Sabatini v. State

Orth, J., delivered the opinion of the Court. GARY LEE SABATINI, also known as Gary Lee Marino, was found guilty by a jury in the Circuit Court for Prince George’s County of robbing William Bryant Dowling 1 with a deadly weapon. A sentence of 10 years was imposed. THE FACTS ADDUCED AT THE TRIAL Dowling, the manager of a liquor store in Beltsville, Prince George’s County, Maryland, was working in the store on 14 December 1970 with another employee, William J. Chilcoate.

About 9:15 p.m. a man, later identified as a Mr. Andrews, came in the store and “shopped around.” He had on a black raincoat or trench coat and an off-white or ivory colored hat turned up all around. He wore no tie and his collar was open. The legs of his pants were turned up “a couple cuffs.” He selected a bottle of Seagram’s Crown Royal. The bottle, enclosed in a blue velvet bag, was in a box.

Its price was $9.25. With the box under his arm, he examined other merchandise in the store until about 9:30 p.m. when he paid for the Seagram’s with a $10 bill. Given his change he pulled out a small, silver colored handgun, told the two employees to go to the back and ordered them to get the money out of the cash box. The cash box contained only change.

Saying he did not want that, the robber ordered Dowling “to get the money” and Dowling handed him about $700 in bills and checks from the safe. The robber made Dowling and Chilcoate lie on the floor and left. From 3 to 5 minutes elapsed from the time the robber pulled the gun ⁴³⁴ to his departure. Dowling phoned the police and two squad cars arrived “in a couple of minutes.” An officer suggested, “Well, one of you come with me and we will go for a ride and see if maybe we can see him if he’s on foot.” Chilcoate went.

As the car left the parking lot a message was received on the radio that a suspect had been pulled over and shortly thereafter another call that an officer had been shot in front of the Hess Station about a half mile from the store. The squad car went to the scene and Chilcoate saw the man who had committed the robbery lying on the side of the road. Nearby was a blue Chevrolet. Corporal Herbert E. Bolvin of the Prince George’s County Police received a radio report of the robbery about 9:41 p.m.

He directed two of his officers to go to the crime scene and he drove to a shopping center at Powder Mill Road and Route 1. He was there about 30 seconds when a blue Chevrolet containing two men passed by. Its rear license tag was covered by tissue paper. Bolvin activated his cruiser’s red light and siren, followed the Chevrolet and pulled it over.

Bolvin was reporting to his dispatcher when Sabatini, the driver of the car, got out, and walked toward the police car. Bolvin told Sabatini to stay by the rear of the Chevrolet. When the officer completed his report he got out of the police car. He saw the passenger in the Chevrolet, seated in the right front seat, lean forward, his arms moving “in a way that he was stuffing something under the front seat or taking something from the front seat, one of the two.” The passenger had on a black coat.

Bolvin told Sabatini “to tell his passenger to get out of the car with his hands in clear view * * Sabatini and the other man talked about 30-45 seconds but Bolvin could not hear what was said. The passenger got out of the car. Sabatini asked why he had been stopped and Bolvin told him because of the paper obliterating the rear license tag. Sabatini pulled off the paper and stuffed it in his pocket saying, “Oh, it must have fell out of the trunk.” Bolvin recounted what then happened: ⁴³⁵ “His passenger asked me * * * if he wanted me to have him go to the front of the vehicle and obtain the registration card.

I told him no. He had started to turn around towards the front of the car and I said, ‘No, stay where you are and keep your hands out of your pockets in clear view.’ Then he turned back towards me and he started walking back towards my cruiser, and he made a statement that it was a rather cold evening that night. I said it sure was. I said, ‘Just get your hands out of your pocket and back up towards the rear end of your car and stay there.’ * * * I had called for assistance several times, but my radio was rather bad.

When I turned my emergency equipment on, my radio cuts out on me sometimes, and I couldn’t hear what the dispatcher was saying, and I was trying to get through to my dispatcher to get a better lookout so I could made positive identification on the passenger in the car. About this time Sergeant Nicholls pulled back in behind me on the traffic stop that I had. As he got out of his car — his car was parked directly behind mine. When he got out of his car, he walked between the two cruisers and then up the right side of my cruiser.

