Pharr v. State

Powers, J., delivered the opinion of the Court. Larry Donnell Pharr was found guilty by a jury in the Circuit Court for Prince George’s County of charges of rape, committing an unnatural and perverted sexual practice, kidnapping, robbery with a dangerous and deadly weapon, and use of a handgun in the commission of a crime of violence. He appeals from the judgments entered against him on those verdicts, and raises two questions in this Court. They are: 1.

Did the trial court err in denying Appellant’s motion to suppress the extra-judicial confession? 2. Was the evidence sufficient to sustain Appellant’s conviction for use of a handgun in the commission of a crime of violence? The Corpus Delicti Although the facts of the crimes are not at issue in this appeal, we shall summarize briefly the events upon which the charges were based, as they were related in court by the ⁶¹⁷ victim, a young woman. Shortly after 9:00 P.M. on 9 September 1975, having purchased a pair of shoes in a store in the shopping center known as Landover Mall, in Prince George’s County, she proceeded to her car on the parking lot.

As she got to her car a man came up behind her and stuck a gun in her back. The man told her not to shout or scream, and to get in the car. She got in the driver’s seat and he entered the seat behind her. At his direction she drove to the end of a nearby dead end street, parked and got out.

The assailant led the woman into a wooded area, ordered her to lie on the ground, and not to look at him. If she looked at him, he said, or if she screamed, he would shoot her. He was holding what she described as a silver handgun, which he cocked and uncocked several times. She turned her head to the right as she was lying on her back, and he held the gun at the left side of her head.

He lay on top of her, pulled her panty hose and underpants down, and pulled his pants down. She was whining and whimpering, asking him not to shoot. The attacker had forcible sexual intercourse with the woman. Then he held his hand over her eyes, and put his penis in her mouth for a brief time.

He had sexual intercourse with her again. The man got up, she pulled up her clothes, and they walked back to her car. He took her keys and her pocketbook, and told her to get in the back. She crouched down between the seats.

The man took the shoes she had bought out of the paper shopping bag they were in, and put the bag over her head. He drove for some time, stopped and summoned a friend, who followed in another car. He parked her car, took her new shoes and her watch as well as her pocketbook, then told her to stay still for five minutes. He said that her keys were on a garbage pail behind the car.

She never got a good look at her attacker, and she was not able to identify him. The victim waited, and after a few minutes she got out of the car, found her keys, and drove until she reached a gas station. The attendant called the police. About 10 days later her wallet came back to her in the mail. ⁶¹⁸ One week later an almost identical occurrence took place, involving a different young woman accosted on the parking lot of the Landover Mall shopping center.

The police proceeded with investigation of both crimes. By 23 September 1975, two weeks later, the police had identified a fingerprint found on the shoe store shopping bag, mentioned above, as the fingerprint of Larry Donnell Pharr. Facts developed by the police in their investigation of these two attacks, as well as a third reported attempt, led the police to obtain warrants on 23 September 1975 for the arrest of Pharr on several charges. The Confessions At about 6:30 P.M. on 23 September several detectives of the Bureau of Criminal Investigation of the Prince George’s County Police, and a uniformed member of the force, went to the home of Larry Pharr in Prince George’s County with warrants for his arrest.

They placed him under arrest, took him into custody, and took him to the offices of the Bureau of Criminal Investigation. There Corporal Alvin Hall, Jr. conducted an interview or interrogation of Pharr, during which Pharr allegedly confessed to Cpl. Hall that he had committed the crimes involved in this case. Cpl.

Hall wrote down what Pharr said. Trial of this case was held in the Circuit Court on 8 June 1976, Judge William B. Bowie presiding. A motion to suppress the statement was heard by the trial judge, out of the presence of the jury, during the course of the trial. The motion was denied.

The statement was later admitted into evidence, over objection, when it was offered during Cpl. Hall’s testimony before the jury. Denial of the motion to suppress the statement is the principal issue in this appeal. To determine whether the ruling was correct, we look to the record of the suppression hearing, Haslup v. State, 30 Md. App. 230, 240 , 351 A. 2d 181 (1976).

Cpl. Hall testified that he rode with Pharr in a police cruiser, driven by another detective, to the office at For ⁶¹⁹ estville. As he entered the cruiser, he identified himself, and read to Pharr from a short form rights card. Pharr said, “You believe I did this, but I did not.” Hall told Pharr they would not talk about it in the cruiser, but would talk about it when they got to the Bureau.

