In Re Fletcher

Finan, J., delivered the opinion of the Court. This is an appeal from an adjudication of delinquency entered against Dennis P. Fletcher (Fletcher), a sixteen year old negro youth, in the Circuit Court for Dorchester County, sitting as a Juvenile Court, on August 23, 1967, and a subsequent order of commitment placing Fletcher in the custody of the Department of Juvenile Services for an indefinite period. On July 25, 1967, between 1:30 A.M. and 2:00 A.M., Schroeder’s Store and the Pine Street School, in the City of Cambridge, were fire bombed and burned during a night marked by confusion and racial violence. An investigator for the Maryland Fire Marshal’s Office, Top E. Barnes, Jr. (Barnes), was assigned to investigate these fires.

On August 2, 1967, shortly after midnight, a written statement was obtained from one Pamela Waters, a fourteen year old eyewitness, who implicated Fletcher in the setting of the fires, and a warrant was immediately obtained for Fletcher’s arrest. At approximately 2:00 A.M., on August 2, 1967, two Cambridge police officers went to the home of Fletcher, a school dropout with an eighth grade education, where they found both him and his mother. One of the officers testified that they told the mother (the boy being fatherless) that they had a warrant for her son and proceeded to read it to her. The officers then placed Fletcher under arrest and took him to the office of the Sheriff for ⁵²³ Dorchester County.

The officers did not suggest, nor did Fletcher’s mother request, that she accompany her son to the sheriff’s office. The City of Cambridge at this time was still under limited martial law due to the recent civil disorder. At the sheriff’s office Fletcher was taken to an interrogation room where he was confronted with Barnes, Officer Randall F. Anderson of the Cambridge Police Department and William Yates, State’s Attorney for Dorchester County. Also present during part of this time was Corporal Randolph Jews of the Cambridge Police Department.

Corporal Jews was the only negro present other than Fletcher. According to the testimony of the State’s witnesses, after Fletcher entered the interrogation room the Miranda warnings were read to him from a slip of paper by Barnes. 1 Fletcher was then asked if he understood what had been read to him and he answered in the affirmative. Barnes then informed Fletcher that he had a right to call his parents and advise them of where ⁵²⁴ he was being held for questioning and Fletcher stated that he did not wish to make a phone call because he did not want his mother to know “what he was brought in for.” Fletcher had been advised of the charges against him and stated that he did not want to make any statement at that time, except he would admit that he was there. Fletcher did not want to say anything further and was advised by Barnes that it was his right to remain silent but that even if he did so, charges were going to be placed against him.

Sometime during this interval the inculpating statement of Pamela Waters was read by the State’s Attorney to Fletcher. Barnes then took Fletcher from the interrogation room to a cell but on the way to the cell Fletcher said, “Look man, I want to get it off my chest. I will give you a statement. Take me back to the room.” Barnes returned with him to the interrogation room where the Miranda warnings were again read to him.

He was also asked if he wanted to call his mother which he was permitted to do using the telephone in the interrogation room. After calling and speaking with his mother he was permitted to place a second call to a number which was out of order. It was at that time that he said he understood what he had been told and was ready to give a statement. Fletcher admitted in an unsigned statement that he was involved and participated in the fire bombing of Schroeder’s store and the burning of the Pine Street School.

This statement was given about twenty minutes after questioning commenced and about an hour after he had been taken into custody. After this statement the State’s Attorney and Barnes left the room, with Fletcher and Corporal Jews remaining. Corporal Jews reminded Fletcher that he had known him all of his life and had always treated him “like a man.” Fletcher repeated to Corporal Jews his statement that he had participated in the setting of the two fires. At several intervals during the interrogation Fletcher asked the police officers to bring in another juvenile named Douglas who was also allegedly involved in the setting of the fires and Fletcher urged Douglas to give a confession, but Douglas refused to do so.

A juvenile proceeding was held in the Circuit Court for Dorchester County to determine if Fletcher was a delinquent minor. Testimony was heard from Pamela Waters who said she witnessed the conduct of Fletcher ⁵²⁵ on the night in question and from Barnes, Officer Anderson and Corporal Jews who testified to the statements given by Fletcher and the circumstances surrounding them. Fletcher in his testimony denied that he had made any statements to the authorities and said that he did not remember the Miranda warnings having been read to him. At the commencement of the proceedings in Juvenile Court the appellant’s counsel moved for a change of venue, during the hearing he moved for sequestration of witnesses and at the conclusion of the hearing moved for a new trial, all of which were denied by the court on the grounds that such motions could not properly be entertained in juvenile proceedings.

Appellant’s counsel also raises on appeal the fact that the court informed the appellant and his counsel that he was not entitled to a jury trial in juvenile proceedings, however, assuming arguendo, that such a right existed, the record is barren of any motion for a jury trial having been made by Fletcher’s counsel. During the hearing appellant’s counsel made timely objections to the introduction in evidence of the testimony of the two oral statements made by the appellant during his in-custody interrogation on the premise that the statements were taken in violation of the privilege afforded the appellant against self-incrimination as guaranteed by the Fifth Amendment to the Constitution of the United States, as construed by the United States Supreme Court in Miranda v. Arizona, 385 U. S. 541 (1966) and as applied by that Court to juvenile proceedings in In Re Gault, 387 U. S. 1 (1967). At the close of all of the testimony the Court declared Fletcher to be a delinquent and committed him to the custody of the Department of Juvenile Services for an indefinite period. It is from that order that this appeal is taken.