At this time I got back into my cruiser and asked my dispatcher again for a definite lookout. When he came back and told me what the lookout was again, I told him I had a good suspect. As I said the word ‘suspect’ the man that was with Mr. Sabatini turned around, pulled a gun out of his pocket and shot Sergeant Nicholls. I exited my vehicle, leaned across the hood and fired back. * * * I fired three across the hood and then he started to fall.

I ran back between the cruisers and came back up the right, side. Sergeant Nicholls was just getting back up on his knees. I fired one more shot to make certain that the man was either down ⁴³⁶ or if he was going to fire back, I could have fire cover. As I ran towards the front of the car Mr. Sabatini was at the rear left of his vehicle.

I fired one more shot, at which time he took off towards the front of his car. I fired a second shot and then Mr. Sabatini was finally stopped at the front of the vehicle, at the front of his vehicle, crouched down behind the left front headlight.” Bolvin apprehended Sabatini, brought kirn to the front of the cruiser, spread-eagled him on the hood and handcuffed him. The officer said he then “advised [Sabatini] of his constitutional rights.” 2 Bolvin then took him to the rear of the cruiser and “placed him on top of the trunk, the upper extremity of his body on the top of the trunk, to make certain he did not have a weapon and not give him cause to use any weapon against the rest of us that were there on the scene. * * * I grabbed him by * * * his hair and placed his head down on the trunk with my left hand while I had my right hand at his belt and my knee in between his legs.” He denied hitting Sabatini but said Sabatini’s head could have hit the trunk because he was trying to jerk away, “trying to lift himself back up * * * trying to jerk back * * *.” But he observed no signs of injury to Sabatini and Sabatini made no complaints of any injury. Bolvin agreed that he was not “particularly gentle with Sabatini when he put him spread-eagle on the trunk.” Other officers had arrived to lend assistance.

Sabatini was placed in the back of the cruiser to await the paddy wagon. It arrived shortly and Sabatini was placed in the custody of the two paddy wagon officers, Schachner and Tucker. When the passenger, Andrews, identified as the actual perpetrator of the robbery, was shot he fell and remained motionless on the ground with his right arm under his ⁴³⁷ body. The police found a gun in his right hand.

The gun’s clip held 9 rounds and there were 7 live rounds in it. Dowling testified that the gun looked like the one the robber brandished during the holdup. A white hat and a box containing a bottle of whiskey were found in the Chevrolet. Dowling identified the hat as the one the robber wore and the bottle of whiskey as the type the robber purchased.

Paper money totaling $488 was found stuffed under the right front seat of the car. THE CONFESSION Detective Ranson Jader McLamb of the Prince George’s County Police saw Sabatini in the company of officers Schachner and Tucker about 10:10 p.m. on 14 December at the Hyattsville detective bureau. “He appeared to be subdued. Physical condition, didn’t appear to be anything physically wrong with him. * * * he was very quiet; he walked with his head down; don’t recall him saying anything.” McLamb and Detective Daniel R. Olds interviewed Sabatini. He was given the required Miranda warnings, expressly asserted that he understood his rights and said he was willing to make a statement.

At this point in McLamb’s testimony the jury left the courtroom and a hearing was held out of their presence on the admissibility of a statement given by Sabatini. McLamb testified under examination by defense counsel that Schachner and Tucker, who had brought Sabatini from the place of his apprehension to the police station, turned their prisoner over to him and Olds. McLamb and Olds took him to the interrogation room. McLamb did not recall ever leaving his presence.

Olds read the Miranda rights to him about 10:25 p.m., and although he expressed his willingness to make a statement a formal waiver was not signed until midnight after his statement had been reduced to writing. Asked: “It was not until 2400 or after the statement was completed that you gave him an opportunity to call a lawyer; is that your testimony?”, he replied, “To that point he didn’t want a lawyer.” Only McLamb, Olds and Sabatini were in the room during the ⁴³⁸ interrogation. Examined by the State, McLamb was asked if Sabatini was reluctant to give a statement. McLamb said: “He wanted to talk about it.

When he started talking about it, I advised him that I was going to take it in the form of a written statement and that he would be asked at the completion to read the statement, verify its correctness, and to sign the statement.” He did read it after McLamb typed it, agreed with it, initialed some typing errors, indicated it was true and correct and signed it and the waiver form. He was not threatened, offered any inducement or promised anything “for his statement.” When he was turned over by the paddy wagon officers he did not appear to have been injured in any way. The court made personal inquiry of McLamb. It verified that Olds had informed Sabatini of his rights at the police station.

