dead ³⁴⁶ policeman’s clothing as having been fired from the automatic pistol found at the crime scene, and a Virginia gun dealer identified the same pistol as the one he sold the appellant a few days earlier. The six .38 empty cartridge casings were identified as having been fired from Officer Steinat’s service revolver. Examination of the police car revealed the radio microphone off its hook and a bullet hole in the dashboard. A badly damaged .45 slug was found therein, and a corlc-tipped cigarette butt was discovered on the floor near the right front seat.

An empty .45 cartridge casing was found on the rear seat. The appellant, disheveled and wearing one shoe, appeared at the home of John M. Wist near Odenton in the early evening of May 2nd. He said he was sick and asked Wist to call the Rescue Squad. Three of the four members of the ambulance crew, the fourth being at the time of the trial a patient in the hospital, testified that the appellant, upon entering the ambulance, said that he was the one who shot the policeman.

The testimony was first taken out of the presence of the jury and later repeated to the jury. The witnesses were in agreement that the appellant had volunteered the statement without any inducement. The appellant made a second statement, while being transported in a State Police car to a rendezvous with Prince George’s County police, about the shooting of Officer Steinat. Trooper Reginald Gibson and other witnesses quoted the appellant as saying that the officer stopped him, and he intended to take the officer’s gun and auto keys to make good his escape.

The officer saw him take a gun from his belt, there was a struggle and the gun went off, and he knew the officer was shot. This testimony was also first taken out of the presence of the jury. All witnesses who heard the statement testified that it was made voluntarily. The appellant objected to the admission of the statements into evidence but declined to offer any testimony on the issue of voluntariness.

The objection was overruled and the same testimony was taken before the jury. There was testimony that the appellant made a third statement after his custody had been transferred from Trooper Gibson to Inspector Purdy, Captain Huber and Detective Flynn, all of the Prince George’s County police, and Special Agent ³⁴⁷ Sibert of the Federal Bureau of Investigation. En route to Police Headquarters at Seat Pleasant, according to Agent Sibert, the appellant started to volunteer a statement. Detective Flynn interrupted and said, “Now wait a minute.

You don’t have to say anything. You know that anything you say can be held against you.” Agent Sibert testified that the appellant described the shooting of Officer Steinat and said that before leaving his car on a nearby military reservation he had tried to commit suicide by cutting his wrists. When he surrendered he asked that the Rescue Squad be called because he was afraid to notify the police. He feared that he would be shot because he had killed a police officer.

Captain Huber testified that the appellant made a statement after Detective Flynn advised him that he need not say anything and that any statement he made could be used against him. According to Captain Huber, the appellant said the policeman stopped him and asked for his driver’s license and registration card. He had no driver’s license. The officer asked him if he had purchased a tire without paying for it, and the appellant admitted he had.

When the officer asked him if he wanted to straighten the matter out, the appellant replied in the affirmative, and they went to the police car which was parked in front of the appellant’s automobile. Captain Huber testified that the appellant said he was armed with a .45 automatic, which he had bought in Virginia, and had made up his mind that he was not going to be locked up. The appellant said he had guns and illicit whiskey in the trunk and did not want them found. According to Captain Huber, the appellant said his intention was to take the officer’s keys, pistol and car and escape, and when he pulled out his gun the officer grabbed for it, there was a struggle, and the gun went off.

He jumped out and ran. The officer fired several shots. Detective Flynn’s testimony agreed with Captain Huber’s. He quoted the appellant as saying further that he had the .45 pistol in the left side of his “pants” when he walked to Officer Steinat’s car, that he sat on the right front seat, lit a cigarette and took several puffs; and when Steinat reached for the radio, ³⁴⁸ he felt that was his opportunity and pulled the gun.

After the gun discharged, Steinat wrested it from him and he fled. On returning to the scene, continued Detective Flynn’s testimony, the appellant said he got into his own car and drove north several miles, turned around, and decided to try to find his gun, drove past the scene, made a U-turn, came back and parked behind the police car. He was unable to find the officer and so was unable to get his gun. He saw a briefcase in the police car, took it, and drove away.

All witnesses who heard the appellant’s statement made to Prince George’s County police en route to Seat Pleasant testified that it was voluntarily made. The appellant declined to offer any evidence on the admissibility of the statement and objected to it on the ground that the State had not met the burden of proof of voluntariness. He argued that any statement he made could not pass the legal test of voluntariness because of his physical and mental condition at the time. Witnesses had variously described the appellant’s condition as that he “looked sick,” “looked awfully pale,” “didn’t look too well,” “looked scared,” “thought he was drunk,” “appeared exhausted,” “wobbled or swayed.” Dr. John Kehoe, who saw the appellant about 10:00 p.m., shortly after his arrival at Seat Pleasant Police Headquarters, testified that he gave him a physical examination and that he appeared to be in good health and not fatigued.

The cuts on his wrist and arm were superficial. The appellant’s objection was overruled, the statement was ordered received in evidence and it was then testified to in the presence of the jury. A Maryland State Trooper testified that in the early morning of May 3, 1963, while on routine patrol, he discovered a black Ford Falcon automobile with Virginia license plates abandoned on a side road in a wooded area in the vicinity of Fort Meade. In the car were a briefcase and scattered police report forms.

The Falcon was identified as the appellant’s automobile. Two witnesses, the Richelson brothers, testified that they encountered the appellant about 11:00 p.m. not far from the scene of 'the shooting of Officer Steinat. They said that he flagged them down on Route SO near its intersection with Route 301 and solicited their help to get a flat tire fixed on his small black sedan. They went to a nearby Esso station on his behalf. ³⁴⁹ The State then produced the gas-station attendant who testified that shortly after 11:00 p.m., he. responded to the relayed call for assistance.