When they arrived there he took Pharr to an interview room, and advised him of his rights by reading the long form waiver of rights to him. The form, a letter sized sheet, signed by Pharr, was placed in evidence. There is no contention that the so-called warnings failed in any way to conform fully with the requirements of Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966). The last sentence of the warnings reads: “You are further advised that you are not promised anything to make a statement and no threats or inducements have been made to compel you to make a statement.” The next paragraph of the form contains these lines: “Having been so advised, are you willing to make a statement?” “Reply of defendant; Yes_LP _ Below the reply is the rest of the form: “WAIVER OF RIGHTS I have read this statement of my rights and I understand what my rights are.

I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

Signed: Larry Pharr Witness: Cpl. A. Hall, Jr. Time: 704 PM” Hall testified that when he read the question, “are you willing to make a statement?” Pharr said yes, which he wrote on the sheet, and initialed next to it. At the end of the ⁶²⁰ waiver Pharr signed his name and wrote the time. Hall talked with Pharr about 15 or 20 minutes about general things, and then begain taking a statement in reference to a rape case which had occurred at Landover Mall.

That statement, with the time 1930 [7:30 P.M.] noted at the head, described the accosting and rape of a [Mrs. C.] on 16 September. It begins with a short narrative in Cpl. Hall’s handwriting, and continues with a series of questions and answers. Cpl.

Hall testified, “The questions are my questions. The answers are what he related to those questions.” Each of the four pages is signed, perpendicular to the lines of the handwriting, with the name Larry Pharr, in what the detective said was Pharr’s handwriting. Pharr’s signature is also at the bottom of the last page. The statement, relating to a different occurrence, was received in evidence at the suppression hearing in the present case.

When that statement was concluded, Cpl. Hall took statements from Pharr about two other cases, then, timed at 2100 [9:00 P.M.], a brief addendum to the first statement. Next, timed as beginning at 2105 [9:05 P.M.], he took a statement in reference to the rape of [Miss H.] on 9-9-75, the statement at issue in this case. It contains a short narrative, followed by questions and answers.

Each page was signed, across the handwriting, by Larry Pharr, and his signature is at the end. We set out here the complete statement: “About two weeks ago I was at Landover Mall outside the. Hecht Co. and saw a girl walking to her car. I walked up next to her and put my gun in her side and told her to be quiet.

I told her to get in and drive. I told her to drive to the dead end street across from Landover Mall. She got out of the car when I told her to. Then I walked her back into the woods.

Then I raped her. Then I made her get in the back seat and put the bag over her head. Then a friend of mine followed me down to Ritchie Rd. and I got out of ;her car and left the keys to her car on a trash can. Then my friend drove me home. ⁶²¹ Q. What time did you first see the girl?

A. About 9:30 P.M. Q. Was the Mall open? A. Yes, it was still open. Q. What kind of car did the girl have? A. A yellow Camero.

Q. What was the girl wearing? A. A Plaid dress, she had a pocketbook. Q. Did you take any money from her. A. About $18 in cash, plus her pocketbook which I mailed back to her.

Q. Where did you mail it to? A. I left it in a mail box on the D. C. side across from the Jumbo in Seat Pleasant. Q. What do you mean by you raped her? A. had intercourse with her.

Q. Was she scared? A. Who wouldn’t be scared with a man who had a gun in his hand. Q. Where did you rape her? A. By the woods at the dead end street.

Q. What were you wearing that day? A. I don’t remember. Q. What kind of gun did you have? A. A Silver blank gun.

Q. Where is it now? A. A friend of mine has it. Q. Who is the friend? A. He didn’t have anything to do with the rape, so I won’t tell you who he was.

Q. Where did you first meet him? A. At his house. Q. Where is that? A. I won’t tell.

Q. Where did you get the gun? ⁶²² A. From a white boy named Beall who use to live on Hill Rd. Q. When did you first put the bag on the girls head? A. After I raped her, because I didn’t want her to see what I looked like. Q. Did you tell the girl the gun was loaded?

A. Yes, but it really wasn’t. Q. What did you do with the money you got? A. Spent it. Q. Is this statement true and correct to the best of your knowledge and recollection.

A. Yeah. Q. Were you advised of your rights prior to making this statement? A. Yes. Q. Is there anything you wish to add to this statement?