The transcript reads: “THE COURT: And did he make any request for either water or a lawyer at that time? THE WITNESS: I know he didn’t request a lawyer, and as I said about water, I don’t recall whether he requested water. If he requested it, he got it. THE COURT: Well, he didn’t seem to be injured has been your testimony?

THE WITNESS: No, sir, he did not. THE COURT: And did he appear to understand what you were saying to him? THE WITNESS: He did, Your Honor. THE COURT: And his response was a voluntary response?

THE WITNESS: Yes, sir, it was. THE COURT: And was it to the effect that he understood and was willing to make a statement voluntarily? THE WITNESS: Yes, sir. THE COURT: Now, we understand there were no threats of any kind made whatsoever?

THE WITNESS: No, sir. ⁴³⁹ THE COURT: Prior to the announcement of your statements of his rights, did he volunteer any information whatsoever? Did he make any statement whatsoever? THE WITNESS: None that I recall. The only thing I believe it did occur before he was advised of his rights, he wanted to know how the police officer was.

THE COURT: Wanted to know how the police officer was? THE WITNESS: Yes, sir. THE COURT: It was only after you conducted your ceremony about the rights and so forth that you began to interrogate the defendant? THE WITNESS: Yes, sir, Your Honor.

THE COURT: And after you interrogated him, did you then reduce it to writing? THE WITNESS: No, sir, this was done as he was interrogated; as he was making the statement. THE COURT: In other words, it was being taken down as the interrogation progressed? THE WITNESS: Yes, sir.

THE COURT: Who took the statement down ? THE WITNESS: I typed it as he was — in the first part of the body of the statement, we asked him to tell us what happened. He gave us a narrative, a paragraph, or a large paragraph, approximately half a page. Then both myself and Detective First Class Olds asked questions in reference to that paragraph and in reference to the details of the incident as we knew them.

THE COURT: Did he ever indicate a reluctance not to give you a written statement or oral statement? THE WITNESS: No, sir. THE COURT: And at any time did he stop during the interrogation and request an attorney? ⁴⁴⁰ THE WITNESS: No, sir, he did not. THE COURT: Did he appear to be uncomfortable while he was giving this statement; that is, was he physically uncomfortable?

THE WITNESS: The only thing I observed he appeared to be very nervous, fidgety.” The testimony of Olds corroborated that of McLamb. Olds said he gave Sabatini water sometime during the questioning but he did not recall exactly when. Sabatini testified on the issue of the admissibility of the statement. He gave his version of the circumstances of his apprehension, that Bolvin had shot at him, that he had surrendered, been handcuffed and shoved to the back of the police cruiser.

He said: “As I got to the police cruiser he shoved me down on the police cruiser, which in turn the quarter panel caught me across the ribs, and if I gave any resistance, it was only because of the sharp edge that hit me in the ribs, and then he grabbed me by the head, side — this side of my hair and he pounded my head down on the car, and at the time they were pressing me and several other officers came up and there was several officers at the time going over me. * * * One of them was coming up my leg and grabbing me in my privates and squeezed me. Another one was slapping me in the ribs with a fist, not just a hand, and at the same time my head was being banged down on the car. The only restraint I gave was to try to get the sharpness of this quarter panel, which I am an auto body mechanic and I call it a quarter panel, off of my ribs. It was cutting my ribs. * * * Corporal Bolvin then turned me over to two other officers.” Apparently they were the paddy wagon officers.

Sabatini told what they did: ⁴⁴¹ “One officer grabbed me from the back. His name was — they called him Binky is the only name I knew him as, and started shoving me toward what I call the paddy wagon, and he kept pushing me toward and saying, ‘Run so I can shoot you. Run so I can shoot you.’ And I kept fighting back to keep from running, from falling. So he got me to behind the paddy wagon, and then he had me with one hand trying to push me over this edge so he could shoot me saying ‘run.’ At this time another officer come around and said, ‘Leave him alone, Binky.’ This is when I found out his name.

He says, ‘Let him alone.’ Then as they opened the paddy wagon and put me up in the paddy wagon, they kicked me up in the spine and kicked me up into the paddy wagon. Then they closed the doors and they took off and they were speeding, and when they took a turn they take a turn. I was in the back handcuffed behind my back and I was bouncing across inside the wagon. I had nothing to hold on to.

