Humphrey v. State

Morton, J., delivered the opinion of the Court. Following a jury trial held in the Circuit Court for Harford County (Close, J., presiding), appellant was convicted of two counts of first degree murder, two counts of robbery with a deadly weapon and a single count of unlawfully carrying a handgun upon or about his person. 1 He was sentenced to two ⁴⁸⁶ consecutive terms of life imprisonment for the murder convictions, two twenty year terms for the robbery convictions, to run concurrently with each other and consecutively to the life imprisonment sentences, and a consecutive three year term for the handgun conviction. In this appeal appellant raises the following issues: I. “The Court below erred in admitting, in violation of the Fourth Amendment, fruits of a warrantless house search based on an alleged consent.” II. “The appellant did not waive his right to counsel and his confession was improperly admitted in evidence.” III. “The Court below erred in admitting, in violation of the Fourth Amendment, material found in a warrantless search of a motor vehicle.” IV. “The convictions for robbery with a deadly weapon must be vacated because they merged with the first degree murder convictions.” The record reveals that the bodies of Louis Conti and George Whayland were found on the morning of August 20, 1976, in a cement culvert on Route 13 in Wicomico County. An autopsy report disclosed that the deaths were attributable to gunshot wounds.

The victims were employees of the Beer Market located in Salisbury, Maryland, and were working there on the night of August 19,1976. A witness for the State, Harry Dorsey, testified that he went to the Beer Market about 9:30 p.m. on August 19,1976, to purchase beer and saw his friends Conti and Whayland leaving the premises with an unidentified man who was carrying a brown paper bag. He went into the store to await the return of Conti and Whayland. When they had not returned in five or ten minutes, he called the police.

Victor Rayne, the owner of the store, testified that $687 was taken from the cash register that night and two sixpacks of Schlitz beer had been removed from the cooler as well. ⁴⁸⁷ Verlin Lovett testified that he and the appellant, who was a neighbor, had purchased beer at the Beer Market in the early evening of August 19,1976, after which they returned to Lovett’s home. At approximately 9 p.m. appellant left by himself in his pick-up truck, ostensibly to collect some money. He returned around 10 p.m. Shortly thereafter he suggested going to the Wagon Wheel night club to meet some women since he had a lot of money, which he counted out to more than $400.

At the Wagon Wheel, appellant, who was an employee of a trash collection business, paid for all of the drinks. Later that evening appellant became engaged in an altercation and fired his pistol in the air about four times. Lovett testified that this pistol resembled the one shown at the trial. Lovett’s testimony was essentially verified by his “common-law wife,” Marianna, and by John Phillips, who was visiting Lovett at the time.

Several witnesses testified that they saw an individual, whose appearance and dress matched appellant’s, lurking around the Beer Market about 9:10 p.m. on the night in question. As a result of the Wagon Wheel incident and the eyewitness descriptions of the man seen in the vicinity of the Beer Market, attention began to focus on appellant. Sergeant Dykes of the Salisbury Police Department testified that he contacted appellant at his home about 11:30 p.m. on August 21 and took him to police headquarters for questioning. After having been read his Miranda 2 rights, appellant asked to talk to his attorney.

The attorney was called but was not in and did not return the call. Sgt. Dykes testified that he asked appellant if he wished to have another attorney. Appellant declined, at which point the questioning ceased.

Sergeant Dykes and several other police officers then returned to appellant’s home where they were admitted by Ella Humphrey, appellant’s wife. Although she was informed that her husband was suspected of the murders, she agreed, according to Sgt. Dykes, to let the police search the house. The police had not obtained a search warrant.

The search ⁴⁸⁸ uncovered a .38 Special Charter Arms revolver, a Ruger .375 Magnum revolver and $150 hidden in a hat. Sgt. Samuel Chaffey corroborated Sgt. Dykes’ account as to the voluntary nature of Mrs. Humphrey’s consent.

Mrs. Humphrey stated at trial that she was aware that she did not have to consent to the search but did so because she did not think the officers would find anything. Although she stated that she got “uptight” in the presence of the police, she testified that no threats or promises were made to her. Moreover, Sgt. Dykes testified that he told Mrs. Humphrey that any evidence found would be used in the prosecution of her husband.

Detective Elton Harrington testified that he was with appellant at the police station when another police officer, Detective Leo Bateman, entered around 12:15 a.m. on August 22 and said: “He doesn’t have to tell you anything, Colbourne [Sgt. Dykes] just found the gun.” According to Detective Harrington, appellant then stated: “I’ll tell you what you want to know.” Detective Harrington added that no request for a statement had been made, nor had any threats, promises or coercion been employed. Thereafter, appellant gave a statement, which was recorded on a cassette tape, in which he admitted participating with several other men in the robbery of the Beer Market which resulted in the murders. Detective Bateman stated that he purposely revealed the results of the search in appellant’s presence in the hope that this fact would prompt appellant to talk.

