Jones v. State

Couch, J., delivered the opinion of the Court. Willie Lee Jones, Jr., appellant, was found guilty of three counts of first degree murder, four counts of kidnapping, and four counts of use of a handgun in a crime of violence, following a jury trial in the Circuit Court for Prince George’s County (Levin, J. presiding). He was sentenced to three consecutive life sentences for the murder convictions, and other consecutive sentences totaling 180 years for the kidnapping and handgun convictions. He appeals from those judgments. ²⁹¹ Appellant submits five questions for our review as follows: “1.

Did admission of Appellant’s inculpatory statements violate the Sixth Amendment? A. Were the statements improperly admitted because they were taken without counsel present after counsel had been retained and there was no showing of a valid waiver of the right to counsel? B. Were the statements improperly admitted because they resulted from ineffective representation by counsel? 2. Did admission of Appellant’s inculpatory statement violate the Fifth Amendment because the State did not show by a preponderance of the evidence that the statement was voluntary? 3.

Were statements of one of the homicide victims properly admitted as dying declarations? 4. Did the trial judge improperly refuse an instruction of Appellant’s Sixth Amendment rights? 5. Did Appellant’s kidnapping convictions violate the prohibition against double jeopardy?” Inasmuch as the factual background for this appeal was so recently set forth by Judge Moylan, speaking for this Court, in Roland Neville Godwin v. State of Maryland, (No. 200, September Term, 1977, filed November 14, 1977), we will not again set forth the facts except to supply them, where necessary, as we address the various questions. I SIXTH AMENDMENT VIOLATIONS A. STATEMENT ADMITTED WITHOUT A SHOWING OF VALID WAIVER OF RIGHT OF COUNSEL Appellant argues that his Sixth Amendment right to have the assistance of counsel for his defense was violated in that there was no showing of a valid waiver to have his counsel ²⁹² present at his interrogation by the police although counsel had been retained.

It is axiomatic that appellant did have the right to the assistance of counsel under the Sixth Amendment, and that this right extended to the interrogation posture of the case. However, it is equally axiomatic that this right, like any other constitutional right, may be waived, Sabatini v. State, 14 Md. App. 431 , 287 A. 2d 511 (1972), providing such waiver is freely, voluntarily, and intelligently made. Further, it is clear that any such waiver must be affirmatively shown on the record and cannot be presumed from a silent record. Anderson v. State, 6 Md. App. 688 , 253 A. 2d 387 (1969).

Appellant’s argument is two-pronged; first, he contends deceit was practiced upon him by Prince George’s County police officers rendering his statement involuntary; second, he was continually questioned despite his requests to talk to his attorney (he did, in private) which evidenced his “consistent reliance” upon the advice of counsel, thereby refuting any suggestion that he had relinquished his Sixth Amendment rights. Turning first to appellant’s argument that waiver is not possible in a “deceit situation”, the record reveals that appellant first turned himself in to Washington, D. C. authorities upon the advice of counsel, that he was given his “rights” and signed a waiver form. His attorney was present in the interrogation room when he gave this statement and reviewed the statement when it was reduced to writing. The following day, appellant was transported to Prince George’s County where he was interviewed by Detective Tucker; his attorney was not present at that interview.

Tucker advised appellant of his rights and had him sign a waiver form. The record discloses that during the initial 2% hour interview, Corporal Hall questioned appellant for about 45 minutes. Hall stated that he took appellant’s shoes and left the room with them in order to make appellant believe that his shoe prints had been identified at the scene of the crime. When Hall returned to the room he told appellant his shoes appeared to match the prints at the scene, although Hall admitted this was untrue. ²⁹³ After approximately 2 Vi hours of interrogation, appellant asked to talk to his attorney and was allowed to contact his attorney on the telephone.

Appellant talked privately with his attorney for some fifteen minutes, following which the attorney talked to Detective Tucker at the attorney’s request. During their telephone conversation, Tucker told the attorney that the police did not believe appellant was telling the truth and that Tucker wanted to take an additional statement from appellant. Following the phone conversation, Tucker resumed the interview with appellant and asked him what his attorney had told him. Appellant replied that “he told me to tell the truth”.

Tucker then told appellant to tell the truth. Appellant proceeded to give an oral statement, which later was reduced to writing. It was also shown that appellant acknowledged in writing, before giving the typed statement following the oral statement to Tucker, that he had talked to his attorney, was given his constitutional rights, and that he wished to give Tucker an additional statement. It is clear that the deceit complained about involves only the handling of appellant’s shoes, and Hall’s subsequent statement.

We are not persuaded that appellant’s contention that the deceit rendered the statement involuntary can be sustained. In Hopkins v. State, 19 Md. App. 414, 424 , 311 A. 2d 483, 489 (1973), this Court stated: “(T]he 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.” In Hopkins, supra, a police officer informed an accused that an accomplice had made a confession in which he implicated the accused, which was in fact untrue. The Court went on to say: “While Escobedo and a host of other cases proscribe the use of force to obtain a confession, there is nothing in the Court’s opinion that bans the use of deceit as a valid weapon of the police arsenal.” ²⁹⁴ Id. at 311 A. 2d 489 . We note here that the claimed deceit in this case only resulted in appellant asking to contact his attorney and could not be viewed as a threat or coercion so as to make the statement involuntary.

Accordingly, we see no reason to retreat from our position taken in Hopkins . Appellant next attacks the voluntariness of his statements because his “consistent reliance” upon the advice of counsel refutes any suggestion that he had relinquished his Sixth Amendment right to counsel. He argues that the Supreme Court, in Brewer v. Williams, 430 U. S. 387 , 97 S. Ct. 1232 , 51 L.Ed.2d 424 (1977) stated, “Waiver requires not merely comprehension but relinquishment, and Williams’ consistent reliance on the advice of counsel in dealing with the authorities refutes any suggestion that he waived that right”. Appellant correctly cites Brewer for this limited proposition.