He identified the appellant and told how he supplied a new tire for the black Falcon with Virginia license tags. He testified that the appellant offered to pay the $20.00 charge with a $50.00 traveler’s check, which he could not change, and that it was agreed the appellant would follow him back to the gas station. The attendant said he observed that one of the Falcon’s headlights was out. At the interchange of Routes 50, 301 and 3, the appellant and the witness lost each other.

Believing that the maneuver was done deliberately to avoid payment for the tire, the attendant said he returned to the station and called Prince George’s County police. Officer Steinat arrived a few minutes before midnight and made out a report. An executed report form found on a clipboard in Officer Steinat’s car was entered in evidence with the stipulation that the incident was not to be deemed larceny because of a reference to tire larceny on the report. The police dispatcher last heard the voice of Officer Steinat at 12:11 a.m.

A Texaco station attendant at the intersection of Routes 3 and 450 testified that he could see the flashing light of a police cruiser about a quarter mile north at 12:30 a.m. It was still there thirty minutes later. " Another witness testified that about 1:00 a.m., from the same Texaco station, he observed the police car with lights on and door open. He said that he saw a black Falcon with one headlight pass the police cruiser going south, make a U-turn and pull up behind the police car.

A man whom he could not see clearly enough to describe got out of the Falcon, jumped in the police car, then returned to the Falcon and drove off north in the direction of Baltimore. He said that, upon approaching the police car, he saw the policeman’s hat on the back seat, a flashlight on the floor and the radio off its hook. He left to report the matter, and, when he returned, Anne Arundel County police were on the scene. I We have set forth the testimony at some length, because of the serious nature of the offense and appellant’s challenge of ³⁵⁰ the sufficiency of the evidence to sustain his conviction.

This claim will be disposed of without undue elaboration. It should be apparent that the above-related evidence (if admissible) was sufficient to take the case to the jury on either, or both, of two theories: a wilful, deliberate, and premeditated homicide (Code [1957] Article 27, Section 407) ; or a killing in the perpetration, or attempted perpetration, of a robbery. Code (1964 Supp.), Article 27, Section 410. Appellant’s determination, while armed with a high-caliber pistol, not to be locked up because of a possible discovery of the guns and illicit whiskey in his car, his actual use of the pistol, and the evidence of what occurred thereafter were sufficient to support a finding by the jury (if it did so find) that the homicide was wilful, deliberate, and premeditated.

Cf. Cummings v. State, 223 Md. 606 , and cases cited therein. And see case notes in 13 Md. R. Rev. 327 and 21 Md. R. Rev. 349. Also, his determination to take the officer’s keys, pistol and car so that he could escape, his actual use of the pistol, and the evidence concerning the subsequent events were ample to warrant a finding by the jury (if it did S0‘ find) that the officer was killed in the perpetration, or attempted perpetration, of a robbery.

Midgett v. State, 216 Md. 26 . II Appellant’s counsel filed a request for a bill of particulars. Maryland Rule 715. For several recent cases dealing with similar requests, see Stevens v. State, 232 Md. 33 , Pearlman v. State, 232 Md. 251 , and Seidman v. State, 230 Md. 305 .

Appellant’s request asked for a number of items, including one for the particulars as to “the * * * hypothesis of commission” of the crime charged. We assume that this was an expression of a desire to make the State give the defense its theory of the case. All of the particulars requested were furnished except this one, and the appellant, without citing a single authority which states that it is proper to require the prosecution to state its theory of a case under a request for particulars, claims prejudicial error. The contention misconceives the right, vel non, to, and the function and office of, a bill of particulars.

As a general rule, particulars are not granted as a matter of right, but the grant ³⁵¹ ing and denial thereof rest in the sound discretion of the trial court, Pearlman v. State, supra; however, the courts of Maryland rightfully have been quite liberal in granting such particulars on proper occasions, and especially when indictments have been drawn in the short forms permitted by statute. But bills of particulars are intended to guard against the taking of an accused by surprise by limiting the scope of the proof. Berger v. State, 179 Md. 410 ; Hunter v. State, 193 Md. 596 . They have never, to our knowledge, been utilized for the purpose of requiring the State to elect a theory upon which it intends to proceed.

As the Court succinctly stated in Rose v. United States, 149 F. 2d 755 (C.A. 9) : “The purpose of a bill of particulars is to secure facts, not legal theories.” In United States v. Fruehauf, 196 F. Supp. 198 (U.S.D.C., S.D.N.Y.), the Court named five theories upon which the prosecution might proceed, but denied a motion for a bill of particulars which asked that the Government be required “to state which of the theories it is relying upon and to state, if its claim is based upon any other contention or premise, what such contention or premise is.” See also 4 Wharton’s Criminal Law & Procedure (Anderson), § 1867; Anno.: 5 A.L.R. 2d, at p. 459; United States v. Dilliard, 101 F. 2d 829 (C.A. 2), cert. den. 306 U. S. 635 . We hold that, under the circumstances here involved, the appellant was not entitled to make the prosecution select and state its theory of the case. Ill This assignment of error arose as follows. On February 12, 1964, a hearing was held to determine whether appellant was indigent.

Appellant, charged with murder, was brought to the hearing, handcuffed to two officers, who sat at, or near, the counsel table in order to remain close to the accused. The court (Judge Powers) refused to require the officers to remove the handcuffs from the appellant. Similar circumstances prevailed at a hearing held on March 5, 1964, on a motion for