No way to steady myself.” He claimed that when he was turned over to McLamb and Olds another officer came along and upon being informed he was involved in the shooting of Nicholls “took an elbow and hit me like that and drove me into the door, through the doorway.” Then McLamb and Olds took him to a room and wanted him to make a statement. He told them he did not want to make a statement and wanted to call a lawyer. He asked “to call Mr. DePaul’s office. They ignored him.

Later he asked for a glass of water but he did not get it. He asked them to take the handcuffs off because he had pains in his ribs and they were cutting his breath off. At first they would not take off the cuffs, but later they did. They read him the waiver of rights forms and he told them he understood but he would rather not make a statement until he talked to a lawyer.

He asked for a glass of water and a cigarette. ⁴⁴² He was given the water but not the cigarette. They kept asking him to make a statement and finally gave him a cigarette. He made a statement and although reluctant to sign it, he did sign it. “At this time I was just tired and sore, and all I wanted to do was just lay down and go to sleep. I was nervous, my hands were shaking, * * * and all I wanted to do was just be left alone.” Only McLamb and Olds were in contact with him during the questioning.

On cross-examination it was made clear that while being transported to the police station the paddy vvagon officers had no contact with him as he was in the back of the wagon sealed off from them. His complaint was the fast stops and fast starts “throwing me from one side to the other, forward and backward.” He admitted neither McLamb nor Olds beat him nor did they threaten him. They did not offer any benefit to induce him to make a statement; they just “pressured” him. He said that he was concerned about the officer who had been shot.

On re-direct examination it was elicited that he had been taken to the hospital two or three days later after complaining about pains in his chest. X-rays were taken and medication prescribed, but he never received the medication. “I was refused it because there are certain regulations they have.” Upon inquiry by the court he said his reason for making the statement was he “wanted to just be able to lay down and just to get away from the pain of sitting down. * * * I just wanted to get things over with so I could go back in jail and lay down * * * I wasn’t physically forced, no, sir.” McLamb testified in rebuttal. He denied that Sabatini had requested to call a lawyer named DePaul or any lawyer, and stated that Sabatini had not complained of chest pains, or any physical pain and had not indicated a desire to go off somewhere and lie down. The officer reiterated that prior to any interrogation Sabatini was fully advised of his rights and said he understood them, that no threats or promises were made to him and that he was not reluctant to submit to interrogation or to sign the written statement. ⁴⁴³ The court denied the motion to suppress the statement finding that it had been voluntarily made.

Over objection it was received in evidence in the presence of the jury. Sabatini’s first attack on his conviction is that the trial court erred in admitting his statement in evidence. He presents two grounds; the State did not prove (1) the chain of custody of him, and (2) the waiver of his Miranda rights. (1) As to the chain of custody of him he relies on Mercer v. State, 237 Md. 479 .

There the Court held that the State had not met its burden of proving the voluntariness of Mercer’s admissions because it had not rebutted Mercer’s testimony that his confessions were the result of force used upon him by two of the interrogating officers; one “smacked him in the mouth”, and the other “beared the heel of his shoe” into his foot. These two officers were not called to testify and the officer who did testify was not present during the entire interrogation. At 483-484. Sabatini attempts to apply the Mercer holding to the two paddy wagon officers, urging that his testimony about their activities had to be rebutted by the State.

We do not agree. Assuming, arguendo, that their conduct was what Sabatini described, they played no part whatsoever in the interrogation of Sabatini, not even being present when he was questioned. Any force they may have used and threats they may have made were not directed to the obtaining of a confession, and if they posed a threat to the well being of Sabatini that threat departed with them. We do not think that the failure to rebut the allegations relating to the paddy wagon officers precluded the preliminary finding by the trial court that the confession was voluntary.

See Smith v. State, 4 Md. App. 146. (2) Sabatini argues that the fact that a written waiver by him of his rights, which he does not deny were told him ⁴⁴⁴ through the appropriate Miranda warnings, was not signed until after the statement had been obtained, considered together with his testimony “pertaining to his physical and mental condition, his constant demands for an attorney [and] his physical surroundings, rendered the so called waiver a mere perfunctory reading insufficient in law to assure the voluntariness of. the statement.” McLamb and Olds testified that he was informed of his rights prior to the start of any interrogation, stated he understood them, expressed willingness to make a statement and did so. We think that the record affirmatively showed that here