The In-Custody Oral Admissions This case bears a striking similarity to Miller v. State, 251 Md. 362 , 247 A.2d 530 , recently decided, by this Court. In Miller , there was the more serious charge of murder and the sixteen year old defendant was tried as an adult, however, the circumstances surrounding the in-custody interrogation, and the interrogation itself, are remarkably parallel to the instant case. ⁵²⁶ The reliance of the youthful defendants in both cases on Miranda and Gault and this Court’s measuring of Miller in relation to Miranda and Gault , warrants a retelling of the facts of Miller , for what we did in Miller must be reflected in our opinion in this case. In Miller the sixteen year old suspect was taken from his ninth grade classroom in Meyersdale, Pennsylvania, at 2:00 P.M. by a Pennsylvania State Trooper and a probation officer, to the Meyersdale City Council room. There he was turned over to a Maryland State Trooper and the criminal investigator for Allegany County, Maryland.

The Miranda warnings were read to him and he was questioned for an hour and 35 minutes but denied any complicity in the crime. A physical examination was also made of his person to determine whether he had sustained any recent bruises, abrasions or scratches. He was then turned over to the Sheriff of Somerset County, Pennsylvania, and was given a snack to eat. The Maryland officers left to travel to the suspect’s home and enroute were contacted by the sheriff and notified to return to his office as the suspect stated he wanted to tell the truth.

The Maryland officers returned and again read the Miranda warnings to the suspect a second time. The second interrogation, during which the oral confession was made, lasted one hour and 55 minutes. The suspect refused to sign the statement until he had had an opportunity to speak with his parents. The suspect had made no prior request to contact his parents and the police officers had made no attempt either to contact the parents or notify them as to the whereabouts of their son.

At no time did the appellant ask for an attorney. He had stated that he understood what his constitutional rights were, when they had been read to him. During the latter part of the suspect’s interrogation his parents, after finding out from a source other than the police officers as to the whereabouts of their son, had come to the sheriff’s office and were waiting in another area. About 25 minutes after the suspect had given his inculpatory statement they were allowed to see him whereupon acting on their advice the suspect refused to sign his statement.

In the instant case, as in Miller , the Miranda warnings were read to the appellant and he stated that he understood them. In ⁵²⁷ the instant case, as in Miller , the appellant did not wish, at first, to make a statement but subsequently had a change of mind and informed those in charge of custody that he wished to make a statement, at which time the Miranda warnings were read a ■second time. In the instant case, as in Miller , there is no evi•dence of any prolonged or grueling questioning, physical abuse, threats of physical abuse or other form of intimidation, nor were any inducements offered. In contrast to Miller , in the instant case, the mother of the appellant knew when her son was taken into custody, by whom he had been taken into custody and where he was being taken.

In contrast to Miller , after the first reading of the Miranda warnings and before any statements had been made, the police officer asked the appellant whether he wished to contact his parents, and in further contrast, the appellant after deciding to make an inculpatory statement, requested that he be allowed to telephone his mother and made the call. Judge Marbury speaking for the Court in Miller said: “Appellant’s main argument urges that the State has failed to discharge its heavy burden imposed by Miranda to prove that the individual in custody ‘knowingly and intelligently waived his privilege against .self-incrimination and his right to retained or appointed counsel.’ As defined in Johnson v. Zerbst, 304 U. S. 458 (1938), waiver of a fundamental constitutional right is usually ‘an intentional relinquishment or abandonment of a known right or privilege. The determination of . . . [which] must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experi■ence, and conduct of the accused.’ 304 U. S. at 464 . However, a statement by the accused that he fully understands and waives his rights is not an essential link in the chain of proof.

Waiver may be shown by the attendant circumstances. United States v. Hayes, 385 F. 2d 375 (4th Cir. 1967), cert. denied, 390 U. S. 1006 (1968); Brown v. State, 3 Md. App. 313 , 239 A. 2d 761 . ⁵²⁸ “* * * At the beginning of this interview, the officers again informed Miller of his constitutional rights. When Mr. Baker asked: Tn view of these facts [warnings], do you wish to give a statement and answer my questions?’ The appellant responded ‘Yes sir.’ We are aware that the Supreme Court has emphasized that admissions of juveniles require special caution. E.g., In re Gault, 387 U. S. 1 (1967) ; Haley v. Ohio, supra.

However, the appellant agreeing to give a statement coupled with the attendant circumstances, that is, the proper constitutional warnings at the beginning of each questioning period, no allegations of any police misconduct, and appellant’s own request for the interview when he gave his inculpatory statement, persuade this Court that the appellant, after careful and deliberate consideration, waived his constitutional privileges, and made his statement voluntarily. “A further important objection to the admissibility of the statement appears to be the appellant’s age. This Court and the Court of Special Appeals have held that the age of an appellant, in itself, does not render a confession involuntary. E.g., Green v. State, 236 Md. 334 , 203 A. 2d 870 ; Bean v. State, 234 Md. 432 , 199 A. 2d 773 ; State v. Hance, 2 Md. App. 162, 233 A. 2d 326 ; Harris v. State, 1 Md. App. 318 , 229 A. 2d 604 . 5jí ;¡í * a The appellant in this case further contends that Gault extended Miranda warnings to pre-trial custodial interrogation in juvenile proceedings; assuming, arguendo, that it does, there was compliance with it in this case on two different occasions. See In Re Creek, 243 A. 2d 49 (1968) and Leach v. Texas, 428 S.W.2d 817 (1968).

We emphasize that the Miranda warnings were repeated twice in