A. I know she called it rape, but it wasn’t rape. Q. In the first part of your statement you called it Rape now you say it wasn’t,, why? A. Because I didn’t force her clothes off and she said she would do anything as long as I didn’t hurt her.” Pharr testified. He had turned 18 in August.

He said that when the police came, he was at the kitchen table, eating dinner. He said he heard the knock, and his brother answered the door. He heard his brother say, “Get the shotgun out of my face.” Larry Pharr went to the door. One of the officers was holding a shotgun, pointed down.

Pharr said he was under the influence of marijuana and vodka, but “I kind of woke up a little bit when he started shoving me around.” Pharr said that his mother had taken him to a clinic at a hospital that day, where he had a check-up. She had brought him back about 3:00 o’clock, and dropped him off at a friend’s house, where he saw several other friends. ⁶²³ He said he had the vodka 15 minutes after his mother brought him back, and that he had smoked marijuana at his friend’s house. He walked home from there. Appellant told of being in the interview room with Cpl.

Hall. Nobody else was there, except that a detective came to the door for a moment, and left. Pharr said Hall read to him from a paper, and that the signature “Larry Pharr” at the bottom was his, although he said that the initials “LP” above were not his handwriting. He said he knew that he was signing a piece of paper, and that it pertained to his rights, but that he did not read it.

Pharr testified that they were sitting at a desk, and Cpl. Hall had some papers and a pencil, and he was writing. The officer turned to him and said, “Now, let’s hurry up and get this over with so we can try and get you out of here.” Asked by his counsel, “Did you sign across those pieces of paper?”, Pharr said, “Not at that time.” He quoted Cpl. Hall: “The sooner you cooperate with us the sooner we can get you out of here and some people were in for armed robberies and murder get personal bond, and if you cooperate I’ll go down there and talk to the clerk and see if I can get you personal bond.” Pharr signed his name across the papers, on every sheet.

He did not read them. He testified that he had been advised of his rights and booked many times before, as a juvenile; he guessed more than 10 times. Appellant also called as a witness at the suppression hearing a member of the Sheriffs Department, a classification officer, formerly program officer at the County Detention Center. She had done remedial reading work with Pharr.

She had given him self-administered tests which indicated to her that his reading comprehension was at the level of the second grade, seventh month. The witness saw Pharr frequently over a period of months and had verbal communication with him. There was no time in which he did not seem to understand what she said to him. She never had any trouble communicating with him. ⁶²⁴ Appellant also put in evidence at the suppression hearing his Juvenile Court records in approximately 20 cases, for the purpose of showing that testing at the various places he had been detained showed a low level of comprehension.

Argument for the appellant at the suppression hearing was that the statement should be suppressed because there was not a knowing and voluntary relinquishment by Pharr of his constitutional rights — that Pharr did not make a knowing and intelligent waiver, because of his youth, his IQ of 82, his low level of comprehension generally, and because at the time he was under the influence of alcohol and marijuana. There was no contention, not even the slightest suggestion, that Pharr had been induced to confess by any promise held out to him. 1 It was the duty of the State to persuade the hearing judge by a preponderance of the evidence that Pharr knowingly and voluntarily made the statement attributed to him. Mulligan v. State, 18 Md. App. 588 , 308 A. 2d 418 (1973). Judge Bowie was so persuaded.

With respect to the temporary effect of alcohol and marijuana upon appellant’s capacity to understand what he was doing, Judge Bowie said to Pharr: “That’s your statement * * * that you were under the influence of alcohol and marijuana and I don’t believe it.” That contention was rejected on the basis of the judge’s assessment of its credibility, in the light of all of the circumstances, including Pharr’s detailed recital of events both before and after his arrest. On the question of Pharr’s ability to comprehend what was read and said to him, as well as the nature of his interrogation, both temporarily because of the alleged ⁶²⁵ intoxication, and generally because of his level of understanding, Judge Bowie commented: “I would observe for the record * * * we are looking at these people, we are hearing them and getting the sense of the whole picture. As far as I’m concerned he came over loud and clear. He came over very loud and clear.

I’m convinced that he thoroughly and completely and fully knew and understood everything that was asked of him in here. And his answers made sense to what were put to him by his own attorney and by [the prosecutor].” Regarding a suggestion that Pharr