Harris v. State

Per Curiam. Appellant was tried for the crime of murder before a jury in the Criminal Court of Baltimore, Judge J. Gilbert Prendergast, presiding. A verdict of not guilty of murder in the first degree was directed by the court and appellant was convicted of murder in the second degree on April 4, 1966 and sentenced to a term of not more than 15 years. The only contention on this appeal is that the court erred in admitting the written statement of the appellant in evidence.

The appellant, age 15 years, with some companions, joined a group who were retreating from a fight at a restaurant on Pennsylvania Avenue in Baltimore City. So reinforced, they all went back to reengage their enemies and a general melee broke out. Appellant drew a gun and killed a man named Preston Arnold, who was attempting to break up the fight, by shooting him in the back. Thereafter a number of shots were fired by unidentified persons and the appellant was shot in the back as he fled the scene.

Later, he and some of his companions assembled at his home and appellant, in the company of his mother, went to the accident room of Provident Hospital, where he was treated and released. On January 3, 1966, two days after the homicide, about 4:50 P.M., the police went to appellant’s home and requested him to accompany them to the Western Police Station to discuss how he got shot. The police were questioning other boys also and he was placed in the court ³²¹ room with them to await his turn. (Appellant alleged he was placed in a cell but this was denied by the police).

The police testified he was not at that time under arrest and was not placed under arrest until he made admissions to them during his interrogation. A statement was obtained from the appellant, in writing, on January 3, 1966 in the presence of his mother. The interrogation started at 8:20 P.M. and was completed at 10:40 P.M. The statement consisted of four typewritten pages, each initialed by the appellant and the last page was signed by the appellant and his mother and witnessed by a police sergeant, a police detective and a police officer. The only person present during the interrogation, in addition to those whose signatures appeared on the statement, was a police clerk who typed it.

Appellant does not contend on this appeal that the statement was a product of force or of a promise or an inducement. The thrust of his argument is that the police did not follow the guidelines set forth in Miranda v. Arizona, 384 U. S. 436 , decided June 13, 1966, and for this reason the trial court erred in admitting it in evidence. Appellant’s trial commenced March 31, 1966. In Johnson v. New Jersey, 384 U. S. 719 (June 20, 1966), the Supreme Court held that the constitutional principles, newly enunciated in Miranda , need not be retroactively applied to cases which were commenced before the Miranda decision was rendered.

In Westfall v. State, 243 Md. 413 (1966) the Court of Appeals stated it would not apply them to such cases because of the severe hardship which would be imposed on the administration of criminal justice in this State by a broader application. It has affirmed this position in a number of cases since Westfall. Elliott v. Warden, 243 Md. 627 (1966); Meadows v. Warden, 243 Md. 710 (1966); Mundell v. State, 244 Md. 91 (1966). This Court has also held that Miranda is not retroactively applied.

Crumb v. State, 1 Md. App. 98 (1967); Norris v. Warden, 1 Md. App. 69 (1967). Nor is appellant within the ambit of Escobedo v. Illinois, 378 U. S. 478 (1963) as he does not contend that he requested counsel and the request was denied him. Therefore the test as to whether the statement was properly admissible is whether it was freely and voluntarily made and whether it was so made depends on the facts and circumstances of the case. Bean v. State, 234 Md. 432 (1964).

The initial bur ³²² den rests on the State to show that the confession was voluntary; the matter of its admissibility, in the first instance, is for the trial court and