Appellant also revealed in the confession that he had used a pick-up truck, owned by his employer, in the execution of the crimes. As a result, the police conducted a warrantless search of the truck which was parked in front of appellant’s house at the time of the search. A few strands of hair of the victim Whayland as well as his fingerprints were discovered in the truck according to the expert testimony of Robert Radnotti, a forensic chemist, and Urban Wright, a fingerprint expert. Radnotti also testified that tire impressions taken at the scene where the bodies were found were approximately the same size and tread design as the tires on the pick-up truck.

Finally, a firearm’s identification examiner stated that ⁴⁸⁹ the bullets extracted from the victims had been fired from one of the pistols found in appellant’s house. I. Appellant contends that Mrs. Humphrey’s consent to the search of their house was not voluntary, but rather was mere “acquiescence to a claim of lawful authority” by the police. “Preliminarily, with respect to the scope of our review ... in the presence of alleged infringements of constitutionally protected rights, we are required to examine the entire record and to make an independent, reflective constitutional judgment on the facts.” Whitman v. State, 25 Md. App. 428, 435 (1975). We note initially that “[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a [warrantless] search, he has the burden of proving [by a preponderance of the evidence] that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U. S. 543, 548 (1968). See also Johnson v. State, 30 Md. App. 280, 294 (1976).

The determination whether the consent was voluntary, in the constitutional context, is a factual question to be determined from the totality of all the circumstances. “[A]ccount must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Schneckloth v. Bustamonte, 412 U. S. 218, 229 (1973). Appellant asserts that because of the events of that night, Mrs. Humphrey was “in a state of shock and incapable of denying [the police] ... the right to search.” Appellant points out that “Mrs. Humphrey was 23 years old, with a tenth grade education, with four small children in the house, [that] she had never been arrested or in custody herself or in a situation like the one in which she found herself. She had no telephone to communicate with anyone,” and became “uptight” in the presence of the police. On the other hand, we observe that the police officers employed no chicanery or any form of coercion whatsoever in their dealings with Mrs. Humphrey.

In fact, Sgt. Dykes and his colleagues were remarkably candid and forthright about ⁴⁹⁰ what their intentions were and what they hoped to accomplish. They informed Mrs. Humphrey that her husband was suspected of murder and that they hoped to find evidence in the house which they could use in the prosecution of the case. The evidence does not support a finding that Mrs. Humphrey’s reason or judgment was, as appellant asserts, overcome by her “vulnerable subjective state.” Throughout her conversations with the police, she was in the secure atmosphere of her own home and was not under arrest nor in fear of being arrested.

While not controlling, we find it significant that she was totally cognizant of the fact that she could have refused permission to search had she wished. Mrs. Humphrey testified that she allowed the search to take place nonetheless because she did not believe that they would uncover any incriminating evidence. Thus, it appears that Mrs. Humphrey’s willingness to allow the warrantless search to take place was basically a tactical decision calculated “to turn suspicion away from [her husband]... by appearing to give the authorities innocent and wholehearted cooperation.” United States v. Curiale, 414 F. 2d 744, 747 (2d Cir. 1969), cert. denied, 396 U. S. 959 (1969). In view of the totality of the surrounding circumstances, therefore, we think it is clear that Mrs. Humphrey’s consent to the search was the product of an intelligent, knowing and voluntary decision.

II

Appellant next contends that he was denied the rights guaranteed to him under the fifth and sixth amendments to the United States Constitution when the trial judge admitted the confession which he tendered to Detectives Bateman and Harrington in the early morning hours of August 22. It is pellucid that appellant, upon his arrest and the subsequent recitation of his Miranda rights, chose to exercise his right to representation before making any statements. It is also clear that the police officers did not interrogate appellant after he invoked his right to remain silent. He claims, however, that he was unconstitutionally induced to confess ⁴⁹¹ as a result of Detective Bateman’s representation in his presence that Sgt.

Dykes had “just found the gun” in the course of a search of appellant’s house. With regard to appellant’s right to be free from compulsory self-incrimination under the fifth amendment, the cases are clear that “the mere fact that the accused was motivated to make an inculpatory statement in reliance upon the officer’s deceit does not render the accused’s statement inadmissible or involuntary.” Hopkins v. State, 19 Md. App. 414, 424 (1973). See also Frazier v. Cupp, 394 U. S. 731 (1969). We thus have no compunction in concluding that where, as here, no deceit was utilized by the police in their endeavor to elicit a statement from the accused, the confession was voluntary and not in derogation of his fifth amendment rights.

Appellant’s contention that he was denied his sixth amendment right to counsel is similarly misplaced. Essentially, he argues that as a result of his asserted desire to speak to his