Nixon v. State

Pe¡r Curiam. This is an appeal by Joseph F. Nixon, from judgments of the Criminal Court of Baltimore (Carter, Joseph E., J.) that he was guilty of assault with intent to murder, robbery with a deadly weapon and carrying a concealed weapon. Sentences totaling thirty-five years in the Maryland Penitentiary were imposed. He contends that his confession and certain hearsay testimony were erroneously admitted into evidence.

The victim, a gasoline station attendant, testified through a deposition that on November 22, 1965, two men entered his station for the purpose of robbing it; that one of the men, whom he identified as James W. Campbell, shot him in the spine with a revolver, thereby rendering him a paraplegic and preventing his personal appearance in Court; and that he was unable to describe or identify the other man. Nixon was arrested at 3:45 P.M. on November 24, 1965. Sergeant Hirsh of the Baltimore City Police Department testified that Nixon was questioned from approximately 4:00 P.M. to 5 :30 or 6:00 P.M. on the day of his arrest and again from approximately 10:00 to 10:30 P.M. that evening and he refused to give a statement. The next morning at approximately 10:30 A.M. he was again interrogated and thereupon signed a confession.

The Sergeant testified that Nixon was advised of his right to have a lawyer, bis right to remain silent and that whatever he said could be used against him. He further testified that Nixon was permitted to use the telephone during the first interview at which time he tried unsuccessfully to telephone his lawyer and his mother; that prior to the second interview he reached his mother by telephone but again was unsuccessful in reaching his lawyer; that his mother visited him shortly before the second interview; that at the second interview he was confronted by his common law wife, and, according to Sergeant ⁶¹³ Hirsh, who arranged the confrontation, she urged him to cooperate with the police “because he [Nixon] was not the man that pulled the trigger.” According to Nixon, he was not advised of his right to remain silent or his right to a lawyer; that he was interrogated many times; that except for a cup of coffee, he was not allowed food or sleep until he signed the confession; that Sergeant Hirsh asserted that he, Nixon, would receive an easier sentence if he made a statement; that his common law wife told him that “she would lose her baby if I didn’t make a statement;” that he was not allowed to contact an attorney; that Sergeant Hirsh threatened to hit him with a telephone book; and that he signed the confession because he did not want to see his common law wife lose her baby. In rebuttal, Sergeant Hirsh testified that Nixon was given a meal between the first and second interviews; that the only reference made by the common law wife to her baby was her question to Nixon “why have you got me involved in this thing, I have a young baby to look out for.” He stated that the purpose of confronting Nixon with his common law wife was to show him that the police, “were aware of certain things he had done concerning this offense.” He conceded that the confrontation might result in Nixon making a statement. The officer denied threatening that the baby would be taken away from the common law wife and he denied threatening Nixon in any manner.

He likewise denied telling Nixon “that if he made a statement it would go easier on him then or at the time of his trial.” Nixon, also, told him on the morning he signed the statement that he had not slept the night before, that he was not hungry, that he was worried and wanted to give “a statement relative to this offense.” The Appellant concedes that the newly recognized safeguards surrounding the reception of confessions into evidence which were prescribed in Miranda v. Arizona, 384 U. S. 436 , are not available to him since his trial was before their effective date. He argues, however, that Escobedo v. Illinois, 378 U. S. 478 , is applicable and that the failure of the police to permit him to contact counsel renders his confession involuntary. While it is true that Escobedo holds that a confession is inadmissible ⁶¹⁴ where the accused is prevented from conferring with counsel, the lower court was not required to believe the Appellant’s assertions in this or in other respects. The police officer testified that Nixon was given opportunities to call an attorney whenever he sought to do so.

Moreover, the evidence shows that prior to the second interview