Rock v. State

Orth, J., delivered the opinion of the Court. This case is another example of one in which the conviction must be set aside because the prosecution did not meet its burden of establishing that procedures were followed by the police which assure that an individual is accorded his privilege under the Fifth Amendment to the Constitution of the United States not to be compelled to incriminate himself. The necessary procedures were spelled out with specificity in Miranda v. State of Arizona, 384 U. S. 436 , decided 13 June 1966, and are applicable to all cases the trial of which begin after that date. Johnson v. State of New Jersey, 384 U. S. 719, 721 . 1 We have discussed and interpreted Miranda and applied its holding in a number of cases decided heretofore.

The appellant here was arrested on a warrant issued on 3 May 1968 charging that on 29 February 1968 he did unlawfully violate Md. Code, Art. 43, § 130, “to wit: Did practice medicine without a license.” 2 The record does not disclose the date of his arrest but on 6 May 1968 cash bond was posted and the next day in the People’s Court for Prince George’s County the State prayed a jury trial. He was tried in the Circuit Court for Prince George’s County on 1 July 1968 at a court trial, found guilty and after a pre-sentence investigation, sentence was suspended generally and he was placed on probation under the ⁶²¹ supervision of the Department of Parole and Probation for one year. THE EVIDENCE Testimony adduced at the trial showed that in February 1968 Marilyn Williams, a student at the University of Maryland, contacted the appellant by telephone on behalf of her roommate, Lauren Reeside, who was pregnant. The appellant told her “he knew a doctor and he had pills that she could take to abort the baby * * * I was supposed to give him $50 for the name of a doctor who performed an abortion.” She met the appellant in person about the middle of February on the mall on the campus in “a little grove type thing.” She did not have the money, a date was set for a later meeting and she gave him the $50. 3 On 29 February she met him again at her dormitory and gave him $3 for three pills, “part of a set.” He told her he would give her the rest of the pills the next day, “and told me how she should take them * * * He said she was to take three a day, one in the morning, one in the afternoon and one in the evening, for four days.” The appellant did not know that the pills were for Miss Reeside, who was there at the time.

Miss Reeside saw the appellant take something out of his pocket, give it to Miss Williams who gave him something in exchange. Miss Williams gave the pills to Miss Reeside, who “took them * * * the first one that very same night.” The appellant told Miss Williams that the pills were hormone pills and “the next day he gave me the rest of the pills to the set and I gave him the rest of the money * * * (there were) twelve pills in a set. I got three one day and the rest of them the next day, and one set cost $20. Then two weeks later I went to his dormitory, placed $20 in his mailbox, and took another set of pills that he had placed there for me.” The appellant represented that “taken as directed they were supposed to induce abortion.” The State then called the arresting officer.

His entire examination as shown by the record was as follows: “BY MR. SAUERWEIN: (Assistant State’s Attorney) ⁶²² Q. Trooper Buckley, would you identify yourself to His Honor, please ? A. Trooper First-class W. G. Buckley, Maryland State Police, Investigation Division. Q. Trooper Buckley, was there a time when you were involved in an investigation of an alleged incident of pills being given to induce abortion ?

A. Yes, sir; there was. Q. And if so, what did you do in connection with that investigation ? A. I received a report from Miss Marilyn Williams, stating in brief what she just testified to in court. After conferring with the representative of the State’s Attorney’s office I transported her to a magistrate in Hyattsville and she obtained a warrant charging Mr. James Francis Rock, the defendant, with practicing medicine without a license.

I then served that warrant on Mr. Rock in his dormitory. Q. And what transpired at this time ? A. I placed him under arrest, advised him of his rights, telling him he had a right to remain silent, but anything he said could be used against him, and that he had a right to counsel supplied by the State if he couldn’t afford it himself. When I met him I recall he had to go back to his room for some article of clothing, I think.

When we got to his room he showed me a small bottle of vitamin pills, said that is all he had given the girl. MR. SALMON : (Defense Counsel) Objection. THE COURT: Ask your next question, sir.