However, appellant’s reliance on Brewer under the facts of this case is misplaced, because the Court there also pointed ' out: “The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not.” Id. at 405-406 , 97 S. Ct. at 1243 , 51 L.Ed.2d at 441 . Reliance on State v. Fowler, 259 Md. 95 , 267 A. 2d 228 (1970) to support appellant’s contention on this issue is likewise misplaced. In Fowler , the defendant had been given his Miranda warnings several times, although the record was silent as to his response each time he received the warnings.

Fowler also interrupted his interrogation to call his brother to see if he had gotten an attorney for him; the police knew this and continued with the interrogation because “he didn’t stress that he wanted an attorney”. There were other factors present in Fowler that are not present in the case sub judice. It is clear from the record here that Fowler does not dictate that appellant in this case did not validly waive his Sixth Amendment rights. ²⁹⁵ Thus we conclude that if the record does affirmatively show a waiver of appellant’s right to have counsel in this case, then any attack on the admissibility of any statement given thereafter must fail. So far as this particular issue is concerned, we keep in mind we are only dealing with the statement given to Detective Tucker at the Prince George’s County Bureau of Criminal Investigation Office in Forestville which was taken without appellant’s counsel being present.

The record clearly shows that a written waiver was obtained from appellant before any interrogation was begun at that location. Further, the record discloses that after appellant and Tucker talked to appellant’s counsel, appellant agreed to tell the truth, gave an oral statement, and then allowed this to be reduced to writing in which he acknowledged he had talked to his attorney and was given his “constitutional rights”. We hold that under the circumstances of this case, as revealed by the record, appellant voluntarily and knowingly waived his right for counsel to be present, and thus there was no error by the trial court in refusing to suppress the statements on these grounds. B. WERE THE STATEMENTS IMPROPERLY ADMITTED BECAUSE THEY RESULTED FROM INEFFECTIVE 1 ASSISTANCE OF COUNSEL Appellant argues that since he had a constitutional right to the assistance of counsel, it necessarily follows that he was entitled to the effective assistance of counsel.

McMann v. Richardson, 897 U. S. 759 , 90 S. Ct. 1441 , 25 L.Ed.2d 763 (1970); State v. Renshaw, 276 Md. 259 , 347 A. 2d 219 (1975). He further argues that he was guaranteed effective assistance, among other things, in protecting himself against self-incrimination. Since his counsel advised him to tell the truth, and was not present when appellant gave his statement to Detective Tucker, appellant contends this amounted to ineffective assistance of counsel. Also, appellant maintains the police should have recognized it as such and not capitalized on such inadequate representation in securing the con ²⁹⁶ fession.

He thus argues that his confession should have been suppressed. It must be observed that the factual basis supporting appellant’s contention is limited to counsel allowing appellant to give a statement to the District of Columbia police authorities in his presence; in allowing appellant to give a statement to Prince George’s County Police authorities in his absence, but after a fifteen minute telephone conversation with appellant and counsel; and in telling appellant to tell the truth. There is no doubt that appellant was entitled to the effective assistance of counsel. McMann v. Richardson, supra; State v. Renshaw, supra.

However, we conclude this evidence forms little basis upon which to find that this advice and action demonstrated incompetence on the part of counsel. Appellant’s counsel at the time was not called as a witness, and the record, therefore, does not disclose the basis upon which he gave his advice, so we cannot say that such advice was incompetent per se. See People v. Wong, 35 Cal. App. 3d 812 , 111 Cal.

Rptr. 314 (1974), for a strikingly similar case in which the same conclusion was reached. There may have been many reasons why the attorney gave the advice he did, but none was apparent from the record, and we think it clear that the point cannot be decided on this appeal, but may be raised in a petition for post conviction relief. Evans v. State, 236 Md. 532 , 204 A. 2d 554 (1964). II DID ADMISSION OF APPELLANT’S INCULPATORY STATEMENT VIOLATE THE FIFTH AMENDMENT BECAUSE THE STATE DID NOT SHOW BY A PREPONDERANCE OF THE EVIDENCE THAT THE STATEMENT ' WAS VOLUNTARY Appellant contends that his statement given to Detective Tucker was involuntary because of: 1) the absence of a valid waiver of his Miranda rights, and ²⁹⁷ 2) the presence of coercive elements during the interrogation.

What we have previously said in our discussion of appellant’s contention is adopted here in answer to this contention. We find no merit with respect to the lack of proof of a valid waiver of counsel, nor to appellant’s argument that his statement was involuntary because it was coerced. Nor do we find, under the facts of this case, any necessity for the police to have given appellant his Miranda warnings again after Detective Hall’s false statement and appellant’s telephone conversation with his attorney. We do observe, however, that at this point appellant did execute a form of waiver 1 and we are satisfied that he did so fully aware of his rights.

We see nothing here that brings the case within Brown v. State, 6 Md. App. 564 , 252 A. 2d 272 (1969), although we agree with our predecessors in Brown when they said: “We quite agree with the cases which hold that the Miranda warnings need not be given anew nor the Miranda waiver expressed each time the officers question an accused.” Id. at 569 . We conclude that the record clearly shows this statement to have been given voluntarily, in the constitutional sense, and there was no error in denying appellant’s motion to suppress. Ill WERE STATEMENTS OF ONE OF THE HOMICIDE VICTIMS PROPERLY ADMITTED AS DYING DECLARATIONS The trial court admitted, over objection of defense counsel, two statements made by one of the victims, William (Tony)