BY MR. SAUERWEIN: Q. Was there a time then when he related to you what the pills were ? A. Yes, sir. Q. And what, if anything, did he say relevant to that ?

MR. SALMON: Objection. THE COURT: Overruled. ⁶²³ THE WITNESS: That the pills had been vitamin pills, a multiple vitamin type, one a day type, and he showed me a bottle of yellow pills. He said he had a witness who saw him scrape the identifying marks off the pills before he gave them to Miss Williams.

BY MR. SAUERWEIN: Q. Did he tell you the reason for giving them to Miss Williams ? A. We had conversation regarding the girl being pregnant. He made the remark that she was too far along anyway.

Q. What girl? A. He was under the impression Miss Williams was pregnant. He believed this, though she had told him, his statement, that it was for a friend. MR.

SAUERWEIN: I have nothing further. MR. SALMON: No questions.” The Executive Secretary of the Board of Medical Examiners for the State of Maryland testified that the appellant was not then nor had been registered as a licensed doctor to practice medicine within the State of Maryland. The appellant offered no evidence.

THE ADMISSIBILITY OP THE APPELLANTS STATEMENTS TO THE ARRESTING OFPICER The exclusionary rule enunciated in Miranda is: “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination.” at 444. “Custodial interrogation” means: “[Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” at 444. ⁶²⁴ The “procedural safeguards” to be used require the following measures: “Prior to any questioning, the person must be warned that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” at 444. See 384 U. S. 478 -479 for a summary of the holding after discussion in detail. The testimony of Buckley establishes that the appellant was taken into custody at the time the warrant was served. But it does not demonstrate that the procedural safeguards were fully used.

The appellant was not “clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.” 4 384 U. S. 471 . Duckett v. State, 3 Md. App. 563 . Although he was told “that he had a right to counsel supplied by the State if he couldn’t afford it himself”, he was not told that in such event an attorney would be appointed for him “prior to any questioning if he so desires.” at 479. Miranda recognizes that a defendant may waive effectuation of his rights, “provided the waiver is made voluntarily, knowingly and intelligently.” at 444.

For more detailed discussion of waiver in Miranda see pp. 470-471, 475-476. In no event could the appellant be deemed to have knowingly and intelligently waived his rights since he was not properly advised of them, but even had he been properly warned, the elements essential to constitute a waiver were not shown. See Hale v. State, 5 Md. App. 326, 330 ; Duckett v. State, supra, 574. cf. Brown v. State, 3 Md. App. 313, 322-323 . The warnings required and the waiver necessary are prerequisites to the admissibility of any statement made by a defendant. “No distinction can be drawn between statements ⁶²⁵ which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense. 5 The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination.

Similarity for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory’.” 384 U. S. 476 -477. We think it clear that what was said by the appellant to the officer constituted “statements” within the meaning of Miranda . As the appellant was in custody when he made the statements, as the content of the statements were such as were encompassed within Miranda , and as the required procedural safeguards were not shown to have been used, the question is whether the statements were nevertheless admissible as being otherwise without the ambit of Miranda. 6 Miranda does not purport to find all statements inadmissible. “Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.

The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” at 478. ⁶²⁶ We have recognized that even though a person is in custody, statements made by him absent the procedural safeguards may, in certain circumstances, be properly admissible as not stemming from “interrogation” or questioning initiated by the police. Ba zzell v. State, 6 Md. App. 194 ; Richardson v. State, 6 Md. App. 448; and cases cited in those opinions.

But, because of the sparsity of the record here relating thereto, we are unable to ascertain whether the challenged statements were “volunteered” or stemmed from interrogation or resulted from questioning. We note that the officer said, “We had conversation regarding the girl being pregnant.” We cannot conclude from the record that the statements admitted were not prohibited by the Miranda holding. Applying the voluntariness test on which has been impressed the holding of Miranda , we find that the statements were inadmissible, the evidence not being sufficient for the Court to be properly satisfied that they were the free and voluntary act of the accused. We think that the ruling of the trial court that they were admissible was not made within